- (1.)THE only question involved in this appeal against ai order of remand under order 41 Rule 23 Civil Procedure Code, is, whether the plaintiffs are rightly held entitled to the benefit of Section 14 of the Limitation Act.
(2.)THE plaintiffs Rekhchand and Gokalchand in their capacity as principals filed the present suit against their adhtiyas-Keshrimal Indarmal of Khargone. The firm keshrimal Indarmal is alleged to be owned by the four partnars who are named as defendants in this suit. The claim made in the suit was for accounts in respect of transactions which took place on Pos Sudi 15, Samvat 2004, corresponding to 26th January 1948. There were no further transactions between the parties. The cause of action in the suit was mentioned to arise on the 26th January 1943 and also on the data of notice demanding account and the date of reply sent by the defendants that is, 10th August 1949 and 2nd September 1949 respectively. The suit was Initially filed in the court at Barwaha on 14th December 1950. It was alleged in the plaint in Paragraph 12 that the defendants resided and carried on business within the jurisdiction of the Barwaha Court and consequently that court had jurisdiction to try the suit. The defendants contended that the Barwaha Court had no jurisdiction, to try the suit inasmuch as the defendants did not carry on business within the jurisdiction of that Court, nor were they resident of a place within its jurisdiction. The suit went on in the Barwaha Court for some time. It was disclosed during the pendency of that suit in Barwaha Court that only three of the partners of the firms of Keshrimal Indarmal were the partners of the firm of Mannalal Tarachand which carried on business in Barwaha. The plaintiffs thereupon submitted an application on 18th December 1952 seeking leave of the Court for continuing the suit against all the defendants on the ground that three of the defendants carried on business within the ju'risdiction of the Barwaha Court. This application was rejected by the court at Barwaha on 28th August 1953 and the plaint was directed to be returned for presentation, to the proper Court. It was so presented in the Court of Civil judge, Khargone on 2nd September 1953.
(3.)IT is beyond dispute that in case the plaintiffs are held entitled to the exclusion of the period during which the suit was pending in the Barwaha Court, the suit is wei! within time. It was however, contended on behalf of the defendants that the plaintiffs cannot be said to have carried on the suit in the Barwaha Court with due care and attention and consequently they are not entitled to the exclusion of this period. The trial Court upheld their contention and dismissed the suit as barred by limitation. The lower appellate Court came! to a contrary conclusion and held the suit to be within time. The principal ground on which the lower appellate Court held the suit as not time barred is that having regard to the circumstances of the case it could not be said that the plaintiffs while prosecuting the suit in the barwaha Court were acting without due care and attention. On behalf of the plaintiff reliance was sought to be placed upon documents exhibited as P-l to P-6 which were printed envelopes of the defendants' firm. On the face of these envelopes it was mentioned that this firm had a separate firm in the name of Mannalal Tarachand, Barwaha. The defendants do not dispute the fact that these envelopes belong to the defendants' firm Keshrimal Indarmal. There was, therefore, perfect justification for (he plaintiffs to assume that the defendants carried on business though under a different firm name within the jurisdiction of the Barwaha Court. It is no doubt true that it was disclosed during the conduct of the suit in Barwaha Court that ail the partners of Keshrimal Indarmal are not the partners of Mannatal Tarachand. In these circumstances, having regard to the provisions contained in Section 20, Civil Procedure Code it was perfectly open to them to apply for leave to continue the suit against all the defendants on the ground that three of the defendants carried on business within the jurisdiction of the Barwaha Court. The question of leave is no doubt a matter resting within the discretion cf the Court and that discretion was not used in favour of the plaintiffs. But merely because this was so, it cannot be said that the suit in the Barwaha court had been prosecuted by the plaintiffs without due care and attention.