MACKEY BROTHERS Vs. JETHANAND JESSUMAL

JUDGEMENT

(1.) THESE two applications for revision arise from two summary suits and may be conveniently disposed of by one judgment as a certain common question of law is involved. The first suit is a suit upon a dishonoured cheque and the plaintiff sued to recover from the defendant the amount of the cheque after giving credit to him of an amount which the plaintiff said was due to him upon certain independent transactions. The defendant applied for leave to defend and the defences taken by him, which it is necessary to state for the purpose of the present application, are that the present suit could not be filed as a summary suit because the plaintiff's suit was not filed within the period of three years provided for filing such suits under Article 64A of the Indian Limitation Act. The plaintiff wished to rely upon the provisions of Sections 19 and 14 of the Limitation Act in order to save limitation. He said that he had been prosecuting an application against the defendant under the Displaced Persons (Debts Adjustment) Act, 1951, and the period during which he was prosecuting that application should be deducted in computing the period of limitation for filing the present suit. He also relied upon an as knowledgment by the defendant upon which he wished to rely in order to save limitation. The defendant said that the suit in which plaintiff claimed that the period taken by the plaintiff in prosecuting the proceedings under the Displaced Persons (Debts Adjustment) Act, 1951, in another Court should be deducted would not be a summary suit. The defendant also sad that a suit which was filed more than three years prescribed for it under Article 64A of the Limitation Act was also not a suit which could be filed as a summary suit. The defendant contended besides that in this case the plaintiff wished to give the defendant a set off in regard to certain transactions which he claimed were independent transactions. But according to the defendant these transactions were not independent transactions. There was only one set of transactions between the plaintiff and the defendant' and the defendant had given the plaintiff five cheques on account. The defendant stopped payment of the last cheque because accounts were never made and the defendant found that if the account were made the money would be due from the plaintiff to the defendant.

(2.) THE other suit was a suit by the plaintiffs upon a loan, but in the plaint the plaintiffs stated that they had by mistake failed to deduct the amount of the loan from the surrender values of certain policies which they had made over to the defendant. Here again the plaintiffs wanted to rely upon the provisions of Section 19 of the Limitation Act in order to save limitation, and the defendant took up the same contention as the defendant in the other suit, namely, that a suit in which the plaintiffs wished to rely upon the provisions of Section 19 of the Limitation Act in order to save limitation would not be a suit which could he filed as a summary suit. The defendant also contended that in this case according to the plaint itself the plaintiffs had failed to deduct the amount of the loan from the surrender values of certain policies which had been made over by the plaintiffs to the defendant, and such a suit making such a claim again was not a suit which could be filed under the summary procedure.

(3.) NOW , it has got to be remembered that in the first instance whether the suits were barred by time or not under the provisions of Article 64A of the Indian Limitation Act the filing of the suit could not be prevented. The plaintiff is entitled to file even a time -barred suit. If a suit is barred by limitation, an order can be made under Section 3 of the Limitation Act dismissing the suit as barred by time. It is not correct therefore to contend, as the defendants have contended, that because in this case the suit was barred by time, if the plaintiffs could not take advantage of the provisions of Sections 14 and 19 of the Limitation Act the suit could not be filed as a summary suit at all. The plaintiff is entitled to file a suit under the summary procedure or under the ordinary procedure as he deemed fit, and if the suit is barred by time as a summary suit, as of course it could well be, the suit could be dismissed as a summary suit giving an option to the plaintiff to take it over to the regular side; but the Court could not refuse, to let the suit be filed. The reason is that whether a suit under the summary procedure lies or not, depends upon whether the suit falls within the purview of the provisions of Order XXXVII, Rule 2, of the Civil Procedure Code, as they are after the amendment of these rules by this Court under the powers given to it under Section 122 of the Code. Now, it is not contended before us that the suits are not of the type which can be filed as a summary suit. One suit is a suit for the amount? due upon a dishonoured cheque. The other suit is a suit upon a loan. It is common ground that if the suits had been in time irrespective of the provisions of Sections 14 and 19 of the Indian Limitation Act they could be filed as summary suits. Now, assuming for the purpose of argument that the plaintiff was not entitled to take advantage of the provisions of either Section 14 or Section 19 of the Indian Limitation Act, the suits do not cease to be suits within the description given in Order XXXVII, Rule 2, of the Civil Procedure Code. The plaintiff was entitled, therefore, to file the suits as summary suits. If the Court came to the conclusion that the suits were barred by limitation as summary suits, it would pass the usual order. I presume that the order would be that the plaintiff would be given a choice. The suit would be dismissed unless the plaintiff was willing that the suit would be taken over by him to the ordinary side. It may be that the proper order was to transfer it to the ordinary side. But the proper order would be made and the suit could not be thrown out altogether, the Court saying that it refused to entertain the suit as a summary suit.