KALURAM AGARWALA Vs. JANISTHA LAL CHAKRABARTY

JUDGEMENT

(1.) This appeal from a decision of the strict Judge arises out of an action on a promissory note. So far as the merits of the case are concerned, they were decided in favour of the plaintiff, but the question upon which the suit was dismissed in the Court below was that of limitation. When the case was first opened, it appeared to present some difficulties but now it seems to be a very clear case. The short facts, so far as is necessary for raising the point, are that the plaintiff was the assignee of the promissory cots. Taken from the date of the promissory note the assignment was on the last day of limitation. On that very day the plaintiff assignee instituted the suit with the leave of the Master on the Original Side of the High Court at Fort William. The matter proceeded, it would appear,--but subsequently on 15 July 1935, about a year after the suit was instituted, Panckridge J. on the objection by the defendants, discharged the order allowing the suit to be instituted in the Calcutta High Court and rejected the plaint. The plaintiff then brought this action by filing a plaint in the Purulia Court. Now, as I have already indicated, it is clear that if the suit is taken to have been instituted on the day on which the plaint was presented in the Calcutta High Court, no question arises. But the plaint in the Purulia Court being filed on 16 July 1935, it was clearly barred by limitation, unless the plaintiff can take advantage of Section 14, Limitation Act. The requirements of Section 14 are that the plaintiff must have been prosecuting in good faith the suit in another Court which from defect of jurisdiction or other cause of a like nature was unable to entertain it. The learned Judge in the Court below has come to the conclusion that the action of the plaintiff was mala fide; that is to say, the act of the plaintiff in instituting the suit in the Calcutta High Court was mala fide, and therefore the Judge comes to the conclusion that Section 14, Limitation Act, did not apply.

(2.) The first matter to be considered is whether the Calcutta High Court was unable to entertain the plaint for defect of jurisdiction. Now, there could be no question on that narrow point; but, had the plaintiff bona fide started his suit in the Calcutta High Court and that Court had ultimately decided that it had no jurisdiction, Section 14, Limitation Act, would have no doubt applied. The question seems to me to be determined by asking the question whether the Section could be said not to apply when the Calcutta High Court having given leave to prosecute the suit in that Court eventually revoked that leave. In my judgment it is impossible to contend that the plaintiff in those circumstances (quite apart from the question of mala fides and bona fides) can be in a worse position than he would be in circumstances to which I at first referred. Now, was there any defect of jurisdiction? That seems to me to be determined by the effect of the order of Panckridge J. made in July 1935. It is impossible to look to that order other than to deal with it as an order which dated back from the date of the institution of the suit; in other words, anything done in the suit would necessarily fall (if I may use the expression) as the result of the revocation of the order of Panckridge J. and it seems to me to be a question to be determined in relation to the jurisdiction of the Court which ultimately decided the case. The Purulia Court had jurisdiction in this case, and could it be said that the High Court at Calcutta had jurisdiction to pronounce judgment and make a decree? There seems to me to be only one answer to that question and that is that the Court, by reason of the order of Panckridge J. would not have such jurisdiction.

(3.) The only question that remains is whether the plaintiff was prosecuting in good faith in a Court which suffered from defect of jurisdiction. Was he prosecuting in good faith. I should have thought that that matter is concluded by stating the fact that the Court gave the plaintiff leave to pursue his remedy in the Calcutta High Court. Even assuming that it does not conclude the matter, we have to determine whether the plaintiff acted in good faith? Dr. Sen contends that the finding of the learned Judge in the Court below is conclusive of the matter. The finding of the Judge had better be stated in order to make the matter perfectly clear. The learned Judge says this: It should be borne in mind however that the real question with which we are concerned here is not so much whether there was a genuine assignment for consideration, but whether in making the assignment in Calcutta the parties acted in good faith or did so with the ulterior motive of harassing the defendants. I think that if the matter is considered in the light of reason and probability it is difficult to escape the conclusion that the object was vexatious and tainted with mala fides. So far as that part of the judgment is concerned, with respect to the learned Judge, he was considering a wholly irrelevant matter, and that finding of his cannot be binding on this Court in second appeal. A little later the learned Judge says: The point therefore is not that the plaintiff was under any incorrect impression of the law, but rather that his motive in bringing the suit in Calcutta was malicious and vexatious.... I have no doubt that the Section ( Section 14) is intended to apply to plaintiffs who have been misled into litigating in a wrong Court by a bona fide mistake of facts and law, and never to those who have deliberately chosen a remote Court with an ulterior motive which is essentially vexatious.