The date of institution of a suit is the date on which the plaint is presented in a court having jurisdiction, even if the plaint was previously returned by another court due to an erroneous finding of lack of jurisdiction.

MAHARAJAN, J. :- An interesting question of law arises in this Letters Patent appeal, which is directed against a second appellate judgement of this court, and it arises under the following circumstances.

2. The plaintiff, who is the respondent in this appeal, instituted a suit in the court of the District Munsif, Tuticorin, for the recovery of moneys due under a promissory note executed by the defendant, who was a resident of Nagarcoil. The plaintiff alleged that the promissory note was executed at Tuticorin and that consequently the cause of action had arisen within the territorial limits of the Tuticorin court. The suit itself was instituted on the last day of limitation. The defendant appeared in the Tuticorin court and raised several contentions, one of which was that inasmuch as the promissory note had been executed at Nagarcoil and not at Tuticorin and he himself was residing at Nagarcoil, no part of the cause of action had arisen within the territorial limits of the Tuticorin court. As many as 7 issues were framed upon the pleadings and issue No. 3 related, to the territorial jurisdiction of the Tuticorin court. But, before the trial commenced, that is to say, on 28-7-1959, the plaintiff's agent made an endorsement on the plaint to the following effect -

"Plaintiff prays that the plaint may be returned for presentation to the Nagarcoil court where the defendant resides".

Without going into the question of jurisdiction on the merits the Tuticorin court accepted this request of the plaintiff and passed an order in the following terms :

"Today an endorsement has been made in the plaint. Further it is seen that the defendant resides at Nagarcoil area and the entire cause of action arose at Nagarcoil. Plaint is returned for presentation to the proper forum. If the plaint is not represented within the transit period allowed under law, the defendant would be entitled to claim his costs from the plaintiff. Plaint is returned. If represented within time, costs to abide by the result of the suit."

3. The plaint was actually returned to the plaintiff on 6th August, 1959. The plaintiff presented this plaint in the Nagarcoil court on 19th August, 1959 along with a fresh plaint. The Nagarcoil court entertained both the plaints, treated the court fee paid on the earlier plaint as court-fee due on the fresh plaint and proceeded with the trial after issuing summons to the defendant, giving an opportunity to the defendant to file an answer, framing issues, recording evidence and ultimately, holding that inasmuch as the plaint had been presented in the Nagarcoil court long after the expiry of the period of limitation, the suit was barred by time. The first appellate Court reversed this judgement and granted a decree in favour of the plaintiff. In the second appeal, the judgement of the first Appellate Court was upheld, and against that Judgement the present Letters Patent Appeal has been filed by the defendant.

4. The question arises whether the plaint returned by the Tuticorin court for presentation to the proper court should be regarded as a continuation of the plaint presented in the Nagarcoil court. If it is so regarded, no question of limitation would arise. If, on the other hand, the plaint presented in the Nagarcoil court is to be treated as a fresh plaint, the suit must be held barred by limitation because on the date of presentation of the plaint in the Nagarcoil court, the period of limitation had expired.

5. Before dealing with this question, it is right to point out that all the three courts, concurrently, held that the promissory note was executed at Tuticorin. This is a finding of fact which is binding upon the appellant herein. It would then follow that the return by the Tuticorin court of the plaint was made on the erroneous basis that that court had no jurisdiction to entertain the suit. It is true that as the defendant resided within the territorial limits of the Nagarcoil court, the suit could be filed in the Nagarco