MT RAM PATI KUNWAR Vs. PHOOL SINGH

JUDGEMENT

(1.) This appeal has arisen out of a suit brought by the plaintiff-appellant for arrears of rent for 1329-1334-F and for the appointment of a receiver in terms of the relief claimed in the plaint. The suit was originally instituted in the Court of the Munsif, Fatehpur. One of the pleas taken in defence was that the civil Court had no jurisdiction. Another plea was that the plaintiff's suit was barred by res judicata. The Munsif did not decide the question of jurisdiction raised by the defendant, but held that the plaintiff's suit was barred by res judicata. Accordingly, he dismissed the suit. The plaintiff appealed 4o the Court of the Subordinate Judge who held that the suit was cognizable exclusively by a Revenue Court. Accordingly, the plaint was returned to the plaintiff for presentation to the proper Court. The claim for 1329 to Kharif 1330 was time barred when the suit was instituted in the civil Court. It was subsequently abandoned by the plaintiff. When the plaint was presented in the lie venue Court, the plaintiff's claim for Rabi 1330-F and Kharif 1331-F was also barred by limitation unless the benefit of Section 14, Lim. Act, could be extended to her. The plaintiff's suit was decreed by the Assistant Collector except for the years 1329 to Kharif 1331-F. He also decided some subsidiary questions. Both parties appealed to the District Judge, who confirmed the decree of the first Court subject to slight modifications, which it is not necessary to mention at this stage. He upheld the view of the first Court that the plaintiff's claim for Rabi 1330-F and Kharif 1331-F was barred by limitation. He further held that Section 14, Lim. Act, did not apply to the circumstances of the case. The plaintiff has filed the present second appeal against that part of the decree of the lower appellate Court which relates to the arrears for Rabi 1330-F and Kharif 1331-F. The defendant has filed certain cross-objections, the nature of which will be stated in a later part of this judgment.

(2.) The plaint, as originally framed, was very complicated. It recited the facts that Sheoratan Singh and Dayashankar Singh, plaintiffs 1 and 2, granted a lease to the defendant Phool Singh who agreed to pay a certain rent for the theka. Sheoratan Singh and Dayashankar Singh assigned their proprietary rights to Mt. Rampati Kuer, plaintiff 2, the wife of Sheo Ratan Singh, plaintiff 1. It was alleged in the plaint that one of the lessors was a minor at the time the lease was executed, while the other lessor was devoid of common sense and not capable of understanding matters. It was further alleged that the lessee did not pay out of the rent interest due to one Dwarka Prasad as he was bound to do under the lease. The whole plaint contains allegations challenging the validity of the lease. The plaintiff claimed the right to recover possession of the property to which the lease related, but she reserved liberty to sue for that relief in a subsequent suit. The relief claimed in the present suit was for recovery of what the lessee was liable to pay under the theka and for the appointment of-a receiver, who, it was prayed, should be directed to take possession of the property and to manage it during the term reserved by the lease and make payments in accordance with the stipulations contained in the lease. We have stated in detail the allegations contained in the plaint for a proper consideration of the question, whether Section 14, Lim. Act can apply to the circumstances of the case. The learned District Judge held that Section 14, Lim. Act, did not apply to cases in which the plaintiff himself withdraws a suit instituted in the wrong Court and subsequently institutes it beyond limitation in the right Court. It should be explained in this connexion that the Subordinate Judge, who disposed of the appeal from the decision of the Munsif, directed the plaint to be returned for presentation to the Revenue Court, because it was admitted on behalf of the plaintiff-appellant before him that the suit, as framed, was not cognizable by a civil Court as pleaded by the defendant. There being no controversy between the parties on the question of jurisdiction, and the Subordinate Judge himself not taking a different view, he acted on the admission of both the parties and passed his order thereon. In these circumstances it cannot be considered that the plaintiff-appellant withdrew the suit instituted in the civil Court and subsequently instituted it in the Revenue Court which ex hypothssi was the proper Court. It has not been argued before us by the learned advocate for the defendant that the civil Court had jurisdiction. We take it that the suit had been wrongly instituted in the civil Court, that both the parties admitted before the Subordinate Judge that the civil Court had no jurisdiction and that the Subordinate Judge held that the civil Court had no jurisdiction.

(3.) The learned advocate for the defendant-respondent has referred us to certain cases in which it was held that where a suit is withdrawn under Order 23, Rule 1, Civil P.C. with liberty to bring a fresh suit and a second suit is instituted after the expiry of limitation, though the first suit was within time, Section 14, Lim. Act, cannot apply. That view is obviously based on the language of Rule 2, Order 23, Civil P.C. which runs as follows: 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.