HUBERT PEYOLI Vs. M ABUSALI

JUDGEMENT

(1.) Plaintiff in OS 435 of 1985 on the file of Munsiff Court, Nedumangad is the appellant. Defendants are respondents. Appellant instituted the suit seeking a decree for realisation of Rs.5518.30/- with interest on the principal amount of Rs.5110/- as the balance amount due on a loan obtained on executing a bond creating a charge over the plaint schedule property. Appellant instituted the suit as OS 499 of 1983 before Sub Court, Thiruvananthapuram on 08/09/1983. But as per Kerala Civil Court Ordinance 31 of 1983 promulgated on 05/09/1983 and published in Gazette on 06/09/1883, pecuniary jurisdiction of the Munsiff Court was enhanced to Rs.15000/-. But without taking note of the pecuniary jurisdiction of Munsiff Court pursuant to the ordinance suit was instituted before Sub Court, Thiruvananthapuram as the suit was valued at Rs.10,678.80 inclusive of the interest till that date. In view of the ordinance enhancing the pecuniary jurisdiction of Munsiff Court, as per order dated 27/09/1983, Sub Court returned the plaint to the appellant for presentation before proper Court granting three weeks time for presentation. The suit was represented before Munsiff Court, Thiruvananthapuram on 12/10/1983. But as a charge decree was sought in the plaint and the property is within the jurisdiction of Munsiff Court, Nedumangad as provided under S.16(c) of Code of Civil Procedure the plaint should have been presented before Munsiff Court, Nedumangad instead of Munsiff Court, Thiruvananthapuram. As that defect was found out later by the counsel, plaintiff filed an application for withdrawal of the suit for presentation before Munsiff Court, Nedumangad. As per order dated 20/09/1985, sanction was granted. The plaint was directed to be returned for presentation before the proper Court. Plaint was taken back and represented before Munsiff Court, Nedumangad on 01/10/1985.

(2.) Respondents appeared and filed a written statement disputing the plaint claim. Necessary issues were framed and evidence was recorded.

(3.) Learned Munsiff on the evidence of PW 1, DW 1 and Exts. A1 to A3, granted a decree, directing respondents to pay Rs.10640.80 with interest providing that it could be realised by sale of plaint schedule property. Defendants challenged the decree and judgment before District Court, Thiruvananthapuram in AS 79 of 1988. Learned Additional District Judge allowed the appeal and set aside the decree and judgment of the Trial Court holding that suit is barred by time. Learned District Judge considered the question whether appellant is entitled to exclude the period from 12/10/1983, the date on which the plaint was represented before Munsiff Court, Thiruvananthapuram and 01/10/1985, the date on which it was represented before Munsiff Court, Nedumangad, under S.14 of the Limitation Act. Relying on the decision of this Court in M/s. Mooken Devassy Ouseph and sons v. Rajappan Pillai, 1983 KHC 206 : 1983 KLT 922 : 1983 KLJ 606 : ILR 1984 (1) Ker. 332 : 1983 KLN 611 : AIR 1984 Kerala 91, learned District Judge held that when the plaint was returned from Sub Court, Thiruvananthapuram for presentation before proper Court and it was presented before Munsiff Court, Thiruvananthapuram, the period from 12/10/1983 to 01/10/1985 cannot be excluded from computing the period of limitation as it cannot be said that appellant was bona fide prosecuting the suit. Learned District Judge took the view that if appellant had taken due care and attention, it would not have been presented before Munsiff Court, Thiruvananthapuram. Appeal was allowed and the suit was dismissed. It is challenged in the second appeal.