VALLIAMMAI (DECEASED) Vs. RAJU SHANMUGAM PILLAI

JUDGEMENT

(1.) I an unable to agree with the judge that when a suit is found to be barred by limitation, it is open to him to allow the plaintiff to withdraw the suit with liberty to bring a fresh suit, if the fresh suit is one which would be barred by the decision in the earlier suit. But I think it is unnecessary to proceed on that ground. In fact that question does not arise. This is an application presented by the decree-holder who seeks to turn out of possession the respondent who claims to be in possession. It is registered as a suit and the judge holds that the suit is barred by the provision of the Civil Procedure Code that the application must be presented within a month of the obstruction complained of. In my opinion the judge is wrong. The application can be entertained and be registered as a suit only if it is presented within one month. As it was not presented within one month, it should not have been registered as a suit. It is manifestly unfair to the applicant-decree- holder that his application should be wrongly registered as a suit and then dismissed so as to make it a bar to a suit, while if his application had been originally dismissed, such dismissal would not have barred a subsequent suit. I accordingly set aside the order or decree in O.S. No. 79 of 1908, the order in M.P. 106 of 1907 registering the application as a suit, and dismiss M.P. 106 of 1907 as having been presented after the period of limitation. The parties will bear their own costs throughout.