FATEHLAL Vs. FULCHAND

JUDGEMENT

(1.) THIS petition for revision has been filed by the defendant against the order of the trial court dated II -9 -1959, rejecting a preliminary objection raised by him that the suit was barred by time.

(2.) THE non -applicant had filed the suit for recovery of amount due on a pronote, dated 17 -12 -48. Originally the plaint was filed on 17 -12 -1951 in the Court of the Civil Judge (First Class), Indore. On inquiry the Court came to the conclusion that the case of action arose in Dhar and therefore ordered on 30 -9 -54 to return the plaint for presentation to proper Court. An appeal against the order was filed by the plaintiff which was dismissed on 10 -9 -1958. The plaintiff then took back the plaint from the Indore Court on 4 -12 -58 and presented it in Dhar on the same date. The trial Court has held that under Section 14 of the Indore Limitation Act the plaintiff was entitled to exclude the time during which the proceedings in Indore Court and the subsequent proceedings in appeal were pending. Accordingly, the time between 17 -12 -1951 and 4 -12 -1958 was exluded and the claim was held within time.

(3.) SHRI S. L. Garg for the applicant conceded before me that the time from 17 -12 -1951 to 30 -9 -1958 could be excluded under Section 14 of the Limitation Act, but argued that the time between 30 -9 -1958 and 4 -12 -1958 cannot be so excluded, as those proceedings ended on 30 -9 -1958. The delay in taking back the plaint was entirely due to, the plaintiff's fault and he cannot therefore be deemed to have prosecuted the proceedings with due deligence within the meaning of Section 14, Reliance is placed on Rama Adhin Vs. Gulzari Singh (A, I. R. 1946 Oudh 116) and Hamida Bibi Vs. Fatima Bibi (A. I. R. 1918 All. 280, In the first case, the order of the trial Court ordering the return of the plaint was taken up in appeal and subsequently in revision. The revision was decided on 12 -8 -1958 and the plaint was returned on 26 -9 -1958. On the facts in that case, it was held that the plaintiff did not act with due deligence and could not therefore claim exclusion of the time after 12 -8 -1958. In the second case, the Small Cause Court had directed return of the plaint, but the plaintiff refused to take it back and filed a revision in the High Court. After the decision of the High Court, the plaintiff did not take back the plaint for three months. It was held that the plaintiff was not justified in refusing to take back the plaint from the Court of the Small Causes and therefore the time was not allowed to be excluded.