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Madhya Pradesh High Court · body

2010 DIGILAW 1021 (MP)

Manju Tomar v. Anjali Jain

2010-10-06

ABHAY M.NAIK

body2010
ORDER Abhay M. Naik, J. 1. This Civil Revision is directed against the impugned order dated 12.5.2010 passed by the Court of A.D.J. Ambah in Misc. Case No. 3/10, returning thereby the Election Petition presented by the Respondent No. 1 with a direction that he would be entitled to the benefit of exclusion of time from 15.1.2010 to the date of impugned order under Section 14 of the Limitation Act. 2. Briefly stated relevant facts are that the revisionist has been elected as President of Municipal Council, Ambah on 15.12.2009. Respondent No. 1 presented the Election Petition under Section 20 of M.P. Municipalities Act, 1961 to the Court of A.D.J. Ambah to challenge the said election. Revisionist submitted an application under Order 7 Rule 11 Code of Civil Procedure that Ambah falls within the revenue district of Morena and therefore the Election Petition ought to have been presented to the Court of District Judge, Morena only. Accordingly, it was contended that the Court of A.D.J. at Ambah has no jurisdiction and Election Petition is liable to be dismissed. Application has been allowed by the impugned order. Learned A.D.J. Ambah directed for return of the Election Petition for being presented to the Court of D.J. Morena. Additionally, it is directed that the election Petitioner would be entitled to the benefit of Section 14 of Limitation Act 1963 by excluding the time from 15.1.2010 to the date of the impugned order on account of having been consumed in the Court of A.D.J. having no jurisdiction. 3. Shri Ajay Bhargava, learned Counsel for the revisionist and Shri Prashant Sharma, learned Counsel for the Respondent No. 1 made their respective submissions. 4. Main contention of the revisionist is that the Court of learned A.D.J. had no jurisdiction as rightly found by it to entertain the Election Petition presented to it in view of language of Section 20 of the M.P. Municipalities Act, 1961. This being so, he has no jurisdiction to grant benefit of exclusion of time under Section 14 of the Limitation Act, 1963. Per contra, Shri Prashant Sharma, learned Counsel for the Respondent No. 1, the impugned order is well reasoned order and does not warrant interference. 5. Undisputedly, Ambah falls within the revenue district of Morena, in which the Court of the District Judge is situated. Per contra, Shri Prashant Sharma, learned Counsel for the Respondent No. 1, the impugned order is well reasoned order and does not warrant interference. 5. Undisputedly, Ambah falls within the revenue district of Morena, in which the Court of the District Judge is situated. This being so, the Election Petition ought to have been presented to the District Judge Morena only. This controversy has already been decided in the said manner by this Court today in Civil Revision No. 95/10 and Civil Revision No. 96/10 by separate order. For the reasons stated therein, it is held that the learned A.D.J. Ambah has not acted illegally in holding that the Election Petition ought to have been presented to the District Judge Morena only. 6. Contention of the learned Counsel for the revisionist that the benefit of exclusion of time under Section 14 of Limitation Act 1963 could not have been granted by the learned A.D.J. has definitely substance for twofold reasons. Firstly, the Court of A.D.J. having no jurisdiction to entertain the Election Petition presented to it under Section 20 of the M.P. Municipalities Act, has equally no jurisdiction to grant any relief to the election Petitioner. Learned A.D.J. himself has found in the impugned order that the Election Petition ought to have been presented to the Court of District Judge. In view of this finding, he ceases to have further jurisdiction to grant any relief. He obviously could have and has rightly returned it to the election Petitioner for being presented to the District Judge Morena, which is having jurisdiction by virtue of Section 20 of the said Act. 7. Now I reproduce Section 14 of the Limitation Act, 1963 for ready reference: 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. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding 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. (3) Notwithstanding anything contained in Rule 2 of Order XXXIII 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 nature. Explanation. -For the purposes of this section,- (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a Plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. Perusal of the aforesaid, makes it clear that exclusion is to be claimed in the Court having competent jurisdiction. Thus, Section 14 (supra), if at all available, is to be invoked when a litigant presents the suit in a Court having competent jurisdiction. A Court, in which the earlier proceedings were prosecuted with due diligence and good faith, which from defect of jurisdiction or other cause of a like nature, is unable to entertain it, can not legally decide the entitlement of the litigant to the benefit of exclusion of time for another Court, which is having competence to decide the suit on merits obviously after deciding the entitlement of the litigant to the exclusion of time under Section 14 of the Limitation Act, 1963. This judicial discretion is obviously to be exercised by the Court having competent jurisdiction. This judicial discretion is obviously to be exercised by the Court having competent jurisdiction. Object of this Section is to grant protection in the matter of limitation against a person, who was honestly doing his best to get his case tried on merits, but fails on account of want of jurisdiction or other cause of a like nature, provided the failure must have resulted despite due diligence and good faith in earlier civil proceedings. 8. In view of the aforesaid, it is held that the learned A.D.J. has exceeded his jurisdiction in granting the benefit of exclusion of time to Respondent No. 1 and thus obviously committed an illegality. Impugned order is not sustainable to this extent. 9. Learned Counsel for the revisionist further contended that Section 14 of the Limitation Act 1963 is not applicable to the Election Petition presented under Section 20 of the M.P Municipalities Act, 1961. This point is not found involved in the present revision petition because learned A.D.J. is not found to have jurisdiction to grant any such relief. Applicability or inapplicability of Section 14 to the Election Petition shall have to be considered by the District Judge Morena, in case, if an application to seek exclusion of time is submitted before him by the Election Petitioner. This being so, there is no occasion for the time being to decide the said objection of the revisionist's learned Counsel and the same is kept open for being decided by the learned District Judge Morena in accordance with law, if an occasion arises. 10. In the result, Civil Revision succeeds in part and is allowed to the said extent. Impugned order granting benefit of exclusion of time from 15.1.2010 to 12.5.2010 is hereby set aside. In view of partial success, parties are directed to bear their own costs.