PADMINIKUTTY AMMA Vs. SUBBAIN CHETTIAR

JUDGEMENT

(1.) This Civil Miscellaneous Appeal is filed by the respondent in A. S. No. 196 of 1973 on the file of the District Court, Kottayam, against the order of remand of the suit to the Trial Court passed in the said appeal. He is the plaintiff in O. S. No. 69 of 1972 on the file of the Munsiff's Court, Devicolam. The suit was for recovery of money due under a promissory note dated 8th October 1957 executed by the defendant in favour of the plaintiff, for a sum of Rs. 4,400. On this promissory note, the plaintiff filed a suit on 7th October 1970 before the Munsiff's Court, Perumbavoor. One of the contentions taken by the defendant was that that court has no jurisdiction to entertain the suit. According to him his residence was and the cause of action arose only within the jurisdiction of the Devicolam Court. The plaintiff, being apprehensive of the result of this contention applied to withdraw the suit for presentation to the proper court. In the affidavit filed in support of that application she stated that she was prosecuting the suit on the bona fide belief that that court had jurisdiction and that in view of the contention of the defendant, she would withdraw the suit and file it before the Devicolam Court. After hearing both parties that court allowed that application on 24th June 1972, the plaint was returned to the plaintiff On 30th June 1972 and it was presented in the Devicolam Court on 1st July 1972. The defendant did not file any separate written statement in the court. He only wanted to call for all the records from the Perumbavoor Court and that was allowed. When the records were so received he represented that his written statement filed in the Perumbavoor Court may be treated as his written statement. On that basis the case was tried and decreed by the Trial Court. All the plea taken by the defendant was found against. There was no plea that the suit was barred by limitation. Against this decree, the defendant filed an appeal before the District Judge, Kottayam, and one of the contentions that he took before that court was that the suit filed in the Devicolam Court was beyond time and another contention was that no issue was raised on his contention in the written statement that the promissory note is not supported by cash consideration. The learned Judge, has by the order under attack in this appeal, remanded the case to the Trial Court, as in his view the plaintiff should have amended the plaint, when she filed the suit in the Devicolam Court by making the necessary averments regarding the grounds on which she pleads that the suit is not barred by limitation. The lower court was also of the view that an issue should have been raised on the contention of the defendant that the promissory note is not supported by cash consideration. The remand is stated to be to give an opportunity to the plaintiff to amend the plaint to plead the exception from the bar of limitation which she relies on and to give an opportunity to the defendant to prove that the promissory note is not supported by cash consideration. This is challenged in this appeal.

(2.) According to me the order of remand was not justified for the second ground. The plaint itself proceeds on the footing that the promissory note was executed after a settlement of account was taken between the plaintiff's husband and the defendant of the partnership trade carried on by them. The defendant in his written statement stated that on a settlement of accounts it was found that a sum of Rs. 4,400 was due from him to the plaintiff's husband and that the promissory note was executed for that purpose. Even accepting the defendant's case, he is liable on the promissory note even though the promissory note stated that cash consideration was received. The expression 'cash received' in a promissory note should be understood, not in the literal sense, but as it is often used, as meaning for consideration had and received. The decision in Kottayam Bank Ltd. v. Ahammed Kannu Rawther ( 1957 KLT 518 ) is an authority for this position. The defendant himself has admitted that he has executed the promissory note for the amount due from him to the plaintiff's husband. That is sufficient consideration for the promissory note and nothing turns on the failure of the Trial Court to raise an issue regarding this contention of the defendant. The lower court was therefore not right in finding fault with the Trial Court for not raising an issue on the question of consideration for the promissory note. When there is no dispute that the promissory note is supported by consideration and the dispute is only with regard to the nature of the consideration which is not material for the decision of the case, there was no need to raise an issue on that. The defendant had no complaint in the Trial Court that all the issues which had to be determined have not been raised. Therefore the lower court was not justified in caking the view that all the issues that arose for determination have not been raised.

(3.) There was no plea in the written statement that the suit was barred by limitation. The identical plaint filed before the Perumbavoor Court was filed in the Devicolam Court. That plaint contained an endorsement that the plaint is returned as per order in I.A. 1085/72 dated 24th June 1972. The return was made on 30th June 1972 and that is also endorsed on the back of the plaint. No separate court fee was paid when the plaint was presented in the Devicolam Court. The defendant was aware of all these things. At his instance all the records from the Perumbavoor Court was called for and he adopted the written statement filed by him in that court as written statement in the Devicolam Court. It appears that both the parties and the Devicolam Court proceeded on the basis that the proceeding in the Devicolam Court is only a continuation of the suit filed in the Perumbavoor Court. This is clearly mistake. When the plaint is returned for presentation Ho the proper court and when presented in the latter court, it is a fresh suit and not a continuation of the earlier suit. The period of limitation has to be reckoned till the date of the institution of the suit in the proper court. That is why provision is made in S.14 of the Limitation Act to exclude the period of the pendency of the earlier suit if that suit been prosecuted in good faith and the court was unable to entertain it on account of a defect of jurisdiction or other cause of a like nature. S.14 of the Limitation Act, 1908, was inapplicable to a case where the plaintiff withdraws the prior suit under O.23 R.1, C.P.C. by reason of the provision in R.2 which provided in effect that the fresh suit (the one withdrawn) is not to be taken into consideration at all in computing the period of limitation within which the second suit must be instituted. Even when the grounds of withdrawal were identical with those mentioned in the section, S.14 as it then stood did not apply. The reason was that there was no decision by the court where the prior suit was instituted that the court has no jurisdiction to entertain. To mitigate this hardship sub-s.3 has now been added in S.14 of the new Act providing that notwithstanding anything contained in O.23 R.2 of the Code of Civil Procedure. Provisions of sub-s.1 shall apply in relation to a fresh suit instituted on permission granted by the court under O.23 R.12 where such permission is granted on the ground that the fresh suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. In this case it is not disputed that the pronote was executed at Munnar and that the defendant resides within the jurisdiction of the Devicolam Court. The plaintiff resides within the jurisdiction of the Perumbavoor Court. The view that the common law rule that debtor must find the creditor and pay the amount where the creditor is applied to a case of negotiable instruments also is not correct. Apparently the plaintiff filed the suit in the Perumbavoor Court on that basis only and in her application to withdraw the suit she stated that as per legal advice she filed the suit in the court within whose jurisdiction she was residing. This may or may not be enough to come to a conclusion that she bona fide prosecuted the suit in the Perumbavoor Court. This mistake was later realised by the plaintiff and the plaintiff hereself, in the affidavit in support of the application to withdraw stated that the suit may find by reason of the defect in jurisdiction of the court. This must be deemed to have been accepted by the court when the application was allowed. So, if the plaintiff prove that she was prosecuting the prior suit in the Perumbavoor Court bona fide, she may be entitled to exclude the period of the pendency of the suit in that court. If that is excluded certainly the suit is within time. But, the exemption cannot be relied on for the first time in appeal. Therefore, the lower court was right in remanding the case to the Trial Court to give an opportunity to the plaintiff to plead and prove the ground of exemption mentioned in S.14. No objection can be taken, therefore, to the order of the lower court on this ground. For the same reason whether there was any part payment of the debt in the manner provided for in S.19 of the Limitation Act is also a case to be pleaded and proved. Therefore, the lower appellate court was right in remanding the suit to the Trial Court on this ground.