Vidya Devi and Etc. Vs. Gauri Shankar Prasad Shrivastava and ors. - Court Judgment

Excerpt:
- - the plaintiff alleged that the husband of the settlee, who was secretary of the bihar state electricity board earlier and presently a member of the bihar public service commission, was a rich man possessing residential houses at patna and village ariaon as well as agricultural lands. 5. the submission as a proposition of law is well-founded and to that extent the opinion of the court below is not in accordance with law. he contended that even if the suit is deemed to be instituted on 27-9-93, if the court finds that the plaintiffs were prosecuting the previous suit in the court of munsif in good faith and with due diligence, the suit would not be barred by limitation. 6. it would be useful at this stage to notice the provisions of sub-section (1) of section 14 of the limitation act which runs as follows :in computing the period of limitation 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 of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue 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. ' the essential ingredients of the section are that prior proceeding was being prosecuted with due diligence in good faith, that the proceeding came to anend on account of defect of jurisdiction or other cause of a like nature and that the matter in issue in both the proceedings is the same. there is nothing to suggest that the previous suit was not being prosecuted with due diligence and in good faith. where, however, a suit has been filed well within period of limitation and after the plaint is returned for proper presentation, it is re-filed in the proper court after certain gap, it has to be ascertained whether by excluding the period of pendency of the suit in the previous court, the presentation of the plaint in the proper court was beyond the prescribed period of limitation. 39 of 1984 was filed well within i. 39 of 1984 would be clearly beyond time. it is well settled that the nature of the suit is to be determined upon reading of the entire plaint and not merely on the basis of the reliefs sought. 39 of 1984 was filed in the court of munsif well within time, the point for consideration is whether title suit no. well within the period of limitation, the delay of 14 days would be inconsequential. it, was only because of objection of the defendants-and it is not unusual to find defendants taking such objections and in some cases with success -that the valuation of the suit was raised and the plaint was ordered to be returned for proper presentation. i am, therefore, satisfied that ingredients of section 14 of the limitation act are made out. i would, however, like to observe that there being no change in the course of action, the plaintiffs were not required to serve fresh notice under section 80 and the present suit cannot be said to be bad on that account. sachchidanand jha, j. 1. these two civil revisions -- oneby the defendant -- state of bihar and the otherby the private defendant -- arising out of thesame order have been heard together and aredisposed of by this common order. by theimpugned order the plaintiffs' suit has beenadmitted as being in continuation of the previoussuit. the relevant facts are as follows. 2. on 19-8-82, 1.27 acres lands of plot no. 2003, khata 0.523 at dumraon was settled with smt. vidya devi, petitioner of c. r. no. 1495 of 1995, by government order. while 1.145 acres land was purportedly settled for agricultural purposes, 0.125 acre land was purportedly settled for residential purposes. gauri shanker prasad shrivastava, the original plaintiff (opposite party nos. 2 to 6 were added as co-plaintiffs later on 8-4-88), instituted title suit no. 39 of 1984 before the 1st munsif, buxar, after giving notice under section 80 of the code of civil procedure, seeking a declaration that the settlement was forged, fabricated and fraudulent and that the lands in question being used for public purposes, the state government had no right to settle the same with an individual. the plaintiff alleged that the husband of the settlee, who was secretary of the bihar state electricity board earlier and presently a member of the bihar public service commission, was a rich man possessing residential houses at patna and village ariaon as well as agricultural lands. the plaintiff averred that the land in question, which was recorded in the survey records as kaisar-e-hind, was being used for public purposes, for holding community meetings, stay of marriage parties, playground for children and so on. the suit was valued at rs. 200 /-. on objection by the defendants to decide the issues relating to suit valuation and pecuniary jurisdiction of the court to entertain the suit as preliminary issues, the court after taking evidence came to the conclusion that the suit lay beyond its pecuniary jurisdiction and accordingly passed an order on 30-8-93 for return of plaint under order 7 rule 10 of the code for presentation in the proper court. the plaint was actually returned to the plaintiffs with necessary endorsement of the court on 13-9-93. the plaint was thereafter re-filed in the court of subordinate judge, buxar, on 27-9-93 where it was registered as title suit no. 169 of 1993. 3. a controversy arose as to whether the suit had been filed with respect to 1.27 acres land as mentioned in the government order dated 19-8-82 or with respect to only 0.27 acre. ultimately, by order dated 25-6-94, reviewing its earlier order dated 9-3-94, the court held that the suit would be confined to 0.27 acre land as per the description of the land in the notice under section 80 of the code. the aforesaid order does not seem to have been challenged by the plaintiffs. the defendants also objected to the maintainability of the suit on the ground of limitation and absence of fresh notice under section 80 c.p.c. the court below by the impugned order dated 27-7-95 held that the present suit i.e. title suit no. 169 of 1993 had been filed in continuation of the previous suit i.e. title suit no. 39 of 1984 and, therefore, no question of limitation was involved nor there was any necessity to give fresh notice under section 80 of the civil procedure code. the court also rejected the defendants' plea that article 100 of the limitation act was applicable. 4. mr. j. p. shukla, learned counsel for the petitioner in c.r. no. 1495 and mr. ganga prasad roy, learned additional advocate general no. 3 for the petitioner in c. r. no. 1498 of 1995, made identical submissions. they submitted that the suit is deemed to be instituted when it is filed in court of competent jurisdiction and, therefore, where a plaint is returned for re-presentation in the proper court, the suit instituted on representation cannot be called continuation of the previous suit. they relied on ram kishun rai v. ashirbad rai, air 1950 patna 473 and amar chand inani v. union of india, air 1973 sc 313 in support of their contention. 5. the submission as a proposition of law is well-founded and to that extent the opinion of the court below is not in accordance with law. but as rightly pointed out by mr. najmul hoda, learned counsel for the plaintiffs-opposite party, the real point for consideration is whether the plaintiffs are entitled to the benefit of section 14 of the limitation act. he contended that even if the suit is deemed to be instituted on 27-9-93, if the court finds that the plaintiffs were prosecuting the previous suit in the court of munsif in good faith and with due diligence, the suit would not be barred by limitation. 6. it would be useful at this stage to notice the provisions of sub-section (1) of section 14 of the limitation act which runs as follows :-- 'in computing the period of limitation 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 of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue 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.' the essential ingredients of the section are that prior proceeding was being prosecuted with due diligence in good faith, that the proceeding came to anend on account of defect of jurisdiction or other cause of a like nature and that the matter in issue in both the proceedings is the same. there is no dispute in the present case that the matter in issue in both title suit no. 39 of 1984 and title suit no. 169 of 1993 is the same and between the same parties. there is nothing to suggest that the previous suit was not being prosecuted with due diligence and in good faith. 7. in maqbul ahmad v. onkar pratap narain singh, air 1935 pc 85 the judicial committee observed, while construing the provisions of section 14 of the limitation act that 'where there is ground for excluding certain periods under section 14, inorder to ascertain what is the date of the expiration of the prescribed period, the days excluded from operating by way of limitation have to be added to what is primarily the prescribed period; that is to say, if the prescribed period is three years, and twenty days ought to be excluded in order to determine when the prescribed period expires, twenty days have to be added to the three years and the date of the expiration of the prescribed period is, thus, ascertained'. 7a. the position of the plaintiff, who files the suits in the wrong court on the last day of limitation could be precarious, for, if the plaint is returned for proper presentation and it is not file on the very next day of such return, the suit would become barred by limitation, even if the entire period of pendency of the suit in the previous court is excluded, that is, added to the period of limitation. where, however, a suit has been filed well within period of limitation and after the plaint is returned for proper presentation, it is re-filed in the proper court after certain gap, it has to be ascertained whether by excluding the period of pendency of the suit in the previous court, the presentation of the plaint in the proper court was beyond the prescribed period of limitation. in firm pursotlam das ganpati rai v. gulab khan, air 1963 patna 407 the suit was filed, long before the expiry of period of limitation; the court passed an order for return of the plaint for proper presentation on the ground that it had no jurisdiction to entertain the suit against defendant no. 2. later, on application by the plaintiff the name of defendant no. 2 was expunged from the plaint. on revision the order of expunction was set aside on the' ground that after passing the earlier order for return of the plaint, the court had become functus officio. thereafter, the court made endorsement on the plaint and returned it for presentation to the proper court on 10-12-54. the plaint was filed in the proper court on 14-12-54. this court held, in view of the provisions of section 14 of the limitation act, that the suit was not barred by limitation as the period from the date of institution from the suit tilt the return of the plaint had to he excluded in computing the limitation. the court also held, following the decision of the madras high court in sinha karuppan v. r.m.p.s. muthiah chettiar, air 1926 madras 178 and neerendrabhooshan lahiri v. berhampur oil mills ltd., air 1933 cal 914, that in a case where the plaint is ordered to be returned for proper presentation, the proceeding terminates not on the date of order but on the date of actual return with the endorsement on the plaint in accordance with the provisions of order 7 rule 10 of the code of civil procedure. this court in coming to the said conclusion noticed a converse case, viz., firm jiwan ram ramchandra v. jagernath sahu, air 1937 patna 495 in which the suit had been filed in the previous court on the last date of limitation. the court observed that in such a case the plaintiff cannot be said to be pursuing his remedy with due diligence and, therefore, the order of the court fixing a date on which the plaint was to be presented in the proper court was not correct and in accordance with order 7 rule 10 of the code of civil procedure. even in such a case, it may be noted, the plaintiff was held entitled to exclusion of the during which the plaint was pending in the former court for the purpose of computing the period of limitation. 8. as this stage, it may be considered as to whether title suit no. 39 of 1984 was filed well within i.e. prior to the expiry of the period of limitation or when the period was about to expire so that even if the period up to 13-9-93 is excluded under section 14, the intervening gap of 14 days would make t. s. 169 of 1993 time barred. the contention of the counsel for the petitioner in this regard was that it is article 100 of the limitation act which would govern the suit and therefore the suit was time barred. article 100 provides for limitation of one year from the date of final decision or order in suit 'to alter or set aside any decision or order of a civil court in any proceeding other than a suit or any act or order of an officer of government in his official capacity'. if the defendant' plea that the provisions of article 100 of the limitation act are applicable and, therefore, the suit should have been filed within the period of one year from the date of the government order, that is, 19-8-82, be correct, the institution of the title suit no. 39 of 1984 would be clearly beyond time. however, the learned munsif does not seem to have passed any such order; the return of the plaint was on the ground of lack of pecuniary jurisdiction, after the enhancement of the suit valuation. in the impugned order dated 27-7-95 the learned subordinate judge expressly rejected the contention holding that the suit is declaratory in nature and provisions of article 100 are not applicable. having gone through the plaint, i am inclined to endorse the view of (he learned subordinate judge. it is well settled that the nature of the suit is to be determined upon reading of the entire plaint and not merely on the basis of the reliefs sought. even so far as reliefs are concerned, the plaintiffs have sought a declaration that the lands cannot be settled for the benefit of an individual. they do not seek alteration or setting aside the order of the government. 9. on the basis of the finding that title suit no. 39 of 1984 was filed in the court of munsif well within time, the point for consideration is whether title suit no. 169 of 1993 instituted after a gap of 14 days between 13-9-93 and 27-9-93 was barred by limitation. if the suit had been filed on the last day of limitation or a couple of days earlier, not exceeding 14 days, the intervening delay of 14 days would certainly have made the suit time-barred but since the suit was filed within a period of about two years i.e. well within the period of limitation, the delay of 14 days would be inconsequential. there is nothing to suggest that the plaintiffs were not seeking the remedy and prosecuting the previous suit with due dilgence or that the institution of the suit in the court of munsif was not bona fide. it is to be kept in mind that except for want of pecuniary jurisdiction the suit was maintainable in the court of munsif. and if the defendants had not raised the question of valuation and pecuniary jurisdiction, the suit would have been taken to its logical conclusion in that court. it, was only because of objection of the defendants-and it is not unusual to find defendants taking such objections and in some cases with success - that the valuation of the suit was raised and the plaint was ordered to be returned for proper presentation. i am, therefore, satisfied that ingredients of section 14 of the limitation act are made out. once the period between the date of filing of title suit no. 39 of 1984 and the date of return of the plaint (13-9-93) is excluded, that is, added to the period of limitation, title suit no. 169 of 1993 cannot be said to be barred by limitation. 10. the decisions relied upon by the counsel for the petitioners is of no avail to them. in kishun rai v. ashirbad rai (air 1950 patna 473) (supra) the point, for consideration was whether in a case here the plaint has been re-presented in the proper court after being returned by the previous court, compromise petition filed earlier, before return of the plaint, can be, acted upon. while considering the question this court observed that combined effect of section 15 and order 7, rule 10 of the code is that a suit cannot be said to be instituted so long as the plaint is not presented in the court competent to try the suit. as there was no suit 'pending' between the parties, when the compromise was filed, the alleged compromise could not be recorded under order 23, rule 3 and the remedy of the parties, if any, was to bring a suit on the basis of the alleged compromise. in amir chand inani v. union of india (air 1973 cal 313) (supra), again, the point for consideration was somewhat different. the plaintiff had filed suit for damages in the court at karnal on 2-3-59. admittedly the period of limitation for filing the suit had expired on 1-3-59. that day, however, being not working day for the court, it was filed on the reopening day i.e. 2-3-59. the suit was transferred to the court at panipat. later, the panipat court returned the plaint for proper presentation on the ground of lack of territorial jurisdiction. the plaintiff took the return on 28-10-59 and presented it in the proper court at ambalaon 29-10-59 i.e. on the very next day. a controversy arose as to whether the presentation of the plaint on 29-10-59 was barred by limitation. the supreme court held that the benefit of section 4 of the limitation act, which provides that where the prescribed period for any suit or application expires on a day when the court isclosed, such suit, appeal or application may be instituted, preferred or made on the day when the court reopens, was not available to the plaintiff as the court where such suit/appeal/ application is filed must be proper court in which the suit ought to have been filed. where the suit had been filed in an incompetent court, the benefit of section 4 is not available. the supreme court observed that had the plaintiff filed the suit in the court at ambala on 2-3-59, the suit would have been within time by virtue of the provisions of section 4 as that was the proper court in which the suit should have been filed. in this view of the matter, the court further held that the provisions of section 14 of the limitation act would also be not available to the plaintiff because even if the period during which the suit was pending in the karnal/panipat court is excluded, in view of the provisions of section 14, the suit would not be within time as the filing of the suit in the karnal court itself was beyond the period of limitation. it would thus appear that the above decisions were rendered on different facts and in different context and have no application in the present case. 11. for the reasons mentioned above, the order of the court below admitting the suit cannot be said to be erroneous. it is true that the phraseography used by the court that the suit was continuation of the previous suit is not correct. however, in the facts of the case the same has no consequence. the finding that it was continuation of the previous suit was recorded in order to hold the suit had been filed within period of limitation. in view of my finding that the suit was not filed beyond period of limitation, the order admitting the plaint has nonetheless to be upheld even though the finding/observation that the suit is continuation of the previous suit is incorrect and not in accordance with taw. 12. i must observe in this connection that although a plea was taken on behalf of the defendants, as pointed out above, that after return of the plaint a fresh notice under section 80 of the code of civil procedure should have been served on the state of bihar, this point was not canvassed before this court. i would, however, like to observe that there being no change in the course of action, the plaintiffs were not required to serve fresh notice under section 80 and the present suit cannot be said to be bad on that account. 13. in the result, i do not find any merit in these civil revisions, which are accordingly dismissed but without any order as to costs.

Judgment:

Sachchidanand Jha, J. 1. These two civil revisions -- one

by the defendant -- State of Bihar and the other

by the private defendant -- arising out of the

same order have been heard together and are

disposed of by this common order. By the

impugned order the plaintiffs' suit has been

admitted as being in continuation of the previous

suit. The relevant facts are as follows.

2. On 19-8-82, 1.27 acres lands of plot No. 2003, Khata 0.523 at Dumraon was settled with Smt. Vidya Devi, petitioner of C. R. No. 1495 of 1995, by Government order. While 1.145 acres land was purportedly settled for agricultural purposes, 0.125 acre land was purportedly settled for residential purposes. Gauri Shanker Prasad Shrivastava, the original plaintiff (opposite party Nos. 2 to 6 were added as co-plaintiffs later on 8-4-88), instituted Title Suit No. 39 of 1984 before the 1st Munsif, Buxar, after giving notice under Section 80 of the Code of Civil Procedure, seeking a declaration that the settlement was forged, fabricated and fraudulent and that the lands in question being used for public purposes, the State Government had no right to settle the same with an individual. The plaintiff alleged that the husband of the settlee, who was Secretary of the Bihar State Electricity Board earlier and presently a member of the Bihar Public Service Commission, was a rich man possessing residential houses at Patna and village Ariaon as well as agricultural lands. The plaintiff averred that the land in question, which was recorded in the survey records as Kaisar-e-Hind, was being used for public purposes, for holding community meetings, stay of marriage parties, playground for children and so on. The suit was valued at Rs. 200 /-. On objection by the defendants to decide the issues relating to suit valuation and pecuniary jurisdiction of the Court to entertain the suit as preliminary issues, the Court after taking evidence came to the conclusion that the suit lay beyond its pecuniary jurisdiction and accordingly passed an order on 30-8-93 for return of plaint under Order 7 Rule 10 of the Code for presentation in the proper Court. The plaint was actually returned to the plaintiffs with necessary endorsement of the Court on 13-9-93. The plaint was thereafter re-filed in the court of Subordinate Judge, Buxar, on 27-9-93 where it was registered as Title Suit No. 169 of 1993.

3. A controversy arose as to whether the suit had been filed with respect to 1.27 acres land as mentioned in the Government order dated 19-8-82 or with respect to only 0.27 acre. Ultimately, by order dated 25-6-94, reviewing its earlier order dated 9-3-94, the court held that the suit would be confined to 0.27 acre land as per the description of the land in the notice under Section 80 of the Code. The aforesaid order does not seem to have been challenged by the plaintiffs. The defendants also objected to the maintainability of the suit on the ground of limitation and absence of fresh notice under Section 80 C.P.C. The court below by the impugned order dated 27-7-95 held that the present suit i.e. Title Suit No. 169 of 1993 had been filed in continuation of the previous suit i.e. Title Suit No. 39 of 1984 and, therefore, no question of limitation was involved nor there was any necessity to give fresh notice under Section 80 of the Civil Procedure Code. The court also rejected the defendants' plea that Article 100 of the Limitation Act was applicable.

4. Mr. J. P. Shukla, learned counsel for the petitioner in C.R. No. 1495 and Mr. Ganga Prasad Roy, learned Additional Advocate General No. 3 for the petitioner in C. R. No. 1498 of 1995, made identical Submissions. They submitted that the suit is deemed to be instituted when it is filed in court of competent jurisdiction and, therefore, where a plaint is returned for re-presentation in the proper court, the suit instituted on representation cannot be called continuation of the previous suit. They relied on Ram Kishun Rai v. Ashirbad Rai, AIR 1950 Patna 473 and Amar Chand Inani v. Union of India, AIR 1973 SC 313 in support of their contention.

5. The submission as a proposition of law is well-founded and to that extent the opinion of the Court below is not in accordance with law. But as rightly pointed out by Mr. Najmul Hoda, learned counsel for the plaintiffs-opposite party, the real point for consideration is whether the plaintiffs are entitled to the benefit of Section 14 of the Limitation Act. He contended that even if the suit is deemed to be instituted on 27-9-93, if the court finds that the plaintiffs were prosecuting the previous suit in the court of Munsif in good faith and with due diligence, the suit would not be barred by limitation.

6. It would be useful at this stage to notice the provisions of Sub-section (1) of Section 14 of the Limitation Act which runs as follows :--

'In computing the period of limitation 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 of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue 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.'

The essential ingredients of the section are that prior proceeding was being prosecuted with due diligence in good faith, that the proceeding came to anend on account of defect of jurisdiction or other cause of a like nature and that the matter in issue in both the proceedings is the same. There is no dispute in the present case that the matter in issue in both Title Suit No. 39 of 1984 and Title Suit No. 169 of 1993 is the same and between the same parties. There is nothing to suggest that the previous suit was not being prosecuted with due diligence and in good faith.

7. In Maqbul Ahmad v. Onkar Pratap Narain Singh, AIR 1935 PC 85 the Judicial Committee observed, while construing the provisions of Section 14 of the Limitation Act that 'where there is ground for excluding certain periods under Section 14, inorder to ascertain what is the date of the expiration of the prescribed period, the days excluded from operating by way of limitation have to be added to what is primarily the prescribed period; that is to say, if the prescribed period is three years, and twenty days ought to be excluded in order to determine when the prescribed period expires, twenty days have to be added to the three years and the date of the expiration of the prescribed period is, thus, ascertained'.

7A. The position of the plaintiff, who files the suits in the wrong court on the last day of limitation could be precarious, for, if the plaint is returned for proper presentation and it is not file on the very next day of such return, the suit would become barred by limitation, even if the entire period of pendency of the suit in the previous court is excluded, that is, added to the period of limitation. Where, however, a suit has been filed well within period of limitation and after the plaint is returned for proper presentation, it is re-filed in the proper court after certain gap, it has to be ascertained whether by excluding the period of pendency of the suit in the previous court, the presentation of the plaint in the proper court was beyond the prescribed period of limitation. In Firm Pursotlam Das Ganpati Rai v. Gulab Khan, AIR 1963 Patna 407 the suit was filed, long before the expiry of period of limitation; the court passed an order for return of the plaint for proper presentation on the ground that it had no jurisdiction to entertain the suit against defendant No. 2. Later, on application by the plaintiff the name of defendant No. 2 was expunged from the plaint. On revision the order of expunction was set aside on the' ground that after passing the earlier order for return of the plaint, the court had become functus officio. Thereafter, the court made endorsement on the plaint and returned it for presentation to the proper court on 10-12-54. The plaint was filed in the proper court on 14-12-54. This Court held, in view of the provisions of Section 14 of the Limitation Act, that the suit was not barred by limitation as the period from the date of institution from the suit tilt the return of the plaint had to he excluded in computing the limitation. The court also held, following the decision of the Madras High Court in Sinha Karuppan v. R.M.P.S. Muthiah Chettiar, AIR 1926 Madras 178 and Neerendrabhooshan Lahiri v. Berhampur Oil Mills Ltd., AIR 1933 Cal 914, that in a case where the plaint is ordered to be returned for proper presentation, the proceeding terminates not on the date of order but on the date of actual return with the endorsement on the plaint in accordance with the provisions of Order 7 Rule 10 of the Code of Civil Procedure. This Court in coming to the said conclusion noticed a converse case, viz., Firm Jiwan Ram Ramchandra v. Jagernath Sahu, AIR 1937 Patna 495 in which the suit had been filed in the previous Court on the last date of limitation. The Court observed that in such a case the plaintiff cannot be said to be pursuing his remedy with due diligence and, therefore, the order of the Court fixing a date on which the plaint was to be presented in the proper court was not correct and in accordance with Order 7 Rule 10 of the Code of Civil Procedure. Even in such a case, it may be noted, the plaintiff was held entitled to exclusion of the during which the plaint was pending in the former court for the purpose of computing the period of limitation.

8. As this stage, it may be considered as to whether Title Suit No. 39 of 1984 was filed well within i.e. prior to the expiry of the period of limitation or when the period was about to expire so that even if the period up to 13-9-93 is excluded under Section 14, the intervening gap of 14 days would make T. S. 169 of 1993 time barred. The contention of the counsel for the petitioner in this regard was that it is Article 100 of the Limitation Act which would govern the suit and therefore the suit was time barred. Article 100 provides for limitation of one year from the date of final decision or order in suit 'to alter or set aside any decision or order of a civil Court in any proceeding other than a suit or any act or order of an officer of Government in his official capacity'. If the defendant' plea that the provisions of Article 100 of the Limitation Act are applicable and, therefore, the suit should have been filed within the period of one year from the date of the Government order, that is, 19-8-82, be correct, the institution of the Title Suit No. 39 of 1984 would be clearly beyond time. However, the learned Munsif does not seem to have passed any such order; the return of the plaint was on the ground of lack of pecuniary jurisdiction, after the enhancement of the suit valuation. In the impugned order dated 27-7-95 the learned Subordinate Judge expressly rejected the contention holding that the suit is declaratory in nature and provisions of Article 100 are not applicable. Having gone through the plaint, I am inclined to endorse the view of (he learned Subordinate Judge. It is well settled that the nature of the suit is to be determined upon reading of the entire plaint and not merely on the basis of the reliefs sought. Even so far as reliefs are concerned, the plaintiffs have sought a declaration that the lands cannot be settled for the benefit of an individual. They do not seek alteration or setting aside the order of the Government.

9. On the basis of the finding that Title Suit No. 39 of 1984 was filed in the Court of Munsif well within time, the point for consideration is whether Title Suit No. 169 of 1993 instituted after a gap of 14 days between 13-9-93 and 27-9-93 was barred by limitation. If the suit had been filed on the last day of limitation or a couple of days earlier, not exceeding 14 days, the intervening delay of 14 days would certainly have made the suit time-barred but since the suit was filed within a period of about two years i.e. well within the period of limitation, the delay of 14 days would be inconsequential. There is nothing to suggest that the plaintiffs were not seeking the remedy and prosecuting the previous suit with due dilgence or that the institution of the suit in the Court of Munsif was not bona fide. It is to be kept in mind that except for want of pecuniary jurisdiction the suit was maintainable in the Court of Munsif. And if the defendants had not raised the question of valuation and pecuniary jurisdiction, the suit would have been taken to its logical conclusion in that Court. It, was only because of objection of the defendants-and it is not unusual to find defendants taking such objections and in some cases with success - that the valuation of the suit was raised and the plaint was ordered to be returned for proper presentation. I am, therefore, satisfied that ingredients of Section 14 of the Limitation Act are made out. Once the period between the date of filing of Title Suit No. 39 of 1984 and the date of return of the plaint (13-9-93) is excluded, that is, added to the period of limitation, Title Suit No. 169 of 1993 cannot be said to be barred by limitation.

10. The decisions relied upon by the counsel for the petitioners is of no avail to them. In Kishun Rai v. Ashirbad Rai (AIR 1950 Patna 473) (supra) the point, for consideration was whether in a case here the plaint has been re-presented in the proper Court after being returned by the previous Court, compromise petition filed earlier, before return of the plaint, can be, acted upon. While considering the question this Court observed that combined effect of Section 15 and Order 7, Rule 10 of the Code is that a suit cannot be said to be instituted so long as the plaint is not presented in the Court competent to try the suit. As there was no suit 'pending' between the parties, when the compromise was filed, the alleged compromise could not be recorded under Order 23, Rule 3 and the remedy of the parties, if any, was to bring a suit on the basis of the alleged compromise. In Amir Chand Inani v. Union of India (AIR 1973 Cal 313) (supra), again, the point for consideration was somewhat different. The plaintiff had filed suit for damages in the Court at Karnal on 2-3-59. Admittedly the period of limitation for filing the suit had expired on 1-3-59. That day, however, being not working day for the Court, it was filed on the reopening day i.e. 2-3-59. The suit was transferred to the Court at Panipat. Later, the Panipat Court returned the plaint for proper presentation on the ground of lack of territorial jurisdiction. The plaintiff took the return on 28-10-59 and presented it in the proper Court at Ambalaon 29-10-59 i.e. on the very next day. A controversy arose as to whether the presentation of the plaint on 29-10-59 was barred by limitation. The Supreme Court held that the benefit of Section 4 of the Limitation Act, which provides that where the prescribed period for any suit or application expires on a day when the Court isclosed, such suit, appeal or application may be instituted, preferred or made on the day when the Court reopens, was not available to the plaintiff as the Court where such suit/appeal/ application is filed must be proper Court in which the suit ought to have been filed. Where the suit had been filed in an incompetent Court, the benefit of Section 4 is not available. The Supreme Court observed that had the plaintiff filed the suit in the Court at Ambala on 2-3-59, the suit would have been within time by virtue of the provisions of Section 4 as that was the proper Court in which the suit should have been filed. In this view of the matter, the Court further held that the provisions of Section 14 of the Limitation Act would also be not available to the plaintiff because even if the period during which the suit was pending in the Karnal/Panipat Court is excluded, in view of the provisions of Section 14, the suit would not be within time as the filing of the suit in the Karnal Court itself was beyond the period of limitation. It would thus appear that the above decisions were rendered on different facts and in different context and have no application in the present case.

11. For the reasons mentioned above, the order of the Court below admitting the suit cannot be said to be erroneous. It is true that the phraseography used by the Court that the suit was continuation of the previous suit is not correct. However, in the facts of the case the same has no consequence. The finding that it was continuation of the previous suit was recorded in order to hold the suit had been filed within period of limitation. In view of my finding that the suit was not filed beyond period of limitation, the order admitting the plaint has nonetheless to be upheld even though the finding/observation that the suit is continuation of the previous suit is incorrect and not in accordance with taw.

12. I must observe in this connection that although a plea was taken on behalf of the defendants, as pointed out above, that after return of the plaint a fresh notice under Section 80 of the Code of Civil Procedure should have been served on the State of Bihar, this point was not canvassed before this Court. I would, however, like to observe that there being no change in the course of action, the plaintiffs were not required to serve fresh notice under Section 80 and the present suit cannot be said to be bad on that account.

13. In the result, I do not find any merit in these civil revisions, which are accordingly dismissed but without any order as to costs.