E.V. Paulose v. Manikkanamparambil Trust and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 30TH DAY OF JULY 2013/8TH SRAVANA, 1935** **FAO.NO. 321 OF 2011 ( )** **------------------------------------A.S.NO.107 OF 2003, SUB COURT, MUVATTUPUZHA O.S. NO.188 OF 1998, MUNSIFF'S COURT, MUVATTUPUZHA** ## **APPELLANT/APPELLANT/DEFENDANT NO.1:** **---------------------------------------------------------------** ## **E.V.PAULOSE** **EDAVELIKKAL HOUSE, EXHAKKARANAD KARA, MANEED VILLAGE MUVATTUPUZHA TALUK.** **BY ADVS.SRI.M.M.MONAYE** **SRI.M.PAUL VARGHESE** ## **RESPONDENTS/RESPONDENTS/PLAINTIF & DEFENDANTS 2 & 3:** **--------------------------------------------------------------------------------------------** ## **1. MANIKKANAMPARAMBIL TRUST AND OTHERS** **REPRESENTED BY ITS MANAGING PARTNER MATHEW AGED 76 YEARS, S/O.MANIKKANAMPARAMBIL VARKEY NADUVILAVEETTIL, UDAYAMPEROOR MURI, UDAYAMPEROOR PO MANAKUNNAM VILLAGE, KANAYANNUR TALUK, PIN 682 307** ## **2. C.ALEXANDER, AGED 71 YEARS,** **S/O.CHEMMALASSERIL CHANDY, HEAD CLERK IN, MUVATTUPUZHA PAYIPRA PANCHAYATH OFFICE, POOTHRIKKA DESOM IYKKARANADU SOUTH VILLAGE, POOTHRIKKA PO, PIN 682 308.** ## **3. K.M.YACOB, AGED 71 YEARS** **S/O.PERINCHERIYIL MANI, PUMP CLEANER IN RAMAMANGALAM ELECTRICAL LIFT IRRIGATION SECTION RAMAMANGALAM VILLAGE, MUVATTUPUZHA TALUK RAMAMMANGALAM PO, PIN 686 663.** **R1 BY ADV. SRI.PHILIP T.VARGHESE RR1 BY ADV. SRI.THOMAS T.VARGHESE RR1 BY ADV. SMT.ACHU SUBHA ABRAHAM RR1 BY ADV. SMT.T.M.BINITHA R2,R3 BY ADV. SRI.DESI MATTHAI** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 30-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== F.A.O. No.321 of 2011 ==================================== Dated this the 30[th] day of July, 2013** ## **J U D G M E N T** This appeal arises from the judgment dated 19.03.2011 in A.S. No.107 of 2003 of the Sub Court, Muvattupuzha. 2. The 1[st] respondent filed O.S. No.188 of 1998 for recovery of money based on a chitty transaction, originally in the Munsiff's Court, Ernakulam on 03.04.1995. The appellant-1[st] defendant and others contended that the said court has no territorial jurisdiction to entertain the suit. According to them, jurisdiction lay with the court at Jamshedpur since all the transactions took place there. Learned Munsiff, Ernakulam vide order dated 12.04.1996 held that the said court has no territorial jurisdiction to entertain the suit and directed that the plaint be returned. The 1[st] respondent was directed to take steps as per Rule 10A of Order VII of the Code of Civil Procedure (for short, “the Code”). 3. The 1[st] respondent filed I.A. No.1029 of 1998 under Rule 10A of Order VII of the Code on 27.02.1998 requesting that the plaint be returned. Learned Munsiff, Ernakulam ordered return **F.A.O. No.321 of 2011** -: 2 :- of the plaint. As the learned counsel for the 1[st] respondent submits, plaint was returned on 27.02.1998. It was presented in the Munsiff's Court, Muvattupuzha on 02.04.1998. 4. The appellant and others resisted the suit on various grounds including limitation. The trail court granted a decree in favour of the 1[st] respondent. 5. The appellant challenged that judgment and decree in the Sub Court, Muvattupuzha in A.S. No.107 of 2003. The lower appellate court confirmed finding of the trial court regarding limitation but set aside the judgment and decree of the trial court and remitted the case to the trial court for fresh decision. That remand judgment is under challenge at the instance of the 1[st] defendant. 6. The following substantial questions of law are framed for a decision: (i) Whether the plaintiff has acted in good faith and with due diligence in prosecuting the case in the wrong court and whether the said period can be excluded in computing the period of limitation in re-presentation of the suit? (ii) Whether the finding of the lower appellate court that **F.A.O. No.321 of 2011** ## -: 3 :- the period of limitation run only from the actual date of receipt pf the plaint viz., 27.02.1998, while the wrong court has declared long ago on 12.04.1996, that it has no jurisdiction to try the suit? (iii) Can the latches of the plaintiff between 12.04.1996 and 27.02.1998 not be considered and the said period be excluded in the calculation of the period of limitation? 7. Learned counsel for the appellant has contended, placing reliance on the decisions in **Parameswara Kurup v. Vasudeva Kurup** (1964 KLT 145) and **Videocon International** **Ltd. v. Logos Traders** (2007 [4] KLT 848) that the wrong court cannot extend period of limitation. It is argued that though the wrong court by order dated 12.04.1996 directed return of the plaint and further directed the 1[st] respondent to take steps under Rule 10A of Order VII of the Code, 1[st] respondent took steps (by filing I.A. No.1029 of 1998) only on 27.02.1998 after inordinate delay and hence presentation of the plaint in the trial court on 02.04.1998 cannot be treated as pursuant to order dated 12.04.1996. It is further argued that at any rate going by the order dated 12.04.1996 direction was to re-present the plaint in the court at Jamshedpur and hence presentation of plaint in the **F.A.O. No.321 of 2011** -: 4 :- Munsiff's Court, Muvattupuzha should be taken as a fresh presentation of the plaint subject to the period of limitation as on the date of presentation. It is argued that the suit is barred by limitation and that finding of the court below cannot be sustained. 8. Learned counsel for the 1[st] respondent has relied on the decision in **Ram Ujarey v. Union of India** ([1999] 1 SCC 685) to contend that the period of limitation starts from the date of return of the plaint and not from the date of the order to return the plaint. According to the learned counsel period of limitation must start from 27.02.1998 and as the suit is presented in the Munsiff's Court, Muvattupuzha on 02.04.1998 it is within time. It is also argued that the order of the Munsiff's Court, Ernakulam dated 12.04.1996 does not say that the plaint is to be represented in the court at Jamshedpur. 9. I have gone through the order dated 12.04.1996 of the learned Munsiff, Ernakulam. There, referring to the contentions raised by the 3[rd] respondent-3[rd] defendant that cause of action for the suit arose at Jamshedpur, learned Munsiff observed in paragraph 7 of the order that the chitty was conducted at Jamshedpur and therefore the presumption is in favour of the appellant and respondents 2 and 3 that everything connected **F.A.O. No.321 of 2011** -: 5 :- with the chitty arose at Jamshedpur and further, that so long as the 1[st] respondent has not shown that cause of action arose within the jurisdiction of learned Munsiff, Ernakulam, it cannot be stated that the suit is maintainable in that court. 10. True that operative portion of the said order does not direct re-presentation of the plaint in the court at Jamshedpur but reading the observations and finding in paragraph 7 of the order it is clear that in the view of the Munsiff's Court, Ernakulam, court having territorial jurisdiction is the court at Jamshedpur. 11. There is no case that the 1[st] respondent has challenged the order dated 12.04.1996. The order dated 12.04.1996 has become final. Hence re-presentation of the plaint should have been in the court at Jamshedpur. Hence presentation of the plaint in the Munsiff's Court, Muvattupuzha on 02.04.1998 can only be treated as a fresh institution of the suit and not in continuation of the suit that was instituted in the Munsiff's Court, Ernakulam. 12. Assuming that as per order dated 12.04.2996 referred to above the 1[st] respondent could present the plaint in the Munsiff's Court, Muvattupuzha, still question of limitation has to be **F.A.O. No.321 of 2011** ## -: 6 :- decided. 13. It is not disputed that the chitty terminated on 10.08.1993. It is a simple chitty transaction. Hence the period of limitation for the suit must be three years from the date of termination of the chitty. If that be so, the cause of action became time barred on 10.08.1996. Return of the plaint by the wrong court was on 27.02.1998 i.e., after the original cause of action became barred by limitation. 14. The decision in **Ram Ujarey v. Union of India** (supra) relied on by the learned counsel for the 1[st] respondent would not come to his rescue. True that in paragraph 21 the Supreme court held that limitation starts from the date of return of the plaint and not from the date of order to return the plaint. But the Supreme Court hastened to add that the appellant (therein) should not have been at fault. Here, the order directing return of the plaint was passed on 12.04.1996 and by the same order the 1[st] respondent was directed to take steps under Rule 10A of Order VII of the code. The 1[st] respondent took that step only on 27.02.1998. Certainly and obviously the 1[st] respondent was at fault. Hence the 1[st] respondent cannot fall back upon the actual date of return of the plaint. **F.A.O. No.321 of 2011** -: 7 :- 15. Even if it is assumed for the worst that the relevant date to be reckoned is 27.02.1998 (on which day the plaint was returned) still, I am of the view that the suit is barred by limitation. For, the original cause of action became barred by limitation on 10.08.1996 and plaint was returned on 27.02.1998. The wrong court cannot extend period of limitation. Therefore at any rate 1[st] respondent, to save the suit from the bar of limitation should have re-presented the plaint in the proper court on 27.02.1998. Instead, it was presented (or re-presented) only on 02.04.1998 on which date as aforesaid, the original cause of action had become barred by limitation. 16. Viewed either way, the plaint presented (or represented) in the Munsiff's Court, Muvattupuzha on 02.04.1998 is beyond the period of limitation. Hence the suit as contended by the learned counsel for appellant is barred by limitation. 17. The substantial questions of law framed are answered as above. Resultantly the appeal is allowed as under: (i) Judgment and decree of the learned Munsiff, Muvattupuzha in O.S. No.188 of 1998 and that of the learned Sub Judge, Muvattupuzha in A.S No.107 of 2003 are set aside. **F.A.O. No.321 of 2011** -: 8 :- (ii) O.S. No.188 of 1998 of the Munsiff's Court, Muvattupuzha is dismissed as barred by limitation. (iii) Parties shall suffer their costs throughout. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv