SAMUEL Vs. MATHEW

JUDGEMENT

(1.) The main question which arises in this revision is this: Whether any question of law was involved in the decision of the Trial Court for clothing the appellate court with jurisdiction under S.96(4) of the Code of Civil Procedure (for short 'the Code') since the amount of the original suit does not exceed Rs. 3,009/- Other questions raised need be considered only if the main question is answered in the affirmative. The Trial Court dismissed the suit as barred by limitation But the District Court in appeal found that as the plaintiff is entitled to the benefit under S.14(1) of the Limitation Act, 1963 ('Act' for short) the suit is not barred by limitation. The District court passed a decree against the defendant who has not come up in revision.

(2.) A short resume of the facts is this: Plaintiff conducted a chitty in which the defendant had jointed for two units. One of the units was prized by the defendant at a discount of Rs. 2,902/-. Plaintiff deposited the prized amount (Rs. 2.098/-) in a bank on failure of the defendant to furnish security for the due payment of future instalments. Plaintiff later appropriated the amounts covered by the future instalments from the amount so deposited in the bank. But as the said deposit was not sufficient to cover the entire future instalments, he filed Original suit No. 206/76 (that suit will be referred to as the earlier suit) for realisation of a sum of Rs. 2,044/-. Though the earlier suit was decreed by the Trial Court, it was dismissed by the District Court in appeal on the ground that the suit was instituted during a period of prohibition as per S.3 of the Kerala Debtors (Temporary Relief) Act, 1975 (Act 30 of 1975). After the expiry of the period of prohibition, the plaintiff filed the present suit for identical reliefs. The main contention advanced by the defendant, in the written statement, is that the present suit is barred by limitation. In the plaint it is alleged that in computing the period of limitation the period during which the earlier suit was pending has to be excluded under S.14(1) of the Act. The Trial Court dismissed the present suit as barred by limitation, holding that the earlier suit was prosecuted without diligence or good faith. But the District Court in appeal found that the earlier suit was instituted and prosecuted by the plaintiff in good faith and also with due diligence and hence the period during which the earlier suit was pending roust be excluded in computing the period of limitation.

(3.) S.96(4) of the Code of Civil Procedure reads thus: