A litigant is entitled to exclude the time spent in prosecuting a previous suit which failed due to a technical defect and the court was unable to entertain the same on merits, provided the conditions laid down in Section 14 of the Limitation Act are fulfilled.

( 1 ) THE plaintiff has filed the present suit against the Union of India, inter alia, for recovery of Rs. 46,712. 62 as price of 3800 tons of Bhusha, interest, cost, etc. The first plaint against the same defendant for the same cause of action was filed on 14th May 1949. As the part of the cause of action arose within and part of the cause of action arose outside the jurisdiction, it became necessary to obtain leave under Clause 12 of the Letters Patent. On 22nd March 1949 the plaintiff served a notice under Section 80 of the Civil Procedure Code on the defendant and it was received on 19th April 1949.

( 2 ) THE then prevalent practice of obtaining leave under Clause 12 of the Letters Patent was different from what it is now today. In the sense, the plaintiff through its Solicitor or Advocate had to file the plaint with the Master and pray for leave under Clause 12 and the learned Master after scrutiny of the papers on its turn would make an endorsement on the original plaint to that effect and would submit before the Judge for scrutiny.

( 3 ) IN the present case, the original plaint was also presented before the Master who made an endorsement on the original plaint and admitted the plaint but there is no signature of any learned Judge over the endorsement put by the learned Master.

( 4 ) IT appears from the original Writ of Summons served on the defendant there is a rubber stamp to the effect "leave granted under Clause 12 of the Letters Patent". The Writ of Summons was signed by Sri P. K. Bose, the then Registrar on 19-5-49. The suit being Suit No. 1819 of 1949 was heard and dismissed on 15-2-65 on the ground that no leave under Clause 12 was obtained and also on the ground that the suit was filed before expiry of two months from the date of service of notice under Section 80 of the C. P. C. On the very next day the plaintiff filed the present suit and presented the plaint and obtained the necessary leave. After the case was opened by Mr. S. N. Modak, Barrister-at-Law with Mr. N. C. Mitra, Barrister-at-Law, the following issues were raised:1. Did the plaintiff carry on business under the name and style of Express Dairy as alleged in the plaint? 2. Was there any contract by and between the parties in January 1947? If so, is the alleged contract valid and binding on the defendant? 3. Did the property in the case pass in the plaintiff on payment of Rs. 41,000? 4. Did the plaintiff fail or neglect to remove the total quantity of bhusas? 5. What is the total quantity of bhusas removed by the plaintiff? 6. Is the plaintiff entitled to a sum of Rs. 46,713. 62 by way of refund? 7. Is the suit barred by law of Limitation? 8. Is the suit barred by the principles of res judicata and by the principles analogous thereto? 9. Has this Court jurisdiction to try this suit? 10. To what relief, if any, is the plaintiff entitled?

( 5 ) MR. M. N. Banerjee, appearing with Mr. P. K. Sen, Barrister-at-Law has submitted that as the suit is barred by the law of limitation and is liable to be dismissed with cost in order to avoid prolonged hearing and unnecessary costs, the issue on the point of limitation should be decided by me first as there was no opposition on behalf of the plaintiff and as also I felt that it might help the parties if the point of limitation is decided, I allowed the parties to argue the point of limitation before me. Mr. Banerjee very strongly contended that the present suit is barred by the law of limitation and he submitted that the plaintiff is not entitled to get benefit under Section 14 of the Limitation Act as there has been negligence and laches on the part of the plaintiff in not obtaining leave under Clause 12 of the Letters Patent. As such the plaintiff cannot contend that he prosecuted the previous proceeding in good faith and with due diligence. In this respect he relied on some decisions.

( 6 ) MR. S. N. Modak on the contrary stated that his client is not guilty of any laches and/or neglige