Kodialbail Rymond Sebastian Lobo Vs. Kodialbail Devu Shetty and ors. - Court Judgment

Excerpt:

limitation act (ix of 1908), schedule i, article 116 - suit for possession under a contract of lease, nature of--claim for mesne profits, whether affects suit. - - as the appellant has failed to take the point argued before us sufficiently clearly in his appeal memorandum he will bear his own costs in this court.1. the subordinate judge has dismissed the suit as barred by limitation. it is argued by the appellant's vakil that apart from the prayer for possession under the lease, which has been abandoned, the suit is substantially one for damages for breach of contract, that the proper article applicable is article 116 and that in that view the suit is not time-barred.2. we think this view of the nature of the suit is correct and even if the relief claimed is the allowance of mesne profits this does not affect the true nature of the suit. [vide ganesh krishn v. madhavrav ravji 6 b.k 75, nobocoomar mookhopadhaya v. siru mullick 6 c.l.r. 679 and ambalavana pandaram v. vaguran 5 m.l.j. 228.] if the suit is one for damages for breach of the lease contract it is admittedly not time-barred;3. we must, therefore, set aside the decree of the subordinate judge and remand the appeal for disposal on its merits. as the appellant has failed to take the point argued before us sufficiently clearly in his appeal memorandum he will bear his own costs in this court.4. the respondents costs will abide the result of the appeal in the district court.