Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 1860 (RAJ)

Ram Kumar v. Jaiprakash

2016-12-20

SANJEEV PRAKASH SHARMA

body2016
JUDGMENT : Sanjeev Prakash Sharma, J. 1. Heard learned counsels for both the parties. 2. The petitioner has by way of this Revision petition challenged order dated 23.07.2016 passed by the Additional District Judge No. 1, Sriganganagar in CO Case No. 28/2015 whereby application under section 14 of the Limitation Act 1963 was allowed of the plaintiff. 3. Facts of the case in short are that the plaintiff had earlier filed a suit before revenue court of SDO, Sriganganagar bearing No. 02/1988 under section 88 of the Rajasthan Tenancy Act. After the notices were served upon defendants, somewhere in 2005 the petitioner filed an application under Order 7 rule 11 CPC and raised objection that the revenue court did not have jurisdiction to decide matter relating to adoption deed and Will which have been executed in favour of the petitioner. The revenue court dated 25.06.2012 allowed the application under Order 7 rule 11 CPC and held that the revenue court does not have jurisdiction to decide the registered adoption deed and Will put as defence by the petitioner. At the same time, it was also mentioned that the same can only be challenged in a civil court. 4. It appears that the petitioner challenged said order before the Revenue Appellate Authority, who rejected the appeal and thereafter the plaintiff-respondent filed the suit before competent civil court i.e. the Additional District Judge No. 1, Sri Ganganagar praying therein to set aside the registered adoption deed and the Will executed in favour of the petitioner as well as to declare the petitioner as adopted son of deceased Sohan Lal. The respondent-plaintiff also moved an application under section 14 of the Act of 1963 for condonation of delay, stating therein that he had bonafidely pursuing the case before revenue court and since the revenue court ousted him on the ground of jurisdiction, the delay should be condoned. The petitioner contested the application, however, vide order dated 23.06.2016 the court below has allowed the application under section 14 of the Limitation Act. 5. The petitioner contested the application, however, vide order dated 23.06.2016 the court below has allowed the application under section 14 of the Limitation Act. 5. The main contention of the petitioner is that in the revenue suit filed by the respondent, he had nowhere set up a case on the basis of registered adoption deed or Will and even in the proceedings under Order 7 rule 11 CPC, there was a specific reply of the respondent that he was not challenging the adoption deed as well as the Will. In the circumstances, it was not open for the trial court to have allowed the application under section 14 of the Act of 1963. 6. Secondly, the petitioner has also contended that as respondent's bona fides are not clear and he had even filed an appeal against said order, there was no occasion to file suit after such long delay as it was in his knowledge about the registered adoption deed and the Will executed in his favour, which had been taken up by the petitioner as part of his reply. In view thereof, the application under section 14 of Limitation Act was wholly misconceived and the same could not have been allowed by the learned court below. 7. Third contention which the petitioner has raised before this Court is that the issue relating to limitation and delay in filing of the suit is mixed question of law and facts and the same requires to be examined by framing an issue and leading evidence in support of against thereto. Since such a course has not been adopted by the court below, the order dated 23.07.2016 is vitiated and the same is liable to be set aside. 8. In support of his contentions, the counsel has relied on AIR 1972 SC 730 Rabindra Nath Samuel Dawson v. Sivakami & others, wherein it has been held: "4. After the suit was dismissed the plaintiff gave a suit notice to the Government under Section 80 of the CPC and thereafter filed a suit in the Court of the Principal Subordinate Judge, Nagarcoil, of a similar nature as that earlier filed in the Distt. Munsif's Court. During the pendency of the suit the plaintiff died and plaintiffs 2-6 were impleaded as his legal representatives who are the appellants in this case. Munsif's Court. During the pendency of the suit the plaintiff died and plaintiffs 2-6 were impleaded as his legal representatives who are the appellants in this case. Defendants 1-5 as also the State of Madras, the 7th defendant, apart from raising the various defences, contended that the suit was barred by limitation in respect of which an issue was raised. The Subordinate Judge held on this issue that the suit which was filed on 26-3-1957, though filed long after the expiry of 12 years from the dates of next revenue sales, nonetheless, was not barred because the plaintiff would be entitled to exclude under Section 14 the time spent in prosecuting the earlier suit in computing the period of limitation and after this period was excluded the suit would be in time. Some of the other issues were also decided in favour of the plaintiff. Consequently the Subordinate Judge decreed the suit with past and future mesne profits. In appeal the High Court of Madras, as stated earlier, came to a different conclusion on the question of limitation. It held, agreeing with the findings of the Subordinate Judge, that the auction purchasers in revenue sales never took possession nor were their alienees or plaintiff ever in possession of the suit properties. After this finding the High Court proceeded to consider whether the appellant was entitled to exclude the time taken in the prosecution of the previous suit Under Section 14 of the Limitation Act. It was contended before that court that the plaintiff was bonafide in filing his suit & prosecuting it and the appeal, & therefore, he was entitled to exclude that period under Section 14 of the Limitation Act. This contention was negatived with these observations : - "From what we have stated above, it will be plain that the appellant took objection to the non-impleading of the Government as a party at the earliest possible opportunity. The respondents would not take note of that objection. They persisted in their attitude till ultimately the High Court of Travancore-Cochin held that the suit will have to fail for the non-impleading of the necessary party. A request was made to the High Court to permit the respondents herein to remedy the defect. The respondents would not take note of that objection. They persisted in their attitude till ultimately the High Court of Travancore-Cochin held that the suit will have to fail for the non-impleading of the necessary party. A request was made to the High Court to permit the respondents herein to remedy the defect. The learned Judges held that they could not accede to that request and that the suit has to be dismissed "as inspite of timely objection raised by the defendant on the ground of non-joinder of parties the plaintiff persisted in proceeding with the suit undertaking to bear the risk of not impleading the sircar." This attitude on the part of the respondents is sufficient to dispose of the question of bonafides against them. Mr. V.V. Raghavan argues that the fact that two Subordinate Courts in the previous litigation had held that there was no need to implead the Government as a party to the suit would itself show that the respondents were acting under bonafide mistake. As we have pointed out earlier the defendants took objection to the non-impleading of the necessary party even at the earliest stage. The matter went up to the Travancore High Court. The respondents did not want the High Court to decide the question as to whether the Government was a necessary party or not on the ground that they were prepared to take the risk of their omission to implead the Sircar and on that ground got a dismissal of the revision petition filed by the appellants. Under these circumstances we cannot accept the contention now urged on behalf of the respondents herein that they bonafide instituted the previous suit." The reasons given by the High Court are in our view cogent. Section 14 of the repealed Limitation Act which is applicable to this case gives benefit to a party who has been prosecuting with due diligence another civil proceeding whether in a court of first instance or in a court of first appeal against the defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which from the defect of jurisdiction or other cause of like nature is unable to entertain it. The appellant's advocate points out that under Section 2(7) nothing shall be deemed to be done in good faith which is not done with due care and attention and that in this case appellant was bonafide in purchasing the suit properties from an auction purchaser who also purchased them in revenue sale bonafide & that without notice to either of them the sale has been set: aside which is totally without jurisdiction & injuriously affects the appellant. That the appellant was caught in this predicament may be unfortunate but in so far as the question whether he bonafide prosecuted earlier suit and appeal there could be no two opinions on the undisputed facts which have been clearly and forcefully stated by the High Court, it is clear that no suit for declaration and possession could have been filed against the defendants in respect of the revenue sales which was set aside without impleading the Government. The objection as to the maintainability of the suit was taken at the very initial stage but that was resisted and the appellant invited a decision by the Distt. Munsif. Even at the stage of revision against that order in the High Court he took the risk of proceeding with the suit. This was, therefore, not a case of prosecuting the previous proceedings bonafide. But on the other hand, he deliberately did so may be for obvious reason that if he had to withdraw the suit he would have to give notice under Section 80, CPC to the Government, wait for the expiry of the period of notice of two months and thereafter file a fresh suit. To avoid this he thought he would take a chance but that chance boomeranged against him. It is not a case where he prosecuted due to ignorance of law or bonafide mistake nor can it be said that he had misconceived the suit. None of the cases cited by the learned Advocate can assist the appellant because in all of them it was either a case of mistake of law on a doubtful point such as in the case of Bishambhur Haldar v. Bonomali Haldar and Ors. ILR 26 Calcutta 414, or ignorance of law." 9. None of the cases cited by the learned Advocate can assist the appellant because in all of them it was either a case of mistake of law on a doubtful point such as in the case of Bishambhur Haldar v. Bonomali Haldar and Ors. ILR 26 Calcutta 414, or ignorance of law." 9. The learned counsel also relied on AIR 1958 SC 767 Madhavrao Narayanrao Patwardhan, State of Bombay v. Ram Krishna Govind Bhanu & others wherein the concerned High Courts have examined issues relating to good faith and bona fide of the applicant to move application under section 14 of the Limitation Act. 10. Another judgment in (2008) 7 SCC 169 Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department & others has been cited to show that the language of section 14 requires that 5 conditions should be available to the court before allowing such application. It was observed: "21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said Section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service: (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and; (5) Both the proceedings are in a court." 11. It is submitted that since these 5 conditions did not coexist, the delay in filing the suit could not have been condoned. 12. Per contra, learned counsel for the respondents has taken this Court to the pleadings in the suit earlier filed before the SDO, the court under revenue law and has pointed out that there was a specific averment made by him that he should be declared as adopted son and it is on the application moved by the petitioner himself that the respondent was ousted from pursuing the case before revenue court. Even the appellate court has upheld said order and in the circumstances, there was no other option or remedy available to him but to file a civil suit which he has done diligently and immediately thereafter moved application under section 14 of the Act of 1963, which has been rightly allowed. 13. In support of his submissions, the counsel has relied on (1996) 6 SCC 100 Rameshwar Lal v. Municipal Council, Tonk & others as well as one recent judgment in (2015) 7 SCC 58 M.P. Steel Corporation v. Commissioner of Central Excise, wherein after taking note of the judgment in Consolidated Engineering Enterprises (supra), the Apex Court has allowed application for the condonation of delay in following terms and in view thereof, the application was rightly allowed: "9. Technically speaking, Shri A.K. Sanghi, may be correct. However, in an application for condonation of delay the appellant pointed out that they were pursuing a remedy before another appellate forum which ought to be excluded. We deem this averment sufficient for the appellant to contend that Section 14 of the Limitation Act or principles laid down under it would be attracted to the facts of this case." 14. Considering the submissions advanced by both sides, I find myself unable to accept the contention of the petitioner with regard to allowing application under section 14 of the Act of 1963 in view of the pronouncement in M.P. Steel Corporation supra as well as in view of the fact that the application of petitioner himself was allowed under Order 7 rule 11 CPC, there was no remedy left for the respondent but to file present suit, which he has diligently done and in view thereof, the application under sec. 14 of the Limitation Act has been rightly allowed by the court below. 15. However, the petitioner has rightly contended that the issue can always be raised by him with regard to delay, for which he has also taken this Court to one judgment passed by this Court in Smt. Shashi Goyal v. Mohal Lal Agarwal (S.B. Civil Revision Petition No. 58/2014 decided on 06.07.2016) wherein it has been held that the contentious issue regarding entitlement for exclusion of the period during which the earlier suit remained pending, is certainly a mixed question of law and facts and can be decided by the court on the basis of evidence. In this regard only the court below can order at the stage of framing of issues. Said liberty is granted to petitioner. 16. With these observations, the Revision petition filed by the petitioner is dismissed.