IMPORTANT POINT
On the facts found that trial Court and first appellate Court rightly held that plaintiffs are not entitled to exclusion of period from 21.3.1960 to 15.2.1982 under Section 14 of the Limitation Act, 1963 for computation of limitation to file the suit for same relief and High Court reversed the concurrent finding of facts with a general observation which is clearly unsustainable.

Headnote:Limitation Act, 1963-Section 14 -Exclusion of time of proceedings bona fide in Court without jurisdiction -Civil Procedure Code, 1908-Order 23 Rules 1 and 2(2)-Withdrawal of suit to file another suit-Exclusion of period between 21.3.1980 to 15.2.1982 under Section 14 of Limitation Act-Denied by Courts below but reversed by High Court in second appeal under Section 100 CPC-Whether on facts found the plaintiffs-respondents are entitled to exclusion of time from 21.3.1980 to 15.2.1982 under Section 14 of Limitation Act, 1963? (No)-High Court reversed and Courts below upheld-Appeal allowed with costs-Case law discussed.
Held : The trial court and the first appellate court based their findings on the question of good faith on the evidence led by the parties and the law laid down by this Court in the case of Rabindra Nath Samuel Dawson (supra) in which it was held that a person who has registered the objection regarding non-joinder of parties at the initial stage and also at the revisional stage and taken the risk of proceeding with the suit without impleading the necessary parties cannot be said to have acted in good faith taking due care and attention; consequently, such person will not be entitled to benefit of section 14 of the Act for excluding the time spent by him in that proceeding in a fresh suit. In the present case concededly the objection regarding non impleadment of necessary party was taken in the written statement. Despite such objection the plaintiffs chose to prosecute the suit. Indeed they succeeded in the trial court and the matter was pending before the first appellate court when the petition under Order XXIII seeking withdrawal of the suit with permission to file a fresh suit for the same relief was filed by them. Therefore, the trial court and the first appellate court were right in holding that the plaintiffs were not entitled to exclusion of the period between 21.3.1980 to 15.2.1982 under section 14 of the Limitation Act as claimed and that the suit was barred by limitation. The High Court in the impugned judgment has not discussed the materials on the basis of which the Courts below recorded the finding of fact relating to lack of good faith on the part of the plaintiffs. It has also not discussed the reason for taking a contrary view on that question. The concurrent decisions of the courts below have been reversed with a general observation that on the facts and circumstances of the case the plaintiffs were entitled to exclusion of the period under section 14 of the Limitation Act as claimed. Therefore, the judgment of the High Court is clearly unsustainable. In the result the appeal is allowed with costs. The judgment of the High Court in Second Appeal No. 2040 of 1987 is set aside and the judgment of the Additional District Judge-III in C.A. No. 3713/1986 confirming the judgment of the trial court in Civil Suit No.115/82 is restored. Hearing fee is assessed at Rs.10,000/-. (Paras 18 and 19)

Judgement Key Points

Key Points: - The trial court and first appellate court held that the plaintiffs were not entitled to exclusion of time under Section 14 for 1980-1982; High Court reversed (unsustainably) in second appeal. (!) - The case discusses withdrawal of a suit under Order XXIII Rule 1 with permission to file a fresh suit and the effect on limitation under Section 14(3). (!) (!) - Section 14(1) provides exclusion of time for proceedings prosecuted with due diligence and in good faith in a court lacking jurisdiction. (!) (!) - The "good faith" requirement is a finding of fact and relates to exercising due care and attention; failure to implead necessary parties can negate good faith. (!) (!) - The conditions for applicability of Section 14 (3) include same party, same matter, prior proceeding with due diligence and good faith, and the earlier and later proceedings in a court. (!) (!) - The "defect of jurisdiction or other cause of like nature" must be such that the court is unable to entertain the prior proceeding. (!) - The appellant’s contention that withdrawal with permission to file a fresh suit can extend limitation under Section 14(3) was considered and contrasted with Rabindra Nath Samuel Dawson’s principle. (!) (!) - The High Court’s reversal of concurrent factual findings is noted as unsustainable in this judgment. (!) (!) - The final outcome: appeal allowed with costs; lower judgments set aside and fresh suit decreed. (!)

What is the correctness of excluding the period from 21.3.1980 to 15.2.1982 under Section 14 of the Limitation Act, 1963?

How to determine whether the prior proceedings were prosecuted with due diligence and in good faith for application of Section 14?

What are the conditions under which Section 14, including its sub-sections (1) and (3), applies to a fresh suit filed after withdrawal with permission to file a new suit?

JUDGMENT

D.P. Mohapatra, J.-This appeal filed by the defendant is directed against the judgment dated 3.2.1992 of the High Court of Punjab and Haryana in Regular Second Appeal No. 2040 of 1987 allowing the appeal filed by the plaintiffs who are respondents herein on reversing judgment of the first appellate court confirming the decision of the trial court.

2. On analysis of the case of the parties and findings recorded by the Courts below the question that arises for determination is whether on the facts found the plaintiffs are entitled to exclusion of the period from 21.3.1980 to 15.2.1982 under Section 14 of the Limitation Act, 1963 for computation of the period of limitation for filing the suit. The facts relevant for determination of the question, sans unnecessary details may be stated thus:

3. The appellant Deena (deceased represented by legal heirs) had mortgaged his land measuring 9 bighas 18 biswas (after consolidation 47 kanals 13 marlas) in Khewat No. 39 Khasra No. 34 situated in the village Manakwas, Tehsil Jhajjar in the State of Haryana, for Rs. 2,500/- with possession, on 7.2.1947 with plaintiff no. 2 and father of plaintiff nos. 15 to 19 and Khubi Ram @ Khushi Ram who is the predecessor in interest of plaintiffs 2 to 14. On 23.6.1978 Deena had filed an application for redemption of the land before Collector, Jhajjar which was accepted on 29.2.1980 and the land was ordered to be redeemed on payment of the mortgage money Rs.2,500/-. The plaintiffs filed a suit in the Court of the Sub-Judge Jhajjar titled Harkishan vs. Deena seeking a declaration that they had become owners of the property and that the order of the Collector dated 29.2.1980 was null and void. The said suit was decreed by the trial court and the decree was challenged in appeal by the defendant. During pendency of the appeal in the Court of the District Judge, Rohtak the plaintiffs withdrew the suit with permission to file fresh suit. Thereafter the present suit, Civil Suit No. 115/82 was filed on 24.2.1982 seeking a declaration that the plaintiffs were owners of the suit property and that the order passed by the Collector was void and inoperative and did not affect their rights. In his written statement the defendant took the plea, inter alia, that the suit was barred by limitation.

4. The trial court framed 8 issues of which issue No. 3 was whether the suit was barred by time and issue no. 7 was whether the plaintiffs were entitled for exclusion of time during the period from 21.3.80 to 24.2.1982, if so, to what effect ?

5. In support of their claim of exclusion of the period the case of the plaintiffs was that they were prosecuting the previous suit in good faith which was permitted by the court to be withdrawn with leave to file fresh suit on the same cause of action; therefore, they were entitled to exclusion of the period from 21.3.80 to 15.2.1982 under the provisions of section 14 of the Limitation Act and considered on that basis the suit is not barred by limitation.

6. The case of the defendant on the other hand was that the plaintiffs cannot claim to have prosecuted the previous suit in good faith since in the written statement itself it was specifically stated that the suit was bad for non-joinder of necessary party, Smt. Ghogri who had been impleaded in the proceeding before the Collector as one of the mortgagors. The plaintiffs being aware of the objection had pursued the matter. The suit was decreed by the trial court. The defendant had challenged the judgment in appeal. During pendency of the appeal on the prayer of the plaintiffs seeking leave to withdraw the suit with permission to file fresh suit the court granted the prayer and the suit was withdrawn. In the circumstances the defendant contended the exclusion of the period sought under section 14 of the Limitation Act could not be granted.

7. The trial court answered the issues 3 and 7 in favour of the defendant holding inter alia that the plaintiffs did not pursue the proceedi

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2002 Supreme(SC) 724

What is the correctness of excluding the period from 21.3.1980 to 15.2.1982 under Section 14 of the Limitation Act, 1963?

How to determine whether the prior proceedings were prosecuted with due diligence and in good faith for application of Section 14?

What are the conditions under which Section 14, including its sub-sections (1) and (3), applies to a fresh suit filed after withdrawal with permission to file a new suit?

Cases Referred (2)