MOHAMED SALI Vs. MARY GONRATH FERNANDO

JUDGEMENT

(1.) AN interesting question of law arises in this Letters Patent appeal, which is directed against a second appellate judgment of this court, and it arises under the following circumstances.

(2.) THE plaintiff, who is the respondent in this appeal, instituted a suit in the court of the District Munsif, Tuticorin, for the recovery of moneys due under a promissory note executed by the defendant, who was a resident of Nagarcoil. The plaintiff alleged that the promissory note was executed at Tuticorin and that consequently the cause of action had arisen within the territorial limits of the tuticorin court. The suit itself was instituted on the last day of limitation. The defendant appeared in the Tuticorin of which was that inasmuch as the promissory note had been executed at Nagarcoil and not at Tuticorin and he himself was residing at Nagarcoil, no part of the cause of action had arisen within the territorial limits of the Tuticorin court. As many as 7 issues were framed upon the pleadings and issue No. 3 related to the territorial jurisdiction of the Tuticorin court. But, before the trial commenced, that is to say, on 28-7-1959, the plaintiff's agent made an endorsement on the plaint to the following effect-

(3.) THE plaint was actually returned to the plaintiff on 6th August, 1959. The plaintiff presented this plaint in the Nagarcoil court on 19th August, 1959 along with a fresh plaint. The Nagarcoil court entertained both the plaints, treated the court fee paid on the earlier plaint as court-fee due on the fresh plaint and proceeded with the trial after issuing summons to the defendant, giving an opportunity to the defendant to file an answer, framing issues, recording evidence and ultimately, holding that inasmuch as the plaint had been presented in the nagarcoil court long after the expiry of the period of limitation, the suit was barred by time. The first appellate Court reversed this judgment and granted a decree in favour of the plaintiff. In the second appeal, the judgment of the first Appellate court was upheld, and against that judgment, the present Letters Patent Appeal has been filed by the defendant.