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2009 DIGILAW 27 (DEL)

Jagat Singh v. Hoshiari Devi

2009-01-09

MANMOHAN

body2009
JUDGMENT Manmohan, J. .1. C.M. No. 16567/2006 (Condonation of delay). .By the present application the petitioner have sought condonation of delay under Section 5 of the Limitation Act read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the C.P.C). 2. The petitioners herein had filed a suit under Section 6 of the Specific Relief Act, 1963, against the Respondents. However, the plaint was rejected under Order 7 Rule 11(a) of C.P.C. The said order was challenged by way of an appeal by the petitioners. In the said appeal, a preliminary objection was taken by the Respondents to its maintainability on the ground that no appeal was maintainable by virtue of Section 6(3) of the Specific Relief Act. The said objection was overruled by the Appellate Court vide its order dated 24th October, 2005. .3. On a petition being CM(M) 2834-39/2005 filed by the Respondents, learned Single Judge of this Court was pleased to allow the said petition vide order dated 9th November, 2006 holding that the Petitioners appeal was not maintainable and the remedy, if any, was by filing a title suit or a revision under Section 115 of the CPC. The operative portion of learned Single Judges order is reproduced hereinbelow for ready reference: .1l. In view of the aforesaid position, the impugned order cannot be sustained and is set aside. It is held that the appeal filed by the respondents was not maintainable and the remedy of the respondents was only by filing a title suit or revision under Section 115 of the said Code. It will thus be now for the respondents to take recourse to the appropriate legal remedy in accordance with law aggrieved by the impugned order of the trial Court dated 13.4.2004. 4. Mr. Sharma, learned Counsel for the Respondents submits that in the present instance the delay could not be condoned inasmuch as the petitioners had prosecuted their appeal despite the Respondents taking a preliminary objection at the earliest that the said appeal was not maintainable. In this connection, learned Counsel for Respondents relied upon the following Judgments: (A) Rabindra Nath Samuel Dawsan v. Sivakami and Ors.: AIR 1972 SC 730 wherein it has been held as under: 4. ...The reasons given by the High Court are in our view cogent. In this connection, learned Counsel for Respondents relied upon the following Judgments: (A) Rabindra Nath Samuel Dawsan v. Sivakami and Ors.: AIR 1972 SC 730 wherein it has been held as under: 4. ...The reasons given by the High Court are in our view cogent. Section 14 of the repealed Limitation Act which is applicable to this case gives benefit to a party who has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of first appeal against the defendant, where the prosecuting is founded upon the same cause of action and is prosecuted in good faith in a court which from the defect of jurisdiction or other cause of like nature is unable to entertain it. The appellants Advocate points out that under Section 2(7) nothing shall be deemed to be done in good faith which is not done with due care and attention and that in this case appellant was bona fide in purchasing the suit properties from an auction purchaser who also purchased them in revenue sales bona fide and that without notice to either of them the sale has been set aside which is totally without jurisdiction and injuriously affects the appellant. That the appellant was caught in this predicament may be unfortunate but insofar as the question whether he bona fide prosecuted the earlier suit and appeal there could be no two opinions on the undisputed facts which have been clearly and forcefully stated by the High Court. It is clear that no suit for declaration and possession could have been filed against the defendants in respect of the revenue sales which was set aside without impleading the Government. The objection as to the maintainability of the suit was taken at the very initial stage but that was resisted and the appellant invited a decision by the Distt. Munsif. Even at the stage of revision against that order in the High Court he took the risk of proceeding with the suit. This was, therefore, not a case of prosecuting the previous proceedings bona fide. Munsif. Even at the stage of revision against that order in the High Court he took the risk of proceeding with the suit. This was, therefore, not a case of prosecuting the previous proceedings bona fide. But on the other hand, he deliberately did so may be for obvious reason that if he had to withdraw the suit he would have to give notice under Section 80 CPC to the Government, wait for the expiry of the period of notice of two months and thereafter file a fresh suit. To avoid this he thought he would take a chance but that chance boomeranged against him. It is not a case where he prosecuted due to ignorance of law or bona fide mistake nor can it be said that he had misconceived the suit. None of the cases cited by the learned Advocate can assist the appellant because in all of them it was either a case of mistake of law on a doubtful point such as in the case of Bishambhur Haldar v. Bonomali Haldar (1899) I.L.R. 26 C. 414 (F.B.), or ignorance of law. (Emphasis supplied) (B) Deena (Dead) through L.Rs. v. Bharat Singh (Dead) through L.Rs. and Ors. : [2002] SUPP 1 SCR 289 wherein it has been held as under: 14. From the provisions it is clear that it is in the nature of a proviso to Order 23 Rule 2. The non-obstante clause provides that notwithstanding anything contained in Sub-rule (2) of Order 23 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 23. 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 proceedings 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. 15. 15. The main factor which 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 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- (Emphasis supplied) .5. The law with regard to condonation of delay is fairly well settled and it has been repeatedly pointed out by the Honble Supreme Court that procedural laws are subservient to substantive law and further that a narrow pedantic approach has to be avoided while considering procedural law and in particular those pertaining to limitation. In fact, in the following judgments the Apex Court has clarified that it is not that each days delay has to be explained, but what has to be seen is whether the conduct of a party was to prosecute a remedy: .(i) Nagaland v. Lipok AO and Ors. : 2005(183) ELT337 (SC) ; .(ii) State of Haryana v. Chandra Mani and Ors. : 2002 (143) ELT 249(SC) ; .(iii) N. Balkrishan v. N. Krishnamurthi : 2008(228) ELT 162(SC) ; .(iv) Shankarrao v. Chandrasenkunwar : AIR 1987 SC 1726 ; .(v) Collector, Land Acquisition v. Mst. Katiji and Ors. : (1987)I LLJ 500 SC ; and .(vii) O.P. Kathpalia v. Lakhmir Singh (Dead) and Ors. : AIR 1984 SC 1744 . 6. In the present instance, even the learned single judge of this Court while holding that the appeal filed by the Petitioners was not maintainable had observed that it would be open to the Petitioners to take recourse to appropriate legal remedy in accordance with law vis-a-vis the Trial Court order dated 13th April, 2004. 7. 6. In the present instance, even the learned single judge of this Court while holding that the appeal filed by the Petitioners was not maintainable had observed that it would be open to the Petitioners to take recourse to appropriate legal remedy in accordance with law vis-a-vis the Trial Court order dated 13th April, 2004. 7. In the opinion of this Court, the ingredients of Section 14 of the Limitation Act are satisfied as both the prior and subsequent proceedings are civil proceedings prosecuted by the same parties; the prior proceedings have been prosecuted with the due diligence and good faith; the failure of prior proceedings was due to bar of jurisdiction and both the proceedings related to the same matter as well as both the proceedings were in a Court of law. This Court is further of the view that it cannot conclude that the Petitioners in prosecuting their appeal against an order rejecting its plaint had not exercised due care and attention. This Court is further of the view that an appeal had been filed in the present case by the Petitioners due to either ignorance of law or on a doubtful issue inasmuch as the Petitioners plaint had been rejected under Order 7 Rule 11 and their suit had not been dismissed on merits. In any event, this Court in the present proceedings cannot conclude that the Petitioners took a deliberate chance or gamble by filing an appeal in order to circumvent a notice period as was the case in Rabindra Nath Samuel Dawson (supra). 8. Consequently, the present application for condonation of delay is allowed. Accordingly, the application stands disposed of. C.R.P. No. 356-57/2006. Issue Notice. Mr. M.L. Sharma accepts notice on behalf of Respondents. Reply be filed within four weeks from today. Rejoinder, if any, be filed within four weeks thereafter. List on 6th May, 2009. C.M. No. 16565/2006 (Stay) Issue Notice. Mr. M.L. Sharma accepts notice on behalf of Respondents. In the meantime, Respondents are restrained from creating any further third party rights or encumbrances with regard to the suit property till disposal of the present proceedings. The Respondents are further directed to maintain status quo withregard to suit property till further orders. List on 6th May 2009. Application allowed.