Bookmark
PDF
Share
CaseIQ

Sewa Singh v. Tara Chand And Another

Punjab & Haryana High Court

Oct 1, 1954

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Structured Summary of the Opinion

Factual and Procedural Background

The dispute arose from a sale of land by Mst. Malan in favour of Sewa Singh, a three-year-old minor, for Rs. 2,750/-, with mutation sanctioned on 23-3-1949. Tara Chand (plaintiff-respondent) brought a suit for pre-emption of that sale. On 22-3-1950 the plaintiff filed an application before the District Judge asking that the plaint and original documents be sent to Sadar (Jullundur) for convenience because a counsel and the documents were there. There is a factual dispute in the record about whether the plaint itself was presented with that application; the Court of Appeal assumed that the plaint had been presented on 22-3-1950 as more probable based on subsequent orders and an uncontradicted statement of the court Ahlmad (P.W.1).

On 23-3-1950 the District Judge issued notice for 11-4-1950. On that date the guardian of the vendee objected to trial at Jullundur; the plaint was ordered to be sent to the Subordinate Judge at Nawanshahr and the parties were directed to appear on 17-4-1950, which they did. The plaint bears the date 17-4-1950; the District Judge and the Subordinate Judge did not endorse dates of filing or receipt on the plaint.

At trial an objection that the suit was time-barred was upheld and the trial Court dismissed the plaint. On appeal the Senior Subordinate Judge (Mr. P.S. Bindra) reversed the trial Court, holding the suit to be within time — treating limitation as running from the date of mutation and accepting that the suit had been filed in the District Judge's Court on 22-3-1950 — and decreed the suit on payment of Rs. 2,750/-. The present appeal challenges that appellate decree.

Legal Issues Presented

Was the pre-emption suit instituted within time, i.e., what is the date of institution for limitation purposes where a plaint was presented to the District Judge (or an officer at headquarters) but later sent to the Subordinate Judge at a different place?
Whether the power of a District Judge or an officer appointed to receive plaints to distribute business is ministerial such that presentation to that officer constitutes institution of the suit for limitation purposes?
Whether Section 14 of the Limitation Act (exclusion of time spent in bona fide proceedings in a court without jurisdiction) applies where the plaintiff filed the plaint in the District Judge's office for convenience.

Arguments of the Parties

Appellant's Arguments

The suit was barred by time; to determine that the Court must apply provisions of the Code of Civil Procedure (Section 15, Section 26, Order IV Rule 1) and provisions of the Punjab Courts Act (Sections 34 and 37) concerning institution and distribution of suits.
The power to receive plaints and distribute business is regulated by the Punjab Courts Act and the Code; the institution rules require presentation to the Court of lowest competent jurisdiction and such presentation rules must be followed.

Submissions by Mr. Karam Chand Nayar (as presented in the opinion)

He relied on Rules in Chapter 1-B, Rules and Orders of the High Court, Vol. I — notably Rule 2 (courts sitting at a distance may receive plaints under general directions of the District Judge) and Rule 3(i) (the District Judge may receive and distribute plaints at headquarters and may delegate that power under Section 37 of the Punjab Courts Act), arguing that the plaintiff was justified in presenting the plaint to the District Judge at headquarters.
He argued that, under these rules and the power to delegate under Section 37, the plaint presented to the District Judge should be treated as instituted on the date it was so presented, and that distribution by the District Judge to a subordinate court does not alter the date of institution.

Plaintiff-Respondent's (or Plaintiff's) Submission Re Limitation

It was submitted that Section 14 of the Limitation Act should apply because the plaintiff acted bona fide in filing the suit in the Court of the District Judge and so time spent in those proceedings should be excluded.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sharam Singh v. Sadhu Singh, AIR 1928 Lah 484	Held that a Judge who receives plaints for distribution acts ministerially (not as a Court) and receiving by such Judge cannot be equated with institution in that Judge's Court. The discretion of that officer may direct a suit to a higher court, but the suitor remains bound by the Code of Civil Procedure.	The court relied on this decision to support the view that officers appointed to receive plaints act ministerially and that presentation to such an officer does not automatically constitute institution in that officer's court for limitation purposes where statutory rules require presentation elsewhere.
George Benjamin Hampson v. R.S. Jeewanmall Bros., AIR 1935 Sind 225	Concerned the question when a suit is to be taken as instituted and included reliance on the High Court rules about reception and distribution of plaints.	The court noted the interpretation in that case (Rupchand Bilaram A.J.C) and observed that in that jurisdiction the power of distribution may have been different; the Punjab position (distribution to Senior Subordinate Judge) distinguished the factual matrix of that authority.
Ramaswami Iyer v. Veerarayan Raja, AIR 1941 Mad 711	Held that presentation of a plaint to a Court which has no jurisdiction cannot be said to be institution of the suit; a suit will be deemed instituted when the plaint is presented to the Court having proper jurisdiction and that Court accepts the plaint.	The court cited this principle but noted uncertainty about that Court's precise rules; nevertheless, it accepted the headnote as a correct statement of law for the purpose of comparison with the present case.
Bejoy Kumar Sen v. Kusum Kumari Debi, AIR 1929 Cal 315	Discussed applicability of Section 14 of the Limitation Act (exclusion of time spent in bona fide proceedings in a Court without jurisdiction); specifically referenced Section 14 at pp. 317–318.	The court considered this authority in relation to the plaintiff's submission invoking Section 14 but ultimately found that Section 14 did not apply on the facts before it.

Court's Reasoning and Analysis

The Court proceeded through statutory provisions and rules to determine the proper date of institution for limitation purposes. It began by citing the Code of Civil Procedure provisions: Section 15 (suits to be instituted in the Court of the lowest grade competent to try them), Section 26 (manner of instituting suits), and Order IV Rule 1 (institution by presentation of a plaint). It also cited Sections 34 and 37 of the Punjab Courts Act, which empower a District Judge to distribute business and to delegate such distribution powers to Subordinate Judges in specified portions of the district.

The Court read these provisions to mean that the power of the District Judge or the officer appointed to receive plaints is essentially ministerial. When the District Judge delegates the power of distribution to another Court or officer (in Punjab, commonly to the Senior Subordinate Judge), litigants must present plaints to that officer where the rules require reception at a place away from headquarters. The Court relied on the Division Bench decision in Sharam Singh v. Sadhu Singh to support the proposition that a judge receiving plaints for distribution acts ministerially and that such reception does not amount to institution of the suit in that judge's court where the statutory and rule framework prescribes a different forum for institution.

The Court examined the High Court rules (Chap. 1-B, Rules and Orders, Vol. I): Rule 2 (empowering courts sitting away from headquarters to receive plaints under directions of the District Judge) and particularly Rule 3(i) (directing that plaints presented at district headquarters will be received and distributed by the District Judge, who may delegate this power under Section 37 and that regard should be had to Sections 15 and 20 and Order IV Rule 1 CPC when framing directions). Mr. Nayar relied on these rules to argue that the plaint presented at the District Judge's office should be treated as instituted on that date.

The Court rejected that submission for two reasons evident from the opinion:

There is a specific rule that suits triable at a place away from the headquarters must be filed in the Court sitting at that place; reference is made to Rule 3's cross-reference to Section 15 and Order IV Rule 1 of the CPC.
In practice throughout the Punjab the power of distribution has been delegated to the Senior Subordinate Judge; therefore, plaints triable at headquarters are presented to the Senior Subordinate Judge and the date of presentation to the appointed officer is the date of institution. Where rules require presentation at a court away from headquarters, it is not open to the litigant to choose to present at the District Judge's office instead.

The Court reasoned that if a litigant does not follow the ordinary rule (i.e., presents the plaint at a different office), presentation of the suit will be taken to occur on the date when the plaint is sent to the proper Court and that under Order IV Rule 1 the institution must be taken to be when it is instituted in the proper Court.

The Court then addressed the plaintiff's invocation of Section 14 of the Limitation Act (exclusion of time bona fide spent in proceedings in a court without jurisdiction). The Court was not satisfied that the facts disclosed a bona fide filing in the District Judge's Court such that Section 14 should apply: the Court observed that advocates practising in district courts should be aware that distribution power in the Punjab is vested in the Senior Subordinate Judge and that suits should be instituted in the Court of the lowest jurisdiction. Consequently, Section 14 was held inapplicable on these facts.

Applying this legal analysis to the facts, the Court concluded that the suit was instituted only on 17-4-1950 (when the plaint was received by the proper Subordinate Judge at Nawanshahr), not on 22-3-1950, and was therefore barred by limitation. The Court allowed the appeal, set aside the decree of the Senior Subordinate Judge and restored the decree of the trial Court which had dismissed the suit as time-barred. The Court ordered that the parties bear their own costs.

Holding and Implications

Core Ruling: APPEAL ALLOWED; THE DECREE OF THE SENIOR SUBORDINATE JUDGE IS SET ASIDE AND THE TRIAL COURT'S DECREE DISMISSING THE SUIT AS TIME-BARRED IS RESTORED.

Direct consequences for the parties:

The appellate decree in favour of the plaintiff (Senior Subordinate Judge) is set aside.
The trial Court's dismissal of the pre-emption suit on the ground of limitation is restored.
Each party is to bear their own costs throughout.

Broader implications: The opinion applies statutory provisions (Sections 15, 26 and Order IV Rule 1 of the CPC; Sections 34 and 37 of the Punjab Courts Act), High Court rules and precedent to reaffirm that where rules require plaints to be presented at a particular court or officer, the date of institution for limitation purposes is the date on which the plaint is presented to that proper court or officer and that Section 14 of the Limitation Act will not apply where the filing was not bona fide. The opinion does not announce any novel legal principle beyond this application of existing statutes, rules and precedents.

H.G.P

Final Disposition: Appeal allowed.

Show all summary ...

1. This is an appeal brought against an appellate decree of the Senior Subordinate Judge, Jullundur, dated 23-11-1950, reversing the decree of the trial Court which had dismissed the plaintiff's suit for pre-emption on the ground that it was barred by time. The sale of the land in suit was made in favour of Sewa Singh, a minor of three years of age, by Mst. Malan for a sum of Rs. 2,750/- and the sanction of the mutation was on 23-3-1949. Tara Chand, plaintiff-respondent, brought a suit for pre-emption of this sale. On 22-3-1950, he filed an application in the Court of the District Judge to the following effect:

“The petitioner had engaged a counsel at Jullundur and original documents which are relied upon are also at the Sadar (Jullundur). It is therefore prayed that the plaint he sent to any Court at Sadar instead of the Court at Nawanshahr”. This application was handed over to the District Judge himself. There is a dispute between the parties as to whether the plaint was or was not presented along with the application, but for the purposes of this case I shall assume that it was presented and that seems to be more probable because of the orders which I am going to refer to and the statement of P.W 1, the Ahlmad of the Court, whose testimony is uncontradicted.

2. Upon this on 23-3-1950, the learned District Judge issued notice to the respondents for 11-4-1950, on which date objection was taken by the guardian of the vendee against the case being tried at Jullundur and the plaint was therefore ordered to be sent to the Subordinate Judge at Nawanshahr and the parties directed to appear there on 17-4-1950, and they did appear on that date. The plaint bears the date 17-4-1950, and it is surprising that neither the Court of the District Judge nor the Court of the Subordinate Judge to whom the same was sent for trial has taken the trouble of endorsing the respective dates on which it was filed in the Court of the District Judge and the date on which it was received by the Court of the Subordinate Judge at Nawanshahr.

3. An objection was taken that the suit was barred by time and this objection was given effect to by the trial Court. Mr. P.S Bindra, the Senior Subordinate Judge, on appeal held the suit to be within time and has decreed the suit holding that the limitation runs from the date of mutation and the suit was within time having been filed in the Court of the District Judge on 22-3-1950, and that the value of the property was fixed in good faith and paid and thus the suit has been decreed on payment of Rs. 2,750/-.

4. Submission is made by the appellant that the suit was barred by time and in order to determine that I must refer to certain provisions of the Code of Civil Procedure and to those of the Punjab Courts Act. Under Section 15 of the CPC, every suit shall be instituted in the Court of the lowest grade competent to try it and S. 26 of the Code provides that it shall he instituted by the presentation of a plaint or in such other manner as may be prescribed. Under O. 4 R. 1 every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf.

5. Under Section 34 of the Punjab Courts Act every District Judge has the power to distribute business and S. 37 of this Act provides—

‘37. A District Court may, with the previous sanction of the High Court delegate to any Subordinate Judge in the district, the power conferred on a District Court by Ss. 33 and 34, of this Part and Section 24 of the CPC, to be exercised by the Subordinate Judge in any specified portion of the districts, subject to the control of the District Court.”

6. As I read these various sections, it appears to me that the power of the District Judge or the Court or officer who has been appointed to receive the plaints is merely a ministerial one and when the power has been given by the District Judge to another Court or officer the litigant must present the plaint to him.

7. It was so held by the Lahore High Court in — ‘Sharam Singh v. Sadhu Singh’, AIR 1928 Lah 484 (A), where it was said that where a Judge receives plaint for distribution to proper Courts while so acting he is not acting in the capacity of a Court but ministerially for the convenience of the litigants and that his discretion overrides the provisions of Section 15 of the CPC in so far as he can direct a suit to be tried-by a Court of higher jurisdiction than that provided in S. 15, but no such, discretion is conferred on the suitor who remains-bound by the provisions of the Code of Civil Procedure.

8. In that case the plaint was presented to the Senior Subordinate Judge on 11-7-1919. The valuation of the suit as put on the plaint was such that it was triable by the Court of a Subordinate Judge of the Second Class and the Senior Subordinate Judge sent the case to such a Court. On objection being taken that the value was more it was held on parries' agreeing that the suit was triable by the Court of a Subordinate Judge of the First Class and the plaint was returned for presentation to the proper Court under O. 7 R. 10 of the CPC on 6-1-1920.

9. The plaintiff made up the deficiency in the court-fee & presented the suit in the Court of the Senior Subordinate Judge on 5-2-1920, and the point for decision was that if the suit was taken to be instituted in the Court of the Senior Subordinate Judge when the plaint was first presented to it, then the institution of the suit was on 11-7-1919, and was well within time and that if it was to be taken to be instituted in the Court of the Subordinate Judge of the First Class on 5-2-1920, the suit was barred by time.

10. After referring to Section 15 and Rr. 1 and 2 of the O. 4 of the CPC and Sections 34 and 37 of the Punjab Courts Act, it was held that the Senior Subordinate Judge, appointed to receive plaints for the purpose of distribution acts ministerially and does not receive them as a Court and therefore it could not be said that all suits which were instituted in the Court of the Senior Subordinate Judge in the first instance were instituted in his Court and receiving by the Senior Subordinate Judge could not be said to be institution in the Court of that officer and that a Court takes cognizance of a plaint and is seized of the case when necessary entries are made in the register and as I have said in a case like that a Division Bench of the Lahore High Court held that the institution was on 5-2-1920.

11. Mr. Karam Chand Nayar relies on two rules appearing in Chap. 1-B, Rules and Orders of the High Court, Vol. I. Rule 2 empowers the Courts in sitting at a distance from the headquarters of the district to receive plaints and petitions direct under general directions of the District Judge or the Subordinate Judge, if so empowered under Section 37 of the Punjab Courts Act. It is really on R. 3 that he mainly relies. Rule 3(i) reads:

“3(i) Plaints and petitions presented at the headquarters of a District will be received and distributed by the District Judge who may delegate this power under Section 37 of the Punjab Courts Act to any Subordinate Judge and should always do so when it is for the convenience of the litigants. Regard should he had to the provisions of Sections 15 and 20 and O. 4, R. 1 of the CPC, in framing directions regarding the reception of civil suits.”

12. Mr. Nayar submits that according to these rules the power to receive plaints is vested both in the District Judge as well as in the Court sitting at a distance from the headquarters and that the plaintiff was justified in taking the plaint to the Court of the District Judge and it was for the District Judge to distribute the plaint to any Subordinate Judge within his jurisdiction, but there are two arguments against it. First of all there is a specific rule that suits shall be filed in the Court of the Judge sitting at a distance from the headquarters and specific reference is made even in this rule to Section 15 of the CPC and O. 4, R. 1 of that Code.

13. Besides, the power of distribution has throughout the Punjab been delegated to the Senior Subordinate Judges and ordinarily, even if this was a mistake under which the plaintiff was labouring, the plaint should have been taken to the Senior Subordinate Judge, who is the proper person for the distribution of these plaints. Moreover the application shows, although it not headed under any particular section, that it was more for purposes of transfer to the Court of a Subordinate Judge at the headquarters than anything else.

14. Reliance is placed by Mr. Nayar on a judgment of the Sind Judicial Commissioner's Court in — ‘George Benjamin Hampson v. R.S Jeewanmall Bros.’, AIR 1935 Sind 225 (B), where the question was as to when a suit is taken to have been instituted and the point to be decided was which is the previously instituted suit. Reliance was there placed on the rule which I have quoted from Vol. I, Chap. 1-B, Rules and orders of the Lahore High Court. As the case there stands the interpretation of Rupchand Bilaram A.J.C is, if I may say so with respect, perfectly correct. That learned Judge did not know that in the Punjab the power of distribution had been given to the Senior Subordinate Judge and it must have been that the suit was filed in the Court of the Senior Subordinate Judge who sent it to another Judge and even if the suit was filed in the Court of the District Judge the question does not arise because he sent it under his powers of distribution to a Court of Subordinate Judge First Class and it was held that for purposes of Section 10 of the CPC, the suit was instituted on the date when it was presented to the District Judge.

15. Reliance was then placed on a judgment of the Madras High Court in — ‘Ramaswami Iyer v. Veerarayan Raja’, AIR 1941 Mad 711 (C), where it was held that presentation of a plaint to a Court which has no jurisdiction cannot be said to be institution of the suit and that a suit will be deemed to be instituted when the plaint is presented to the Court having proper jurisdiction and that Court accepts the plaint as being in order. I do not lcnow what exactly the law is or the rules are in that Court. But as the head-note is stated, which is a proper summary of what was held, the statement of the law, if I may say with respect, must be taken to be correct.

16. Reliance is next placed on a judgment of the Calcutta High Court in — ‘Bejoy Kumar Sen v. Kusum Kumari Debi’, AIR 1929 Cal 315 (D), where at pp. 317-318 Section 14 of the Limitation Act was held to be applicable.

17. As I read the law the Code requires that a suit shall be instituted in the Court of the lowest jurisdiction. For the convenience of litigants the Punjab Courts Act has given the power to the District Judge to distribute work and that power of distribution has been delegated to the Senior Sub-ordinate Judge and therefore in regard to suits which are triable at the headquarters the plaints are presented to the Senior Subordinate Judge of the district and this is taken to be the date of institution and rightly so because, if an officer is appointed to receive plaints, the date of institution must be taken to be that on which the plaint is presented to him. It is for him to send it to another Court which would have jurisdiction to try the suit, but in this matter the District Judge the Senior Subordinate Judge or any other officer appointed acts ministerially.

18. But when the Code requires that the suit shall be instituted in the Court of the lowest jurisdiction, and the rules made provide that in cases which are triable at a place away from the headquarters the plaints shall be presented in that Court, in my opinion it is not left to the litigant to choose any Court that he likes, and in this I am fortified by the opinion of the Division Bench of the Lahore High Court in AIR 1928 Lah 484 (A), to which I have made reference, and therefore if the litigant does not follow the ordinary rule, the presentation of the suit would be on a date when the plaint is sent to the proper Court and the institution under. O. 4 R. 1 of the CPC, must be taken to be on the date when it is instituted in that Court.

19. It is then submitted that Section 14 of the Limitation Act, applies in this case because the plaintiff ‘bona fide’ filed his suit in the Court of the District Judge and if the District Judge thought that he had no jurisdiction it should have been returned to him there and then or at least the next day and that nobody should suffer because of the mistakes of the Court.

20. Now, S. 14 provides for exclusion of time spent in proceedings taken ‘bona fide’ in a Court without jurisdiction. In the circumstances of this case I am unable to hold that the provisions of this section are applicable and that there was anything bona fide in filing the application in the Court of the District Judge. Every Advocate appearing in the District Courts should know that the power of distribution is vested in the Senior Subordinate Judge and not in the District Judge and also that the suits are to be instituted in the Court of the lowest jurisdiction. In my opinion therefore in the present case even though the words may be “subject to the control of the District Judge” the suit cannot be held to be instituted except on 17-4-1950 and I would therefore allow this appeal, set aside the decree of the Senior Subordinate Judge and restore that of the trial Court. In the circumstances of this case the parties will bear their own costs throughout.