Madhavrao Narayanrao Patwardhan vs Ramkrishna Govind Bhanu And Ors.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 18 April, 1958

Coram: B.P. Sinha

In this case, the Court noted that two civil appeals were filed against a judgment and decree dated 30 November 1951, which had been rendered by a Division Bench of the High Court of Judicature at Bombay. The High Court judgment had reversed the order of the District Judge at Miraj, which had dismissed the plaintiff’s suit for possession and mesne profits concerning the suit properties identified as Civil Suit No 2 of 1940. The first appeal, recorded as Civil Appeal No 287 of 1955, was filed on behalf of the seventh added respondent, while the second appeal, recorded as Civil Appeal No 288 of 1955, was filed on behalf of the sixth added respondent—the State of Bombay, which now stood in the place of the original first defendant, the Miraj State, after its merger with the State of Bombay. The Court then explained that, for the purpose of deciding the question of limitation, it was unnecessary to reproduce the entire pleadings of the parties or to set out the merits of the decisions of the lower courts. The only facts required were that the plaintiff‑respondent, who had been the appellant before the High Court, had instituted a suit on the last day prescribed by the limitation period, namely 31 January 1929, in the Munsiff’s Court at Miraj. That suit was entered in the records as Original Suit No 724 of 1930. In the plaint the plaintiff prayed for possession of, and mesne profits from, lands situated at Malgaon and Takli. The plaintiff alleged that the State of Miraj had wrongfully resumed those lands in 1910 as part of the State Sheri‑Khata, and that an inquiry conducted thereafter resulted in an order dated 31 July 1915 directing that those lands be recorded as belonging to the State Sheri‑Khata and that the usufruct of the lands during the period in question be appropriated to the Khasgi‑Khata of the State. The State of Miraj was impleaded as the first defendant. Defendants numbered two and three were the plaintiff’s brothers, who were said to have relinquished any interest in the suit properties in favour of the plaintiff. Defendants numbered four through seven were members of the family of a person named Narso, who had been recorded as having an interest in the suit properties until his death in 1910; those defendants did not appear before the court and did not contest the plaintiff’s claim. The Court recorded that the suit had been valued at Rs 2,065, which represented five times the assessment of the disputed lands for the purpose of court‑fee, and that no separate valuation had been supplied in the plaint to establish jurisdiction based on the value of the properties claimed. The plaintiff had also instituted a similar suit in the same Munsiff’s Court at Miraj concerning lands in the village of Tikoni. That suit was entered as Original Suit No 443 of 1928 and was later referred to by the Court as the “Tikoni suit.” According to the record, both suits proceeded in the Munsiff’s Court at a very leisurely pace until 29 November.

In 1939 the suit concerning the lands at Tikoni was dismissed. Following that dismissal the plaintiff filed an application on 21 June 1940, pointing out that the plaint did not state the value of the subject matter, and contending that at a moderate assessment the disputed land could not be valued at less than eight to ten thousand rupees; consequently the court lacked the pecuniary jurisdiction to entertain the suit. The court accepted the application and ordered that the plaint be returned for presentation before the appropriate court, an order issued on 4 July 1940. On that same day the plaint was re‑filed before the District Judge at Miraj, where it was entered as Suit No. 2 of 1940.

The original first defendant opposed the suit on several grounds, the most significant being a plea of limitation. By a petition dated 27 October 1942 the defendant informed the court that the plaintiff, aware that the value of the disputed property far exceeded the jurisdictional limit of the Munsiff’s court, had deliberately filed the suit in that court. The defendant asserted that the plaintiff’s conduct was not bona‑fide and that, therefore, the procedural facilities, including those relating to limitation, which a bona‑fide suitor would enjoy, could not be extended to the plaintiff.

After taking evidence and hearing both parties, the learned District Judge delivered a judgment and decree on 12 December 1945, dismissing the suit and awarding costs against the plaintiff. The plaintiff appealed the decision. During the pendency of that appeal the State of Bombay was added as a sixth respondent and the Yuvaraj of Miraj, Madhavrao Narayanarao, son of the Raja Sahib of Miraj, was added as a seventh respondent, on the basis that he had acquired an interest in the disputed property through a grant made in his favour. The appeal was subsequently recorded as First Appeal No. 104 of 1950 before the High Court of Bombay. A Division Bench of that Court delivered a judgment and decree on 30 November 1951, allowing the appeal and decreeing the suit with costs against the first and seventh respondents. The sixth and seventh respondents then obtained the requisite certificates to bring their appeals before this Court, giving rise to the two appeals presently before us.

We have heard counsel for the parties at length on the preliminary question of limitation. Counsel for the appellants argued, relying on the limitation plea, that under the facts and circumstances the plaintiff should not be permitted to invoke section 14 of the Limitation Act; consequently the suit, re‑presented before the District Judge on 4 July 1940, was barred by limitation. Alternatively, the appellants submitted that even assuming the lower courts had correctly granted the benefit of that section, the suit remained barred by the twelve‑year limitation prescribed in Article 142 of the Limitation Act, whether the cause of action arose in 1910 on Narso’s death or in 1915 when the final order treating the resumed property as part of the State’s Khas property was issued. On the other hand, counsel for the plaintiff‑respondent vigorously maintained that the lower courts were correct in allowing a deduction of the period between 31 January 1929, when the suit was originally filed before the Munsiff, and 4 July 1940, when the plaint was returned and re‑presented. It was also contended that it was a matter of common ground that the original filing on 31 January 1929 fell within the limitation period, albeit on its last permissible day.

In this matter, the Court considered whether the suit was barred by the limitation period prescribed in Article 142 of the Limitation Act, irrespective of whether the cause of action arose in 1910 on the death of Narso or in 1915 when the Miraj State issued its final order treating the resumed land as part of the State’s Khas property, which the plaint alleged to be the operative date of the cause of action. The appellant argued that, even if the lower courts were correct in granting the plaintiff the benefit of Section 14 of the Limitation Act, the suit remained time‑barred because the prescribed period of twelve years had elapsed from either of those dates. On the other side, the plaintiff‑respondent contended vigorously that the lower courts were right to allow a deduction for the interval between 31 January 1929, when the suit was originally filed in the Munsiff’s Court at Miraj, and 4 July 1940, when the plaint was returned and re‑presented in the District Court. The plaintiff‑respondent further maintained that it was a matter of common agreement that the original filing on 31 January 1929 fell on the last permissible day of limitation, and that, if Section 14 were applied, the subsequent representation of the plaint in the District Court would automatically be within the limitation period.

The Court held that the appellant’s reliance on Section 14 was well‑grounded and that the lower courts’ decision to extend that benefit to the plaintiff‑respondent had to be set aside. The Court explained that before the proclamation issued by the Karabhari of Miraj State on 1 January 1926, the State’s own law of limitation granted a twenty‑year period for instituting a suit for possession after dispossession. The proclamation, effective from 1 February 1926, introduced the Indian Limitation Act of 1908 into the State’s legal framework, but it also incorporated a transitional modification: all suits that would have been timely under the former State law but that became barred by the new Indian law could still be filed up to 31 January 1929, as provided by subsequent notifications. Consequently, the suit filed on that date in the Munsiff’s Court was unquestionably within the limitation period and was thereafter governed by the Indian Limitation Act. When the plaintiff himself caused the return of the plaint on the ground of lack of pecuniary jurisdiction and re‑presented it before the District Judge on 4 July 1940, the Court observed that, on its face, the suit was barred by limitation, whether the limitation period was deemed to have begun in 1910 or 1915, unless the plaintiff could successfully invoke Section 14 of the Limitation Act. The Court therefore concluded that the appellant’s contentions warranted reversal of the lower courts’ order granting the benefit of Section 14.

In this case, the Court examined section 14 of the Limitation Act, which governs the present dispute. The provision states: “In computing the period of limitation prescribed 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 in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and 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.” To rely upon this provision, the plaintiff was required to establish four matters positively. First, that he had prosecuted the earlier suit in the Munsif’s Court at Miraj with due diligence. Second, that the earlier suit was based on the same cause of action as the present suit. Third, that the earlier suit had been prosecuted in good faith in that Court. Fourth, that the Court was unable to entertain the suit because of a defect of jurisdiction or a similar cause. The parties agreed that the second and fourth requirements were satisfied, but they contested the first and third requirements. Counsel for the appellants argued that the lower courts had erred in concluding that there was no evidence that the plaintiff had failed to prosecute the earlier suit diligently or in good faith. They maintained that section 14 obliges the plaintiff to prove affirmatively that the previous proceeding was conducted both with due diligence and in good faith, and that, on that basis, the plaintiff had not met the statutory conditions. The trial judge’s finding on this point was expressed as follows: “The plaintiff’s mala fides are therefore not established and the period occupied in prosecuting the former suit must be excluded under section 14 of the Limitation Act.” The High Court concurred, observing: “We do not see our way to accuse the plaintiff of want of good faith or any mala fides in the matter of the filing of the suit in the Subordinate Judge’s Court at Miraj. There is nothing on the record to show that he was really guilty of want of good faith or non‑prosecution of the suit with due diligence in the Court of the Subordinate Judge at Miraj.” Both the trial judge and the High Court treated the issue under section 14 as if the burden lay on the defendant to demonstrate mala fides on the part of the plaintiff when he instituted the earlier suit and continued the proceedings. The Court expressed the view that this approach was a misdirection by the lower courts, even though the lower courts did not articulate this conclusion in those precise terms.

The Court observed that the lower courts had applied the definition of “good faith” found in the General Clauses Act, which states that a act is deemed to be done in good faith if it is performed honestly, irrespective of whether it is performed negligently. However, the Indian Limitation Act provides its own definition of good faith in section 2(7), declaring that nothing can be considered done in good faith unless it is performed with due care and attention. Consequently, the Court needed to examine whether the filing and prosecution of the suit in the Munsiff’s Court at Miraj were carried out with such due care and attention. The Court noted that the plaint in the earlier Tikoni suit, filed by the same plaintiff in the same court, expressly mentioned the value of the subject‑matter, whereas the plaint originally filed in the Miraj suit omitted that crucial detail. All of the facts that the plaintiff later cited in his petition for the return of the plaint were known to him from the moment the suit was instituted; no new facts were discovered in 1940. The Court further pointed out that the Tikoni suit had been dismissed on its merits by the trial court, and that both suits were of a similar character because the underlying controversy was essentially the same. The appellant contended that after the dismissal of the Tikoni suit in November 1939, he naturally became apprehensive about the outcome of the other suit and therefore moved the court for the return of the plaint on the ground of pecuniary jurisdiction. The Court found this contention to be reasonably founded, noting that the plaintiff had always been aware that the value of the properties in dispute exceeded Rs 5,000, which was the monetary limit of the Subordinate Judge’s Court. The Court then asked whether the omission of the property value in the plaint could be regarded as a failure to exercise due care and attention as required by the Limitation Act’s definition of good faith. It reminded that this case was not a typical one arising from a defendant’s objection to the plaint’s valuation on jurisdictional grounds; in fact, the defendant had made no such objection in his written statement. The Court observed that the plaintiff appeared to have been in a difficult position to discover any reason for the case to be transferred to another court. The issue, the Court held, was not whether the plaintiff acted dishonestly or with mala fides, but whether, exercising proper care and attention, the plaintiff could have identified the omission without waiting ten years or more. The trial court had examined the plaintiff’s allegation concerning this omission.

The trial court examined the plaintiff’s allegation that the failure to state the value of the subject‑matter in the present plaint was caused by a mistake of his pleader. The court observed that the plaintiff advanced this claim in order to hide behind erroneous legal advice. In rejecting the plaintiff’s argument, the court stated that the plaintiff had not relied on any counsel in the preparation of either suit. Both plaints, the earlier one and the present one, had been drafted entirely by the plaintiff himself, and he had presented them in the trial court with a competence described as “worthy of a senior counsel.” Consequently, the court concluded that the plaintiff alone bore responsibility for drafting the plaints and for their presentation, and that no pleader could be held liable for the omission. The court also noted that the plaintiff offered no explanation for the inconsistency whereby the value of the suit was specified in the earlier Tikoni suit but was omitted in the current suit.

The court further observed that the plaintiff had failed to produce any evidence demonstrating that he had prosecuted the earlier suit with the “due diligence” required by section 14 of the Limitation Act. He had not introduced an order‑sheet or any comparable record from the Sub‑Judge’s Court at Miraj to show that, despite his diligence, the suit had remained pending for more than ten years before he sought trial in a court of higher pecuniary jurisdiction. Because these conditions were not satisfied, the plaintiff did not meet the statutory requirements for invoking the benefit of section 14. The burden of proof lay on the plaintiff to establish those conditions, and, having failed to do so, the burden could not shift to the defendant. The court therefore found no need to address the appellant’s additional contention that, even after applying section 14, the suit would still be barred under Article 142 of the Limitation Act. Accordingly, the court held that the suit was barred by limitation, allowed the appeals, dismissed the suit with costs, and ordered that the costs be divided equally between the two appeals.