RAJARAM Vs. VITHABAI AND OTHERS

JUDGEMENT

(1.) THE defendant petitioner has preferred this revision against an order dated 31 -7 -1984 passed in Civil Suit No. 100 -B of 1978 by Shri B.B.L. Agrawal, 7th Additional Judge to the Court of District Judge, Indore, whereby the plaintiff's application under section 14 of the Limitation Act, 1963 (for short, "the Act"), has been allowed and the time spent in prosecuting the suit in summary jurisdiction under order 37 of the Code of Civil Procedure was excluded.

(2.) THE facts material for the decision of this revision are as under: -

(3.) SHRI K.S. Sisodiya, learned counsel for the plaintiff -respondent No. 1, contended that the trial Court has disposed of the application under section 14 of the Act according to the directions as contained in the order of remand passed by this Court. A plea of exemption from limitation under section 14 of the Act can also be decided by a separate application and it is not necessary to incorporate the same in the plaint under order 7, rule 6 CPC. Moreover, when there was a direction of this Court to dispose of the application, there was no jurisdiction vested in the trial Court to proceed with the case differently and to allow the amendment in the plaint as the jurisdiction of the Court depended upon the terms of the order of remand. After considering the application under section 14 of the Act and after holding an enquiry the trial Court has come to a finding of fact that the earlier proceedings on institution of the suit in the summary jurisdiction, while the suit ought to have been tried as a regular suit, were in good faith and the plaintiff was prosecuting the same with due diligence. In fact the plaintiff cannot be penalised for the mistake of the counsel. It is the counsel, who could have advised the plaintiff to institute the said suit in the regular Court. Even though the suit was filed in the summary jurisdiction, the Court had jurisdiction to try it as a regular original suit but because of the distribution memo and the valuation of the suit, the said Court ordered return of the suit for proper presentation. It is not a case where the jurisdiction of the Court was barred or was expressly prohibited by law. Therefore, the finding arrived at on good faith and due diligence, cannot be interfered in revision.