BABANNA GURUSANGAPPA Vs. CHANNAPPA CHANMALLAPPA

JUDGEMENT

(1.) This is an appeal from the judgment dated 23 December 1940, of Mr. L.Y. Ankalgi, who was then the First Class Subordinate Judge at Bijapur. The appeal raises two quite different questions, and it will be convenient to deal with the question with regard to the Limitation Act. first, because if the respondents contention is right with regard to that Act then the other question would not arise at all and this appeal would have to be dismissed with costs.

(2.) Now, the question of limitation arises in this way: The plaintiff was adopted on 22nd October 1925, and that, for the purpose of running of time, is the critical date. This litigation was commenced in the Court of the First Class Sub ordinate Judge on 1 October 1938, and it is, therefore, apparent, unless some time can be allowed, that the suit is out of time and barred because more than twelve years would have elapsed. But Mr. Jahagirdar on behalf of the appellant, who is the plaintiff, claims that under Section 14, Limitation Act, 1908, he is entitled to compute the time taken up in the Second Class Subordinate Judge's Court in which Court this suit was initiated and in which Court it was held that there was no jurisdiction to try the suit. Section 14 is in these terms: 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. To that section there are various explanations, Explanation I being In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended shall both be counted.

(3.) The relevant dates are these: The plaint was filed in the Second Class Subordinate Judge's Court on 21 October 1937, that is to say, it was just one day within time. On 17th September 1938, the learned Judge endorsed on the plaint an order in which having pointed out that the suit was beyond his jurisdiction he said: The plaint shall, therefore, be returned to the plaintiff's pleader for presentation to the Court having jurisdiction to try the suit. (Order VII, Rule 10(1), Civil P. C) Costs to be costs in the cause. Order accordingly. In fact the plaint was returned on 30 September, when the learned Judge made a further endorsement on it to this effect: The plaint was presented by the plaintiff's pleader Mr. B.N. Padaki on 21st. October 1937 and it is returned to him on this date. 30 September 1938.