The Judgment on the Court was as follows:—
Mukherjea, J.:— This appeal is on behalf of the Plaintiffs and the suit was one for recovery of a sum of Rs. 2,364 annas odd alleged to be due by the Defendant on the basis of an adjustment of accounts made on Bhadra, 1339, B.S The present suit was instituted on the 27th January, 1936 and on the face of it is beyond three years from the date of the alleged adjustment. To get round the plea of limitation the Plaintiffs invoked the provisions of sec. 14 of the Limitation Act. It was stated by them in the plaint that they had instituted a suit against this Defendant on the identical cause of action in the Original Side of this Court on the 19th of July, 1933. This was prosecuted in good faith and With due diligence and on 21st January, 1936, this Court allowed the Plaintiffs to withdraw from the suit with liberty to institute a fresh suit on the same cause of action inasmuch, as it had no jurisdiction to try the suit. The Plaintiffs claim that under sec. 14 of the Limitation Act they are entitled to a deduction of the period between 19th July, 1933 and 21st January, 1936 and it is not disputed that in that case the suit will be well within time.
Besides the plea of limitation, several other defences were raised by the Defendant. Both the Courts below have held on evidence that the Plaintiffs' case was proved but they agreed in dismissing the Plaintiffs' suit on the ground of limitation, holding that sec. 14 of the Limitation Act was not applicable to the facts of the present case. It is against these concurrent decrees of dismissal that the present second appeal has been preferred.
The only point for our determination is whether or not the Plaintiffs' suit is barred by limitation. It is not disputed on behalf of the Appellants that the suit would be time-barred unless the Plaintiffs can have an extension of the period of limitation under sec. 14 of the Limitation Act. The first question is whether the Plaintiffs can claim the benefit of sec. 14 even though they themselves withdrew the previous suit with liberty to institute a fresh suit on the same cause of action. Or. 23, r. 2 lays down that in any fresh suit instituted on permission granted under the last preceding rule the Plaintiffs would be bound by the law of limitation in the same manner as if the first suit has not been instituted. This is apparently an) exception engrafted on the provisions of sec. 14 of the Limitation Act and the rule clearly means that the suit withdrawn is to be ignored altogether and deemed non-existent for the purpose of considering the period of limitation for the fresh suit. I agree, however, with the view taken by the Allahabad High Court that there is no real conflict between Or. 23, r. 2 and sec. 14 of the Limitation Act and the expression “unable to entertain it” which occurs in sec. 14 of the Limitation Act does not merely mean that the Court has expressed its opinion that there is defect regarding jurisdiction or other wise; but the Court must actually by its order, terminate the litigation on the ground of defect of jurisdiction or other causes of a like nature.
In the present case, the order of with drawal passed by this Court stands as follows:—
“The point of jurisdiction is raised by the Defendants and the Plaintiffs apparently feel that the question of jurisdiction may came them some difficulty. The Plaintiffs have asked leave to withdraw the suit with liberty to institute a fresh suit on the same cause of action. The permission is given.”
There is no decision here on the question of jurisdiction and from the order set out above it does not appear that the Court was unable to entertain it. There was no evidence adduced in the previous case and though the question of jurisdiction was raised by the Defendant in his written statement the allegations made in the plaint do not show that the suit was filed in the wrong Court which had no jurisdiction to entertain it. This fact in my opinion distinguishes the present case from the case of Ramdeo Dass v. Gonesh Narain upon which stress is laid by the learned Advocate for the Appellants. There the suit was filed in the Original Side of this Court with the leave of the Registrar only, under cl. 12 of the Charter. During the pendency of that suit, it was decided by a Special Bench of the Court that the suit filed with the leave of the Registrar was bad in law and following that ruling the plaint was actually returned to the Plaintiff, leave being given to Withdraw the suit and file another suit on the same cause of action. It was held by Mr. Justice Fletcher that in filing the new plaint the Plaintiff could claim exclusion of the period which was occupied by the previous suit. It may be pointed out that the plaint here was actually returned to the Plaintiff and the Court had definitely terminated the previous suit on the ground that it had no jurisdiction to entertain it. The order allowing the withdrawal of the suit must therefore be deemed to be Without jurisdiction and no such order could be passed after the plaint was returned on the ground that the Court had no jurisdiction to entertain it.
I agree therefore with the Courts below in holding that sec. 14 of the Limitation Act is not attracted to the facts of the present case and consequently the Plaintiffs' suit must be dismissed as being barred by limitation.
The appeal accordingly fails and it is dismissed.
There will be no order as to costs in this appeal.
Latifur Rahman, J.:— I agree.
C.C