Ganga Charan Das v. Akhil Chandra Saha

1. The plaintiffs attached certain properties in execution of a decree against defendant 9. Some of the other defendants claimed the same and were successful. The claims were allowed on 3rd September 1908 and the plaintiffs brought this suit on 2nd September 1909 in the Court of the Munsif of Dacca. The defendants objected to the valuation of the suit and on 3rd June 1910, the learned Munsif held that the suit was under-valued and ordered the plaint to be returned and directed the plaintiffs to pay costs to the contending defendants. The plaint was accordingly returned on 27th June. The costs payable by the plaintiffs to the contending defendants were subsequently calculated in the office and on 30th June an order fixing the amount at Rs. 25 was recorded in the order sheet. When returning the plaint on 27th June the learned Munsif directed that the plaint might be re-filed in the proper Court within 5 days. The plaint was actually re-filed on 1st July 1910, within the 5 days so allowed. It is contended however that the suit is barred by limitation as the learned Munsif had no authority to grant the additional 5 days.

2. The plaintiffs contend, first, that the Munsif was right in granting time, and secondly, that the proceeding in the Munsif's Court ended on 30th June when the order assessing costs was made, and in either case they are within time. Expl. 1, Section 14 of the Lim. Act, lays down that in excluding the time during which a former suit was pending the day on which the suit was instituted and the day on which the proceedings therein ended shall both the counted. No further time is allowed as in Cl. 2 for going from one Court to another.

3. There is no other provisions in the Limitation Act or in the Code of Civil Procedure for allowing further time and the order allowing further time must be considered as a nullity: see Haridas Roy v. Sarat Chandra Dey . 1913 ??? 21.. This view of the matter might cause hardship in some cases, as the plaintiff might require time to secure further costs or to reach the new Court. But a plaintiff who files his suit on the very last date available to him under the law of limitation takes the risk, and the law does not make any provision for such time except in cases coming under Cl. 2, S. 14.

4. But then, if the proceedings in the suit in the Munsif's Court ended on 30th June, the plaintiffs are still within time. O. 7, R. 10 of the CPC provides that on returning a plaint the Judge shall endorse thereon the date of its presentation and return the name of the party presenting it and a brief statement of the reasons for returning it. The return of the plaint with these particulars therefore seems to terminate the connexion of the Court with the plaint, which it cannot entertain. So far as this case is concerned, the costs were ordered to be paid by the order of 23rd June, so that no further judicial act remained to be done. The costs were calculated later but the plaintiffs had nothing to do with that they were not prosecuting the suit in the Court of the Munsif after that Court returned the plaint, and the explanation cannot be read as extending the time excluded beyond the time when the plaintiffs may be said to have been prosecuting their suit. In this view of the matter the order for costs passed on 30th June cannot be taken into consideration. The suit is therefore barred by limitation and it is not necessary to consider any other question. The appeal is dismissed with one set of costs to be divided among three sets of respondents.

V.B/R.K

5. Appeal dismissed.