NIBARAN CHANDRA BANERJEE Vs. SCMUKHERJEE

JUDGEMENT

(1.) THE only question which arises in this second appeal is whether in an order under Section 57 of the former Code, returning the plaint to be filed in the proper Court, the Court returning the plaint has any discretion to grant a reasonable time for the purpose. It has been argued before us that under the provisions of Section 14 of the Limitation Act, the only time that can be excluded is the time during which the plaintiff has been prosecuting with due diligence another Civil proceeding against the defendant in good faith in a Court which for defect of jurisdiction is unable to maintain it, and that, therefore, what really happened was that when the plaint was returned on the 10 of July 1907 at 4-50 p.m., the plaintiff no longer had any time in which to file the plaint in the proper Court, inasmuch as he had filed the plaint in a wrong Court, on the 12 April 1907 which was the last date for limitation. It is urged that the special provision made with regard to Section 20, Civil Procedure Code, is a concession and only gives the time requisite for going from the Court in which the proceedings are stayed to the Court in which the suit is re-instituted. But we are strongly of opinion that this provision is in no sense a concession. On the contrary it is a stringent rule of law made with regard to the express provision of Section 20 wherein it is laid down that an application under that section must be made at the earliest possible opportunity. THE ordinary rule of law where there is nothing to the contrary is that when time is required for carrying out the order of the Court that time must be reasonable. In the case of Hukum Chand Baid V/s. Kamalanand Singh 3 C.L.J. 67 : 33 C. 927, which is referred to by the learned Subordinate Judge in the Court below, it is laid down: THE Code does not affect the power and duty of the Court, in cases where no specific rule exists, to act according to equity, justice and good conscience, though in the exercise of such powers it must be careful to see that its decision is based on sound general principles and is not in conflict with them or the intention of the Legislature." Now if it once be conceded that a plaintiff who has been allowed to take back his plaint to be filed in the proper Court is entitled to reasonable time, it appears to be the duty of the Court to decide what reasonable time is. In this case the learned Munsif rightly or wrongly said that a week would be reasonable time. It appears on the facts that it would have been quite possible for the plaintiff to have filed his plaint earlier than that. But relying on the inherent power of the Court, he appears to have followed the order of the Court and to have re-filed his plaint within the time granted to him by the Court. THE learned Subordinate Judge is doubtful as to the power of the Munsif to grant a fixed period, but he finds as a fact that the time granted was reasonable for the purpose, and we do not consider it either necessary or desirable to go behind the finding. We think that if the Court can lay down that a reasonable time be given, it may a fortiori say what that reasonable time is, but it should, of course, be very careful not to give more time than is reasonably necessary. If in this case the Munsif did allow a slightly longer time than was absolutely necessary, the plaintiff cannot be called upon to be responsible for what was within the inherent power of the Court.

(2.) FOR these reasons, we think that the appeal must be dismissed with costs. We assess the hearing-fee at two gold mohurs.