PANDIT SADAYATAN PANDE M L C PROPRIETOR OF THE FIRM RAI SAHEB SRI NEWAS PANDE Vs. FIRM RAM CHANDRA GOPAL

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit which has been dismissed on the ground that the claim is barred by limitation. Previous to the present suit the plaintiff had instituted a suit on the same cause of action against two sets of defendants. An objection was taken that the suit was defective on account of multifarious ness because different causes of action arising against different defendants had been wrongly joined together. The Court expressed the opinion that there was this serious defect and actually ordered that the plaintiff should elect as to which of the two classes of defendants he would like to proceed against. After this order was passed, the plaintiff filed an application under Order XXIII, Rule 1, Civil Procedure Code for withdrawal of the suit against one set of the defendants with permission to institute a fresh suit against them afterwards and chose to proceed with the suit as against the remaining defendants. The Court ordered the suit to be withdrawn and granted the permission asked for. On the very day that the permission was granted the plaintiff instituted the present suit.

(2.) It is admitted that the claim of the plaintiff would be barred by time if he is not allowed to take advantage of the previous suit which was withdrawn against the present defendants. The only question is whether he is entitled to get the benefit of the provisions of Section 14(1) of the Indian Limitation Act. No question has arisen, as to whether he was not prosecuting the previous case with due diligence and in good faith. The suit has been dismissed on the ground that in view of the provisions in Order XXIII, Rule 2, Section 14 of the Limitation Act is inapplicable. The case came up for disposal before a Division Bench which has referred it to a Full Bench.

(3.) It cannot be said that there is any direct conflict of opinion on this question either in this Court or in other High Courts. It can only be said that the question is of some importance and is a somewhat difficult one to decide and it is on this ground only that the case has been referred to a Full Bench, though it might well have been decided by the Bench itself.