RAMGOPAL JHOONJHOONWALLA Vs. JOHARMALL KHEMKA

JUDGEMENT

(1.) THIS is an application by the defendant to set aside the order passed by the Small Cause Court of Calcutta. The plaintiff sues in respect of certain items which on the plaint appeared to have been barred by limitation. But the plaintiff sets out in the plaint that his claim was not barred by limitation, as his cause of action had arisen in September 1909, and also because of the acknowledgment made by the defendant in his written statement in suit No. 6581 of 1909. It has been admitted for the purpose of this argument by Mr. Sircar, who shews cause on behalf of the plaintiff, that the decision on the question of limitation was wrong. I think, so far as one can gather from the records and papers, the Court did make a mistake; apparently the case was barred by limitation. That is not the point here. The point is, has the Court jurisdiction to interfere, under Section 115 of the Civil Procedure Code, 1908, on the ground that the Small Cause Court acted in the exercise of its jurisdiction illegally or with material irregularity? The point made by Mr. Mukerjee is that Section 3 of the Limitation Act casts upon the Court the duty of dismissing all suits barred by limitation. Therefore the Small Cause Court, having gone wrong on the question of limitation, acted with material irregularity or illegality in not dismissing the suit. In my opinion that is not so.

(2.) MR. Sircar referred me to three cases. One is Amritrav Krishna Deshpande v. Balkrishna Ganesh Amrapurkar (1887) I.L.R. 11 Bom. 488, 492. The failure to decide on a question of limitation does not justify a superior Court in interfering any more than if the whole case is wrongly decided. Then he refers to Sundar Singh v. Doru Shankar (1897) I.L.R. 20 All. 78 where the Bombay case (1887) I.L.R. 11 Bom. 488 is followed, and a similar view is taken by the Privy Council in Amir Hassan Khan v. Sheo Baksh Singh (1884) I.L.R. 11 Calc. 6. This being so, I cannot interfere in this matter under Section 115 of the Civil Procedure Code. The Rule, therefore, is discharged with costs.