TMI Blog1958 (4) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... only necessary to state that the plaintiff-respondent who was the appellant in the High Court, had instituted a suit on January 31, 1929, the very last day of limitation, in the Munsiff's Court at Miraj. This suit was registered as Original Suit No. 724 of 1930, in that court. The plaintiff prayed in the plaint for possession and mesne profits in respect of lands at Malgaon and Takli, on the ground that the then State of Miraj had wrongfully resumed those lands in 1910, as part of the State Sheri-Khata, which, after inquiry, was ordered on July 31, 1915, to be recorded as such lands, and the usufruct thereof during that period to be appropriated to the Khasgi-Khata of the State. The plaintiff impleaded the State of Miraj as the first defendant. Defendants 2 and 3 are plaintiff's brothers who are said to have relinquished their interest in the suit properties in favour of the plaintiff. Defendants 4 to 7 belong to the family of Narso who was, until his death in 1910, recorded in respect of the suit properties, but they did not appear and contest the plaintiff's claim. The suit was valued at ₹ 2,065, being 5 times the assessment on the disputed lands for the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appeal was ultimately registered as First Appeal No. 104 of 1950, in the High Court of Bombay. A Division Bench of that Court, by its judgment and decree dated November 30, 1951, allowed the appeal and decreed the suit with costs against the first and the 7th respondents. The respondents 6 and 7 aforesaid applied for and obtained the necessary certificate for coming up in appeal to this Court. Hence, these two appeals. 5. We have heard the counsel for the parties at a great length on the preliminary issue of limitation. On behalf of the appellants, it was urged with reference to the plea of limitation that in the facts and circumstances of this case, the plaintiff is not entitled to the benefit of section 14 of the Limitation Act, and that, therefore, the suit as instituted in the court of the District Judge at Miraj on re-presentation of the plaint in that court on July 4, 1940, was barred by limitation. Alternatively, it was argued that even assuming that the courts below were right in giving the plaintiff the benefit of that section, the suit was barred by limitation of 12 years under Art. 142 of the Limitation Act, whether the cause of action arose in 1910, on the deat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... July 4, 1940, it was, on the face of it, barred by limitation, whether the period of limitation started to run in 1910 or 1915, unless the case is brought within section 14 of the Limitation Act. Sub-section (1) of section 14 of the Limitation Act, which admittedly governs the present case, is in these terms :- (1). 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. 7. In order to bring his case within the section quoted above, the plaintiff has to show affirmatively : (1) that he had been prosecuting with due diligence the previous suit in the court of the Munsif at Miraj, (2) that the previous suit was founded upon the same cause of action, (3) that it had been prosecuted in good faith in that court, and (4) that that court was unable to entertain that suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Miraj, was done with due care and attention. We know that the plaint in the Tikoni suit filed by the same plaintiff in the same court, did contain a statement as to the value of the subject-matter, but it was conspicuous by its absence in the plaint in the suit as originally filed in the Munsiff's Court at Miraj. All the facts alleged in the plaintiff's petition for the return of the plaint, were known to the plaintiff ever since the institution of the suit. Nothing fresh was discovered in 1940. On the other hand, we know definitely that the Tikoni suit had been dismissed by the trial court on merits. The suits were of an analogous character in the sense that the controversy was similar in both of them. The appellant's contention that on the dismissal of the plaintiff's Tikoni suit in November, 1939, he, naturally, became apprehensive about the result of the other suit, and then moved the court for the return of the plaint on the ground of pecuniary jurisdiction, appears to be well-founded. The plaintiff knew all the time that the value of the properties involved in the suit, was much more than ₹ 5,000 which was the limit of the pecuniary jurisdiction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spite of his due diligence, the suit remained pending for over ten years in that court, before he thought of having the suit tried by a court of higher pecuniary jurisdiction. In our opinion, therefore, all the conditions necessary to bring the case within section 14, have not been satisfied by the plaintiff. There could be no doubt about the legal position that the burden lay on the plaintiff to satisfy those conditions in order that he may entitled himself to the deduction of all that period between January 31, 1929 and July 4, 1940. It is also clear that the courts below were in error in expecting the contesting defendant to adduce evidence to the contrary. When the plaintiff has not satisfied the initial burden which lay upon him to bring his case within section 14, the burden would not shift, if it ever shifted, to the defendant to show the contrary. In view of this conclusion, it is not necessary for us to pronounce upon the other contention raised on behalf of the appellants that, even after giving the benefit of section 14, the suit is still barred under Art. 142 of the Limitation Act. This is a serious question which may have to be determined if and when it becomes necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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