JADU RAI Vs. GANESH PARSHAD

JUDGEMENT

(1.) THE only question in this appeal is whether the suit of the plaintiffs was barred by limitation. THE suit was one for pre-emption in respect of a sale made on the 1 of September 1905. THE amount of consideration for the sale mentioned in the sale deed is Rs. 1,499-15-0. THE plaintiffs alleged that the true consideration was Rs. 66(5-9. THE suit was filed in the Court of the Subordinate Judge on the 30 of August 1905. THE Officer of that Court reported that the suit was cognizable by the Court; and thereupon the plaint was admitted and the 19 of September 1906 was fixed for settlement of issues. On that date the defendant objected that the suit was not cognizable by the Subordinate Judge. That objection was allowed and on the same date an order was made directing the plaint to be returned for presentation in the proper Court. On the 20 of September 1906 it was filed in the Court of the Munsif. It was urged in the Munif's Court that as the plaint was filed in that Court after the expiry of one year from the date of the sale the claim was time-barred. THE learned Munsif was of opinion that the period during which the suit was pending in the Court of the Subordinate Judge should be excluded under the provisions of Section 14 of the Limitation Act. On the merits he decreed the claim and held that the real amount of the consideration for the sale was Rs. 997-1-0. Upon appeal the learned Subordinate Judge reversed the decree of the Court of first instance. He held that the plaint had not been filed in the Subordinate Judge's Court in good faith and accordingly dismissed the suit.

(2.) WE are of opinion that upon the facts of the case which are admitted there was no reason to hold that the suit was not prosecuted in good faith in the Court of the Subordinate Judge. The plaintiffs engaged the best pleaders in the District and it Was under their advice that the plaint was filed in the Subordinate Judge's Court. If they made a mistake it was a mistake of law for which the plaintiffs were not responsible. It was held by the Full Bench in Brij Mohan Das V/s. Mannu Bibi 10 A 348 that Section 14 of the Limitation Act applies to a case where a plaintiff has been prosecuting his suit in a wrong Court in consequence of a bona fide mistake of law. That there was a mistake of law in this case is admitted, and that that mistake. was a bona fide mistake is manifest from the conduct of the parties. Even after the claim was presented in the Munsif's Court the defendant raised the plea that the suit was cognizable by the Subordinate Judge. That shows that there were circumstances which led both parties to entertain doubts as to the proper form for the institution of the suit. The question, in our opinion, was not a question of fact. The facts were all admitted and the only thing which the Court had to do was to draw inferences from those facts. Upon the facts alleged and admitted the only reasonable inference is that the plaint was filed in the Subordinate Judge's Court through a bona fide mistake. Section 14 of the Limitation Act is, therefore, applicable and the plaintiffs are entitled to the exclusion of the time during which the suit was pending in the Subordinate Judge's Court. It is urged that Section 14 is not applicable to a suit like this inasmuch as the plaint filed in the Munsif's Court was the same plaint which had been filed in the Subordinate Judge's Court. That, in our opinion, does not show that separate proceedings were not pending in the two Courts. The suit instituted in the Subordinate Judge's Court was a different proceeding from the suit instituted in the Court of the Munsif, although the plaint in both the suits Was the same. This case is similar in this respect to the Full Bench case to which we have referred above. For these reasons we allow the appeal, set aside the decree of the lower appellate Court and remand the case to that Court under the provisions of Order 41, Rule 23 of the Code of Civil Procedure, with directions to re-admit it under its original number in the register and dispose of it on the merits. Costs here and hitherto will abide the event and the costs of this Court will include fees on the higher scale.