SAMUEL JOSEPH Vs. RAMACHANDRAN CHELLAYYAN

JUDGEMENT

(1.) Preliminary decree for partition passed by the Subordinate Judge, Thiruvananthapuram in O.S. No. 66 of 1972 on 30-10-1976 could have been appealed before the District Judge, Thiruvananthapuram. But, by a bona fide mistake, A.S.No. 171 of 1977 was filed before this court on the last day of limitation. Period of limitation for appeal to the High Court is 90 days, but to the District Court, it is only 30 days. Instead of riling the appeal before the High Court, if it was filed before the District Court, it would have been beyond time. This court admitted the appeal, but, later on finding that it had to be filed before the District Court, returned the same for presentation before that court. The order was on 2-4-1980 and the memorandum of appeal was returned on 5-4-1980. A fresh memorandum of appeal was presented before the District Judge only on 18-4-1980 with an application to condone the delay and exclusion of the period under S.5 and 14 of the Limitation Act. The District Judge dismissed the application under S.5 and 14 and the appeal was also consequently dismissed. Hence this second appeal by the appellant, who is the 40th defendant.

(2.) The District Judge was of the view that if the appeal was re-presented on 5-4-1980 itself, the period between 5-7-1977 and 5-4-1980, when the appeal was pending before the High Court could have been excluded under S.14 of the Limitation Act, but, since it was filed only on 18-4-1980, there is no scope for invoking either S.5 or S.14 of the Limitation Act. In this case, there are four plaintiffs and about 100 defendants. The delay was explained as the bona fide mistake regarding the forum and the time taken for preparing a fresh memorandum of appeal and getting the copies printed. The District Judge said that, in view of the fact that the appeal was presented before the High Court only on the last day of limitation, the appellant was obliged to re-present the same on the day it was returned. In support of the conclusion, the decisions in Parameswara Kurup v: Vasudeva Kurup ( 1964 KLT 145 ) and Abraham v. Sadanandan and others ( 1979 KLT 493 ) were relied on.

(3.) Both decisions concern original suits filed in wrong courts not having jurisdiction. They were returned for presentation before competent courts granting time for that purpose. The suits were re-presented within those periods, but they were out of time, according to the law of limitation. In Abraham's case (1979 KLT 493), the benefit of S.4 of the Limitation Act was necessary because the period of limitation expired on a holiday. The court said that the benefit of S.4 is not available when the suit was filed in the wrong court and S.4 cannot be read together with S.14 because they provide for different situations, one for computation of limitation and the other for exclusion of time. So also, the decision said that any period of grace granted by the court to credit court fee will not be a period of limitation because the time granted is not based on any statutory provision and it cannot come under the exclusion in S.14, which is available only for the actual period when the suit was pending in the court and not for the period for which time was given after return of plaint. In Parameswara Kurup's case (1964 KLT 145), the decision said that the Munsiff, before whom the suit was wrongly filed, had no jurisdiction to extend time and, if he had jurisdiction, the suit could have been treated as re-presented within time. It was in that connection, the decision said, following some earlier decisions, that where a suit had been instituted in a court, which did not have jurisdiction, and it was found necessary to raise a second suit in a court of competent jurisdiction, the second suit cannot be regarded as a continuation of the first, even though the subject matter and parties were identical.