BALADEB JEW THAKUR Vs. DHANESWAR MISRA

JUDGEMENT

(1.) The plaintiff is the petitioner in this Civil Revision directed against an order of the Additional District Magistrate (II), Cuttack, in Rent Revision Case No. 3 of 1957-1958 setting aside an order of the Deputy Collector and previous Rent Suit Officer in Case No. 2/193 B of 1954-1955 under Section 193(b) of the Orissa Tenancy Act, 1S39 and directing that the suit be dismissed as barred by limitation.

(2.) The only question, in this case, is one of limitation which arose in these circumstances: On 31-8-1951 the defendant who was the Tahasildar of the plaintiff Sri Baladeb Jew Thakur installed in its temple at Ichhapur, Kendrapara, in the district of Cuttack, was dismissed for alleged mis-appropriation of monies and negligence for the management of the said Thakur's property. On 3-111951, the plaintiff Thakur filed a suit being Original Suit No. 519 of 1951 (III) for recovery of Rs. 2982/-, accounts and other incidental reliefs against the said Tahasildar defendant in the Second Munsif's Court at Cuttack. The defendant filed a written statement denying the plaintiff's claim. A point of jurisdiction was also taken that the Munsif's Court, Cuttack, had no jurisdiction to entertain the suit. It was contended, on behalf of the defendant, that the subject matter of the plaintiff's alleged claim came within Section 193(b) of the Orissa Tenancy Act, 1913 which provides that all suits by landlords and others in receipt of the rent of land, against any agents employed by them in the management of land or the collection of rents, or against sureties of such agents, for money received or accounts kept by such agents in the course of such employment, or for papers in their possession, shall be cognizable by the Collector and shall be instituted and tried or heard under the provisions of the said Act and shall not be cognizable in any other Court except as provided in the said Act The point taken by defence was that, having regard to the nature of the suit, namely, that it was a landlord's suit against the Tahasildar as his agent employed by the landlord in the management of land or the collection of rents as aforesaid, -- the suit came within the scope of Section 193(b) and therefore could be cognizable only in the Revenue Court and not in the Civil Court. On 211-1954 the Munsif returned the plaint to be filed in the Revenue Court on the ground that the Civil Court has no jurisdiction, On 8-11-1954 the plaint was filed in the Revenue Court. Before the Deputy Collector and previous Rent Suit Officer, a point of limitation was taken on behalf of the defendant that the cause of action having arisen on 31-8-1951, being the date of dismissal of the defendant Tahasildar, the suit was barred by limitation on the expiry of 31-8-1954 and hence the suit, as filed in the Revenue Court on 8-11-1954 was barred by limitation. It was contended, on behalf of the plaintiff that the suit was filed in the Munsif's Court on 3-11-1951 as aforesaid which was within time. It took a period of three years for the Civil Court to decide whether it had jurisdiction to entertain the suit and it was further contended that if the time covered in the Civil Court is excluded, then the suit is within time. The Rent Suit Officer came to the finding that it was a fit case in which the period, for which the case was prosecuted in the Civil Court wrongly, should be excluded in computing the period of limitation and decided that the plaint was filed within time. The defendant appealed to the Additional District Magistrate as Collector under the said Act, who however, set aside the order of the Revenue Court and directed that the suit be dismissed as barred by limitation. Hence this revision.

(3.) The only point for consideration, in this revision, is whether the plaintiff was entitled to the exclusion of the period, covered in the Civil Court under Section 14 of the Limitation Act, which provides that 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. In the present case, it appears that during the prosecution of the suit in the Civil Court, the plaintiff had entrusted the suit to a very senior advocate of Cuttack Bar. The suit was filed in the Civil Court within three months of the arising of the cause of action. It further appears that, within a week of the return of the plaint by the Civil Court, it was filed in the Revenue Court, with all diligence oil the part of the plaintiff. It is quite clear that the plaintiff acted in good faith and with due diligence during the course of the pendency of the suit in the Civil Court.