ORISSA CEMENT Vs. UNION OF INDIA

JUDGEMENT

(1.) THE only question involved in this appeal relates to limitation Defendant does not challenge the merit of the plaintiff's claim. Facts relevant to the question of limitation need only be mentioned There was a shortage in the consignment for 264 M S Rounds worth Rs. 4,655. 10 paise A short delivery certificate (Ext 6) was furnished to the plaintiff on 23-2 1957 Plaintiff addressed letters (Exs 7 and 9 to 9/b) to the railway authorities on 26-6-1957 17-7-1957. 11-10-1957 and 24-121957 claiming compensation for the shortage incurred Defendant repudiated the claim for compensation by a letter (Ex 10) on 10-1-1958. Plaintiff sent a notice (Ex. 11) under Section 80 C. P C on 14-2-1958 to the defendant. On 21-2-1958 plaintiff reiterated its claim for shortage by a letter (Ex 12 ). Defendant repudiated the claim by a reply (Ex 13) dated 22-3 1958 on 14-4-1958 plaintiff flied Money Suit No 10/58 By then the period of 60 days from Ex. 11 had not expired The 60 days' time was to expire on 16-4-58 The limitation for the suit was to expire on 22-4-58. Though on merits plaintiff's claim was upheld, the suit was dismissed on 3-10-1959 on the sole ground that it was filed before the expiration of two months next after notice in writing had been delivered contrary to the provisions of Section 86, C. P. C. Against the judgment, f. A No. 6 of 1960 was filed in the High Court. On 27-4-1962 the High Court passed an order to the effect "the plaint should stand rejected under the provisions of Order 7 Rule 11. Clauses (a) and (d) C P. C. The plaintiff will however be at liberty to file a fresh suit according to law. " on 28-4-1962, just a day after, a fresh suit was filed on the same cause of action the learned Subordinate Judge upheld the claim for compensation but dismissed the suit holding that the plaintiff was not prosecuting the previous suit and the appeal in good faith and was not entitled to exclusion of time under Section 14 (1)of the Limitation Act. 1908 (Act IX of 1908 ). Plaintiff has filed the appeal against this judgment

(2.) THE sole point for consideration is whether the plaintiff is entitled to exclusion of time under Section 14 (1 ). It is the common case of the parties that limitation expired on 22-4-1958. The present suit was filed on 28-4-1962 In order that the suit would be within limitation the period of about 4 years from 22-4-1958 to 284-1962 must be excluded under Section 14 (1) This necessitates examination of the scope and ambit of Section 14 (1 ). It runs thus in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of Appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it That the plaintiff has been prosecuting another civil proceeding in M. A 10/58 and F. A. 6/60 against the defendant is well established That proceeding was founded upon the same cause of action which is involved in the present suit. That proceeding was held not to be maintainable not from defect of jurisdiction but as it was premature being filed before the expiration of two months next after notice in writing had been delivered to the defendant in violation of the mandatory provision in Section 80. C. P C. Thus three of the essential requirements under Section 14 (1) have been fulfilled before plaintiff gets benefit of Section 14 (1) another condition that the previous proceeding had been prosecuted with due diligence and in good faith, is to be satisfied.

(3.) IT is now well settled that the tests under Section 14 are stiffer than those under Section 5 of the Act AIR 1965 Orissa 193. Bhagirathi v. Achuta. Both the sections are, however, to be liberally construed AIR 1929 PC 103. Ramdutt ramkissen v. E. D. Sassoon and Co