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Attorney(S)
  • For the Appellant: C. Sriramulu, K. Madhava Reddy, Advocate.
Judges
  • Qamar Hasan
  • Kumarayya, JJ.
Acts
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Citation Codes
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citation codes
Case Number
Attorney(S)
  • For the Appellant: C. Sriramulu, K. Madhava Reddy, Advocate.
Judges
  • Qamar Hasan
  • Kumarayya, JJ.
Acts
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Smart Summary

Structured Summary of the Opinion (Syed Qamar Hasan, J.)

Factual and Procedural Background

The plaintiff originally instituted O.S. No. 102 of 1952-1953 seeking recovery of Rs. 579-9-8 (principal and interest) based on four bonds allegedly executed by the defendants on 13-1-1950, the promise to pay being within 19-3-1950. The defendants denied execution and raised multifariousness (misjoinder of causes of action) among other defences.

On 9-7-1953 the plaintiff's pleader, instead of calling evidence, argued that the bonds derived from a common debt of the defendants' father and that the defendants could be joined under O.1 R.1 CPC. The trial Judge did not accept that contention, permitted the plaintiff to continue only against one defendant (struck off the others) and directed the plaintiff to file fresh plaints within three days.

Fresh plaints were filed (the opinion records filing on 11-7-1953 in one place and 1-7-1953 in another place; the opinion contains this inconsistency). The defendants pleaded limitation and the trial Court dismissed the fresh suits as time-barred. The plaintiff appealed: the District Judge of Adilabad held that as to the appellants in C.M. As. Nos. 79 and 80 of 1955 the plaintiff was entitled to the benefit of Section 14 of the Limitation Act and thus those suits were within time, but concurred with the trial Court as regards the appellant in S.A. No. 167/1 of 1956. All three matters were then before this Court (the two C.M. As. filed by defendants and the S.A. by the plaintiff) and were consolidated for judgment because the common question arose.

Legal Issues Presented

  1. Whether the plaintiff, having had names of some defendants struck off by the trial Court for multifariousness and being directed to file fresh plaints, is entitled to the benefit of Section 14 of the Limitation Act (i.e., whether the interim events amount to a "withdrawal" within O.23 R.1 CPC so as to preclude the Section 14 exclusion of time).
  2. If Section 14 applies, whether the plaintiff's fresh suits were within the period of limitation after applying the exclusion in Section 14 (i.e., whether the three days the trial Court permitted for presenting fresh plaints can be excluded in computing limitation).

Arguments of the Parties

Defendants' Arguments

  • The defendants contended that because the plaintiff had, by reason of multifariousness, withdrawn the suit as to some defendants, the plaintiff was not entitled to the benefit of Section 14 of the Limitation Act; the withdrawal was a voluntary act by the plaintiff and therefore R.2 of O.23 CPC (and the consequences under Section 14) applied to prevent exclusion of time.
  • To support that submission the defendants relied principally on the Allahabad Full Bench decision reported as Sadayata Pande v. Ramachandra Gopal, AIR 1934 All 68 (FB), and on other decisions said to follow that authority (cases cited in the opinion include Madhosingh v. Jaitpal Singh, AIR 1954 Raj 46; Virunakshappa v. Veerabhadra Gowd, AIR 1943 Mad 80).

Plaintiff's Arguments

  • The plaintiff argued that he did not voluntarily withdraw the suit and there was no specific order of the Court permitting withdrawal under O.23 R.1 CPC, so O.23 R.1 and its R.2 did not operate to deny him the benefit of Section 14 of the Limitation Act.
  • To support this, the plaintiff relied on authorities holding that where, in view of the court's opinion that the suit is bad for misjoinder, the plaintiff elects to give up some defendants under compulsion of the court's view (and not voluntarily), such conduct does not amount to a withdrawal within O.23 R.1 CPC and a fresh suit is not barred (cases cited include Vadali Guruvabhotlu v. Reddi Jogayya, AIR 1935 Mad 696 and Kanhayalal Sapdubhai v. Hiralal Deoram, AIR 1947 Bom 255).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sadayata Pande v. Ramachandra Gopal, AIR 1934 All 68 (Full Bench) Authority for the proposition that a voluntary withdrawal (with permission under O.23 R.1 granted after the plaintiff's application) results in the plaintiff not being entitled to the benefit of Section 14; withdrawal by plaintiff is voluntary and exclusion under S.14 does not apply. The defendants relied on this Full Bench decision. The Court took note of it and the line of cases based on it, but examined whether the plaintiff's conduct in the present case matched the voluntary withdrawal scenario in that authority; ultimately the Court distinguished the present facts from Sadayata Pande and did not apply it to deprive the plaintiff of Section 14 automatically.
Vadali Guruvabhotlu v. Reddi Jogayya, AIR 1935 Mad 696 Cited for the proposition that where a plaintiff, in the light of the court's view that the suit is bad for misjoinder, elects to give up some defendants under compulsion, it is not a withdrawal within O.23 R.1 and a fresh suit is not barred. The plaintiff invoked this authority to support the contention that his act (continuing against one defendant at the court's direction) was not a voluntary withdrawal. The Court considered the line of reasoning but, having found the trial Court's order was an act of the Court under O.1 R.10(2) (not an O.23 R.1 withdrawal), concluded R.2 of O.23 did not operate; thus it was unnecessary to decide whether these authorities were wrongly decided.
Kanhayalal Sapdubhai v. Hiralal Deoram, AIR 1947 Bom 255 Same proposition as Vadali Guruvabhotlu — that an election under compulsion by the court to drop some defendants is not a 'withdrawal' under O.23 R.1 CPC. The Court noted this authority as supporting the plaintiff's position. It stated that because the order in the present case arose from the Court's action under O.1 R.10(2), R.2 of O.23 was not attracted and it was unnecessary to resolve whether these earlier cases were wrongly decided.
Mahanth Singh v. U Ba Yi, AIR 1939 Pat 110 (Privy Council) Contains observations (delivered by Lord Porter) indicating that where the names of parties are struck out without terms in the order, the effect is to bring the matter within O.23 R.1 and to preclude the plaintiff from instituting a fresh suit in respect of the same subject-matter. The Court treated this Privy Council decision as important and closely examined its observations. It concluded that the Privy Council's case was factually distinct (there no question of multifariousness; the original suit was properly constituted and names were struck out resulting in operation of Sub-r. (3) of O.23 R.1). The Court considered Mahanth Singh to have only a remote bearing on the instant controversy and distinguished it from the present facts.
Madhosingh v. Jaitpal Singh, AIR 1954 Raj 46 Cited as following the principle in the Allahabad Full Bench (Sadayata Pande) that voluntary withdrawal precludes reliance on Section 14. The Court noted that this case (and Virunakshappa v. Veerabhadra Gowd) were based on the Allahabad Full Bench. The Court analyzed the origin Full Bench authority rather than rely on these later decisions, and treated them as part of the line of authority the defendants sought to invoke.
Virunakshappa v. Veerabhadra Gowd, AIR 1943 Mad 80 Another case following the reasoning of the Allahabad Full Bench regarding voluntary withdrawal and Section 14. The Court mentioned this case as part of the chain of authorities derived from the Allahabad Full Bench decision and considered their relevance collectively while deciding whether the present order amounted to a voluntary withdrawal.
AIR 1935 Mad 698 (as referenced in the opinion) The opinion mentions this citation in the context of previously cited authorities; the precise rule or principle attributed in the text is not elaborated beyond grouping with other Madras/Bombay authorities. The Court stated that it was not necessary to consider whether the cases including this citation and AIR 1947 Bom 255 were wrongly decided, because it found on the facts that O.23 R.2 was not in operation in the present case.

Court's Reasoning and Analysis

The Court's analysis focused on three connected themes: (1) whether the plaintiff's conduct amounted to a voluntary withdrawal under O.23 R.1 CPC (bringing R.2 of that Order into operation and thus excluding Section 14 relief); (2) the legal effect of an order striking out defendants' names (distinguishing orders under O.1 R.10(2) from O.23 R.1 withdrawals); and (3) the computation of limitation if Section 14 were applicable.

On the first theme the Court reviewed the authorities relied upon by both sides, including the Allahabad Full Bench (Sadayata Pande) and the Privy Council decision in Mahanth Singh v. U Ba Yi. The Court observed that the Privy Council decision was factually different — there the original plaint was properly constituted and the plaintiff's course led to application of Sub-r. (3) of O.23 R.1, precluding fresh suits; hence Mahanth Singh had only a remote bearing on the instant controversy.

The Court then turned to the facts of the present case. It found that multifariousness had existed from the beginning and that the trial Judge, when confronted with the objection, did not grant an application by the plaintiff under O.23 R.1 to withdraw with liberty to institute fresh suits. Instead, the pleader for the plaintiff merely expressed willingness to continue only against the second defendant and the Court struck out the other names and directed the filing of fresh plaints. The Court characterized that part of the order as falling under O.1 R.10(2) CPC (i.e., striking out names under O.1 R.10(2)), not an order under O.23 R.1.

The Court emphasized the distinction repeated in authorities: the crucial question is whether the act was the voluntary act of the plaintiff (in which case S.14 exclusion would not apply) or an act of the Court (in which case the plaintiff should not be penalized). Because striking off the names resulted from the Court's action and not from a plaintiff's application under O.23 R.1, the Court held R.2 of O.23 did not come into operation and the plaintiff was not debarred from claiming the benefit of Section 14.

Having concluded Section 14 could apply, the Court then considered whether, after applying the exclusion under Section 14, the plaintiff's fresh suits were within time. The Court noted the promissory date in the bonds (payment at the most on 18-3-1950) and that an action instituted on 18-3-1953 was the last date for filing. The Court then addressed the period between 18-3-1953 and 9-7-1953 (the date when names were struck off) and contemplated that if that period were excluded under Section 14 only two days would remain to be accounted for.

However, the Court held that the three days the trial Court had given to the plaintiff for presenting fresh plaints could not be excluded for limitation computation because the trial Court had no jurisdiction to fix any time for filing fresh suits; therefore those three days could not be treated as excluded under Section 14. As a result, even allowing exclusion under Section 14 for the relevant period, the fresh suits were nonetheless time-barred.

Note: The opinion contains some inconsistent references to the dates of filing (the text refers to filing on both 11-7-1953 and 1-7-1953 in different passages). The Court's analysis, as recorded, nonetheless proceeds on the basis of the dates described above to compute limitation.

Holding and Implications

Holding: The Court concluded that the plaintiff was not entitled to prevail on his appeal. Specifically, the Court ordered that C.M. As. Nos. 79 and 80 of 1955 are allowed and the judgments and decrees of the trial Court are restored; Second Appeal No. 167/1 of 1956 is dismissed.

Implications:

  • Direct effect: The trial Court's dismissal of the fresh suits as barred by limitation is restored for the matters before C.M. As. Nos. 79 and 80 of 1955, and the plaintiff's second appeal (S.A. No. 167/1 of 1956) is dismissed. The plaintiff is ordered to pay costs to the successful defendants in each appeal.
  • On broader legal consequences: The Court distinguished the Privy Council decision in Mahanth Singh and the Allahabad Full Bench line of cases on the facts, and held it unnecessary to decide whether certain Madras/Bombay decisions were wrongly decided. The opinion does not state that it establishes a new binding precedent beyond its factual application; it focused on applying existing principles to the facts before it and resolving the immediate appeals.

Order: As above; costs to the successful defendants. (Order accordingly.)

Show full summary ...

    Sajjanam Wadla China Rajayya v. Chappal Venkateshwar Rao

    Syed Qamar Hasan, J.:— C.M As. Nos. 79/3 and 80/3 of 1955 ace respectively filed by the defendant against the judgment and order dated 28-10-1953 of the District Judge, Adilabad, reversing the decision of the Munsif of Chinnoor holding the suits to be beyond time and remanding the same for disposal on the merits. S.A No. 167/1 of 1956 is preferred by the plaintiff impugning the dismissal of the suit on the ground of limitation. As the question to be determined is common, this judgment will govern all the three appeals.

    2. The facts are that the plaintiff instituted, in the first instance, O.S No. 102 of 1952-1953 on 18-3-1952, against the appellants in C.M As. Nos. 79 and 80 of 1955 and the respondent in S.A No. 167/1 of 1956 and another defendant, who is out of picture now, for recovery of Rs. 579-9-8 being the principal and interest due on four bonds severally executed by the defendants on 13-1-1950 to pay their proportionate share of an erstwhile joint debt, the promise to pay being within 19-3-1950. The defendants in their common written statements denied the execution of the suit bonds and disowned the alleged liability to pay the sum claimed. They further raised the plea that the suit was bad for misjoinder of causes of action. Of the five issues adjusted the first issue was “whether the plaintiff has misjoined the causes of action”, and it was set down for evidence. On 9-7-1953, the pleader for the plaintiff, instead of producing evidence contended that the sum claimed was originally borrowed by the father of the defendants which joint liability was later converted into a several one and therefore a common question of law and fact arose which entitled the plaintiff to join the defendants in the same suit in view of the provisions of O. 1 R. 1 of the CPC.

    3. The trial Judge repelled the arguments on the ground that the case set up for the plaintiff was neither borne out by the allegations in the plain nor by the recitals in the suit bonds. The pleaded for the plaintiff then expressed his willingness ??? continue the suit as against the 2nd defendant. The trial Judge ordered the name of the remaining defendants to be struck off and directed the plaintiff to file fresh plaints within three days.

    4. This order and direction was complied with and the fresh plaints were filed on 11-7-1953 which were separately numbered with fresh court fees. The defendants, in reply, inter alia raised the plea of limitation. The trial Judge decreed the ??? against the defendant retained in O.S No. 102 ??? 1952 but since the fresh plaints were presented ??? 11-7-1953 and the terminus a quo had according ??? the terms of the suit bonds, expired on 19-3-1953 he dismissed them as being barred by time.

    5. The plaintiff appealed and the District Judge of Adilabad held that in so far as the appellants ??? C.M As. Nos. 79 and 80 of 1955 were concerned the plaintiff was entitled to the benefit of Section 14 ??? the Limitation Act and therefore the suits against them were within time. But as against the appellant in S.A No. 167/1 of 1956 he concurred with the view of the trial Court. All the three appeal filed in this Court were, in the first instance, heard by Manoher Pershad, J.

    6. It was argued before him on behalf of the defendants that inasmuch as the plaintiff has with drawn his suit against them by reason of multifariousness he was not entitled to the benefit ??? Section 14 of the limitation Act. To support that contention, reliance was placed on a Full Bench case of the Allahabad High Court reported as Sadayata Pande v. Ramachandra Gopal, AIR 1934 All 68 (FB).

    7. On behalf of the plaintiff it was ??? that inasmuch as the plaintiff did not withdraw suit voluntarily and there was no specific order the court allowing him to withdraw his suit provisions of O. 23, R. 1 of the CPC, were in attracted so as to deprive him of the benefit Section 14 of the limitation Act by reason of the pr visions of R. 2 of the same Order. In that ???, the cases of Vadali Guruvabhotlu v. Reddi Jogayya AIR 1935 Mad 696 and Kanhayalal Sapdubhai v. Hiralal Deoram, AIR 1947 Bom 255, for the ??? position that where a plaintiff having regard to the view of the court that the suit is bad for misjoinder of parties and causes of action, elects ??? give up some of the defendants, there is no with drawal or abandonment within the meaning ??? O. 23, R. 1 of the CPC, and a fresh suit against such defendant is not barred since in such case the plaintiff is really acting under compulsion ??? law and not out of voluntary choice.

    8. Our learned brother doubted the correctness of the authorities cited on behalf of the plaintiff ??? view of the decision of the Privy Council in the case of Mahanth Singh v. U Ba Yi, AIR 1939 Pat 110, wherein Lord Porter while delivering the judgment of the Board observed:

    “The appellant (plaintiff) indeed contended that he had not proceeded under O. 23, R. 1, ??? applying to substitute the new trustees for the old but that his application was made under O. 1, ??? 10 alone. Their Lordships cannot accept this view. The last named Rule no doubt authorizes the Court to order the name of a party improperly joined ??? be struck out and that the names of any person ??? ought to have been joined be added. But such ??? order is expressly directed to be made on such ??? as may appear to the court to be just.

    If no terms are inserted in the order, then in their Lordships' view the effect of withdrawing the suit against some of the defendants is to be ??? from O. 23, R. 1. That order is not very ??? worded but its meaning is reasonably clear. Under its provisions, the court may give liberty to the applicant to institute a fresh suit after a withdrawal, but if it does not do so, the plaintiff is precluded from instituting a fresh suit in respect of the same subject-matter.”

    9. Having regard to the implication of these observations and being of opinion that the matter was not free from difficulty and was of general ??? our brother referred it to the Division Bench.

    10. The pattern of arguments which necessitated the reference remained unchanged before us. We may straightway point out that the above decision of the Privy Council strictly speaking has no ???, and if any, a very remote bearing on the ??? controversy. In that case, the plaintiff was ??? building contractor who was employed by four ??? of a pagoda. In the plaint for recovery of Rs. 26,000/- and odd each of the four trustees was ??? as a defendant.

    11. Shortly after the suit had been begun the ??? were removed from their position as trustees of the pagoda and eight others were appointed ??? their place. The plaintiff thereupon made an ??? application asking originally to add ??? eight new trustees as defendants and ultimately ??? substitute the new trustees in place of the old. The application was granted and thereupon the ??? of the four original trustees were struck out ??? those of the new trustees inserted in their ???.

    12. When however the case came on for trial and before the hearing on the merits, the trial Judge suggested that the liability of the original trustees was a personal one and that no liability attached to he new trustees. Thereupon the plaintiff applied ??? replace the names of three out of the four original trustees (the other having died) as defendants. This application, the trial Judge refused to rant.

    13. The suit then proceeded to trial, the claim against the new trustees was dismissed and the ??? defendant on the record was found liable ??? guarantor. In the appeal preferred by the ???, it was contended that the trial Judge ??? in law in holding him liable on the ground ??? his liability should have been held to be ??? by the act of the plaintiff in foregoing his ??? against the original trustees. The High Court ??? to the plea and allowed the appeal.

    14. The question canvassed before the Board was ??? the High Court had erred in holding that ??? guarantor was discharged from his liability. In his context occur the observations of their Lordships extracted above. On the basis of those observations, the result they arrived at was that the ??? was not discharged or released from the ??? and that the only consequence of striking out ??? names of the original four trustees was to ??? the plaintiff from suing afresh the principal ???.

    15. It would thus be seen that their Lordships ??? dealing with a case which was properly constituted as originally framed and in which no question of multifariousness was involved. Had it been followed to proceed as such it might have resulted ??? a decree against the four trustees or any of ???. The plaintiffs by having their names struck out from the plaint, brought the whole procedural position within the ambit of Sub-r. (3) of O. 23, K. 1 of the CPC, precluding himself from instituting any fresh suit, because he was deemed to have-abandoned the claim in so far as the originally impleaded trustees were concerned. In this view of the matter, the provisions of R. 10(2) of O. 1 of the CPC, could not naturally be attracted.

    16. In the instant case the defect of multifariousness was existing from the beginning and there was objection on the part of the defendant to that effect. The contention of the plaintiff was that as the suit bonds had stemmed from the common debts due from the father of the defendants all the defendants could be joined in the same suit and no question of misjoinder of the causes of action would arise. The trial Judge did not feel inclined to accede to this contention and allowed the plaintiff to go on with the suit as framed. He, therefore, passed an order on 9-7-1953, saying

    “The learned pleader has now realised the mistake and that he wants to keep the defendant 2 as-party in the case. So struck off all the remaining, names. The plaintiff is given time of three days to produce fresh plaints.”

    17. There is no controversy that if the trial Judge had dismissed the suit as framed, for multifariousness and the plaintiff had brought fresh separate suits against each of the defendants, he would not Lave been handicapped by the provisions of R. 2, of O. 23 of the CPC, in claiming the benefit of Section 14 of the limitation Act.

    18. That rule prescribes that in any fresh suit instituted on permission granted under the last preceding rule (O. 23, R. 1) the plaintiff shall be bound by the law of Limitation as if the first suit had not been instituted. The learned advocate for the defendant contended that the order of the trial Judge dated 9-7-1953 was one which was passed-under sub-r. (2) of R. 1 of O. 23 of the CPC.

    19. On that construction of the order he urged that the ratio of the decision in AIR 1934 All 688; Madhosingh v. Jaitpal Singh, AIR 1954 Raj 46; and Virunakshappa v. Veerabhadra Gowd, AIR 1943 Mad 80, should apply to the facts of the case. We shall take note of the Allahabad case since the other two cases are based on the Allahabad case. In that case, the plaintiff in the first instance filed a suit against two sets of defendants for recovery of money due to him by the defendants on bahi khata accounts.

    20. A preliminary objection was taken to the plaint on the ground of multifariousness. The trial court expressed the opinion that the defect in the frame of the suit was there and actually ordered that the plaintiff should elect as to which of the two cases he would like to proceed against. After this order was passed the plaintiff filed an application under O. 23, R. 1 of the CPC, for withdrawal of the suit against one set of the defendants with permission to institute a fresh suit against them afterwards and those to proceed with the suit against the remaining defendants.

    21. The Court ordered the suit to be withdrawn and granted the permission asked for. On the very day the permission was granted, the plaintiff instituted the fresh suit which admittedly was time-barred. Reliance was placed on Section 14 of the limitation Act, to bring the suit within time. As it was a clear case of withdrawal of the suit being the voluntary act of the plaintiff, Sulaiman C.J, as he then was while delivering the opinion of the Full Bench observed:

    “The words ‘unable to entertain it’ in S. 14 do not merely mean that the Court has expressed its mind that the suit is defective but must mean that the Court has passed an order terminating the suit or proceeding on the ground that there is a defect of jurisdiction or cause of a like nature on which the suit must fail.

    So long as the Court has not terminated the proceeding but has merely given an option to the plaintiff to choose one of the two alternatives and the plaintiff voluntarily chooses one, it cannot be aid that the case falls within Section 14 of the limitation Act. Here it is not an act of the Court which terminates the suit, but the voluntary act of the party which does so.”

    22. A perusal of the order of 9-7-1953 shows that there was no application by the plaintiff either orally or in writing to permit him to withdraw the suit with liberty to bring fresh suits, as has been the case in the three authorities cited by the advocate for the defendants. When the Court insisted that the suit was bad for multifariousness, the pleader for the plaintiff merely expressed his willingness to continue the suit as against the 2nd defendant.

    23. Thereupon the Court did not order the suit to be withdrawn but merely made an order to strike off the names of defendants 1, 3 and 4. That part of the order would to our mind fall under O. 1, R. 10(2) of the CPC. The fact that the Court further directed the plaintiff to file fresh plaints within three days would not attract the provisions of O. 23, R. 1(2) because of the act of the Court.

    24. The authorities insist upon the voluntary act of the plaintiff and not that of the Court. If the act is that of the Court, the party suing cannot be mulcted for what he has not done. In these circumstances and for the reasons given above, we are of opinion that the provisions of R. 2 of O. 23 did not come into operation and the plaintiff was not debarred from claiming the benefit of Section 14 of the limitation Act. Looked at from that point of View, it is not necessary for us to consider whether the cases of AIR 1935 Mad 698 and AIR 1947 Bom 255, were wrongly decided.

    25. Now it is to be seen how far the provisions of Section 14 of the limitation Act would benefit the plaintiff. The promise in the suit bonds is that the sum borrowed would be paid before the Ugadi of 1950. In other words, the payment at the most ought to have been made on 18-3-1950. O.S 102 of 1952-1953 was instituted on 18-3-1953 which was the last date for filing the same.

    26. The names of the defendants 1, 3 and 4 were struck off on 9-7-1953, and the present plaints were filed on 1-7-1953. If the period between 18-3-1953 and 9-7-1953 is excluded under Section 14 of the limitation Act, two days have to be accounted for.

    27. The fact that the Court had given three days' time for presenting fresh plaints would be of no avail to the plaintiff because the Court had no jurisdiction to fix any time for filing suits or presenting fresh plaints. As these three days cannot be excluded from computation, the suits would obviously be time-barred.

    28. In the result C.M.S As. Nos. 79 and 80 of 1955 are allowed and the judgments and decrees of the trial Court are restored. Second Appeal 167/1 of 1956 is dismissed. The plaintiff in each appeal will pay costs to the successful defendants.

    K.S.B

    29. Order accordingly.

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    Comments

    Sajjanam Wadla China Rajayya v. Chappal Venkateshwar Rao
    (Mar 11, 1958)