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Karim Ismail Ghare v. Abdul Rahiman Mahomed Sale Khot
Structured Summary of Legal Opinion (Dixit, J.)
Factual and Procedural Background
The plaintiff-respondent sued the defendant-appellant to recover Rs. 6,900, the claim being founded on a hand-loan dated 23 May 1944. The defendant's pleaded defence at trial was that no hand-loan had been given and that a sum of Rs. 10,000 paid by the plaintiff to the defendant represented amounts due from the plaintiff to the defendant. The trial court rejected the defence and entered a decree for the plaintiff for the amount claimed, with interest and costs. The defendant appealed.
On appeal the principal contention raised by the defendant (Mr. Joshi) was that the plaintiff's suit was barred by the law of limitation. Although the plea of limitation had not been raised at trial, the court considered it on appeal under s. 3 of the Indian Limitation Act which permits dismissal of suits instituted after the prescribed period even if limitation is not pleaded.
Key events bearing on limitation were:
- The loan date (cause of action): 23 May 1944.
- Ordinary limitation period applicable to the claim: three years, so the suit should have been brought on or before 23 May 1947.
- The Civil Court at Alibag was closed for summer vacation such that the Court re-opened on 9 June 1947; the plaint was presented to the Civil Judge at Alibag on 9 June 1947.
- The Civil Judge (Junior Division) at Alibag took the view he lacked jurisdiction and by order dated 11 July 1947 returned the plaint for presentation to the proper court (returned at 4 p.m. on 11 July 1947) because the cause of action arose within Roha taluka (Khaire) and not within Alibag's special jurisdiction.
- The plaint was thereafter presented in the Court of the Civil Judge, Senior Division, Thana on 12 July 1947 (suit No. 38 of 1947) and later transferred to the Civil Judge, Senior Division, Alibag, received there on 1 December 1947. A decree for the plaintiff was given on 30 November 1948.
Legal Issues Presented
- Whether the plaintiff's suit is barred by limitation, having arisen on 23 May 1944 and requiring institution by 23 May 1947.
- Whether s. 4 of the Indian Limitation Act permits the plaintiff to institute the suit on the day the Court re-opened (9 June 1947) when the plaint was presented to the Alibag Court, which the court later held to be a wrong forum for the cause of action.
- Whether the period during which the plaint was pending in the Alibag Court (9 June 1947 to 11 July 1947) is to be excluded under s. 14 of the Indian Limitation Act.
- Whether presenting the plaint in the Alibag Court constituted presentation to the "right Court" or merely presentation to the wrong Court or wrong judge, with consequences for reliance on s. 4.
Arguments of the Parties
Appellant's Arguments (Mr. Joshi)
- The appeal contends that the plaintiff's suit was barred by the law of limitation.
- Although the plea of limitation was not taken below, s. 3 of the Indian Limitation Act permits the Court to consider and dismiss suits instituted after the prescribed limitation period.
Respondent's Arguments (Mr. Kotwal)
- The respondent relied on s. 4 of the Indian Limitation Act to treat the suit as properly instituted on the day the Court re-opened after summer vacation (i.e., 9 June 1947), thereby curing any lateness caused by the Court being closed on 23 May 1947.
- The respondent relied on s. 14 of the Indian Limitation Act to exclude the period during which the plaint was pending in the Alibag Court (9 June 1947 to 11 July 1947) from the computation of limitation.
- Additionally, the respondent argued that the plaint had been presented in the Alibag Court but to a wrong judge (i.e., a presentation to the proper Court but to an incorrect judicial officer), implying that s. 4 should still operate; the court rejected this contention.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Maqbul Ahmad v. Onkar Pratap Narain Singh (Privy Council) | The expression "on the day that the Court re-opens" in s. 4 refers to the proper Court in which the application ought to have been made; the benefit of s. 4 is available only when the application is made in the proper Court on the day it re-opens. | Adopted as authoritative: the court relied on this decision to hold that s. 4 does not entitle a litigant to present a plaint in a wrong Court on the day the Court re-opens; s. 4 thus did not save the plaintiff's suit. |
| Basvanappa v. Krishnadas | Previously took a contrary view concerning the application of s. 4 (as relied upon by the respondent). | The court noted that the Privy Council considered the Basvanappa decision unsupportable having regard to ss. 3, 4 and 14 of the Indian Limitation Act; Basvanappa's contrary view was rejected. |
| Mukund Ram v. Ramraj | Listed by the court as an Indian authority that has taken the same view of s. 4 as the Privy Council in Maqbul Ahmad. | Cited as supporting the court's construction of s. 4 (i.e., requiring institution in the proper Court on re-opening). |
| Ummathu v. Pathumma | Listed among Indian decisions that follow the construction of s. 4 adopted by the Privy Council. | Cited as authority consonant with the court's view that s. 4 requires presentation in the proper Court on re-opening. |
| Dharman Ram-Ladha Ram v. Ganga Ram | Listed as supporting the adopted view of s. 4. | Referred to as an Indian case aligning with the principle that s. 4's benefit is limited to presentation in the proper Court upon re-opening. |
| Firm Buja Mal-Gainda Mal v. Mukta Parshad | Listed as one of the Indian cases endorsing the construction of s. 4 followed by the court. | Cited as further support for the court's interpretation that s. 4 applies only when the proceeding is instituted in the proper Court on re-opening. |
| Anil Prokash v. Dhirendra Nath | Listed among Indian authorities cited for the same proposition regarding s. 4. | Used as corroborative authority for the court's construction of s. 4. |
| Wamanrao v. Umrao | Listed as another Indian case adopting the same view of s. 4. | Cited to show consistent Indian judicial treatment supporting the court's position on s. 4. |
Court's Reasoning and Analysis
The court undertook a step-by-step analysis focused on limitation and jurisdiction:
- Starting point: s. 3 of the Indian Limitation Act permits courts to dismiss suits instituted after the prescriptive period even if limitation was not pleaded below; accordingly the appellate court addressed limitation though it had not been raised at trial.
- The cause of action arose on 23 May 1944; for a hand-loan the limitation applicable required institution within three years, i.e. by 23 May 1947.
- The Alibag Court was closed for Summer Vacation on 23 May 1947 and re-opened on 9 June 1947; the plaint was presented on 9 June 1947. The respondent relied on s. 4 to treat the presentation on 9 June 1947 as acceptable despite the Court being closed on 23 May 1947.
- The court construed s. 4 (quoted in the opinion: “Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens”) and concluded that s. 4 does not operate to exclude a period of time but rather permits institution on the day the Court re-opens. Critically, the court read into s. 4 an implied requirement that the suit must be instituted in the proper Court (the Court in which the suit ought properly to have been brought).
- Applying that construction to the facts, the court found the Alibag Civil Judge (Junior Division) had no jurisdiction over causes of action arising within Roha taluka; the cause here arose within Roha. Thus the plaint was presented to a wrong Court, not merely to the wrong judge. Because s. 4's benefit applies only when the plaint is presented in the proper Court on the day of re-opening, s. 4 could not assist the plaintiff.
- The court accepted (and noted no dispute from the appellant) that the period during which the plaint was pending in the Alibag Court (9 June 1947 to 11 July 1947) must be excluded under s. 14 of the Limitation Act. However, exclusion of that period alone did not save the suit because the earlier period (23 May 1947 to 8 June 1947) could not be relied upon under s. 4 given the presentation in the wrong Court on the day of re-opening.
- The court also addressed the respondent's alternative argument that the plaint had been presented to the right Court but to the wrong judge. It rejected this: Order IV, rule 1 of the Code of Civil Procedure requires institution by presentation of the plaint to the Court (or an officer appointed by it). The act of presentation had been to the Alibag Court—i.e., to the wrong Court—so the argument that only a wrong judge had been selected failed.
- For support the court relied on the Privy Council decision in Maqbul Ahmad v. Onkar Pratap Narain Singh which states that the "on the day that the Court re-opens" phrase in s. 4 refers to the proper Court and that the benefit of s. 4 is claimable only when the application is made in that proper Court on re-opening. The court also noted that a contrary decision (Basvanappa v. Krishnadas) was considered unsupportable by the Privy Council in the light of ss. 3, 4 and 14. Several Indian cases were cited as following the same construction.
- Conclusion from analysis: since s. 4 could not be invoked given presentation to the wrong Court on re-opening, the plaintiff's suit was barred by limitation despite the exclusion under s. 14 of the intervening pendency in the wrong Court; accordingly the decree in favour of the plaintiff could not be supported.
Holding and Implications
Holding: The court allowed the appeal. The opinion states the result succinctly: Appeal allowed.
Direct consequence for the parties: The decree entered in favour of the plaintiff in the trial court was held to be barred by the law of limitation and therefore could not be supported; the appellate court allowed the defendant's appeal and the plaintiff's claim failed on the ground of limitation.
Broader implications: The court applied and reaffirmed the principle (as laid down by the Privy Council in Maqbul Ahmad and followed in several Indian cases) that s. 4 of the Indian Limitation Act permits institution on the day the Court re-opens only if the suit is instituted in the proper Court on that day. The opinion did not purport to create a novel precedent beyond applying established authorities.
Prepared from the provided opinion text (Dixit, J.). No information has been added beyond what appears in that opinion.
Dixit, J.:—
This appeal arises from a suit filed by the plaintiff-respondent to recover from the defendant-appellant a sum of Rs. 6,900. The suit is based upon a hand-loan, dated May 23, 1944. The defence to the suit was that there was no hand-loan given by the plaintiff to the defendant but that the sum of Rs. 10,000 paid by the plaintiff to the defendant was towards the dues owing by him to the defendant. This defence did not prevail in the trial Court and the learned trial Judge passed in favour of the plaintiff a decree for the amount claimed with interest and costs as set out in the order. The defendant has come up in appeal.
Upon this appeal Mr. Joshi for the defendant-appellant contends that the plaintiff's suit giving rise to this appeal was barred by the law of limitation. It is to be noted that in the trial Court the plea of limitation was not taken by the defendant, but that makes no difference because s. 3 of the Indian Limitation Act provides that “subject to the provisions contained in ss. 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence”. It is accordingly necessary to consider the plea, though raised in appeal.
Now, the facts having a bearing upon the question of limitation are these. The transaction sued on is a hand-loan of May 23, 1944, the amount of the hand-loan being a sum of Rs. 10,000. In order to recover this loan the plaintiff would have, without anything more, to bring the suit within three years from May 23, 1944, so that the plaintiff must bring his suit on or before May 23, 1947. It so happened, however, that on that day the Court of the Civil Judge at Alibag in which the suit came to be instituted was closed owing to the Summer Vacation of the Court and it appears that the suit was instituted in the Court of the Civil Judge at Alibag on June 9, 1947 after the re-opening of that Court after its Summer Vacation. It is not in dispute that the Summer Vacation of the Court was over on June 8, 1947, and that the Court re-opened on June 9, 1947 when the plaint was presented. It appears that thereafter the plaint was examined and the learned trial Judge took the view that he had no jurisdiction to entertain the suit and by his order July 11, 1947, he returned the plaint for presentation to the proper Court. The plaint was returned on July 11, 1947 at 4 p.m The ground upon which this order was made was that the original jurisdiction of the learned Civil Judge was to try suits up to Rs. 7,500 but only such suits in which the cause of action had arisen in the taluka of Alibag. In the present case, according to the averment made in the plaint the cause of action for the suit arose on May 23, 1944, within the special jurisdiction of the Court at Khaire, taluka Roha, and it is not in dispute that the Court of the Civil Judge at Alibag would have no jurisdiction to try suits in respect of causes of action arising within the Roha taluka. The plaint was accordingly filed in the Court of the Civil Judge, Senior Division, Thana on July 12, 1947 and in that Court the suit bore special jurisdiction suit No. 38 of 1947. It appears, that the suit was subsequently transferred to the Court of the Civil Judge, Senior Division, at Alibag and was received by that Court on December 1, 1947. Upon its transfer to the latter Court the suit proceeded in that Court and the learned Judge gave the plaintiff a decree for the amount claimed on November 30, 1948.
Now, if the learned Civil Judge, Junior Division, at Alibag had no power to try this suit, it is clear that the suit was instituted in the wrong Court and in this connection two periods of time have to be considered. The first of the two periods is between May 23, 1947 and June 8, 1947 and in this connection the plaintiff relies upon s. 4 of the Indian Limitation Act. The second period is between June 9, 1947 and July 11, 1947, when the suit was pending in the Alibag Court and in this connection the plaintiff relies upon s. 14 of the Indian Limitation Act. It is not necessary to consider the last of the periods which is between July 12, 1947, and December 1, 1947 because the suit was pending in the right Court during that period. Mr. Kotwal for the respondent says that he is entitled to exclude the period between June 9, 1947 and July 11, 1947 under s. 14 of the Indian Limitation Act and Mr. Joshi for the appellant does not dispute that this period has got to be excluded. But then Mr. Kotwal argues that he is entitled to exclude the period between May 23, 1947 and June 8, 1947. In our opinion, Mr. Kotwal is wrong in saying that he is entitled to take into consideration the period between May 23, 1947 and June 8, 1947. S. 4 of the Indian Limitation Act runs as follows:
“Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens”.
It is apparent from the language of the section that under s. 4 there is no question of any period being excluded. What s. 4 provides is that if a suit cannot be instituted in the Court during the period when the Court is closed, the suit may be instituted on the day on which the Court re-opens. In this case the plaintiff would be required to file the suit on May 23, 1947, if there was no Summer Vacation of the Court intervening. But since the Court was closed owing to its Summer Vacation, the plaintiff was entitled to institute the suit on June 9, 1947. But in order to successfully rely upon s. 4, the plaintiff would be required to institute the suit in the right Court. It is true that s. 4 does not use the expression “the right Court”. S. 4 merely refers to “the Court”. But it seems to me that it is implied in the section that when a suit is to be instituted in the Court when the Court is closed, the suit must be instituted in the Court in which the suit must be brought i.e the right Court.
Now, on the facts which have been proved in this case, it is clear that the Court of the Civil Judge at Alibag had no jurisdiction to entertain the suit because the suit was one which arose out of a cause of action which arose within the jurisdiction of the Roha taluka. The suit would, therefore, be required to be instituted in the Court of the Civil Judge, Senior Division, Thana. But the plaintiff by mistake instituted the suit in the Court of the Civil Judge at Alibag and if the construction of s. 4 is right that the suit must be instituted in the right Court, then the plaintiff is not entitled to the consideration of the period between May 23, 1947 and June 8, 1947, so that s. 4 will not help him. If s. 4 does not help him, it is clear that the plaintiff's suit would be barred by the law of limitation.
But then Mr. Kotwal argues that the suit was rightly instituted in the Court at Alibag but was presented to a wrong Judge. It is not easy to understand this argument because, according to O. IV, r. 1 of the Code of Civil Procedure, every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf, so that a suit has to be instituted by the presentation of a plaint to the Court and in this instance the plaint was presented in the Court of the Civil Judge at Alibag. There is no doubt that the pleaders who presented the plaint in that Court were under the impression that the Alibag Court had power to entertain the suit because the Judge concerned had power to try claims exceeding Rs. 5,000 and less than Rs. 7,500 and the plaintiff's suit was to recover Rs. 6,900. But that will not confer upon the Civil Judge at Alibag the power to try this suit because the Civil Judge at Alibag would be still a Civil Judge, Junior Division, having power to try original suits and proceedings of a civil nature up to the limit of Rs. 7,500. That does not make the Civil Judge, a Judge of the Senior Division because, according to s. 25 of the Bombay Civil Courts Act.
“A Civil Judge, Senior Division, in addition to his ordinary jurisdiction, shall exercise a special jurisdiction in respect of such suits and proceedings of a civil nature as may arise within the local jurisdiction of the Courts in the District presided over by Civil Judges, Junior Division, and wherein the subject-matter exceeds the pecuniary jurisdiction of the Civil Judge, Junior Division, as defined by s. 24”.
Mr. Kotwal is, therefore, not right in saying that the plaint was presented in the right Court but to a wrong Judge.
This view of s. 4 is in accordance with the decision of their Lordships of the Privy Council reported in Maqbul Ahmad v. Onkar Pratap Narain Singh. It is enough, I think, to reproduce here a part of the head-note which runs as follows:
“The expression ‘on the day that the Court re-opens' in s. 4 refers to the proper Court in which the application etc. ought to have been made. In other words, the benefit of s. 4 can be claimed only when the application etc. is made in the proper Court on the day on which that Court re-opens”.
It may be noted that a contrary view was taken in the case of Basvanappa v. Krishnadas upon which Mr. Kotwal relied. But with reference to this case this is what their Lordships observed at page 538 of the report:
“Their Lordships only desire to add one other word, and it is this, that the decision which has been referred to in the case of Basvanappa v. Krishnadas, cannot, in their view, be supported, having regard to the provisions of ss. 3, 4 and 14 of the Indian Limitation Act”.
Their Lordships' decision in Maqbul Ahmad's case would be enough, apart from anything else, to dispose of this point in favour of the defendant-appellant. However, this view of s. 4 has been taken by the Indian Courts also in several cases. It may be enough to refer to the following: See Mukund Ram v. Ramraj, Ummathu v. Pathumma Dharman Ram-Ladha Ram v. Ganga Ram, Firm Buja Mal-Gainda Mal v. Mukta Parshad, Anil Prokash v. Dhirendra Nath, and Wamanrao v. Umrao.
For the above reasons we think that the plaintiff's suit is barred by the law of limitation and the decree appealed from cannot, therefore, be supported.
Appeal allowed.
K.B.S
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