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2010 DIGILAW 161 (CHH)

Muralilal Vishwakarma v. Meena Sharma

2010-06-16

N.K.AGARWAL

body2010
ORDER N.K. Agarwal, J. 1. Legality and propriety of the order dated 24-10-2007 passed by the II Additional District Judge, Bilaspur, in MJC No. 9/07, whereby and whereunder the application preferred by the non-applicant under Section 14 of Limitation Act has been allowed, is under assail in the instant matter. 2. Facts of the case in brief are as under: (i) Non applicant/Plaintiff preferred an application before the Rent Controlling Authority (briefly, 'RCA') under Section 38 of the C.G. Accommodation Control Act, 1961 (briefly 'the Act') against the applicant No. 1 for removal of the lock allegedly put by applicant No. 1 over and above the lock put by the non-applicant on the suit shop. The RCA dismissed the above application on merits holding non-applicant herself vacated the shop and handed over its possession to the applicant No. 1. The appeal preferred there against before the District Judge was also dismissed vide order dated 28-2-2007 on merit. Thereafter the non-applicant filed civil suit before the trial Court against the applicants for restoration of possession and for recovery of the amount i.e. the cost of the material, which according to the applicant, was kept by her in the shop, along with an application under Section 14 of the Limitation Act. (ii) As per non-applicant, she was prosecuting proceedings before the RCA under wrong advice of her counsel and, therefore, the time spent in prosecuting the proceedings before the RCA and thereafter in the appeal preferred there against requires to be excluded under Section 14 of the Limitation Act while computing limitation of the suit. (iii) Prayer was opposed by the applicants. (iv) Vide impugned order, the trial Court allowed the application preferred by the non-applicant No. 1. Hence this revision. 3. Shri Bharat, learned Counsel appearing for the applicants would submit that the earlier proceeding under Section 38 of the Act was initiated by the non-applicant for removal of the obstruction, according to her, put by the applicant No. 1 by putting his lock over and above the lock put by her on the entry gate of the suit shop and, therefore, said petition cannot be said to be without jurisdiction or filed in a Court having no jurisdiction to decide such petition, therefore, Section 14 of the Limitation Act has no application at all in the present case. The suit admittedly being time barred ought to have been dismissed at threshold, thus learned trial Court has committed gross illegality in passing the impugned order. By placing reliance upon the judgments of Supreme Court in Deena (dead) through LRs. v. Bharat Singh (dead) through LRs. and Ors. 2002 (6) SCC 336 : AIR 2002 SC 2768 and in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department and Ors. 2008 (7) SCC 169 : AIR 2009 SC (Supp) 396 he would further submit that in order to press into service Section 14 of the Limitation Act, following conditions are to be satisfied: (i) Both prior and subsequent proceedings are civil proceedings prosecuted by the same party;' (ii) Prior proceedings had been prosecuted with due diligence and in good faith; (iii) Failure of the prior proceedings was due to defect of jurisdiction or other cause of like nature; and (iv) Earlier proceedings and the later proceedings must relate to the same matter in issue; In the instant case, neither the earlier proceedings nor the present proceedings relate to the same matter in issue nor between the same parties nor failure of the prior proceedings was due to defect of jurisdiction or other cause of like nature. It was further contended that knowing fully well that relief of restoration of possession and recovery of money is within the domain of Civil Court, the earlier proceeding was filed on the pretext that there was an obstruction by the applicant No. 1 in her enjoyment over the suit accommodation, therefore, it cannot be said that the prior proceedings had been prosecuted with due diligence and in good faith. 4. On the other hand, Shri K. A. Ansari, learned Sr. Counsel appearing for the non-applicant supported the order impugned and submitted that in the facts and circumstances of the case, learned trial Court had rightly allowed the application preferred by the non-applicant and had not committed any jurisdictional illegality in passing the impugned order and the revision deserves to be dismissed. In support of his contention, he placed reliance upon the following judgments: (i) Ghasi Ram and Ors. v. Chait Ram Saini and Ors. 1998 (4) Civil LJ 223 :AIR 1998 SC 2476 (ii) Wamanrao Keshavrao Deshmukh and Ors. v. Dinakarrao Bhausaheb Deshmukh and Ors. 1998 STPL (LE) 25400 SC :AIR 1999 SC 322 (iii) Collector, Land Acquisition, Anantnag and Anr. v. Katiji and Ors. v. Chait Ram Saini and Ors. 1998 (4) Civil LJ 223 :AIR 1998 SC 2476 (ii) Wamanrao Keshavrao Deshmukh and Ors. v. Dinakarrao Bhausaheb Deshmukh and Ors. 1998 STPL (LE) 25400 SC :AIR 1999 SC 322 (iii) Collector, Land Acquisition, Anantnag and Anr. v. Katiji and Ors. 1987 (1) Civil LJ 552 :AIR 1987 SC 1353 (iv) P. Sarathy v. State Bank of India (2000) 5 SCC 355 : AIR 2000 SC 2023 (v) Suraj Bhan v. Sadul Textiles (1988) (2) Civil LJ 553 : AIR 1988 Raj 164 (vi) Rafiq and Anr. v. Munshilal and Anr. 1981 STPL (LE) 10926 SC : AIR 1981 SC 1400. 5. I have heard learned Counsel for the parties and perused the order impugned and material placed along with the revision petition. 6. In order to appreciate the rival contentions put forth by learned Counsel for the parties, it would be appropriate to refer Section 38 of the CG Accommodation Control Act, 1961 which reads thus: 38. Cutting off or withholding essential supply or service. -(1) No landlord either himself or through any person purporting to act on his behalf shall without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the accommodation let to him. (2) If a landlord contravenes the provisions of Sub-section (1), the tenant may make an application to the Rent Controlling Authority complaining of such contravention. (3) If the Rent Controlling Authority on inquiry finds that the essential supply or service enjoyed by the tenant in respect of the accommodation was cut off or withheld by the landlord without just and sufficient cause, it shall make an order directing the landlord to restore such supply or service. (4) The Rent Controlling Authority may in its discretion direct that compensation not exceeding fifty rupees: (a) be paid to the landlord by the tenant, if the application under Sub-section (2) was made frivolously or vexatiously; (b) be paid to the tenant by the landlord, if the landlord had cut off or withheld the supply or service without just and sufficient cause. 7. A bare perusal of the above provision would reveal that the phrase "any essential supply or service" would naturally include things such as electricity supply, water supply, shutting of door ways, etc. 7. A bare perusal of the above provision would reveal that the phrase "any essential supply or service" would naturally include things such as electricity supply, water supply, shutting of door ways, etc. Therefore, closing a door way which is entry gate in the suit shop will undoubtedly be a contravention of Section 38 of the Act. The non-applicant did not file earlier petition under Section 38 of the Act for recovery of possession of the suit shop or for recovery of articles allegedly placed by her in the suit shop or for recovery of price but was for removal of the lock, which according to her, was put by the applicants over and above the lock put by her. In para 7 of the application filed by the non-applicant under Section 38 of the Act (Ex. A-l) it has been stated that the applicant has no right to put his lock over the shop. His remedy lies in jurisdictional Civil Court for recovery of vacant possession of the suit shop on the ground of bona fide need. The above averment reveals that the non-applicant was also conscious of the fact that relief regarding possession of the suit shop is within the domain of Civil Court. Therefore, it cannot be said that the prior proceeding initiated by the non-applicant was for restoration of possession of the suit shop or was for recovery of the articles, according to her, put by her in the suit shop, or in the alternative, for recovery of its price. It is also not in dispute that the above application has been dismissed on merit by the RCA as well as by the appellate Court. A bare perusal of the plaint would reveal that the instant suit has been filed inter alia on the pleadings that the applicants have disposed the non-applicant from the suit shop and have also sold the articles kept by her in the suit shop which is an entirely different matter in issue. 8. Supreme Court in case of Deena (dead) through LRs. v. Bharat Singh (dead) through LRs. and Ors. AIR 2002 SC 2768 has observed in paras 15 and 16 as under: 15. The other expressions relevant to be construed in this regard are "defect of jurisdiction" and "or other cause of a like nature". 8. Supreme Court in case of Deena (dead) through LRs. v. Bharat Singh (dead) through LRs. and Ors. AIR 2002 SC 2768 has observed in paras 15 and 16 as under: 15. 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 23 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. 16. 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 judgement 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 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. It is not the case of the Plaintiffs that the Court had found the suit to be not maintainable 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. 9. The above ratio laid down by the Supreme Court squarely applies to the facts of the present case. It does not appear from the discussions in the orders passed by the Rent Controlling Authority and also by the Appellate Authority that there was any finding of the Court in the previous proceedings holding the proceedings to be not entertainable on any ground. In such circumstances, Section 14 of the Act will have no application in the instant case and learned trial Court has acted in excess of jurisdiction in allowing the said application. 10. In view of the law laid down by the Supreme Court and cited and relied upon by Shri Ansari, the approach of Courts should be liberal while dealing with the applications of the like nature. There is no quarrel with the aforesaid proposition of law, but as held earlier, previous proceedings initiated by the non-applicant and decided by the Rent Controlling Authority and its Appellate Authority cannot be said to be without jurisdiction, therefore, Section 14 of the Act itself is not applicable in the instant case and the judgments cited and relied upon by Shri Ansari are of no help to him. 11. For the foregoing, the revision deserves to be and is hereby allowed. The order passed by the trial Court is set aside. 12. In the facts and circumstances of the case, no order as to costs.