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2005 DIGILAW 251 (KAR)

Y. NAGAPPA v. P. SHANUMAKANAGOUDA

2005-04-01

K.BHAKTHAVATSALA

body2005
K. BHAKTHAVATSALA, J. ( 1 ) THE impugned order has been passed even before issuing suit summons to the defendants. Therefore, notice to defendants is dispensed with. ( 2 ) HEARD arguments for final disposal. ( 3 ) THE brief facts of the case of the petitioner/plaintiff may be stated as under: that the petitioner/plaintiff filed a suit on 6-1-2005 for recovery of a sum of Rs. 86,410/- from the respondents/defendants on the basis of a pronote executed on 6-1-2002. When the suit was posted for hearing on office objections of maintainability, though the Advocate for the plaintiff was absent, Court below after perusing the plaint averments came to the conclusion that the suit was barred by time and dismissed the suit as not maintainable. This is impugned in this petition. ( 4 ) LEARNED Counsel for the petitioner-plaintiff submitted that the court below without examining Section 12 of the Limitation Act, 1963 and without affording an opportunity, dismissed the suit as not maintainable. He cited a decision of the Apex Court in M/s. Saketh india Limited and Others v M/s. India Securities Limited , on the point of computing the time. In the above said case, the Apex Court has held that :"ordinarily in computing the time, the rule observed is to exclude the First day and to include the last. Period of one month for filing complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of notice by the Drawer expires. The period of 15 days in the present case expired on 14-10-1995. So cause of action for filing complaint would arise from 15-10-1995. That days i. e. , 15-10-1995 is to be excluded for counting the period of one month". ( 5 ) SUB-SECTION (1) of Section 12 of the Limitation Act reads as under: "in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded". Thus, while computing the period of limitation in any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. The suit of the plaintiff is based on a pro-note, which was executed on 6-1-2002. If the day of execution of pro-note is excluded, the suit filed on 6-1-2005 cannot be held as not maintainable. The suit of the plaintiff is based on a pro-note, which was executed on 6-1-2002. If the day of execution of pro-note is excluded, the suit filed on 6-1-2005 cannot be held as not maintainable. The Court below, without affording an opportunity of hearing the plaintiff and without making reference to Section 12 of the Limitation Act has dismissed the suit. The error is patent on record. Hence, I pass the following order.- the civil revision petition is allowed and the impugned order dated 29-1-2005 made in O. S. No. Nil/05 on the file of Civil Judge (Senior Division), Harihar, is set aside and the Court below is directed to register the suit and dispose of the same in accordance with law. --- *** --- .