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2012 DIGILAW 1558 (PNJ)

Krishan Kumar v. Sanjay Kumar

2012-11-01

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J. (Oral):- Aggrieved by order dated 09.11.2010 passed by the trial court, defendant no.1 Krishan Kumar has filed this revision petition under Article 227 of the Constitution of India to challenge the said order of the trial court, whereby application (Annexure P-3), moved by respondent no.1- plaintiff Sanjay Kumar, for condonation of delay in filing the suit vide plaint (Annexure P-1), has been allowed. 2. Respondent no.1-plaintiff has filed suit against defendant no.1- petitioner and against respondents no.2 to 4 as defendants no.2 to 4 for specific performance of agreement to sell dated 07.03.2005, allegedly executed by defendant no.1 in favour of the plaintiff. As per said agreement, sale deed was to be executed up to 27.05.2005. 3. Case of the plaintiff in plaint (Annexure P-1) and application (Annexure P-3) is that initially, the plaintiff filed a complaint under Section 12 of the Consumer Protection Act, 1986 before the District Consumer Disputes Redressal Forum, Karnal (in short – the District Forum) on 27.11.2006 and the same was dismissed on 22.01.2008 on the ground of non-maintainability of the complaint. Thereafter, the plaintiff filed suit for permanent injunction on 23.07.2008, which was withdrawn on 13.09.2008, with permission to file fresh suit, as granted vide order dated 13.09.2008. Accordingly, the plaintiff filed the instant fresh suit on 29.09.2008. The plaintiff alleged that the delay occurred on account of illiteracy of the plaintiff, who had no knowledge of law and procedure. 4. Defendant no.1, by filing reply (Annexure P-4), contested the aforesaid application (Annexure P-3). 5. Learned trial court, vide impugned order dated 09.11.2010, has allowed application (Annexure P-3), moved by respondent no.1-plaintiff and has thereby condoned the delay in filing the suit. Feeling aggrieved, defendant no.1 has filed this revision petition to assail the aforesaid order. 6. I have heard counsel for the parties and perused the case file. 7. Counsel for the petitioner contended that the trial court has granted benefit of Section 14 (1) of the Limitation Act, 1963 (in short – the Act) to the plaintiff while holding the suit to be within limitation, but plaintiff is not entitled to benefit of the said provision as his case does not fall within the four corners thereof. 7. Counsel for the petitioner contended that the trial court has granted benefit of Section 14 (1) of the Limitation Act, 1963 (in short – the Act) to the plaintiff while holding the suit to be within limitation, but plaintiff is not entitled to benefit of the said provision as his case does not fall within the four corners thereof. It was contended that Section 14 (1) of the Act is applicable, where the earlier proceeding is prosecuted in good faith in a Court, which is unable to entertain it, but in the instant case, District Forum, in which complaint under the Consumer Protection Act was filed, is not a Court, and therefore, benefit of Section 14 (1) of the Act is not available to the plaintiff. It was also pointed out that complaint in the District Forum was not being prosecuted in good faith because even after dismissal of the said complaint by the District Forum, plaintiff preferred appeal against order of the District Forum and the said appeal has been dismissed by the State Consumer Disputes Redressal Commission, Haryana (in short – the State Commission), vide order dated 09.03.2009 and the suit was instituted during pendency of the said appeal. 8. On the other hand, counsel for respondent no.1-plaintiff contended that the word ‘Court’, as used in Section 14 (1) of the Act, includes District Forum also under the Consumer Protection Act, and therefore, benefit of Section 14 (1) of the Act has been rightly extended to the plaintiff by the trial court. 9. I have carefully considered the rival contentions. 10. To avail of benefit of Section 14 (1) of the Act, the earlier civil proceeding should have been prosecuted in good faith in a Court. In my opinion, District Forum under the Consumer Protection Act cannot be equated with a Court, as used in Section 14 (1) of the Act. Consequently, on account of filing of a complaint in the District Forum, benefit of Section 14 (1) of the Act is not available to the plaintiff. 11. Plaintiff has also failed to fulfill other conditions of Section 14 (1) of the Act. To avail of benefit of the said provision, the earlier civil proceeding should have been prosecuted in good faith. 11. Plaintiff has also failed to fulfill other conditions of Section 14 (1) of the Act. To avail of benefit of the said provision, the earlier civil proceeding should have been prosecuted in good faith. However, the plaintiff has not even alleged either in plaint (Annexure P-1) or in application (Annexure P-3) that he was prosecuting the complaint in the District Forum in good faith. Even otherwise, the plaintiff is not shown to have prosecuted the said complaint in good faith because even after dismissal of the said complaint by District Forum, the plaintiff, instead of filing suit for specific performance of the agreement, initially filed suit for permanent injunction, which was later on withdrawn with permission to file fresh suit. Secondly, the plaintiff also preferred appeal against order of the District Forum before the State Commission and the instant suit was instituted while the said appeal was pending. The said appeal was instituted on 20.02.2008 and was decided on 09.03.2009, as per copy of the order of the State Commission, shown by counsel for the petitioner, whereas the instant suit was instituted on 29.09.2008 during pendency of the said appeal before the State Commission. All these circumstances clearly point out that the plaintiff was not acting in good faith, but was rather pursuing one remedy after the other, which was although not available to him. The plaintiff initially filed complaint in the District Forum, then filed appeal against the order of the District Forum in the State Commission and then, during pendency of the said appeal, initially filed suit for permanent injunction and then filed the instant suit for specific performance of the agreement without even disclosing factum of appeal pending in State Commission. The plaintiff also could not have pursued two remedies simultaneously i.e. appeal in the State Commission and Civil Suit in the Civil Court. Thus, the condition of prosecuting the earlier proceeding in good faith, as stipulated in Section 14 (1) of the Act, is also not satisfied by the plaintiff. For this reason also, the plaintiff is not entitled to benefit of the said provision. 12. For the reasons aforesaid, I find that the suit filed by the plaintiff is not within limitation. Benefit of Section 14 (1) of the Act is not available to him, for the reasons noticed herein before. For this reason also, the plaintiff is not entitled to benefit of the said provision. 12. For the reasons aforesaid, I find that the suit filed by the plaintiff is not within limitation. Benefit of Section 14 (1) of the Act is not available to him, for the reasons noticed herein before. Section 5 of the Act for condonation of delay is not applicable in the case of delay in filing the suit. Consequently, the suit is time barred. Impugned order of the trial court is, therefore, perverse and illegal and suffers from jurisdictional error. 13. Accordingly, the instant revision petition is allowed. Impugned order dated 09.11.2010 passed by the trial court is set aside. Application (Annexure P-3) moved by respondent no.1-plaintiff is dismissed and accordingly, plaint instituted by the plaintiff is rejected as the suit is time barred.