SINNA KARUPPAN Vs. RMPSMUTHIAH CHETTIAR

JUDGEMENT

(1.) All these suits ware filed in four batches by the plaintiffs, the first being filed in the Subordinate Judge's Court on the Small Cause Side. The Subordinate Judge held that the suits were not of a Small Cause nature and that they should be filed either on the Original Side or else in the Revenue Court. The alternative was given for the reason that the plaintiffs claimed both varams and it was held that if they were entitled to both varams, the suits would lie in a Civil Court. Whereas, if they were not entitled to both the varams, the suits would lie only in a Revenue Court. The suits were accordingly filed in the Civil Court on the Original Side. The question was then determined and it was found that the plaintiffs did not possess both the varams and the plaint was returned to the Ravanua Court. The only question which arises here is one of limitation, i.e., whether the time taken for prosecuting these suits in the Small Cause Court and the Civil Court (Original Side) should not be excluded. The lower Appellate Court has held that the plaintiff has prosecuted these suits with due diligence, and consequently, under Section 14 of the Limitation Act he is entitled to exclude the whole of the period. The period allowed is the period from the date of the filing of the plaints to the date on which the plaints were finally returned by the Court for representation. It is now argued that this is not the correct period allowed, the contention being that the proceedings terminated on the date of the appellate order and not on the date on which the plaints were originally returned. This was the view taken by a Bench of this Court, in Krishna Variar V/s. Kunji Taravanar (1893) 3 M.L.J. 190 a case decided after the Civil Procedure Code of 1882 came into force; it merely purported to follow the decision in Abhoya Churn Ghuckerbutty V/s. Gour Mohan Dutt 24 W.R. 36 which was based on the old Code of 1859 in which there was no provision identioal with Order 7, Rule 10. When the Civil Procedure Code distinotly orders a Court to return a plaint for representation, and at the same time to endorse on it the date of presentation, the date of return, the party presenting it and the statement of the reasons for returning it, I regret I cannot agree with the view that the proceedings with reference to that plaint can be said to have terminated, when there was still an act to be done by the Court which had seisin of the plaint. With all respect, I am of opinion that the decision in Krishna Variar V/s. Kunji Taravanar (1893) 3 M.L.J. 190, cannot be justified by reason of Order 7, rale 10 Civil Procedure Code and I am supported in this view by subsequent cases of this Court. In Bapu Ammal V/s. Govinda Padiayachi (1897) 7 M.L.J. 261, the time to be excluded is held to be from the date of presentation until the date of return of the plaint and this view is also adopted in Basvanappa V/s. Krishnadas (1920) 22 Bom. L.R. 1387 and Bisheshar Singh V/s. Ram Daur Singh (1887) A.W.N. 302. The District Judge has therefore rightly calculated the time to be excluded from the period of limitation.

(2.) The next argument is directed to a question of fact, namely, whether the plaintiff was exercising due diligence during the whole of that period, The Lower Appellate Court found that he did so and no facts have been put before me to justify me in interfering with this finding of fact In fact, the arguments are all based or what might have happened, and no assertion is made as to any particular act of the plaintiff, to show that he did not exercise due diligence. I must presume that the lower Court has considered all the circumstances and I cannot interfere with the conclusion at which it has arrived.

(3.) The last point taken is with reference to certain suits in which it was said that the amount became payable when the kodai harvest was reaped, namely, in September or October, A large number of plaints were filed in October, three years later. Although some were filed in November, it does not appear in which of these oases the crop was harvested in October, nor whether in these oases, the plaints were not filed also in October, even if it is assumed that the cause of action arises at the moment that the last piece of crop is out. 1 am not, however, prepared to accede to this contention; for, ordinarily the rent of each year becomes due on the last day of the year, and there is no evidence that that was not the case in respect of the suit-tenancies. If that data is taken, all the suits were within time. I am not at all satisfied either that the cause of action arose in October or that it has been shown that in any particular case, the crops were cut at or before that time. The plaintiff gave the date of the cause of action in the plaint and no objection was taken in the written statements, and consequently, that must be taken as the correct date,