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2012 DIGILAW 481 (GUJ)

JAYANTILAL & COMPANY v. GANDAJI KUBERJI THAKOR

2012-06-27

M.R.SHAH

body2012
JUDGMENT 1.00. Present Civil Application under section 5 of the Limitation Act has been preferred by the applicant herein – original petitioner in the main Civil Revision Application, to condone the delay of 1165 days caused in preferring the Civil Revision Application challenging the Judgment and Order passed by the learned Small Causes Court at Ahmedabad in PSRP Suit No.16 of 2006 dtd.13/5/2008. 2.00. Facts leading to the present Civil Application in nutshell, are as under :- 2.01. That the applicant herein instituted / filed one PSRP No.16 of 2006 against the respondents herein for recovery of possession of the suit property under section 41 of the Presidency Small Causes Court Act contending inter-alia that the original respondents – Gandaji Kuberji Thakore was licensee and after the license was terminated, and/or expiry of the license, he has no right to continue with the possession. 2.02. It appears that simultaneously the respondents – Gandaji Kuberji Thakore also preferred HRP Suit No.1604 of 2006 before the learned Small Causes Court at Ahmedabad against the applicant herein and one another alleging inter-alia that he is the tenant of the suit premises and they were trying to disturb the possession of the plaintiff and therefore, he instituted the aforesaid suit for permanent injunction. That the learned Small Causes Court at Ahmedabad heard, decided and disposed of the PSRP No.16 of 2006 preferred by the applicant herein as well as HRP Suit instituted by Gandaji Kuberji Thakore – predecessor of the respondents herein, as the dispute in the aforesaid proceedings was with respect to the same property. 2.03. That the learned Small Causes Court at Ahmedabad dismissed both, HRP Suit No.1604 of 2006 as well as PSRP No.16 of 2006 preferred by the applicant herein, by observing that the applicant herein – original plaintiff has failed to prove that the respondents Gandabhai was licensee and therefore, the Small Causes Court has no jurisdiction to entertain and/or to pass any order in the said PSRP No.16 of 2006 under the provisions of the Presidency Small Causes Court Act. 2.04. It appears that as such the applicant herein accepted the said Judgment and Order passed by the learned Small Causes Court at Ahmedabad in PSRP No.16 of 2006. 2.04. It appears that as such the applicant herein accepted the said Judgment and Order passed by the learned Small Causes Court at Ahmedabad in PSRP No.16 of 2006. It appears that accepting the finding given by the learned Small Causes Court at Ahmedabad in PSRP No.16 of 2006 holding that the respondents herein is not licensee of the suit premises, applicant herein subsequently preferred Civil Suit No.2478 of 2008 before the City Civil Court at Ahmedabad for recovery of possession of the suit property alleging that the respondents herein - heirs and legal representatives of Gagaji Kuberji Thakore are trespassers. That the learned City Civil Court by judgment and decree dtd.18/8/2011 has dismissed the said suit by holding that the City Civil Court had no jurisdiction to try the suit by further holding that the plaintiff has failed to prove that he is entitled to have peaceful and vacant possession of the suit premises and that the license given to the father of the defendants has been cancelled by notice dtd.13/9/2008. 2.05. It appears that Being aggrieved by and dissatisfied with the judgment and decree passed by the learned City Civil Court at Ahmedabad dtd. 18/8/2011 passed in Civil Suit No.2468 of 2008, applicant herein – original plaintiff has preferred First Appeal before this Court which is pending for final disposal. That thereafter the applicant herein has preferred present Civil Revision Application to quash and set aside the Judgment and Order passed by the learned Small Causes Court at Ahmedabad in PSRP No.16 of 2006 by which the learned Small Causes Court dismissed the said application / HRP by holding that the applicant herein – original plaintiff has failed to prove that the original respondent – father of the respondent herein was licensee and thereby Small Causes Court had no jurisdiction to grant relief under section 41 of the Act. 2.06. As there is delay caused in preferring the Civil Revision Application, applicant herein has preferred the present application under section 5 of the Limitation Act to condone the delay claiming exclusion of time consumed in prosecuting other proceedings being Civil Suit No.2478 of 2008 before the City Civil Court at Ahmedabad. 2.07. Relying upon sub-section (2) of section 14 of the Limitation Act, it is submitted by Mr. 2.07. Relying upon sub-section (2) of section 14 of the Limitation Act, it is submitted by Mr. Kavina, learned counsel appearing on behalf of the applicant that the Civil Suit No.2478 of 2008 instituted by the applicant herein came to be dismissed on the ground that the same is barred by res-judicata in view of earlier decision of the Small Causes Court at Ahmedabad in PSRP No.16 of 2006 and consequently dismissing the suit by holding that the Civil Court has no jurisdiction and therefore, time taken by the applicant herein in prosecuting the said proceedings being Civil Suit No.2478 of 2008 is to be excluded while computing the period of limitation in preferring the present Civil Revision Application. 3.00. Present application is opposed by Mr. Mehul S. Shah, learned advocate appearing on behalf of the respondent No.1. It is submitted by Mr. Shah, learned advocate appearing on behalf of the contesting respondent No.1 that as such against the judgment and decree passed by the learned City Civil Court in dismissing Civil Suit No.2468 of 2008, the applicant herein has already preferred First Appeal before this Hon'ble Court which is pending and therefore, as such the finding given by the learned City Civil Court that the City Civil Court has jurisdiction or not, is at large before this Court. It is submitted that unless and until the applicant accepts that the City Civil Court had no jurisdiction and he had instituted Civil Suit No.2468 of 2008 before the wrong forum i.e. City Civil Court, under mistaken belief and/or bonafide mistake, he cannot get benefit of exclusion of time consumed before the learned City Civil Court, as provided under sub-section (2) of section 14 of the Limitation Act. It is submitted that as such the applicant cannot be permitted to ride on two horses. Therefore, it is submitted that as such the applicant has to exercise the choice and declare whether he still wants to prosecute the First Appeal and contend that the City Civil Court would have jurisdiction to entertain the Civil Suit No.2468 of 2008. 5.00. In view of the above, Mr. Therefore, it is submitted that as such the applicant has to exercise the choice and declare whether he still wants to prosecute the First Appeal and contend that the City Civil Court would have jurisdiction to entertain the Civil Suit No.2468 of 2008. 5.00. In view of the above, Mr. Kavina, learned counsel appearing on behalf of the applicant was called upon to exercise the option / choice and declare whether he accepts the finding given by the City Civil Court in Civil Suit No.2468 of 2008 holding that the City Civil Court has no jurisdiction to entertain the said suit and whether he would like to prosecute the First Appeal preferred against the judgment and decree passed by the learned City Civil Court in Civil Suit No.2468 of 2008, pending before this High Court, or not, and in reply to the same, Mr. Kavina, learned counsel appearing on behalf of the applicant has stated at the bar that he would like to continue with / prosecute both the First Appeal which has been preferred against the judgment and decree passed by the learned City Civil Court in Civil Suit No.2468 of 2008, pending before this High Court as well as present application to condone the delay and pray for exclusion of the time taken by it in prosecuting the aforesaid Civil Suit No.2468 of 2008. 5.01. In view of the above, this Court is required to consider the prayer of the applicant for exclusion of the time while considering the period of limitation as provided under sub-section (2) of section 14 of the Limitation Act i.e. the period under which the applicant was prosecuting Civil Suit No. 2468 of 2008 before the learned City Civil Court or not is required to be excluded or not? 5.02. Heard the learned advocates appearing on behalf of the respective parties at length. 5.03. By way of present application under section 5 of the Limitation Act, the applicant has prayed to condone the delay of 1165 days by praying exclusion of the time taken by it while it was prosecuting Civil Suit No.2468 of 2008 before the City Civil Court at Ahmedabad, which came to be dismissed by the City Civil Court at Ahmedabad on the ground that the City Civil Court has no jurisdiction to entertain the said suit. As stated hereinabove, the applicant has preferred First Appeal before this Court challenging the judgment and decree passed by the learned City Civil Court at Ahmedabad in Civil Suit No.2468 of 2008 in dismissing the said suit on the ground that the City Civil Court has no jurisdiction. Therefore, the question as to whether the City Civil Court has jurisdiction to entertain the aforesaid suit or not, is still at large before this High Court in the pending First Appeal and the applicant has not accepted the finding given by the learned City Civil Court that the learned City Civil Court had no jurisdiction to entertain the Civil Suit No.2468 of 2008. 5.04. It is true that as per sub-section (2) of section 14 of the Limitation Act, in computing the period of limitation in preferring any application, time during which the applicant has been prosecuting with diligence another civil proceedings whether in a court of first instance or of appeal or revision, against the same party for the same relief, is required to be excluded where such proceeding is prosecuted in good faith in a court which, from defect or jurisdiction or other cause of a like nature, is unable to entertain it. However, while praying for the exclusion of time during which the applicant was prosecuting civil proceedings which has not been entertained, due to defect of the jurisdiction or other cause of like nature, applicant has to accept that the another court before whom it was prosecuting another proceeding, had no jurisdiction to entertain it. Unless and until, he accepts that the court before whom he was prosecuting another civil proceeding against the same party and for the same relief, was lacking jurisdiction and such other court had no jurisdiction to entertain such civil proceedings, the applicant cannot be permitted to pray for exclusion of the time taken by him in prosecuting another civil proceedings before another court as provided under sub-section (2) of section 14 the Limitation Act. 5.05. 5.05. In the present case, on the one hand, the applicant still wants to contend in First Appeal before this High Court that the City Civil Court which has dismissed the Civil Suit No.2468 of 2008 on the ground that it has no jurisdiction, had jurisdiction to entertain the said suit and the judgment and decree passed by the learned City Civil Court in the aforesaid Civil Suit No.2468 of 2008 in dismissing the said suit holding that the City Civil Court has no jurisdiction, is erroneous. The applicant cannot be permitted to get benefit of sub-section (2) of section 14 of the Limitation Act, unless he accepts that he was prosecuting the another proceeding i.e. Civil Suit No.2468 of 2008 before the City Civil Court with due diligence and in good faith in a court which, from defect of jurisdiction or other cause of a like nature, was unable to entertain it. As rightly submitted by Mr. Shah, learned advocate appearing on behalf of the contesting respondent, the applicant cannot be permitted to ride on two horses. 5.06. Under the circumstances, in computing the period of limitation, time taken by the applicant while prosecuting Civil Suit No.2468 of 2008 before the City Civil Court at Ahmedabad, cannot be excluded as per sub-section (2) of section 14 of the Limitation Act, as prayed for. 6.00. In view of the above, present application to condone the huge delay of 1165 days on the ground of exclusion of the time taken by the applicant in prosecuting Civil Suit No.2468 of 2008 before the learned City Civil Court at Ahmedabad, cannot be granted and the same deserves to be dismissed and is accordingly dismissed. Notice is discharged. In the facts and circumstances of the case, there shall be no order as to costs.