MAC N HOM SYSTEMS Vs. VAIDYA RATNAM P S VARRIERS ARYAVAIDYASALA KOTTAKKAL
LAWS(KER)-2003-8-72
HIGH COURT OF KERALA
Decided on August 12,2003

MAC-N-HOM SYSTEMS Appellant
VERSUS
VAIDYA RATNAM P.S.VARRIERS ARYAVAIDYASALA Respondents

JUDGEMENT

- (1.) This appeal is preferred against the order in Original Petition (Indigent) No. 8 of 2001 of Sub-Court, Tirur. OP.8/01 was preferred under Order 33, Rule 2 of the Code of Civil Procedure seeking permission to institute the suit was indigent person. Suit was instituted for a decree for realisation of an amount of Rs. 36,65,129/- as damages from the respondent. Court-fee payable was Rs. 2,06,560/-. Petitioner stated .that he does not have sufficient means to pay the court-fee. Consequently permission was sought for to file the suit as an indigent person. Respondent filed counter statement contending that the application is not proper, that the petitioner is not an indigent person and that the suit is barred by the law of limitation.
(2.) Question regarding the maintainability of the application under Order 33, Rule 2 and as to whether the application is barred by Law of Limitation was considered as a preliminary issue. Court below found that petitioner has substantially complied with the provisions contained in Order 33, Rule 2, CPC in making the application. Court below however, took the view that the suit is barred by law of limitation holding that the petitioner is not entitled to exclude the time spent for prosecuting the application in the Sub-Court, Ernakulam in computing the period of limitation. Against the said finding this appeal has been preferred. In this case we are concerned only with the question as to whether the suit is barred by the law of limitation. Counsel on either side addressed their arguments only that point. Under Order 33, Rule 5(f) while entertaining an application to sue as an indigent person the Court can examine whether the suit is barred by law of limitation where the allegations made by the applicant in the application would show the same. Application to sue as an indigent person under Order 33, Rule 2 was initially filed before Sub-Court, Ernakulam on 12-10-98. By order dated 28-6-2001, Sub-Court, Ernakulam found that it had no jurisdiction to entertain the suit and only the Sub Court, Tirur has jurisdiction. Consequently returned the plaint for presentation before Sub Court, Tirur. Thereafter the application was filed by the petitioner before Sub-Court, Tirur on 12-7-2001. Under Article 55 of the Limitation Act, the period prescribed for filing a suit for compensation for breach of contract is three years from the date when the contract is broken. Contract was broken on 5-3-1997. Application to sue as indigent persons was filed in Sub-Court. Tirur only on 12-7-2001 beyond the period of three years. Consequently under Article 55 of the Limitation Act the suit is barred by law of limitation.
(3.) Counsel appearing for the petitioner however took up the stand that since he had filed the suit in Ernakulam Sub Court on 12-10-98, i.e. within three years from 5-3-1997 he is entitled to get the benefit of Section 14 of the Limitation Act by which the period spent before the Sub-Court, Ernakulam be excluded in reckoning the period of limitation. If the petitioners case fails under Section 14 of the Limitation Act, evidently that time has to be excluded. However, counsel appearing for the respondent Sri T. Krishnan Unni submitted that petitioner is not entitled to get the benefit of Section 14 of the Limitation Act since he had not prosecuted the case before Sub-Court Ernakulam with due diligence and in good faith. Counsel appearing for the petitioner Sri R. Mayakrishnan submitted that he was prosecuting the matter before the Sub-Court, Ernakulam with due diligence and in good faith. Therefore he is entitiled to get the benefit of Section 14 of the Limitation Act. Counsel also submitted though he had filed the suit before the Sub Court, Ernakulam on 12-10-1998 respondent filed preliminary objection only on 2-1 -2000 and the Court had passed only on 28-6-2001, by the time the three year period mentioned an Article 55 of the Limitation Act expired. Counsel submitted if the Court had passed the order within the period of limitation he could have filed the suit at Sub-Court, Tirur within time. Consequently the suit would not have been barred by Law of Limitation. In order to establish his contention counsel referred to several decisions such as Ghasi Ram v. Chait Ram Saini, AIR 1998 SC 2476; G. Rajarethna Naikkan v. P. N. Parameswara Kurup, AIR 1997 Kerala 361; M/s. Deokar Exports Pvt. Ltd. v. New India Assurance Co. Ltd., AIR 2001 Bombay 327; Wamanrao Keshavrao Deshmukh v. Dlnkarrao Bhausaheb Deshmukh, AIR 1999 SC 322; Anas Abdul Khader v. Abdul Nasar, (2001) 1 Ker LT 426; Mst. Duliyabai v. Vilayalall, AIR 1959 Madh Pra 271; RSDV Finance Co. Ltd. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd., AIR 1993 SC 2094; P. Sarathy v. State of Bank of India, AIR 2000 SC 2023; Vijay Kumar Rampal v. Diwan Devi, AIR 1985 SC 1669; India Electric Works Ltd. v. James Mantosh, AIR 1964 Cal 39. Counsel appearing for the respondent. Sri. T. Krishnan Unni took us through the reply notice dated 21-4-1998 and also the preliminary objection dated 2-1-2000 and the terms and conditions of the agreement dated 9-11-1995. Reference was also made to a Division Bench judgment of Delhi High Court in K. G. Khosla & Co. v. The Trustees of the Port of Bombay, ILR (1970) 2 Delhi 60.;


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