RAMAKRISHNA CHETTIAR Vs. JAYARAMA IYER

JUDGEMENT

(1.) The defendants are the appellants. The question is whether the suit is time- barred, having regard to Section 14, Lim. Act. The persons, Aiyaswami and Venkatachala Chetti were carrying on a grocery business jointly. Aiyaswami died leaving a widow, defendant 2. Venkatachela Chetti left a son Lakshminarayana and between this son and defendant 2 there was a partition suit, O.S. No. 37 of 1919 in the Mayavaram Sub-Court. Before it was launched a creditor of Venkatachala Chetti brought a suit, O.S. No. 397 of 1918, in the Tiruvarur District Munsif's Court, got a decree and in execution of it attached some of the goods in the grocery shop. The Amin who took charge of the attached properties left them in the hands of the plaintiff who executed a surety bond that he would be responsible for the value of the goods. The decree was satisfied between October and December 1919. In the partition suit between the widow, (defendant 2) and Lakshminarayana the grocery goods went to the widow under a compromise. She assigned them to a transferee, another Lakshminarayana. He sought to recover the goods from the plaintiff and filed a suit against him. The plaintiff as defendant 1 in that suit raised two defences: (1) that the plaintiff Lakshminarayana did not own the goods but was only a benamidar; (2) that while ha (defendant 1) was in possession of the goods the present defendants trespassed and took them away. In that suit the trial Court found the plaintiff Lakshminarayana was not entitled to the goods and dismissed the suit. The appellate Court found he was entitled and gave a decree against defendant 1. It may be noted that defendant 1 in that suit, the present plaintiff, got the present defendants impleaded as defendants 4 and 5. The alleged trepass by them was on the 22nd or 23 February 1920. The present suit was brought on 30 November 1925. It is admittedly out of time unless the time of the trial of the suit brought against the present plaintiff by Lakshminarayana is excluded. Both the lower Courts found that it should be excluded. I am, however, unable to agree with their view. Looking to the written statement of the plaintiff in that suit as defendant 1, it is perfectly clear that he claimed no relief as against defendants 4 and 5 in that suit (defendants 1 and 2 in the present suit). His main defence, as stated above, was that the properties did not belong to the plaintiff in that suit. Then he went on to para. 7 of the written statement to say: If for any reason it is established that the plaint properties belong to the plaintiff and only Minakshi Ammal and Ramakrishna Chetti (defendants 4 and 5) removed the articles, having regard to the fact that the articles were entrusted to the plaintiff only for safe custody the plaintiff is entitled to relief only against these persons.

(2.) He then goes on in para. 8 to say: "The suit is bad for non-joinder of these parties," and he says therefore that they should have been made parties. He claims no relief against them. It is argued that Section 14, Lim. Act, says nothing about the relief being the same, but only the cause of action being the same. It would be an extraordinary proposition to hold that where the same cause of action entitles a party to several reliefs and he chooses to sue only for one of them he can subsequently bring a suit for another relief and, so far as limitation is concerned, claim the benefit of Section 14, Lim. Act. In a recent case quoted for the appellants Narasimhacharyulu V/s. Appa Rao , Sundaram Chetty, J., says with reference to Section 14: Another aspect for consideration under that section is whether the previous proceeding was for the same relief although not founded on the same cause of action:

(3.) See also 1932 M.W.N. 1317 where two items in regard to which a claim was not raised in the previous partition suit were held to be time barred in the subsequent suit though both were partition suits, which is clear authority against the proposition that as long as the cause of action is the same the reliefs may be different. No authority has been quoted before me to show that the relief must not also be the same if Section 14, Lim. Act, is to apply. Then it is argued for the respondents that the 6 additional issue in O.S. No. 194 of 1922 on the file of the District Munsif's Court, Tiruvarur, covers the plaint. That issue ran: "Whether the disputes among the defendants can be adjusted in this suit." This is very vague, and to see what the disputes were we must look to the written statement. As I said, the plaintiff never raised any point in the written statement that defendants 4 and 5 were liable to him. He simply stated that if anybody was liable to the plaintiff in that case it was defendants 4 and 5 and not himself. In fact, as stated by the trial Court in the present case it was found in that case that "no disputes arose between the defendants in that suit." The District Munsif's finding on that issue is upon my findings of fact no disputes between the defendants in this suit arise." No doubt he goes on to say: But if there were such disputes it has not been shown why they could not be disposed in this suit itself.