JUDGMENT :- This is a plaintiff's appeal, arising out of a suit, for arrears of rent, amounting to Rs. 252/-, alleged to have been due from the defendant, from 1st October, 1949 till 30th September, 1952. The arrears of rent, claimed by the plaintiff, were in respect of the shop in dispute.

2. The plaintiff's case was that he was the owner of the shop in dispute and that the defendant was his tenant and was paying Rs. 7/- per month as rent. The defendant's tenancy was from month to month beginning from the 1st of each month and that the rent in respect of the shop in dispute was due from 1st October, 1949 till 30th September, 1952 and that the defendant failed to pay the rent for that period in spite of several demands and hence the suit.

3. The plaintiff filed the suit on 3rd October, 1952 in the Court of Judge Small Causes. On 9th April, 1954, the learned Judge held that the suit was not cognizable by him and ordered the plaint to be returned to the plaintiff for presentation to the proper court. Against that order, the plaintiff preferred a revision in the High Court, which was dismissed on 11th August, 1960. The plaintiff claimed that he was entitled to the benefit of Sections 14 and 5 of the Indian Limitation Act. The plaintiff's case further was that Bachchu Shah and his predecessors were not Mutwalli of the shops in dispute, but were the owners of the same and that Bachchu Shah made a gift of his entire property to his grandson, Karim Shah, and after the death of Karim Shah, his brother Hamid Shah became the owner of the property. The plaintiff alleged that he was brought up by Hamid Shah, who had orally gifted the property, including the shop in dispute, to the plaintiff, who is the owner of the same.

4. The defence was that the shop in dispute was the property of Baritala and Bachchu Shah, Karim Shah and Hamid Shah were the Mutwallis of the Waqf. According to the defence, the shop in dispute was the Waqf property, in which the plaintiff had no right or title. It was also denied that the defendant was a tenant of the plaintiff or that the shop in dispute was orally gifted to the defendant by Hamid Shah. It was further pleaded that the suit was barred by limitation.

5. For a proper understanding of the facts of the case, it is necessary to mention a few more dates. The plaintiff learnt that the record of the case had been received, in the court below from the High Court on 4th August 1961 and the same day the plaintiff filed an application for the return of the plaint to him. On 7th August 1961, the plaint was returned to the plaintiff and the same day it was presented in the court of the learned Munsif, Azamgarh.

6. The trial court held that the plaintiff was the owner of the shop in dispute and that the defendant was the plaintiff's tenant. According to the

trial court, the suit was not barred by limitation and plaintiff was entitled to the benefit of Section 14 of the Limitation Act. On these findings the trial court decreed the plaintiff's suit.

7. In appeal, it was urged before the appellate court by the defendant that the plaintiff's suit was barred by time and that the plaintiff was not entitled to the benefit of Section 14 of the Indian Limitation Act.

8. The appellate court observed that from the record of the trial court it was not clear as to when the plaintiff preferred a revision against the order passed by the Judge, Small Causes, ordering the plaint to be returned to the plaintiff for presentation before the proper court. The appellate court further observed that there was no evidence to show that there was delay in the transmission of the record from the High Court to the Court of the Judge Small Causes, Azamgarh, but the record shows that the plaintiff applied for the return of plaint on 4th August, 1961 and that the plaint was actually returned to the plaintiff on 7th August, 1961, on which date the plaint was presented before the trial court. According to the appellate court, the plaintiff has not explained

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