MISHRA, J. - (1.) A dispute as to whether full amount of the price or value of a motor vehicle was transferred by the hirers to the owners has remained pending ever since the institution of a suit in the City Civil Court in the year 1977, which suit was withdrawn and later the suit, out of which the instant appeal has arisen, was instituted on the original side of this Court. Certain other proceedings, including a criminal prosecution of the defendants/respondents, have been initiated and it seems a trial is pending in a criminal court in the State of Karnataka. We intended, accordingly, to find out the crux of the dispute between the parties and gave opportunity to them to suggest any amicable solution. We are constrained, however, to proceed to deliver our judgment strictly in accordance with law for the reason of a certain rigid attitude adopted by the defendants/respondents that according to them the suit has rightly failed in the trial court and accordingly the appeal should fail for the reason mainly or a technical nature to which we shall specifically advert to in our judgment. It seems there has been a vehicle bearing registration No. MYL 7295. It is, however, stated on behalf of the plaintiff/appellant that he is the owner of the vehicle and that the defendants/respondents should pay him a sum of Rs. 1,09,277.38 being the principal amount due under a Hire Purchase Agreement dated 13.6.1974, interest of Rs. 7,500.79 due thereon at 24% per annum, Rs. 64,800/- being the damages from 14.11.1976 to 14.11.1980, Rs. 2,864.44 being the insurance premium paid and Rs. 4,462.15 being the expenses incurred by him on behalf of the defendants. The case in the plaint has been summarised by the trial court as follows: ?The plaintiff as sole proprietor of Hirachand Prasanchand sues for declaration that he is the owner of the vehicle MYL 7295 for a direction that the defendants should pay him a sum of Rs. 1,09,277.38 being the principal amount due under a hire purchase agreement dated 13.6.1974, interest of Rs. 7,500.79 due thereon at 24% per annum, Rs. 64,800/- being the damages defendants 1 and 2 arc liable to pay from 14.11.1976 to 14.11.1980, Rs. 2,864.44 the insurance premium paid by the plaintiff for the said veh icle and Rs. 4,462,15, the expenses incurred by the plaintiff on behalf of the defendants, for a direction that the defendants should pay future amounts at Rs. 1,350/00 per month, and for direction that the defendants should deliver to the plaintiff the possession of the vehicle MYL 7295. The hire purchase agreement dated 13.6.1974 was entered into between the first defendant and Hirachand Prasanchand, a registered firm of partnership, the performance by the first defendant having been guaranteed by the second defendant. The said agreement is renewal of an earlier hire purchase agreement dated 19.11.1970. The period of hiring expired on 14.11.1976. The first defendant not only failed to pay the hire amount and also damages but also failed to deliver the vehicle to the plaintiff; on the other hand, the first defendant sold the vehicle to his near relation, the third defendant on the basis of cancellation of the hire purchase agreement. Such endorsement in the R.C. Book is rank forgery; for, neither the plaintiff, nor the partnership firm ever cancelled the hire purchase agreement. the said partnership Hirachand Prasanchand was dissolved in 1975 and on such dissolution, the plaintiff became the sole proprietor of the said business and took overall the assets and liabilities of the said firm. It is thus the plaintiff became entitled to claim all the rights in the said hire purchase agreement. The plaintiff also Instituted O.S. No. 1080 of 1977 on the file of City Civil Court, Madras for declaration that the plaintiff is the owner of the vehicle and for consequential injunction and the said suit was dismissed with liberty to the plaintiff to file a fresh suit on the same cause of action.?
(2.) THE 2nd defendant remained ex parte. THE 1st defendant/1st respondent, however, denied execution of any agreement in favour of the plaintiff as hirer or by way of hire purchase, but in sum, as recorded in the trial Court, judgment, the 1st defendant/1st respondent's case in the court is as follows:? ?It is denied on 13.6.1974, the first defendant as hirer and second defendant as guarantor entered into hire purchase agreement with the plaintiff in respect of suit lorry for Rs. 42,300/-. THE second defendant is the agent of the plaintiff at Gedag and is colluding with the plaintiff, THE prayer for possession of the vehicle in any event is barred by limitation. Besides the payment of Rs. 12,600/- the first defendant had paid Rs. 22,500/- in full quit on 4.10.1976 and a receipt in full settlement dated 4.10.1976 was obtained. THE forgery is emphatically denied. It is reiterated that there was no hire of the vehicle to this defendant. As the sale to the third defendant was effected in 1976 to the knowledge of the plaintiff, the claim for possession is also barred by limitation. This defendant is not liable to pay Rs. 1,350/- per month from 14.11.1976 to 14.11.1980 or for any other period. THE claim for Rs. 29,650/- is without any basis and is also barred by limitation. It is denied that a sum of Rs. 7 ,500.79 is due by way of interest, liven the claims for insurance premium and expenses are barred by limitation/? The 3rd defendant who, it is said, purchased the suit lorry from the 1st defendant for a valuable consideration without notice of any claim of the plaintiff has alleged that he is a bona fide purchaser and that the suit claim is barred by limitation. The trial court, however, has framed as many as nine issues, including a question as to a payment of a sum of Rs. 22,500/00 to the plaintiff by the 1st defendant or his representative, but has disposed of the suit on the issue of limitation alone. The other objection before him as to the competency of this Court to entertain a suit of the value as made out by the plaintiff has been decided by him in favour of the plaintiff/appellant and against the defendants/respondents. Before we examine the validity of the finding on the question of limitation, in the instant case, we may recapitulate certain facts. The suit hire purchase agreement is dated 13.6.1974, the period of limitation expiring on 14.11.1976. A suit In the City Civil Court was fifed being O.S. No. 1080 of 1977 by Prasanchand, who claimed to be a Partner, in the name of the firm Hirachand prasanchand. In that plaint it was said that the partnership firm carried on business at No. 41, General Mulhaiah Mudali Street, Madras-600001 and the plaintiff sought declaration that the plaintiff was the owner of the vehicle MYL 7295 and consequential injunction to restrain the defendants, their agents or servants from, in any way, alienating, dismantling or dealing with the vehicle MYL 7295. The plaint, which appeared to have been verified in February, 1977, was presented in court and numbered. But when was it presented is not available. When the suit was taken up for trial and one witness was examined, the plaintiff cam e forward with I.A. No. 18258 of 1980, an application under O. 23, R. 1 of the Code of Civil Procedure for withdrawal of the suit. The City Civil Court Judge, by his order dated 9.12.1980, held as follows:? ?There is no formal defect regarding the valuation of the suit and as such the suit cannot be withdrawn on the said ground.? The City Civil Court Judge, however, granted permission, to the plaintiff to withdraw the suit with leave to institute a fresh suit on the same cause of action holding that the plaintiff firm represented by the alleged partner was not in existence and so the defect was such that went to the root of the case. There can be no doubt that the suit in the City Civil Court was filed within time and the same was withdrawn under the orders of the Court in I.A. No. 18258 of 1980 on 9.12.1980 with leave to the plaintiff to institute a fresh suit on the same cause of action. The plaintiff herein Prasanchand, who had instituted O.S. No. 1080 of 1977 in the City Civil Court as a partner representing the firm thus instituted the suit in the name of the firm, and described himself as the sole proprietor of the firm, retained the same defendants but introduced a money claim by entering into the details of the money advanced, payments made, etc., and asked for a declaration that he is the owner of the vehicle, but instead of consequential relief of injunction in the suit in the City Civil Court asked for recovery of possession of the vehicle and moneys which, according to him, had fallen in arrears and payable by the defendants/respondents to him. The plaint, however, was presented in this Court on 24.1.1981. Going by the suit for the relief of declaration and recovery of possession of the vehicle, it is obvious that there is no escape from the finding that the suit is barred by limitation and thus has to fail as held by the trial court, the only escape being a recourse to S. 14 of the Limitation Act, which says as follows:? 14. Exclusion of time of proceeding bona fide in court without jurisdiction:? 1. In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction on other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first Instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in R. 2 of O. 23, of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-S. (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under R. 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature. Explanation: For the purposes of this Section, (a) in excluding the time during which a former civil proceeding was pending, I he day on which that proceeding was instituted and the day on which it ended shall both be counted: (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding: (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.? The trial court has, however, held against the plaintiff/appellant on the question of exclusion of time of proceeding bona fide in court without jurisdiction, on a Finding that the plaintiff had not been prosecuting with due diligence the suit in the City Civil Court in O.S. No. 1080 of 1977 and also on the ground that the partnership so called was not in existence in the eye of law when the suit was instituted in the City Civil Court in O.S. No. 1080 of 1977 and even if it existed, it was not a registered partnership firm; therefore, no suit could be instituted in the name of the firm by a partner and all proceedings in the said suit therefore were void, which cannot be allowed to be availed of as a bona fide proceeding in a court without jurisdiction.
(3.) O. 30 of the Code of Civil Procedure, 1908 has got certain rules for suits by or against firms and persons carrying on business in names other than their own. R. 1 of that Order contains, inter alia , that any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm, if any, of which such persons were partners at the time of the accruing of the cause of action and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct and give to the partners suing or being sued to sign, verify or certify, pleading or other document as the case may be, on behalf of all the partners. S. 69, of the Indian Partnership Act, 1932 (Act 9 of 1932), however, has a provision to the effect that no suit to enforce a right arising from a contract or conferred by the Partnership Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. Learned counsel for the appellant has urged before us that there is an apparent error of law in approaching S. 14 of the Limitation Act, which in sub-S.(3) has made a particular mention of O. 23, R. 2 of the Code of Civil Procedure, 1908, and contains a rule to extend the period of limitation by the period consumed in a proceeding bona fide in a court without jurisdiction. He has contended that a very narrow meaning is given to the expression ?plaintiff? and the ?defendant? to exclude a suit by a person who himself had sued in the City Civil Court but had described himself as a partner and invoked the advantage of O. 30 of the Code of Civil Procedure, 1908 by suing in the name of the firm but when he detected that the firm was not a registered firm and that the suit, for that reason, suffered a fatal defect decided to withdraw the same with permission to sue in a proper court. He has also contended that the same narrow approach is found in the impugned judgment to the expression ?prosecuting with due diligence another civil proceeding?, for, no one will be suing in a court without jurisdiction only to withdraw the suit for the purpose of extending the period of limitation if he knew about the defects which were fatal and were likely to defeat the suit. Learned counsel for the respondents has mainly contended that for invoking S. 14 of the Limitation Act, the previous suit must be found to be between the same plaintiff and the defendant, for the same relief and the same cause of action. He has also contended that its held by the courts and found so declared that a suit in the name of a partnership which is not registered is void and us Such non est the proceeding in the City Civil Court, initiated in the name of the firm thus is one, non existing, is void and not available at all for the purposes of computation thereof. Before we conclude and state why we find that there is force in the contention of the learned counsel for the appellant, we think it proper to advert to the specific arguments of the learned counsel for the respondents on: a. the requirements of S. 14 of the Limitation Act that the plaintiff and the defendant in the previous suit must be the same as in the latter suit. b. the reliefs in the two suits must be the same; and c. the cause of action of the two suits must not be found differing. His contention as to why the essence of a proceeding being void and why the same be not considered at all for the purposes of S. 14 of the Limitation Act, however, deserves a mere mention for its rejection. If we deal with this contention in any detail in this judgment, we do so in deference to the tenacity of the learned counsel for the respondents. ;