KARIM ISMAIL Vs. ABDUL RAHIMAN

JUDGEMENT

(1.) This appeal arises from a suit filed, by the plaintiff-respondent to recover from the defendant-appellant a sum of Rs. 6,900. The suit is based upon a hand-loan dated 23-54944. The defence to the suit was that there was no hand-loan given by the plaintiff to the defendant but that the sum of Rs. 10,000 paid by the plaintiff to the defendant was towards the dues owing by him to the defendant. This defence did not prevail in the trial Court and the learned trial Judge passed in favour of the plaintiff a decree for the amount claimed with interest and costs as set out in the order. The defendant has come up in appeal.

(2.) Upon this appeal Mr. Joshi for the defendant-appellant contends that the plaintiff's suit giving rise to this appeal was barred by the law of limitation. It is to be noted that in the trial Court the plea of limitation was not taken by the defendant, but that makes no difference, because Section 3, Limitation Act, provides that

(3.) Now, the facts having a bearing upon the question of limitation are these The transaction sued on is a hand-loan of the date 23-5-1944, the amount of the hand-loan being a sum of Rs. 10,000. In order to recover this loan the plaintiff would have, without anything more, to bring the suit within three years from 23-5-1944, so that the plaintiff must bring his suit on or before 23-51047. It so happened however, that on that day the Court of the Civil Judge at Alibag, in which the suit came to be instituted, was closed owing to the summer vacation of the Court and it appears that the suit was instituted in the Court of the Civil Judge at Alibag on 9-6-1947, after the re-opening of that Court after its summer vacation. It is not in dispute that the summer vacation of the Court was over on 8-6-1947, and that the Court re-opened on 9-6-1947, when the plaint was presented. It appears that thereafter the plaint was examined and the learned trial Judge took the view that ho had no jurisdiction to entertain the suit and by his order dated 11-7-1947, he returned the plaint for presentation to the proper Court, The plaint was returned on 11-7-1947, at 4 p. in. The ground upon which this order was made was that the original jurisdiction of the learned Civil Judge was to try suits up to Rs. 7,500 but only such suits in which the cause of action had arisen in the taluka of Alibag. In the present case, according to the averment made in the plaint the cause of action for the suit arose on 23-5-1944, within the special jurisdiction of the Court at Khaire, taluka Roha, and it is not in dispute that the Court of the Civil Judge at Alibag would have no jurisdiction to try suits in respect of causes of action arising within the Roha taluka. The plaint was accordingly filed in the Court of the Civil Judge, Senior Division, Thana, on 12-7-1947, and in that Court the suit bore special jurisdiction suit No. 38 of 1947. It appears that the suit was subsequently transferred to the Court of the Civil Judge, Senior Division, at Alibag and was received by that Court on 1-12-l947. Upon its transfer to the latter Court the suit proceeded in that Court and the learned Judge gave the plaintiff a decree for the amount claimed on 30-11-1948.