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CASE NO.:

Appeal (civil) 2965 of 1992

PETITIONER:

DEENA (DEAD) THROUGH LRS.

Vs.

RESPONDENT:

BHARAT SINGH (DEAD) THR. LRS. & ORS.

DATE OF JUDGMENT: 29/07/2002

BENCH:

D.P.MOHAPATRA & K.G.BALAKRISHNAN.

JUDGMENT:

D.P.MOHAPATRA,J.

This appeal filed by the defendant is directed against

the judgment dated 3.2.1992 of the High Court of Punjab

and Haryana in Regular Second Appeal No.2040 of 1987

allowing the appeal filed by the plaintiffs who are

respondents herein on reversing judgment of the first

appellate court confirming the decision of the trial court.

On analysis of the case of the parties and findings

recorded by the Courts below the question that arises for

determination is whether on the facts found the plaintiffs

are entitled to exclusion of the period from 21.3.1980 to

15.2.1982 under Section 14 of the Limitation Act, 1963 for

computation of the period of limitation for filing the suit.

The facts relevant for determination of the question, sans

unnecessary details may be stated thus:

The appellant Deena (deceased represented by legal

heirs) had mortgaged his land measuring 9 bighas 18

biswas (after consolidation 47 kanals 13 marlas) in Khewat

No.39 Khasra No.34 situated in the village Manakwas,

Tehsil Jhajjar in the State of Haryana, for Rs.2,500/- with

possession, on 7.2.1947 with plaintiff no.2 and father of

plaintiff nos. 15 to 19 and Khubi Ram @ Khushi Ram who

is the predecessor in interest of plaintiffs 2 to 14. On

23.6.1978 Deena had filed an application for redemption of

the land before Collector, Jhajjar which was accepted on

29.2.1980 and the land was ordered to be redeemed on

payment of the mortgage money Rs.2,500/-. The plaintiffs

filed a suit in the Court of the Sub-Judge Jhajjar titled

Harkishan vs. Deena seeking a declaration that they had

become owners of the property and that the order of the

Collector dated 29.2.1980 was null and void. The said

suit was decreed by the trial court and the decree was

challenged in appeal by the defendant. During pendency of

the appeal in the Court of the District Judge, Rohtak the

plaintiffs withdrew the suit with permission to file fresh

suit. Thereafter the present suit, Civil Suit No.115/82

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was filed on 24.2.1982 seeking a declaration that the

plaintiffs were owners of the suit property and that the

order passed by the Collector was void and inoperative

and did not affect their rights. In his written statement the

defendant took the plea, inter alia, that the suit was barred

by limitation.

The trial court framed 8 issues of which issue No.3

was whether the suit was barred by time and issue no.7

was whether the plaintiffs were entitled for exclusion of

time during the period from 21.3.80 to 24.2.1982, if so, to

what effect ?

In support of their claim of exclusion of the period

the case of the plaintiffs was that they were prosecuting

the previous suit in good faith which was permitted by the

court to be withdrawn with leave to file fresh suit on the

same cause of action; therefore, they were entitled to

exclusion of the period from 21.3.80 to 15.2.1982 under

the provisions of section 14 of the Limitation Act and

considered on that basis the suit is not barred by

limitation.

The case of the defendant on the other hand

was that the plaintiffs cannot claim to have prosecuted the

previous suit in good faith since in the written statement

itself it was specifically stated that the suit was bad for

non-joinder of necessary party, Smt. Ghogri who had been

impleaded in the proceeding before the Collector as one of

the mortgagors. The plaintiffs being aware of the objection

had pursued the matter. The suit was decreed by the trial

court. The defendant had challenged the judgment in

appeal. During pendency of the appeal on the prayer of the

plaintiffs seeking leave to withdraw the suit with

permission to file fresh suit the court granted the prayer

and the suit was withdrawn. In the circumstances the

defendant contended the exclusion of the period sought

under section 14 of the Limitation Act could not be

granted.

The trial court answered the issues 3 and 7 in favour

of the defendant holding inter alia that the plaintiffs did

not pursue the proceedings of the previous suit with due

diligence and good faith. In appeal the learned Additional

District Judge, placing reliance on the decision of the

Supreme Court in the case of Rabindra Nath Samuel

Dawson vs. Sivakami and others AIR 1972 SC 730 held:

"Therefore in view of this authority of

the Hon'ble Supreme Court and for the

reasons discussed above, it cannot be

said that plaintiffs had been

prosecuting the earlier suit in good

faith or with due diligence. Accordingly

it is held that they are not entitled to

take benefit of Section 14(1) and (III) of

the Indian Limitation Act."

In the second appeal filed by the plaintiffs the High

Court set aside the judgment of the first appellate court

confirming the decision of the trial court and decreed the

suit with the following observations:

"The order passed by the Collector is

dated 29th of February, 1980. The first

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suit for declaring order of the Collector

as void was filed on 23rd of March,

1980 which was decreed by the trial

court. The defendant respondent filed

an appeal before the District Judge and

on 15th February, 1982 the appellants

were allowed to withdraw the suit

which was decreed in their favour by

the trial court with permission to file

fresh one on the same cause of action.

Fresh suit was filed on 24th February,

1982. After hearing counsel for the

parties I hold that the suit filed by the

appellants is within time and they are

entitled for the exclusion of time from

21st March, 1980 to 15th February,

1982. The findings of the lower courts

on issues No.3 and 7 are set aside. In

view of the above mentioned discussion

the judgment and decree passed by the

lower courts are set aside and the suit

filed by the plaintiff appellants is

decreed. No order as to cost."

Shri Mahabir Singh, learned counsel appearing for

the appellant strenuously urged that on the facts and

circumstances of the case the High Court was clearly in

error in upsetting the concurrent decision of the Courts

below in exercise of its jurisdiction under section 100 of

the Code of Civil Procedure. Elucidating the point Shri

Singh submitted that prosecuting the previous proceedings

in good faith is a pre-condition for application of section

14 of the Limitation Act. Whether the plaintiffs were

prosecuting the previous suit in good faith is a question of

fact. The first appellate court, which was the final court of

fact, concurring with the finding recorded by the trial court

had held that the plaintiffs had not been prosecuting the

previous suit with due diligence and in good faith. The

High Court in second appeal, Shri Singh contended, had

no jurisdiction to disturb the concurrent finding of fact

recorded by the appellate court.

Per contra Shri P.C.Jain, learned senior counsel

appearing for the respondents contended that the plaintiffs

are entitled to exclusion of the period between the date of

withdrawal of the suit and the filing of the fresh suit under

the provision in section 14(3) of the Limitation Act. Since

the appellate court on being satisfied that the suit was

likely to fail by reason of formal defect of non-joinder of a

necessary party had granted leave to the plaintiffs to

withdraw the suit with permission to file a fresh suit, the

High Court rightly took the view that the plaintiffs were

entitled to exclusion of the period under section 14 of the

Limitation Act.

Order XXIII of the Code of Civil Procedure deals with

withdrawal and adjustment of suits. In Rule 1 sub-rule (3)

thereof it is laid down that where the court is satisfied (a)

that a suit must fail by reason of some formal defect, or (b)

that there are sufficient grounds for allowing the plaintiff

to institute a fresh suit for the subject-matter or a part of

the claim, it may, on such terms as it thinks fit, grant the

plaintiff permission to withdraw from such suit or such

part of the claim with liberty to institute a fresh suit in

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respect of the same subject-matter or part of the claim.

In rule 2 of Order XXIII it is provided that in any

fresh suit instituted on permission granted under the last

preceding rule, the plaintiff shall be bound by the law of

limitation in the same manner as if the first suit had not

been instituted.

Section 14 of the Limitation Act so far as material for

the purpose of the present case is quoted hereunder:

"14. Exclusion of time of proceeding

bona fide in court without jurisdiction

(1) In computing the period of

limitation for any suit the time

during which the plaintiff has

been prosecuting with due

diligence another civil proceeding,

whether in a court of first

instance or of appeal or revision,

against the defendant shall be

excluded, where the proceeding

relates to the same matter in

issue and is prosecuted in good

faith in a court which, from defect

of jurisdiction or other cause of a

like nature, is unable to entertain

it.

XXX XXX XXX

(3) Notwithstanding anything

contained in rule 2 of Order XXIII of

the Code of Civil Procedure, 1908 (5

of 1908), the provisions of sub-

section (1) shall apply in relation to

a fresh suit instituted on permission

granted by the court under rule 1 of

that Order, where such permission

is granted on the ground that the

first suit must fail by reason of a

defect in the jurisdiction of the court

or other cause of a like manner."

From the provisions it is clear that it is in the nature

of a proviso to Order XXIII Rule 2. The non-obstante clause

provides that notwithstanding anything contained in sub-

rule (2) of Order XXIII of the Code of Civil Procedure the

provisions of sub-section (1) of section 14 shall apply in

relation to a fresh suit instituted on permission granted by

the court under rule 1 of Order XXIII. For applicability of

the provision in sub-section (3) of section 14 certain

conditions are to be satisfied. Before section 14 can be

pressed into service the conditions to be satisfied are : (1)

Both the prior and subsequent proceedings are civil

proceedings prosecuted by the same party ; (2) the prior

proceeding had been prosecuted with due diligence and

good faith; (3) the failure of the prior proceeding was due to

defect of jurisdiction or other cause of like nature ; (4) the

earlier proceeding and the later proceeding must relate to

the same matter in issue, and (5) both the proceedings are

in a court.

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The main factor which would influence the Court in

extending the benefit of section 14 to a litigant is whether

the prior proceeding had been prosecuted with due

diligence and good faith. The party prosecuting the suit in

good faith in the court having no jurisdiction is entitled to

exclusion of that period. The expression 'good faith' as

used in section 14 means "exercise of due care and

attention'. In the context of section 14 expression 'good

faith' qualifies prosecuting the proceeding in the Court

which ultimately is found to have no jurisdiction. The

finding as to good faith or the absence of it is a finding of

fact. This Court in the case of Vijay Kumar Rampal and

others vs. Diwan Devi and others AIR 1985 SC 1669

observed :

"The expression good faith qualifies

prosecuting the proceeding in the

Court which ultimately is found to

have no jurisdiction. Failure to pay the

requisite court fee found deficient on a

contention being raised or the error of

judgment in valuing a suit filed before

a Court which was ultimately found to

have no jurisdiction has absolutely

nothing to do with the question of good

faith in prosecuting the suit as

provided in section 14 of the Limitation

Act."

The other expressions relevant to be construed in

this regard are 'defect of jurisdiction' and "or other cause of

a like nature'. The expression "defect of jurisdiction' on a

plain reading means the Court must lack jurisdiction to

entertain the suit or proceeding. The circumstances in

which or the grounds on which, lack of jurisdiction of the

Court may be found are not enumerated in the Section. It

is to be kept in mind that there is a distinction between

granting permission to the plaintiff to withdraw the suit

with leave to file a fresh suit for the same relief under

Order XXIII Rule 1 and exclusion of the period of pendency

of that suit for the purpose of computation of limitation in

the subsequent suit under section 14 of the Limitation Act.

The words "or other cause of a like nature" are to be

construed ejusdem generis with the words 'defect of

jurisdiction', that is to say, the defect must be of such a

character as to make it impossible for the court to

entertain the suit or application and to decide it on merits.

Obviously section 14 will have no application in a case

where the suit is dismissed after adjudication on its merits

and not because the Court was unable to entertain it.

Coming to the case on hand, as noted earlier, the

previous suit filed by the respondents was decreed by the

trial court; and the defendant had filed appeal against the

judgment and decree of the trial court. It does not appear

from the discussions in the impugned judgment that there

was any finding of the Court in the previous suit holding

the suit to be not entertainable on any ground. The

ground on which withdrawal of the suit was sought was

that Smt.Ghogri, one of the mortgagors, had not been

impleaded in the suit. It is not the case of the plaintiffs

that the Court had found the suit to be not maintainable

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on that ground. Non impleadment of Smt. Ghogri a

necessary party, in the suit was a clear case of laches on

the part of the plaintiffs. In such circumstances it could

not be said that the plaintiffs were prosecuting the

previous suit in good faith.

The trial court and the first appellate court based

their findings on the question of good faith on the evidence

led by the parties and the law laid down by this Court in

the case of Rabindra Nath Samuel Dawson (supra) in

which it was held that a person who has registered the

objection regarding non-joinder of parties at the initial

stage and also at the revisional stage and taken the risk of

proceeding with the suit without impleading the necessary

parties cannot be said to have acted in good faith taking

due care and attention; consequently, such person will not

be entitled to benefit of section 14 of the Act for excluding

the time spent by him in that proceeding in a fresh suit. In

the present case concededly the objection regarding non

impleadment of necessary party was taken in the written

statement. Despite such objection the plaintiffs chose to

prosecute the suit. Indeed they succeeded in the trial

court and the matter was pending before the first appellate

court when the petition under Order XXIII seeking

withdrawal of the suit with permission to file a fresh suit

for the same relief was filed by them. Therefore, the trial

court and the first appellate court were right in holding

that the plaintiffs were not entitled to exclusion of the

period between 21.3.1980 to 15.2.1982 under section 14 of

the Limitation Act as claimed and that the suit was barred

by limitation. The High Court in the impugned judgment

has not discussed the materials on the basis of which the

Courts below recorded the finding of fact relating to lack

of good faith on the part of the plaintiffs. It has also not

discussed the reason for taking a contrary view on that

question. The concurrent decisions of the courts below

have been reversed with a general observation that on the

facts and circumstances of the case the plaintiffs were

entitled to exclusion of the period under section 14 of the

Limitation Act as claimed. Therefore, the judgment of the

High Court is clearly unsustainable.

In the result the appeal is allowed with costs. The

judgment of the High Court in Second Appeal No. 2040 of

1987 is set aside and the judgment of the Additional

District Judge-III in CA No.3713/1986 confirming the

judgment of the trial court in Civil Suit No.115/82 is

restored. Hearing fee is assessed at Rs.10,000/-.