BAIKUNTHA NATH KUNDU Vs. MOHANANDA BORAT MODAK

JUDGEMENT

(1.) This is an appeal against a decree for mesne profits. The only question that has been argued before us is whether the plaintiff s claim should not have been dismissed on the ground that it is forced by limitation.

(2.) In order to understand how this point arises it is necessary to state the dates and history of the litigation. On the 21st September 1908 the father of the present plaintiffs sued the defendants to recover possession of certain lands valued at Rs. 1,100 and claimed also mesne profits valued at Rs. 5 for the period before the suit from the date of the alleged dispossession, about two months prior to the suit, and also for the subsequent period until delivery of possession under the decree which the plaintiffs might obtain. On the 31st Marsh 1910 the plaintiffs obtained a decree for khas possession and mesne profits up to the delivery of possession. Against this decision the defendants appealed unsuccessfully both to the District Judge and to the High Court and their appeal in the latter Court was dismissed on the 27th March 1914, In the meantime the plaintiffs had taken out execution of their decree of possession and possession had been delivered to them on the 6th July 1911. Subsequent to the delivery of possession the plaintiffs applied for assessment of mesne profits for the period they were out of possession and valued these mesne profits at Rs. 5,582 15 annas. This application was made to the Munsif in whose Court the suit had been tried, and on the 27th May 1912 the Munsif came to a decision that he had no jurisdiction to entertain this application as it exceeded his pecuniary jurisdiction. The Munsif in passing this order directed that the plaint should be returned to the plaintiffs and in so doing followed the procedure prescribed in the case of Bhupendra Kumar Chakraoarti v. Purna Chandra Bose 8 Ind. Cas. 34 : 13 C.L.J. 132 : 15 C.W.N. 506. As the records of the case were in the High Court on account of the appeal, the plaint could not be returned to the plaintiffs until the 5th December 1914. Ten days later on the 15th December 1914 the plaintiffs filed the original plaint and the application for mesne profits in the Court of the Subordinate Judge. In dealing with the question of limitation the lower Appellate Court has held that Section 14 of the Limitation Act is applicable and prevented the plaintiffs claim from being barred.

(3.) On behalf of the appellants reliance is placed on the decision of this Court in the Base of Abhoya Churn Chuckerbutty v. Gour Mohun Butt 24 W.R. 26, in which it was held that in cases were the plaintiff had filed the plaint in a wrong Court, he was not entitled to exclude, when calculating the period of limitation, the time which elapsed after the order returning the plaint was passed and until the plaint was actually returned. Belying on this decision it is contended that in the present case the plaintiffs are not entitled to exclude from limitation the period between the 27th May 1912 when the Munsif held that the application must be made to another Court and the 15th December 1914 when the application in the Subordinate Judge s Court was filed.