Fazl Ali, J.This is an appeal by the plaintiff in a suit under O.21, Rule 63, which "has been dismissed on the ground of limitation. It appears that the plaintiff filed his plaint before a Munsif at Bhagalpur on the last day of limitation which was 22nd May 1929. Subsequently it being discovered that the plaint should have been filed before the Munsif at Madhepura and the Munsif before whom it had been filed had no jurisdiction to entertain it, the latter, on 26th September 1931, ordered that plaint to be returned to the plaintiff for being presented to the proper Court on or before 9th October 1931. On 9th October 1931, the plaintiff presented the plaint not in the Court of the Munsif at Madhepura but in the Court of the Subordinate Judge of Bhagalpur valuing the suit at Rs. 3,062-10-0 instead of Rs. 300 at which it had been originally valued. The reason for changing the valuation was set out in a petition for the amendment of the plaint which was filed along with the plaint, it being stated therein that the valuation of Rs. 300 had been wrongly stated in the original plaint owing to a mistake on the part of the typist.

2. Both the Courts below held that in computing the period of limitation the plaintiff was entitled to exclude only the period during which the plaint was pending in the Court of the Munsif of Bhagalpur and that he was not entitled to exclude the period between 26th September 1931 and 9th October 1931. This view seems to me to be correct and is supported by several decisions of the Calcutta High Court: see Hari Das Roy v. Sarat Chandra Dey 17 CWN 615, Ganga Charan v. Akhil Chandra AIR 1917 Cal 794 and Ram Gopal Mandal v. Kamala Ranjan Roy AIR 1919 Cal 1. As it is not disputed that the plaint had been filed before a Court which had no jurisdiction to entertain it, the plaintiff cannot take advantage of the order passed by that Court directing him to present the plaint on or before 9th October 1931. Besides, Order 7, Rule 10, under which the Munsif purported to act when returning the plaint, did not authorize him to grant any time to the plaintiff for presenting it to the proper Court. As was pointed out in Ganga Charan v. Akhil Chandra AIR 1917 Cal 794, a plaintiff who files a suit on the very last date available to him under the law of limitation does so at his own risk, especially as the law does not make any provision for extension of time except in oases coming under Clause (2), Section 14, Lira. Act.

3. The learned advocate for the appellant has, in support of his contention that the appellant was entitled to exclude the period between 26th September 1931 and 9th October 1931, referred us to the decision of the Calcutta High Court in Nibaran Chandra Banerjee v. S.C. Mukherjee (1910) 6 IC 637. In that case it was held that when returning a plaint to be filed in the proper Court, the Court returning the plaint has a discretion to grant a reasonable time for the purpose, and if the plaintiff presents it to the proper Court within that time, his suit will not be barred by limitation, even though he may have filed the plaint in the wrong Court on the last day for limitation. This view was supported on the ground that the Code does not affect the power and duty of the Court in cases where no special rule exists, to act according to equity, justice and good conscience and the Court returning the plaint therefore ought not only to give reasonable time to the plaintiff for presenting the plaint to the proper Court but also decide what reasonable time is in each particular case. After much consideration however I am inclined to adopt the view set out in the other oases of the same High Court to which reference has already been made. It is to be remaindered that where the Court has no jurisdiction to try a case, it has also no jurisdiction to pass an order to the prejudice of one of the parties. Besides, the rule of equity can be invoked only in aid of a party who has been diligent in pursuing his remedy and not of a person who having postponed the institution of his suit until the last date of limitation institutes it in a Court which has no jurisdiction to try it.

4. In my opinion the decision of the Courts below should be affirmed and the appeal must be dismissed with costs.

Madan, J.

5. I agree.