MODEL MILLS LIMITED Vs. HIRALAL RAMGOPAL

JUDGEMENT

(1.) 1. The plaintiff non applicant sued the defendant applicant for damages for breach of a contract at Wardha. In the plaint it was stated that the defendant carried on business at Wardha and also that there was an agreement that the goods were to be delivered at Wardha. The defendant denied the jurisdiction of the Wardha Court. The suit was instituted on 8th August 1928, the cause of action having arisen on 4th August 1927. The Court held as a preliminary finding that the defendant did carry on business at Wardha and against this decision the defendant applied in revision to this Court, which on 27th February 1930 held that the defendant could not be held to be carrying on business at Wardha and that the other preliminary issue, namely whether there had been an agreement to deliver the goods at Wardha must now be considered. The trial Court then proceeded to consider this point and found that there was no such agreement, but that the agreement was to deliver the goods at Nagpur. It consequently held that it had no jurisdiction to try the suit and returned the plaint on 4th August 1931 for presentation to the proper Court. The plaint was presented on 10th August 1931 in Nagpur with a plea that, Under Section 14, Lim. Act, the time spent in prosecuting the suit at Wardha should be excluded from the period of limitation. The time sought to be excluded was from 6th August 1928 to 4th August 1931. This was opposed by the defendant and preliminary issues were framed on the question whether the suit was barred by limitation and whether Section 14, Lim. Act, applied and the suit was within time. The Court found that the period from the institution of the suit until the time of this Court's order of 27th February 1930, that is to say 1 year 6 months and 21 days, could be excluded, but that the period from 27th February 1930 to 4th August 1931 could not be excluded.

(2.) IT is admitted that the period of limitation for a suit of this nature from the date of the cause of action is three years and that if the lower Court's finding is correct, the plaint could have been presented at Nagpur on any date before 25th February 1932. It is contended however that the decision in respect of the time allowed to be excluded is incorrect. It is contended in the first place that the Court had no jurisdiction to hold that part of the time sought to be excluded should be excluded and that part should not, and that, having held that part of the time claimed was not spent in prosecuting the suit in good faith, therefore the whole of the time should have been excluded. I am unable to find any authority for the proposition that such a division is impossible. The Court has held that the time spent upto the time of the revision application in this Court was spent in prosecuting the suit in good faith on the contention that the defendant carried on business at Wardha, but that subsequent to the order of revision the suit was not prosecuted in good faith as it; appeared from the evidence that the plaintiff had knowledge that there had been no such agreement, as was urged in the plaint, that the goods should be delivered at Wardha. It appears to me that the decision is correct. Sub-section (1) of Section 14, Lim. Act, states: In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

(3.) IT is further contended that the plaintiff was not entitled to exclude the time from 4th August 1931 till 10th. August 1931, the time between the return of the plaint and its presentation in Nagpur. The plaintiff did not apply to have this time excluded, and the argument advanced now in revision appears to be based on a mistaken idea of the application of Section 5, Lim. Act. In the first place, Section 5 does not appear to apply to suits, and in the next place its provisions can only be invoked when the period of limitation has actually expired. In the case I am considering there as been no such expiry of the period of limitation. Lastly it is contended that after the order of 27th February 1930 the plaintiff still had five months and two days from the date of his original cause of action within which he could either file a fresh suit or get his case transferred from the Wardha Court to Nagpur and that therefore there was no occasion to consider the exclusion of time. This argument is irrelevant. Under the, law the plaintiff was entitled to have the time upto 27th February 1930 from the date of the institution of his suit excluded in computing limitation and it follows that he was entitled to present his plaint at any time within three years from the date of the cause of action excluding the period so allowed. Under Sections. 14 and 15, Lim. Act he was entitled to present his plaint on any date upto 25th February 1932, and how he spent his time upto that date is no concern of the Courts. He was entitled to remain idle and do nothing until that date and he was equally entitled in law to prosecute his suit in a wrong Court in bad faith until that date.. The application fails and the suit will proceed according to law. The applicant will pay the non-applicant's costs. Pleader's fees Rs. 35.