- (1.) THE appellant is the plaintiff in O.S.No.1020 of 1985 on the file of District Munsif, Villupuram.
(2.) THE appellant herein filed the said suit for recovery of a sum of Rs.9,000 together with interest stating that the defendant executed promissory note for the said sum on 31.8.1977 under Ex.A-1, in favour of the appellant's son. Since the appellant's son is residing elsewhere be made over the promissory note in favour of the appellant herein for the collection of the same. In spite of repeated demands, the respondent failed to pay the promissory note amount, consequently suit has been laid. By way of defence, the respondent pleaded that he had executed four promissory notes earlier and only to discharge the principal and interest due thereon, the suit promissory note had been executed and the total consideration is only to the tune of Rs.7,312 as such the suit promissory note is not supported by consideration for the value of Rs.1,688. Further it is stated that the suit is barred by limitation, apart from the other defences, about which we are not concerned in this appeal. The trial Court after elaborately considered the oral as well as the documentary evidence, had decreed the suit as prayed for by its judgment and decree dated 10.8.1987. The respondent herein preferred an appeal in A.S.No.9 of 1988 on the file of Sub Court, Villupuram. The learned Subordinate Judge, who heard the appeal has allowed the same and set aside the decree of the trial Court on the ground that the suit is barred by limitation, since the plaintiff did not plead for the exclusion time taken in the earlier proceeding. As against the same, the present second appeal has been filed. On behalf of the appellant, it was contended that the lower appellate Court had proceeded on the basis that the appellant did not state in the plaint as to how the suit is within the period of limitation, since the suit promissory note is dated 31.8.1977 and the suit had been filed on 8.7.1985. Admittedly, the appellant filed the suit in O.S.No.592 of 1980 on the file of Sub Court, Cuddalore on the suit promissory note stating that the cause of action arisen within the jurisdiction of the said Court. The said suit was decreed on 4.12.1983. The first respondent herein filed an appeal in A.S.No.199 of 1983 on the file of District Court, South Arcot, Cuddalore. The appeal was allowed on the ground that Cuddalore Court did not have jurisdiction. Consequently, the plaint was returned, with a direction to present the plaint before the proper forum. Consequently, the plaint was presented on the file of the District Munsif, Villupuram. In view of the above fact, there is absolutely no need for the appellant to plead for the exclusion of time and relied upon two judgments for his proposition. One is the case, Shiv Shiv Tewari v. Ganesh Prasad A.I.R. 1978 All. 117. The other is the case, Binodilal v. Satyendra Singh A.I.R. 1956 M.B. 97 (D.B.). On the contrary, the learned counsel for respondents contended that as perO.7, Rule 6, C.P.C., it is mandatory for the appellant to state in the plaint for the exclusion of time and further to state as to how the suit is within the period of limitation and since that mandatory provision had not been complied with, the lower appellate Court had rightly discussed the suit as barred by limitation. He also replied upon the following Judgments: 1. M/s.Prabhakar and Company v. V.Subramaniam and others M/s.Prabhakar and Company v. V.Subramaniam and others M/s.Prabhakar and Company v. V.Subramaniam and others (1989)1 L.W.555; 2. Rabindra Nath v. Sivakami and others Rabindra Nath v. Sivakami and others Rabindra Nath v. Sivakami and others A.I.R. 1972 S.C. 730 and 3. S.S.Rajalinga Raja v. Thiruvengada Thammal S.S.Rajalinga Raja v. Thiruvengada Thammal S.S.Rajalinga Raja v. Thiruvengada Thammal 100 L.W. 393. He further contended that only if there is a bona fide in the conduct of the appellant in prosecuting the earlier proceedings before a different forum, then only he is entitled for the benefit of Sec.14 of the Limitation Act. On the other hand, if there is no bona fide, the appellant cannot invoke the benefit of Sec.14 of the Limitation Act. On this ground also, this Second Appeal is liable to be dismissed.
(3.) THIS Court has carefully considered the above contentions of the learned counsel appearing on both sides. There is no dispute with regard to the preposition of the learned counsel for the respondents thatO.7, Rule 6, C.P.C. is mandatory and it is for the plaintiff to plead the exclusion of the time in order to invoke the benefit of Sec.14 of the Limitation Act. But this has to be considered as to whether in all the cases that has to be done. In the case on hand, admittedly the appellant filed the suit before the Sub Court, Cuddalore, which was decreed. The first respondent herein filed an appeal before the District Court, South Arcot, Cuddalore. While disposing the appellant, learned District Judge in his judgment dated 29.6.1985 has held that the Court at Cuddalore has no jurisdiction to entertain the suit file don Ex.A-1, promissory note and hence, the decree and the judgment of the trial Court were set aside and appeal was allowed and the plaint was returned for the presentation before the proper Court. After this judgment, the appellant had presented the returned plaint on the file of District Munsif, Villupuram along with the copy of the judgment of the District Judge, South Arcot, Cuddalore in A.S.No.199 of 1983. The learned District Munsif at Villupuram entertained the suit without raising any objection with regard to the limitation. So, the fact remains that the original plaint filed by the appellant herein before the Sub Court, Cuddalore was returned by the District Court, South Arcot, Cuddalore for presentation before the proper forum and consequently, the present suit had been entertained. When the Court tried the suit or entertained the appeal having found that the same has no jurisdiction to entertain the matter, had returned the plaint enabling the plaintiff to present the same before the proper forum, I am of the view that there is no need for the plaintiff to plead for the exclusion of time as contemplated underO.7, Rule 6, C.P.C. The presentation of the plaint before forum will be only a continuation of the earlier proceeding. Such contingency may arise only where the suit or the appeal is dismissed for want of jurisdiction and thereafter, the plaintiff files suit afresh before the proper forum seeking for the exclusion of the time taken in the earlier proceedings invoking the benefit of Sec.14 of the Limitation Act. In this case, by virtue of the return of the plaint by the District Judge, South Arcot, Cuddalore the plaintiff is entitled to present the plaint before the proper forum and that is how the present suit had been entertained by the Villupuram Court. Hence, the lower appellate Court is not correct in finding that the plaintiff has failed to plead the exclusion of the time taken in the earlier proceedings and as such, the same is in violation of the mandatory provision ofO.7, Rule 6, C.P.C. Hence, the judgment and decree of the lower appellate Court cannot be sustained and consequently, the same are set aside. The only substantial question of law arises for consideration in the appeal that whether the lower appellate Court is correct in dismissing the suit on the ground that the plaintiff failed to comply with the mandatory requirement ofO.7, Rule 6, C.P.C. is answered in the negative. ;