BENI RAM Vs. GANGA SAH

JUDGEMENT

(1.) This is an appeal by the plaintiffs who instituted a suit for damages on account of a defect in the title of the ancestor of the defendants respondents in the property covered by a registered sale deed executed by him in favour of plaintiff No. 1 in June, 1938 for Rs. 1000. The only question raised before us is whether the benefit of Section 14 of the Indian Limitation Act, 1908 is available to a plaintiff who has withdrawn an earlier suit with permission to sue afresh under Clause (2) of Rule 1 of Order 23 of the Code of Civil Procedure and then instituted a fresh suit on the same cause of action. The plaintiffs, in the instant case, had instituted a suit against the defendants for the same relief and the same cause of action with the period prescribed by the relevant Article of the said Limitation Act, but they withdrew the suit with the permission of the court to sue afresh. Thereafter, the present suit was instituted on the expiry of the prescribed period of limitation. If the benefit of Section 14 of the Act is available to the present plaintiffs, then the suit is within time, otherwise it is conceded by Mr. Prem Lall that it is barred by limitation.

(2.) Rule 2 of Order 23 lays down: "In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted." It is clear from the language of this Rule that the plaintiffs in the instant case are not entitled to the benefit of Section 14 of the Act. Mr. Prem Lall also conceded that almost all the High Courts of India have given this interpretation to Rule 2. But he relied on a bench decision of this court in Governor-General in Council v. Gouri Shankar Mills, AIR 1951 Pat 382. In that case, the plaintiff had originally brought a suit on 16-9-1943 in respect of the loss of certain consignments against the railway administration. On 15-11-1944 the plaintiff withdrew the suit with the leave of the court to sue afresh on the same cause of action for the reason that the suit had been filed within two months of the service of the notice under Section 80 of the Code of Civil Procedure and was, therefore, premature. He instituted the second suit which came to this court on 16-11-1944. Ramaswami, J. (as he then was), observed that upon these facts it was patent that under section 14 of the Limitation Act, the plaintiff was entitled to exclude the period during which the previous suit was pending in court. Manohar Lall. J. agreed with him. Their Lordships relied on a decision of the Privy Council Hem Chunder Choudhry v. Kali Prosunno Bhaduri, (1903) 30 Ind App 177 (PC). In the case before the Privy Council, the earlier suit had not been withdrawn but the suit had been disallowed as premature; and their Lordships were of the opinion that the proceedings in the earlier suit stayed the operation of the law of limitation to a subsequent suit. Manohar Lall, J., also relied on the decision of the Privy Council in Mt. Phoolbas Koonwur v. Lallo Jogeshur Sahoy, (1875-76) 3, Ind App 7 (PC) But it is not necessary to discuss this decision, except that no question of the applicability of Ssection 14 of the Limitation Act appears to have arisen in that case. Ramaswami, J., further relied on a Full Bench decision in L.B. Lall v. B.M. Khatri, (AIR 1949 Pat 293) (FB). There was no question of withdrawal of any suit in that case either, but the question was whether the time taken in the revision could be excluded under Section 14 of the Act for the purpose of calculating the period of limitation in the subsequent suit. In the case of AIR 1961 Pat 882, Rule 2 of Order 23 was not at all referred to or considered; and there was no necessity for considering that Rule in the other decisions. In view, however, of the specific provision in Rule 2, we must hold that, in the instant case, the benefit of Section 14 is not available to the plaintiffs appellants. The earlier bench decision reported in AIR 1951 Pat 382 was apparently given per incuriam and would not be binding on another bench of collateral jurisdiction (See Jaisri Sahu v. Rajdewnn Dubey, AIR 1962 SC 83 at p. 88 and Ambika Prasad Sinha v. R.P. Sinha, 1967 BLJR 381). In the latter case, a bench of this court, relying on the Supreme Court's decision as also on a passage in Halsbury's Laws of England, took the view that a decision given per incuriam will not be binding on another bench of co-ordinate jurisdiction. In Halsbury's Laws of England (3rd Edition), Volume 22, page 800. it has been observed:

(3.) In view of the foregoing discussions, it must be held that the suit out of which the present appeal arises was barred by limitation and, therefore, it has been rightly dismissed by the courts below. The appeal is accordingly dismissed, but with out costs of this Court in the circum stances.