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1955 DIGILAW 211 (RAJ)

Dayachand v. Sanwalchand

1955-08-08

DAVE, WANCHOO

body1955
Dave, J.—This is a first appeal by the plaintiffs against the judgment and decree of the District Judge, Balotra, dated the 13th of July, 1953, whereby their suit has been dismissed. 2. The plaintiffs in this case were seven in number. Their case was that plaintiffs Nos. 1 and 2, Multanmal and Dayachand and one Nenmal, who was the deceased father of plaintiff No. 3, carried on business in the name and style of Multanmal Juharmal and Company. Defendants Nos. 5 and 6 were also sons of the deceased Nenmal but they had separated from their father in his lifetime and so they were impleaded only as pro forma defendants. It was averred that the remaining defendants No. 1 to 4 were members of a joint family and that defendants Nos. 1 and 2 Sanwal Chand and Babulal, who were Kartas of that family, borrowed from the plaintiffs firm, Multanmal Juharmal and Company, Rs. 9801/- on Fagan Sud 1 Svt. 200l and agreed to pay interest at the fate of 8 annas per cent per mensem. The claim was thus founded on khata dated Fagan Sud 11, Svt. 2001 which was said to have been executed by the defendants Babulal Sanwal Chand as karta of the joint family. According to the plaintiffs, defendants No. 1 to 4 failed to repay the loan and interest. It was, therefore, prayed that a decree of the principal amount of Rs. 9801/. plus Rs. 3529/- for interest, in all for Rs. 13,330/- be given in the plaintiffs* favour against the defendants. The plaintiffs also prayed for interest at 6% till realization of the amount and costs. 3. The defendants No. 1 to 4 contested the suit on several grounds including one of limitation. On 15th of February, 1952, the trial court therefore, framed six issues. Thereafter an application was presented by the plaintiffs on 3rd of December, 1952. saying that they had transferred their entire rights to recover the debt for which the present suit was brought and made an assignment in favour of Tikuchand son of Kesrimal Oswal resident of Bhinmal and, therefore, their names should be struck off and the name of Shri Tikuchand should be substituted in their place. Another application to the same effect was presented by Shri Tikuchand on 5th of December, 1952. Another application to the same effect was presented by Shri Tikuchand on 5th of December, 1952. Defendants No 1 to 4 contested these applications also and, therefore, a seventh issue was added on the 2nd of February, 1953. It is unnecessary to repeat all the issues here because the trial court has taken up the decision of issue No. 2 and 7 only which are as follows:— Issue No. 2—If the suit is within limitation ? Issue No. 7—If the plaintiffs legally assigned the document in question and with consideration in favour of Tikuchand so his name is to be substituted in place of the plaintiffs. 4. Issue No. 2 has been decided by the trial court against the plaintiffs and the suit has been dismissed on the account. Regarding issue No 7, it was found by the trial court that the assignment deed was insufficiently stamped. That document was, therefore, impounded and sent to the Collector for realization of the stamp duty and penalty. It was found by the court that the assignment of the debt was with consideration, but since the deed was not property stamped, it was held that it did not give any right to Tiku Chand to be substituted as plaintiff in place of the original plaintiffs. 5. Issue No. 7 is not much of importance now as we shall show hereafter. It is only issue No. 2 which is of real importance, and the main question for our determination is whether the present suit is within limitation. 6. As pointed out above, the suit has been founded on a document dated Falgun Sud.11, Svt.2001, which was equivalent to 22nd of February 1945. The claim was presented on 14th March, 1951, equivalent to Falgun Sud 6th, Svt, 2007. It was common ground between the parties in the trial court that the period of limitation for the present suit was six years. The main contention between the parties was whether the said period of six years should be computed according to the Vikrami year or according to the Gregorian calendar. If the period is calculated by Gregorian calender the suit is obviously beyond six years, but if calculated according to Vikrami Svt., six years had not elapsed by the date the suit was tiled. If the period is calculated by Gregorian calender the suit is obviously beyond six years, but if calculated according to Vikrami Svt., six years had not elapsed by the date the suit was tiled. The trial court has held that the Rajasthan Limitation Act (Adaptation) Ordinance, 1950 (Ordinance No. VI of 1950 was made applicable to Rajasthan State from the 25th of January, 1950. According to the learned Judge, the period of limitation could therefore be calculated only according to Gregorian calendar because of the provisions of sec. 25 of the Indian Limitation Act which was made applicable and, therefore, it was decided that the suit was beyond time. 7. Learned counsel for appellants has urged that the trial courts decision is erroneous and that it has not been able to correctly appreciate the provisions of sec. 6 of the Rajasthan Limitation Act (Adaptation) Ordinance, 1950 (Ordinance No. VI of 1950). Learned counsel for respondent has, on the other hand, tried to support the decision of the trial court and urged that its interpretation of the said section is quite correct. Since the decision of their case hinges upon the interpretation of sec. 9 of the Rajasthan Limitation Act (Adaptation) Ordinance (No. VI of 1950) it would be proper to reproduce the same. The relevant portion runs as follows :— "(9) Special provisions for certain suits etc.—(1) Notwithstanding anything contained in this Ordinance and in the Indian Act thereby adapted to Rajasthan— (a) any suit for which the period of limitation prescribed by the said Act is shorter than the period of limitation prescribed by any law relating to limitation of suits in force in any part of Rajasthan on the date of the commencement this Ordinance and repealed by sec. 12 thereof may be instituted within the period of two years next after such date or within the period prescribed for such suit by the aforesaid law, whichever period expires first." 8. 12 thereof may be instituted within the period of two years next after such date or within the period prescribed for such suit by the aforesaid law, whichever period expires first." 8. It is clear from the language of the above section that this special provision was made to save those suits which would have been within limitation according to the previous law of limitation but which would have become time-barred according to the Indian Limitation Act (No. IX of 1908) because of a shorter period being prescribed by the latter It was, therefore, laid down that if in any suit the period of limitation prescribed by the Indian Limitation Act was shorter than the period of limitation prescribed by any law relating to limitation for suits in force in any part of Rajasthan on the date of the commencement of the Rajasthan Limitation Act (Adaptation) Ordinance, 1950 (i.e. 24th of January, 1950,) then such a suit could be instituted within the period of two years from 24th of January, 1950, or within the period prescribed for such suits by the law which was previously in force whichever period was to expire first. Thus in order to apply this section, it becomes necessary to determine two points. The first question to be considered is whether the period of limitation prescribed by the Ordinance is shorter than the period of limitation prescribed by the previous law of limitation. If that period is not shorter then the Rajasthan Limitation Act (Adaptation) Ordinance, 1950 (which would hereafter be called Limitation Ordinance for the sake of brevity), would apply. In that case, the previous law of limitation need not be looked into. In the present case, the period of limitation for the present suit, according the Limitation Ordinance, is three years whereas the period of limitation according to the Marwar Limitation Act, 1945 read with sec. 4 thereof was six years. This question is concluded by a Full Bench decision of this Court in Jethmal vs. Ambsingh(l) and, therefore, it is no longer in dispute and it is not necessary to dilate upon it further, The next question for determination is which of the two periods expires first. 4 thereof was six years. This question is concluded by a Full Bench decision of this Court in Jethmal vs. Ambsingh(l) and, therefore, it is no longer in dispute and it is not necessary to dilate upon it further, The next question for determination is which of the two periods expires first. In other words, we have to see whether the period of two years from the commencement of the Limitation Ordinance would expire first or the period of limitation prescribed by the previous law of limitation would come to an end earlier. On this point also there is no dispute between the parties because the period of two years from 24th January, 1950, ends on 23rd of January, 1952, whereas the period of six years from the date of the loan terminated on Falgun Sud 10, Svt. 2007. if calculated by the Vikram Svt. or 21st February, 1951, if calculated by the Gregoin calender. So in either case, the period to expire first was the period prescribed by the previous law of limitation. The dispute between the parties is, therefore, very narrow. According to the appellants, the period of six years was six Vikram Svt. years and, therefore, the limitation expired on Falgun Sud 10, Svt. 2007. while according to the respondents the period of six years was according to Gregorian calendar and, therefore, limitation expired on 21st of February, 1951. The reply to the disputed question revolves upon the meaning which would be attached to the following words appealing in sec. 9(a) of the Ordinance quoted above "within the period prescribed for such suit by the aforesaid law". Learned counsel for appellants contends that the words "period prescribed" should not be taken to mean only the period prescribed in the Schedule of the Marwar Limitation, Act, 1945 as amended by the Marwar Limitation, (Amendment) Act, 1949. According to learned counsel, the period prescribed should be calculated by reading the law as a whole. He has pointed out that the word "year" was defined in the Marwar Limitation Act, 1945 as a year reckoned according to the Vikram calendar and, therefore, it is urged that wherever the word "year" appeared in the schedule of that Act, it should be taken to mean Vikram Svt. He has pointed out that the word "year" was defined in the Marwar Limitation Act, 1945 as a year reckoned according to the Vikram calendar and, therefore, it is urged that wherever the word "year" appeared in the schedule of that Act, it should be taken to mean Vikram Svt. year Learned counsel for respondents has, on the other hand, urged that the Marwar Limitation Act, 1945 as amended by the Act of 1949 was repealed by sec. 12 of the Limitation Ordinance 1950 and it was no longer in force on the date the suit was instituted. He has, therefore, contended that the word "year" should be interpreted to mean the year by Gregorian calendar because sec. 25 of the Indian Limitation Act was applicable on the date of the institution of the suit. It was vehemently argued that the Marwar Limitation Act, 1945 having been repealed, the definition of "year" appearing therein cannot be imported now. We have given our consideration to the arguments of the learned counsel which have been addressed at length and we think that the argument advanced by learned counsel for respondent, though plausible is not sound. He has referred to Soni Ram vs. Kanhaiya Lal(2), Baleswar Prasad vs. Sheikh Latafat Karim(3), Sarabdeva Prasad vs. Dwarka Prasad(4) and Peareylal vs. Solu Gir(5) in support of his contention, that the law of Limitation which governs an action is the law which prevails on the date when the suit is instituted. So far as that principle is concerned, we are in entire agreement with it. We have ourselves held in the case of Jethmal vs. Ambsingh(l) "that the law of Limitation relates to the branch of procedural laws and no one can claim vested right in any period of limitation.........that the law which is applicable to a suit or proceeding is the law which is in force when it is instituted." Therefore there is no doubt about the fact that on the date when the present suit was instituted on 14th of March, 1951, the law in force was the Rajasthan Limitation Act (Adaptation) Ordinance, 1950 (No. VI of 1950) and, therefore, this law alone was applicable. But as pointed out above, sec. 9 of the said Ordinance which is set out above, saved limitation in certain suits to which it was applicable and we have to interpret it reasonably. But as pointed out above, sec. 9 of the said Ordinance which is set out above, saved limitation in certain suits to which it was applicable and we have to interpret it reasonably. In every case to which that section is applicable, the Court is required to find out as to what was the period of limitation prescribed by the law relating to limitation of suits in force in any part of Rajasthan on the date of the commencement of the Ordinance. In our opinion, the words "within the period prescribed for such suit by the aforesaid law" did not only mean the number of years given in the schedule but the number of years as understood by that law read as a whole. It may be pointed out; that in Marwar, the Marwar Limitation Act, 1926 was in force till it was repealed by the Marwar Limitation Act, 1945. Sec. 25 of the Act of 1926 laid down that, "All instruments shall, for the purposes of this Act, be deemed to be made with reference to the Vikram Svt". On the basis of this provision, it was held by the learned Judges of the Chief Court of Marwar in Geeg Singh vs. Thikana Raipur(6) that "the substitution of the words Vikram Svt. for "Gregorian Calendar in sec. 25 shows that, for the purposes of Limitation Act in Marwar, time is to be calculated according to the Vikram Svt." The same view was taken again in the case of Bhoor Chand vs. Dabra(7). Thus even before the Marwar Limitation Act, 1945 came into force, the period of limitation in Marwar was computed according to Vikram Calendar. Thereafter, when the Marwar Limitation Act, 1945 was enacted, a clear definition was given of the word year in the following language :— "year" shall mean a year reckoned according to the Vikram Calendar" 9. It was thus made crystal clear that wherever the word "year" appeared in the Schedule, laying down the period of limitation, it was to be understood as Vikram Svt. years and not Gregorian Calendar years. This definition was not changed when the Marwar Limitation Act, 1945 was amended by the Marwar Limitation Act, 1949. It was the Act which was in force till it was repealed by sec.12 of the Rajasthan Limitation Act (Adaptation) Ordinance, 1950 (No. VI of 1950). years and not Gregorian Calendar years. This definition was not changed when the Marwar Limitation Act, 1945 was amended by the Marwar Limitation Act, 1949. It was the Act which was in force till it was repealed by sec.12 of the Rajasthan Limitation Act (Adaptation) Ordinance, 1950 (No. VI of 1950). There is thus no doubt left that the period of six years prescribed for the present suit by the law relating to limitation of suits on the date of the commencement of the Ordinance was six Vikram Svt. years and not six Gregorian years. 10. It is contended by learned counsel for respondent that the terms "prescribed period" and "years" occurring in sec. 9 (a) of the Limitation Ordinance should be given the same meaning wherever they occur and it is not proper to give them different meanings according to the usual canons of interpretation. In support of his argument he has referred to K. N. Guruswamy vs. State of Mysore(8). In that case it was observed by their Lordships that "the same word appearing in the same section of the same set of rules must be given the same meaning unless it has anything to indicate to the contrary." It is obvious from their Lordships own observation that ordinarily the same word appearing in the same section or the same law should be given the same meaning. That is the usual mode of interpretation and it must be followed. It is, however, clear from the same observation that if there is something to indicate to the contrary, a different meaning can be given to the same word. Thus it is not an inflexible rule that one word cannot be interpreted in two or more senses if it has been used in different senses and this is apparent from the context of the subject in which the word appears. A bare perusal of sec. Thus it is not an inflexible rule that one word cannot be interpreted in two or more senses if it has been used in different senses and this is apparent from the context of the subject in which the word appears. A bare perusal of sec. 9 makes it clear that the term period prescribed" has been used in clearly two different senses by the legislature because it is qualified by the other words which follow it It says that if in any suit, "the period of limitation prescribed by the said Act" (i.e. Limitation Ordinance) is shorter than "the period of limitation prescribed by any law relating to limitation of suits in force in any part of Rajasthan on the date of the commencement of the Ordinance, "then it may be instituted either within the period of two years next from the date of the commencement of the Ordinance or within the period prescribed for such suits by the law which was in force immediately before the new Act. If the term period prescribed be read without the qualifying words it would create a meaningless absurdity because the period prescribed cannot be shorter than period prescribed unless the law whereby it is prescribed is taken into consideration. Thus the section itself makes it clear that it contemplates two different periods-one prescribed by the Limitation Ordinance and the other prescribed by the law of limitation which was previously in force. Then the further words "within the period prescribed by the aforesaid law"refer to the period prescribed by the law of limitation which was in force on the date of the commencement of the Limitation Ordinance and so it is again clear that the "period prescribed" was used in different senses when applied to the two different laws. In the same way, the period of two years which was to be calculated from the date of the commencement of the Limitation Ordinance, was the year according to the Gregorian calendar because sec. 25 of the Indian Limitation Act was made applicable; but the same word year appearing in law which was in the force on the date of the commencement of the Ordinance was the Vikram year as it was defined in the previous law. 25 of the Indian Limitation Act was made applicable; but the same word year appearing in law which was in the force on the date of the commencement of the Ordinance was the Vikram year as it was defined in the previous law. It appears from the judgment of the learned District Judge that his attention was not drawn to the definition of the word year which was given in the Marwar Limitation Act of 1945, otherwise he would not have come to the contrary conclusion. He has not referred to that definition anywhere in his judgment. If calculated by Vikarm years, as it ought to have been done, the period of limitation in present suit would expire on Falgun sudi 11, Svt. 2007. The suit was,however,brought on Falgun sudi 6, Svt. 2007 and thus according to Vikarm year, it was well within limitation. The trial courts decree dismissing the suit on the ground of limitation is, therefore, fit to be set aside. 11. As regards the admissibility of the assignment deed, learned counsel for appellant has filed in this Court the original certificate dated the 8th of March, 1954, given by the Collector Jalore under sec. 42(1) of the Rajasthan Stamp Act. The Collector has made it quite clear in the certificate that the deficient stamp, as required by Art. 23 of the First Schedule of the Rajasthan Stamp (Adaptation) Act, has been levied and recovered from Shri Tikuchand son of Kesrimal Oswal resident of Bhinmal, District Jalore. Thus there is on bar left now to the admissibility of the assignment dated the 12th of October, 1950. The deed itself says that the original plaintiffs have received Rs. 10,000/-from Shri Tikuchand and in consideration thereof, they have transferred all their rights relation to the document on which the present suit has been based. Defendants 1 to 4 raised an object in the trial court that the assignment deed was without consideration but no evidence was led by them in that half. On the other hand, the plaintiffs and defendants Nos. 5 and 6 supported Shri Tikuchands assertion that the assignment deed was with consideration. The trial court has already decided that matter in favour of Shri Tiku Chand and no object has been raised against it in the appeal before us. Shri Tiku Chand should, therefore be now substituted in place of the original plaintiffs. 12. 5 and 6 supported Shri Tikuchands assertion that the assignment deed was with consideration. The trial court has already decided that matter in favour of Shri Tiku Chand and no object has been raised against it in the appeal before us. Shri Tiku Chand should, therefore be now substituted in place of the original plaintiffs. 12. The appeal is allowed and the decree of the trial court is set aside. Since the suit has been found within limitation, it is remanded to the trial court under Order XLI Rule 23 of the Civil Procedure Code with direction to try and decide the case on the remaining issues. It is further ordered that the names of the original plaintiffs, Multanmal, Dayachand, Sumermal, Pukhraj, Dudhraj, Sukhrai and Meghraj, should be struck off and Shri Tiku Chand son of Kesrimal Oswal resident of Binmal District Jalore be substituted as Plaintiff in their place. The original plaintiffs appellants will receive their cost in this Court from the respondents No. 1 to 4. The costs of the court below will abide the final result. The court-fee paid in this Court will be refunded to the appellant.