Venkiti Nayak And Ors. vs Murugappa Chetti on 20 October, 1896

Madras High Court
Venkiti Nayak And Ors. vs Murugappa Chetti on 20 October, 1896
Equivalent citations: (1897) ILR 20 Mad 48
Bench: A J Collins, Shephard, S Ayyar, Davies


Collins, Shephard, Subramania and Davies, JJ.

1. In the case which gave rise to this reference, it appears that the former suit was dismissed, because without leave of the Court, claims in respect of moveable and immoveable property had been united in one plaint in violation of the provisions of Section 44 of the Civil Procedure Code. The real question to be decided is whether the reason for the failure of that suit was of such a character as to entitle the plaintiff in the present suit to take advantage of Section 14 of the Limitation Act. It was argued on behalf of the plaintiff that any misjoinder of causes of action rendering the Court unable to entertain the suit, should be deemed to be ” a cause of a like nature” with defect of jurisdiction within the meaning of Section 14. The argument, indeed, was pushed to this length, that any plaintiff, whose plaint had been rejected under Section 53 or 54 of the Civil Procedure Code, might, provided that other conditions were fulfilled, claim to have the time expended on the abortive proceeding deducted in the computation of the period applicable to his new suit. If it had been intended to embrace such a large class of cases within the scope of Section 14, one would have expected correspondingly general words to he used. The phrase ” defect of jurisdiction or other cause of a like nature” seems quite inadequate to denote the miscellaneous cases of defect mentioned in Sections 53 and 54. For the purpose of the present case, however, it is unnecessary to deal with the argument of the plaintiff’s vakil.

2. The case was not one in which mere misjoinder of causes of action had proved fatal to the first, suit. It was rather the absence of the leave required by Section 44 of the Civil Procedure Code which rendered the Court unable to entertian it. Such a defect as absence of leave was held in a recent case decided in this Court to bring the case within the provisions of Section 14, and we think that case was rightly decided. Subbarau Nayudu v. Yagana Pantulu I.L.R. 19 Mad. 90.

3. Following that case, we hold that the question, whether such misjoinder as there was in the present instance was a cause for which time should be deducted under Section 14 of the Limitation Act, must be answered in the affirmative.

4. This appeal coming on this day for final hearing, the Court (Subramania Ayyar and Boddam, JJ.), dismissed the appeal.

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