Kailash vs Kalka Prasad - 1983 Supreme(MP) 743

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Applicant : K.S. Sisodiya.
For the Respondent: P.M. Bapna.

Headnote:(1) Limitation Act, 1963 – Art. 70 – goods deposited for specific purpose – defendant refusing to return – limitation starts from date of refusal.
       (2) Civil Procedure Code, 1908 – S. 115 and O. 43, R. 1 – order of the trial Court appealable – High Court's power to revise such order not affected.
        Short Note
       1. The plaintiff's case, as laid in the plaint, was that he gave to the defendant an old gold chain weighing 16.60 gms. on 24th January 1974 for making a new chain. It was also pleaded that the defendant got the chain melted and entered the weight of the gold as deposited by the plaintiff, in his account – book on 26th January 1974 and a receipt was issued to the plaintiff. It was then pleaded that the defendant refused to return the gold chain as promised. A notice was then issued to the defendant on 9th August 1979. The plaintiff in para 5 of the plaint pleaded that the cause of action arose on 24th January 1974 and on the date when, on notice, the defendant refused to deliver the gold chain. Application for amendment of the plaint was made in which it was alleged that the refusal was made on 2nd September 1977. The trial Court refused the application for amendment of the plaint and held the suit as barred by limitation, presumably computing the limitation from 24th January 1974, the date on which the old gold chain was handed over to the defendant.
       2. Held : The proper provision applicable would be Article 70 of the Limitation Act. As the gold chain was deposited by the plaintiff for specific purpose and the defendant was in the position of a bailee or depository, the limitation would start from the date of the refusal after demand. In the plaint, as originally presented, the demand was said to have been made in August 1979. It may also be taken into account that by the amendment it was alleged that the refusal was made in September 1979. From either of these dates the suit which was filed on 26th September 1979 was within limitation.
       3. The only objection that has been raised by the learned counsel for the defendant – non – applicant is that the order of the Court below amounts to rejection of plaint under Order 7 rule 11 of the Code of Civil Procedure and an appeal lay against that order and the plaintiff appellant should have filed an appeal instead of coming to this Court in revision. It is, however, conceded that the High Courts power of revision under section 115 of the Code is not affected by the fact that an appeal could, have been filed against the order of the trial Court. The suit is of the nature of a small cause suit and no second appeal lies to this Court. The High Court, therefore, can interfere in revision notwithstanding the fact that an appeal could have been filed against the order of the trial Court before the District Judge. Revision allowed.