Judgment Z.A. Haq, J. 1. Heard Shri P.Y. Deshpande, the learned advocate for the petitioner and Shri J.J. Chandurkar, the learned advocate for the respondent No. 1. None appears for the other respondents though served. The petition is by the tenant challenging the judgment passed by the District Court granting decree for possession and ancillary reliefs in favour of the respondents. 2. Though it is debatable as to whether the impugned judgment and decree can be challenged in revision or in writ petition, as the writ petition is admitted and is pending for final hearing since 2005, I have taken up the petition for final hearing without delving into the issue. 3. Shri Ramratan Shrivallabh Chandak the owner of the suit property had filed proceedings under clause 13(3)(vii) of the C.P. and Berar Letting of Premises and Rent Control Order, 1949 (for short "Rent Control order 1949") seeking permission of the Rent Controller to issue notice terminating the tenancy of the petitioner-tenant. The Rent Controller granted permission to Shri Ramratan to terminate the tenancy of the petitioner-tenant under clause 13(3)(vii) of the Rent Control Order, 1949. The permission granted by the Rent Controller was confirmed in the appeal and it became final. Shri Ramratan issued the notice dated 19th June, 1974 terminating the tenancy of the petitioner-tenant from 31st July, 1974. The petitioner having not complied with the requirements of the notice and having not vacated the suit premises, Shri Ramratan filed the Regular Civil Suit No. 666/1974 in October, 1974. During the pendency of the civil suit, the suit property was transferred to Takhatmal Shrivallabh Charitable Trust by the registered settlement deed dated 24th September, 1976. 4. In the civil suit the petitioner-tenant raised the defence that Shri Ramratan/plaintiff in the civil suit had transferred the ownership of the suit house to Takhatmal Shrivallabh Charitable Trust and, therefore, the cause of action did not subsist in favour of Shri Ramratan. The learned trial Judge framed the issue "1(b) whether the plaintiff has subsisting cause of action against the defendant?" The learned trial Judge by the judgment dated 8th May, 1981 dismissed the civil suit on the ground that the plaintiff did not have cause of action in his favour. 5. Shri Ramratan challenged the judgment and decree passed by the trial Court by filing the appeal. 5. Shri Ramratan challenged the judgment and decree passed by the trial Court by filing the appeal. In the appeal an application was filed for impleading Takhatmal Shrivallabh Charitable Trust as the appellant which came to be allowed. The petitioner-tenant had raised the objection that Takhatmal Shrivallabh Charitable Trust being a public trust, all the trustees are necessary parties. Takhatmal Shrivallabh Charitable Trust filed an application (Exh. 31) seeking permission to withdraw the civil suit with liberty to file fresh civil suit. The learned District Judge by the order dated 30th July, 1985 allowed the application and granted permission to Takhatmal Shrivallabh Charitable Trust to withdraw the civil suit and granted liberty to file fresh suit, however, the permission was granted subject to payment of the costs to the petitioner-tenant. 6. Takhatmal Shrivallabh Charitable Trust filed the Small Cause Suit No. 86/1987 praying for the decree for possession and other reliefs. This small cause suit was filed with averment that the cause of action had arisen on 31st July, 1974 when the tenancy of the petitioner-tenant stood terminated. The petitioner-tenant opposed the claim of the plaintiff Takhatmal Shrivallabh Charitable Trust. 7. The learned trial Judge by the judgment dated 30th September, 1992 concluded that the small cause civil suit was barred by limitation and the notice terminating the tenancy of the petitioner-tenant was not legal. The learned trial Judge dismissed the civil suit. 8. Takhatmal Shrivallabh Charitable Trust being aggrieved by the judgment and decree passed by the trial Court had filed the appeal before the District Court. The learned District Judge by the impugned judgment has held that the notice terminating the tenancy of the petitioner-tenant is legal, that the small cause civil suit is filed within limitation and that the respondent landlord is entitled for possession. The learned District Judge granted the decree accordingly. 9. The petitioner-tenant being aggrieved by the judgment and decree passed by the District Court has filed this writ petition. 10. Shri P.Y. Deshpande, the learned advocate for the petitioner-tenant has challenged the judgment and decree passed by the District Court on following four grounds:-- (i) That the notice terminating the tenancy of the petitioner was issued by Shri Ramratan Shrivallabh Chandak and not by the present respondent and, therefore, it was not legal and could not have the effect of terminating the tenancy of the petitioner-tenant. It is further submitted that the copy of the termination notice was not filed before the trial Court in the small cause civil suit and it was filed before the District Court and therefore, the decree could not have been granted on the basis of the termination notice which was neither produced nor proved before the trial Court. (ii) That the permission to withdraw the civil suit with liberty to file the fresh suit was granted by the District Court in the earlier round of proceedings subject to payment of costs by the respondent landlord to the petitioner, however, the respondent has not paid the costs and, therefore, the liberty granted could not have been availed by the respondent. (iii) The permission under clause 13(3)(vii) of the Rent Control Order, 1949 was granted in favour of Ramratan and the respondent landlord could not have availed it to evict the petitioner-tenant inasmuch as the permission granted under clause 13(3)(vii) of the Rent Control Order, 1949 is on the basis of the desire of the landlord to effect the repairs. It is submitted that in the absence of any material on the record to show that the respondent desired to effect the repairs to the suit property, the civil suit could not have been filed by the respondent on the basis of the permission granted under clause 13(3)(vii) of the Rent Control Order, 1949 in favour of landlord Shri Ramratan. (iv) The small cause civil suit is filed in 1987 on the basis of cause of action which according to the respondent had arisen on 31st July, 1974. It is submitted that the small cause civil suit is admittedly, filed after more than 12 years of arising of the cause of action and, therefore, the suit was barred by limitation as provided by Article 67 of the Limitation Act. It is submitted that the respondent tried to avail the benefit of section 14 of the Limitation Act at the time of arguments, however, the respondent has neither filed any application nor there are pleadings in the plaint to explain that the respondent is entitled for the exclusion of the period for which the earlier civil suit and appeal were prosecuted. 11. 11. In support of his submissions Shri Deshpande, the learned advocate has relied on the following judgments:-- (i) Judgment given by the Hon'ble Supreme Court in the case of Ketan V. Parekh vs. Special Director, Directorate of Enforcement and Anr., reported at AIR 2012 SC 683 and (ii) Judgment given by the Hon'ble Supreme Court in the case of Deena (dead) through L.Rs. vs. Bharat Singh (dead) through L.Rs. and others, reported at AIR 2002 SC 2768 . 12. Shri Chandurkar, the learned advocate for the respondent has submitted that the learned District Judge by the order dated 30th July, 1985 had granted liberty to the respondent to file fresh suit and accordingly the small cause civil suit is filed in 1987 i.e. within 1 and 1/2 years of the grant of permission to file the civil suit and, therefore, it cannot be said that the small cause civil suit was barred by limitation. The learned advocate has submitted that the earlier civil suit filed by Shri Ramratan was not dismissed on the ground that the Court had no jurisdiction to entertain and decide the civil suit. The learned advocate has submitted that the defence of the petitioner was that Shri Ramratan had no cause of action in his favour and the suit was dismissed by the trial Court on that ground and therefore, after seeking the permission to withdraw the civil suit with liberty to file fresh suit, when the small cause suit was filed by the respondent, the period consumed in prosecuting the earlier civil suit and the appeal was required to be exempted and the learned District Judge has rightly granted that benefit. It is submitted that the judgment and decree passed by the District Court is based on proper appreciation of the facts and the law and it does not require any interference. 13. After considering the submissions made by the learned advocates for the respective parties, though several challenges are raised by the petitioner, in my view, the petition is required to be allowed on the ground that the small cause civil suit filed by the respondent was barred by limitation and the benefit of section 14 of the Limitation Act could not have been extended to the respondent. Article 67 of the Limitation Act prescribes limitation of 12 years for filing the civil suit to recover the possession from the date of termination of the tenancy. It is undisputed that the small cause civil suit was filed by the respondent after the period of 12 years of arising of the cause of action. It is undisputed that the respondent has not filed any application praying for exclusion of the time consumed by it in prosecuting the Regular Civil Suit No. 666/1974 and the Regular Civil Appeal No. 142/1981. The learned advocate for the respondent has not been able to point out any pleadings from the plaint or from any document on the record to show that the respondent has justified the delay in filing the small cause civil suit and explaining that the respondent was prosecuting the Regular Civil Suit No. 666/1974 and the Regular Civil Appeal No. 142/1981 diligently. In fact, the respondent was not plaintiff in the Regular Civil Suit No. 666/1974 and it got itself impleaded as the appellant in Regular Civil Appeal No. 142/1981. In the absence of any pleadings of the respondent showing that he was prosecuting the earlier proceedings with due diligence, the respondent could not have been given the benefit of section 14 of the Limitation Act. The Hon'ble Supreme Court in the judgment given in the case of Deena (dead) through L.Rs. vs. Bharat Singh (dead) through L.Rs. and others, reported at AIR 2002 SC 2768 in paragraph No. 16 has laid down as follows: "16. 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 O. 23, R. 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 section14 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." 14. Shri Deshpande, the learned advocate for the petitioner has submitted that the earlier civil suit was dismissed on merits and not on any technical grounds and, therefore, the benefit of section 14 of the Limitation Act cannot be given to the respondent. Moreover, the learned District Judge could not have granted the benefit of section 14 of the Limitation Act to the respondent without there being any application and without there being any pleadings in that regards. The grant of benefit of section 14 of the Limitation Act cannot be said to be a mechanical act of the Court but whether the plaintiff was prosecuting the earlier proceedings with "due diligence" and in good faith is required to be adjudicated and it can be done only after giving an opportunity to the defendant to point out that the plaintiff is entitled for the benefit of section 14 of the Limitation Act. The learned District Judge has committed an error in granting benefit of section 14 of the Limitation Act to the respondent without there being any application or pleadings on the record to substantiate that the respondent was prosecuting the earlier proceedings with due diligence and in good faith. In view of the above, the judgment and decree passed by the District Court is unsustainable. The judgment and decree passed in Regular Civil Appeal No. 244/1992 on 26th September, 2005 is set aside and the Small Cause Civil Suit No. 86/1987 filed by the respondent is dismissed. In the circumstances, the parties to bear their own costs. As the writ petition is allowed on the point of limitation, I have not dealt with other challenges raised in the petition.