# April I8. 5e4 SUPREME COURT n~POR!rs (1959J MADHAVRAO NARAYANRAO PATWARDHAN v. ItAMKRISHNA GOVIND BHANU AND OTHERS

- **Citation:** [1959] 1 S.C.R. 564
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** B. P. Sinha, Jaj<'Er Imam, SuBBA RAO
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/april-i8-5e4-supreme-court-n-por-rs-1959j-madhavrao-narayanrao-patwardhan-v-1526
- **Pages:** 9

## Headnote

Li1n£tation-Suit instituted without disclosing value of tlze properties-Plaintiff applying for return of plaint for re-presentation to
proper Court-Computation of period of limitation-Dtduction of
time of pendency in original Court-Burden of proof-Good faithDue diligence-General Clauses Act, I897. (X of I897), s. 3(20)-
lndian Limitation Act, I908 (IX of Igo8), ss. 2(7), I4.
Where the plaintiff i11stituted a suit in the Munsiff's court on
January 31, 1929, but without !lisclosing the value of the p1operties for the purposes of jurisdiction, and on an application made
by him on June 21, 1940, in which it was pointed out that the
court had no pe-cuniary jurisdiction to hear the suit, the court
allo\ved the application directing the plaint to be returned to be
presented to the proper Court, and. the question arose as to
whether the plaintiff was entitled, under s. 14 of the Indian Limitation Act, 1908, to a deduction of the time between January 31,
1929, when the suit had been originally filed and July 4, 1940,
\Vhen the plaint \vas re-presented to the court of the District
Judge:
Held, that the burden lay on the plaintiff to satisfy all the
conditions necessary to bring the case \vithin s. 14 of the Act.
In the instant case it was nOt proved that the suit, \vhile it
remained pending originally, had been prosecuted with due dili_
gence and in good faith, and the plaintiff was therefore held not
entitled to the benefit of the section.
• In order to show that the suit was prosecuted in " good
faith", the plaintiff must prove that he had done so with due
care and attention as defined in s. 2(7) of the Indian Limitation
Act and not as in s. 3(20)' of the General Clauses Act, 1897.
CIVIL APPELLATE JtrRISDICTION: Civil Appeals Nos.
287 & 288 of 19.55.
Appeals from the judgment and decree dated
November 30, 19.51, of the Bombay High Court in
Appeal No. 104 of 1950 from Original Decree, arising
out of the judgment and decree dated December 12,
19.45, of the Court of the District Judge, Mimj, in Suit
No.,2 of 19.40 •
•
.,,
,.
S.C.R.
SUPREME COURT REP01{,TS
565
A. V. Viswanatha Sastri, G. A. Desai and Naunit Lal ·
for the appellant in C. A. No. 287 of 1955 and respondent No. 6 in C. A. No. 288 of 1955.
H. N. Sanyal, Allditional Solicitor-General of India,
K. L. Hathi and R. H. Dhebar, for the appellant in
C. A. No. 288 of 1955 and respondent No. 2 in C. A.
No. 287 of 1955.
•
Purshottmn Tricumdas, J. B. Daclachanji, S. N.
Andley and Rameshwar Nath, for respondent No. 1
ii1 both the appeals.
1958.
April 18.
The following Judgment of the
Court was delivered by
SnrnA J.-These two appeals are directed against
the judgment and decree dated N oveinber 30, 1951,
passed• by a, Division Bench of the High Court of
Judicature a,t Bombay, 're\rersing thoRc of the District
Judge at Mira.;, dismi >sing the plaintiff's suit for p·o ;session and mesne profits in respect of the suit ·properties
in Civil i:)uit No. 2 of 1940. Civil Appeal No 287 of
1955, is on behalf of the added respondent No. 7, and
the Civil Appea,l No. 288 of 1955, is on behalf of the
a,cldecl respondent No. 6-the Sta,te of Bombay which
now represents the o~iginal first defendant-the Mira,j
State (now merged in the State of Bombay).
In the view we have taken, as will presently appear,
on the question of limitation, it is not necessary to
state in any detail the pleadings of the parties or the
merits of the decisions of the courts below. For the
purposes of these appeals, it is 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 clay of limitation, in the lVIunsiff's
court at Miraj. This suit was registered as Oi,iginal
Suit No. 724 of 1930, in that court. Tlte plaintiff
prayed in the plaint for possession and mesne profits
in respect of lands at l\falgaon and '£akli, on the ground
that the then State of Miraj had wrongfully resumed
those lands in 1910, as part of the State Sheri-Khata,
w

## Text

1958
April I8.
5e4
SUPREME COURT n~POR!rs
(1959J
MADHAVRAO NARAYANRAO
PATWARDHAN
v.
ItAMKRISHNA GOVIND BHANU
AND OTHERS
(with connected appeal)
•
(B. P. SINHA,
JAJ<'ER IMAM and SuBBA RAO JJ.)
Li1n£tation-Suit instituted without disclosing value of tlze properties-Plaintiff applying for return of plaint for re-presentation to
proper Court-Computation of period of limitation-Dtduction of
time of pendency in original Court-Burden of proof-Good faithDue diligence-General Clauses Act, I897. (X of I897), s. 3(20)-
lndian Limitation Act, I908 (IX of Igo8), ss. 2(7), I4.
Where the plaintiff i11stituted a suit in the Munsiff's court on
January 31, 1929, but without !lisclosing the value of the p1operties for the purposes of jurisdiction, and on an application made
by him on June 21, 1940, in which it was pointed out that the
court had no pe-cuniary jurisdiction to hear the suit, the court
allo\ved the application directing the plaint to be returned to be
presented to the proper Court, and. the question arose as to
whether the plaintiff was entitled, under s. 14 of the Indian Limitation Act, 1908, to a deduction of the time between January 31,
1929, when the suit had been originally filed and July 4, 1940,
\Vhen the plaint \vas re-presented to the court of the District
Judge:
Held, that the burden lay on the plaintiff to satisfy all the
conditions necessary to bring the case \vithin s. 14 of the Act.
In the instant case it was nOt proved that the suit, \vhile it
remained pending originally, had been prosecuted with due dili_
gence and in good faith, and the plaintiff was therefore held not
entitled to the benefit of the section.
• In order to show that the suit was prosecuted in " good
faith", the plaintiff must prove that he had done so with due
care and attention as defined in s. 2(7) of the Indian Limitation
Act and not as in s. 3(20)' of the General Clauses Act, 1897.
CIVIL APPELLATE JtrRISDICTION: Civil Appeals Nos.
287 & 288 of 19.55.
Appeals from the judgment and decree dated
November 30, 19.51, of the Bombay High Court in
Appeal No. 104 of 1950 from Original Decree, arising
out of the judgment and decree dated December 12,
19.45, of the Court of the District Judge, Mimj, in Suit
No.,2 of 19.40 •
•
.,,
,.
S.C.R.
SUPREME COURT REP01{,TS
565
A. V. Viswanatha Sastri, G. A. Desai and Naunit Lal ·
for the appellant in C. A. No. 287 of 1955 and respondent No. 6 in C. A. No. 288 of 1955.
H. N. Sanyal, Allditional Solicitor-General of India,
K. L. Hathi and R. H. Dhebar, for the appellant in
C. A. No. 288 of 1955 and respondent No. 2 in C. A.
No. 287 of 1955.
•
Purshottmn Tricumdas, J. B. Daclachanji, S. N.
Andley and Rameshwar Nath, for respondent No. 1
ii1 both the appeals.
1958.
April 18.
The following Judgment of the
Court was delivered by
SnrnA J.-These two appeals are directed against
the judgment and decree dated N oveinber 30, 1951,
passed• by a, Division Bench of the High Court of
Judicature a,t Bombay, 're\rersing thoRc of the District
Judge at Mira.;, dismi >sing the plaintiff's suit for p·o ;session and mesne profits in respect of the suit ·properties
in Civil i:)uit No. 2 of 1940. Civil Appeal No 287 of
1955, is on behalf of the added respondent No. 7, and
the Civil Appea,l No. 288 of 1955, is on behalf of the
a,cldecl respondent No. 6-the Sta,te of Bombay which
now represents the o~iginal first defendant-the Mira,j
State (now merged in the State of Bombay).
In the view we have taken, as will presently appear,
on the question of limitation, it is not necessary to
state in any detail the pleadings of the parties or the
merits of the decisions of the courts below. For the
purposes of these appeals, it is 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 clay of limitation, in the lVIunsiff's
court at Miraj. This suit was registered as Oi,iginal
Suit No. 724 of 1930, in that court. Tlte plaintiff
prayed in the plaint for possession and mesne profits
in respect of lands at l\falgaon and '£akli, on the ground
that the then State of Miraj had wrongfully resumed
those lands in 1910, as part of the State Sheri-Khata,
which,
0after inquiry, was ordered on July 31, 1915, to
. be recorded ;:1.s such lands~ itnd the usufruct thereof
•
/
•
Madhavrao
A7 araya-nrao
Patwardh <'.IZ
v.
Ra111k1-ishna
Govind Bhanu
and Others
Sinha ].
JY[ adhavrao
N ara:vanrao
Patwardka1.i
v.
Ranikrishna
Govind Blianu
and Others
Sinha].
51]6
SUPREME COURT REPORTS
[1959]
during that period to be appropriated to the Khasgi-
](hata of the State. The plaintiff impleatled 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
Xarso 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 Rs. 2,065, being 5 times the assessment on the
disputed lands for the purposes of court-fee . .No valuation was given in the plaint for the purposes of jurisdiction with reference to the value of the properties
claimed.
A similar suit had been instituted bv the
plaintiff in the same court in respect of lands in
another village called Tikoni. That had been ~egistered as Original Suit l\o. 443 of 1928, in the Munsiff's
eourt at Miraj, and we shall refer to that suit as the
'Tikoni suit'. It appears that the two suits proceeded
in that court in a very leisurely fashion until November
29, 1939, when the Tikoni suit was dismissed.
After
the dismissal of that suit, the plaintiff made an application on ,Tune 21, 1940, drawing the attention of the
court to the fact that the value of the subject-matter
.
•
of the suit had not been mentioned in the plaint, and
that, on a moderate valuation, the disputed land
should not be worth " less than a minimum of 8 to 10
thousand rupees ", and that, therefore, the court had · t
no pecuniary jurisdiction to hear the suit. The court
allowed the application and directed the plaint to be
. returned to be presented to the proper court, on July 4,
1940. The plaint was accordingly re-presented on that
very date to the court of District Judge at Miraj, and
the same was llllmbered as Suit No. 2 of 1940.
The original first defendant only contested the s11it
on a number o.f grounds, including the plea of limitation. By a petition dated October 27, 1942, the defendant brought it to the notice of the court that the
"plaintiff despite his knowledge that the value of the
subject-matter of the suit was far in excestl' of the
amount of jurisdiction of the Munsiff's court filed the
~uit in the ~aid court. .l'he ea.id a.ct of the plaintifi
•
~
S.C.R.
SUPREME COURT REPORTS
567
was not at all 'bona fide ' ...... The facilities as regards
limitations, etc. which a 'bona fide' suitor would be
entitled to cannot, therefore, be afforded to the plaintiff. "
After recording evidence and hearing the parties,
~.
the learned District Judge, by his judgment and decree
dated December 12, 1945, dismissed the suit with costs.
On• appeal by the defeated plaintiff, during the
pendency of the appeal, the State of Bombay was
added as the 6th respondent, and the Yuvaraj 'of
Miraj, Madhavrao Narayanrao, son of the Raja Sahib
of Miraj, was added as the 7th respondent, as ~he
latter had acquired an interest in the disputed properties by virtue of a grant in his favour.
The appeal
was· ultimately registered as First Appeal No. 104 of
1950, }n 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.
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 s. 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 Li111itation Act,
whether the cause of action arose in 1910, on the death
of Narso aforesaid, or in 1915, when the final order
was passed by the Miraj State treating the resumed
property as part of the Khas property of the State,
which ·was the date of the cause of action for the suit
as alleged in the plaint. On behalf of the plaintiff- ·
~
respondent, it was strenuou~ly argued ~hat the' c~ur.ts
lvf adhavrao
Narayanrao
Patwardhan
v.
Ramkrishna
Govind Bhanu
.and Other.
Sinha ].
llfadhavrao
Narayanrao
J::>atward!tan
v.
:R-anikrishna
Govind Bhanu,
.and Others
Sinha ].
568
SUPREME COURT REPORTS
[l!l.'39]
below were right in holding that the plaintiff was
entitled to a deduction of all the time between
January 31, 1929, when the suit had been originally
filed in the court of the Munsiff at Miraj, and July 4,
1940, when the plaint was returned and re-presented
as aforesaid. It was also argued that it was common
ground that the suit as originally filed on January. 31,
1929, was withjn time though that was the last1 day of
limitation. If !ho plaintiff is given the benefit of s. 14
of the Limitation Act, iJJSO
facto, t,hc suit on representation of the plaint in the District Court at
Miraj, would be within time.
In our opinion, the appellant's contentions based on
the provisions of s. 14 of the Limitation Act, are
well-founded, and the decision of the courts below,
granting the plaintiff-respondent the benefit of that
section, must be reversed for the following rmisons:
J3efore the promulgation, on January l, 1926, of the
Proclamation by State Karabhari, Miraj State, the
law of limitation in that State, it is common ground,
was that tho plaintiff had the benefit of the period of
20 years as the period during which a suit for
possession after dispossession, could he instituted. Bx
that Proclamation, the Indian Limitation Act (IX of
1908) was made applicable to that State with effect
from February 1, 1926, subject to this modification that
:tll suits which would lmve been in time according to the
old law of the Stf1tc, but would have become barred by
limitation as a result of the introduction of the Indian
Limitation Act, could be filed up to January 31, 1929,
.hy virtue of certain notifications extending the last date
for the institution of such snits. H once, the suit filed on
that date in the :i\fonsiff'sCourt,tt Miraj, was admittedly
within time, and was subject to the Ltw of limitation
under the Jl1dian Limitatilll;i Act. '~Then the plaint was
returned by the .Mnnsiff's
c~urt at Miraj, at the
instance of the plaintiff himself on the ground of
want of pecuniary jurisdiction, and re-presented to
the court of the District Judge at Miraj on July 4,
1940, it was, on the face of it, barred by limitat!on,
whether the period of limitation started to run in
....
•
l~l~ or 1915, 1mless the c,ase is brought within s. 14 ~
..., .
...
)
S.C.R.
SUPREME COURT REPORTS
569
of the Limitation Act.
Sub-section (1) of s. 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
a_nother 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."
In order to bring his case within the section quoted
above, the plaintiff has to show affirmatively:
•(I) 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 on account of defect of jurisdiction or other
cause of a like nature.
There is no dispute between the parties here that
conditions (2) and (4) are 13atisfied.
But the parties
differ with reference to th'e first and the third conditions. It has been argued on behalf of the appellants
that the courts below had misdirected themselves
when they observed that there was no proof that the
plaintiff had not been diligently prosecuting the
previously instituted suit, or that it was i10t being
prosecuted in good faith; that the section requires
that the plaintiff must . affirmatively show that the
previously instituted· suit was being prosecuted in
good faith and with due diligence ; and that, viewed in
that light, the plaintiff has failed to satisfy those
oon<iitions.
The conclusion of the learned trial judge on this
part of 'the case, is in these words :-
" The plaintiff's m(!(la fides are therefore • not
•
Madhavrao
Narayanrao
Patwardhan
v.
Ramkrishna
Govind Bhanu
aud Olhers
Sinha j.
Jlfadhavrao
N ara.yanrao
Patwardhan
v.
Ra1nkrishna
Govind Bhann
and Others
Sinha ].
570
SUPREME "COURT B.EPORTS
[1959]
established and the period occupied in prosecuting the
former suit must be excluded under section 14 of the
Limit11tion Act."
The observations of the High Court are as follows :-
" W' e do not see our way to accuse the plaintiff of
want of good faith or any maW. 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 wtts 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 courts below have viewed the controversy
under s. 14 of the Limitation Act, as if it was for the
defendant to show mala fides on the part of the plaintiff when he instituted the previous suit and was carrying on the proceedings in th11t court. In our opinion,
both the courts below h11ve misdirected themselves on
this question.
Though they do not s11y so in terms,
they appear to have applied the definition of "good
faith" as contained in the General Clauses Act, to the
effect that " A thing shall be deemed to be done in
good faith where it is in fact done honestly, whether it
is clone negligently or not." But the Indian Limitation
Act contains its own definition of good faith to the
effect that "nothing shall be <;leemecl to be done in
good faith whivh is not clone with due c1ue and
att.ention "-(s. 2(7)). 'Ve have, therefore, to see if the
institution and .Prosecution of the suit in the Munsiff's
court at Miraj, was done with due care and n,ttention.
'Ve know that the plaint in the Tikoni suit filed by the
stttne plaintiff .in the same court, did contain a statement as to the value of the subject-matter, but it was
conspiuuO'lls by its absence in the plaint in the suit as
originally filed in the nfonsiff'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 snit. Nothing fresh was discovered
in 1940.
On the other hand, we know definitely that
the Tikoni snit had been dismissed bv the trial comt
911 merits. The suits were of an analogous charicter
in the sense that the controversv was similar in both
of them.
The appellant's .con"tention that on the
•
\
I
S.C.R.
SUPREME COURT REPORTS
571
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
jurisdictie1tl, 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 Rs. 5,000
~v hich was the limit of the pecuniary jurisdiction of
the Subordinate Judge's court.
Can an omission in
the plaint to mention the value of the properties
involved in the suit, be brought within the condition
of 'due care and attention' according to the meaning of
" good faith " as understood in the Limitation Act ?
It has to be remembered that it is not one of those
cases which usually arise upon a revision of the valuatioJJ. as given in the plaint, 011 an objection raised by
the defendant contesting the jurisdiction of the court
to entertain the suit. Curiously enough, the defendant
had not raised any objection in his written statement
to the jurisdiction of the court to entertain the suit.
Apparently, the plaintiff was hard put to it to discover
reasons for having the case transferred to another
court. The question is not whether the plaintiff did it
dishonestly or that his acts or omission in this connection, were rnala fide.
On the other hand, the question
is whether, given due care and attention, the plaintiff
could have discovered the omission without having to
wait for abont 10 years or more.
The trial court
examined the plaintiff's allegation that the omission
was due to his pleader's mistake. As that court
observed "he makes this contention with a view to
shield himself behind a wrong legal advice." That
court has answ~red the plaintiff's contention against
him by observing that the plaintiff was not guided by
any legal advice in this suit;· that .the plaint was
entirely written by him in both the f!uits, and that he
himself conducted those suits in the trial court "in a
mannei· worthy of a senior counseL" The court,
therefore, rightly came to the conclusion that the
platntiff himself was responsible for drafting the
plaint and for presenting it in court, and that ho
pleader had any respoi;isibility in. the -matter, No
•
Madhavrao
Narayanrao
Pa/ward/Ian
Rarnkrishna
Govind Bhcinu
1md Others
Sinha j.
I958
Madltavrao
]\T arayanrao
Patwardhan
v.
Rautkrishna
Govind Blianu
and Others
Sinha].
572
SUPREME COURT REPORTS
[1959]
reason was adduced why, in those circumstances, the
value of the subject-matter of the suit, was mentioned
in the plaint in the Tikoni suit but not in the pbint in
respect of the present suit.
There is another serious difficulty in the Yl'ay of the
plaintiff. He has not brought on the record of this
case any evidence to show that he was prosecuting the
.previously i1rntituted suit with "due diligence" as re'
<1 uired by s. 14.
He has not adduced in evidence the
order-sheet or some equivalent evidence of the proceedings in the Sub-Judge's court at Miraj, to show tlrnt
in 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.
[n our opinion, therefore, all the conditions necessary to bring the case within s. 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 entitle 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 conte"ting defendant to adduce evidence
to the contrary.
\Vhen the plaintiff has not satisfied
the initial burden which lay upon him to bring his
case within s. 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
s. l4, the suit is still barred under Art. 142 of the Limitation Ac·t. This is a serious question which may have
to be determined if and when it becomes neeessarv.
For the aforesaid reasons, it must be held that the
snit is barred by limitation. The appeals are, accordingly, allowed a.nd the suit dismissed with costs
throughout. One set to be divided equally between
the two appeals.
Appeals allowed.•
•
•
\