RAGHAVAN Vs. SOMAN

JUDGEMENT

(1.)

(2.) EXT. A-3 sale deed is dated 12-7-1966. Appellant contended that the suit ought to have been filed on or before 11-7-1979 and as the plaintiff filed the suit before the Sub Court only on 4-7-1980 it is barred by limitation. Admittedly the suit was filed before the Munsiff Court on 20-7-1976. It was found that the Munsiff had no jurisdiction to try the suit as the valuation of the subject matter of the suit exceeded the pecuniary jurisdiction of the Munsiff Court and returned the plaint to be presented before the Sub Court. The order was on 3-7-1980. The suit was presented on 4-7-1980 before the Sub Court. Counsel for the appellant contended that the Courts below ought to have held that the suit was filed in the proper Court only in 1980 and as the same cannot be considered as a continuation of the suit filed in the Court without jurisdiction the suit is barred by limitation. It is also pointed out that in the plaint before the Sub Court there are no averments to get over the period of limitation and so on that ground also the Courts below ought to have held that the suit is barred by limitation.

(3.) CONTENTION of the plaintiff in that the suit was filed before the Munsiff Court with the bona fide belief that it was maintainable in that Court and as he diligently prosecuted the suit with that belief return of the plaint for presentation before Sub Court will surely attract S. 14 of the act On the other hand, defendant contended that the plaintiff having got the plaint returned from the Munsiff Court as the suit was found to be under-valued and presented it in the Sub Court, the time during which the suit was pending before the Munsiff Court and the presentation of the suit before the Sub Court cannot be excluded. It is also contended that as a specific ground of exclusion of time under S. 14 of the Act has not been taken in the plaint the plaintiff cannot invoke its benefit. 0. 7 R. 6 C. P. C. provides that the plaint should show the grounds upon which exemption from the period of limitation is claimed. As the suit was filed before the Munsiff Court well within time there was no need for the plaintiff to say anything to get over the period of limitation. As the plaint was returned by the Munsiff and as it contains : the endorsement that it is returned for presentation before the proper Court the failure "to make averments claiming exclusion of time under S. 14 of the Act is of no consequence. Averments necessary to get exemption from the period of limitation could have been made in the plaint presented before the Sub Court after necessary amendment. Even without such amendment in the plaint, if it is found that the suit was filed within time before the Court of incompetent jurisdiction and that Court returned the plaint for presentation before the court having jurisdiction the hyper-technical contention that the plaint contains no necessary averments to get over the period of limitation and so the suit is exfacie barred by limitation is not tenable. The endorsement on the plaint can be relied on for the purpose of exclusion of time under S. 16 of the act read with 0. 7 R. 6 C. P. C.