2006 Supreme(Bom) 80

IN THE HIGH COURT OF BOMBAY
FORESHORE CO-OPERATIVE HOUSING SOCIETY LTD.
Versus
PRAVEEN DESAI
Decided On : JANUARY 20, 2006

Headnote:Limitation Act (36 of 1963) - Sections 14 and 2(h) - For claiming the benefits of provisions of Section 14, the plaintiffs have to establish by leading evidence that firstly the earlier proceedings were instituted by them in good faith and thereafter were being prosecuted in good faith - Plaintiffs failing to establish that they are entitled to claim benefits of Section 14 - Suit filed by them would be barred by limitation. - Perusal of the provisions of Section 14 of the Limitation Act shows that the plaintiff has to establish that he was prosecuting the earlier civil proceedings in good faith. When one says that he was prosecuting the proceedings in good faith, it implies that he also claims that he instituted the proceedings in that Court in good faith. Therefore for claiming the benefits of the provisions of Section 14, the plaintiffs have to establish by leading evidence that firstly the proceedings were instituted by them in good faith and thereafter were being prosecuted in good faith. Therefore, in order to establish that the plaintiffs instituted the suit in City Civil Court in good faith, the plaintiffs will have to establish by leading evidence that they instituted the suit in City Civil Court after due care and paying due attention. The contention raised on behalf of the plaintiffs that for the purpose of claiming benefits of Section 14 of the Limitation Act, all that the plaintiffs have to show that they were prosecuting the proceedings in good faith and it is not necessary for the plaintiffs to show that they had instituted the proceedings in good faith, has no substance. The conduct of the plaintiffs shows that the plaintiffs do not deserve any leniency from the Court. Though the plaintiffs needed benefit of Section 14 of the Limitation Act to bring his suit within limitation there were no pleadings found in the plaint. Even after reply was filed in the notice of motion and an objection was raised that the suit is barred by the law of limitation, still no attempt was made to amend the plaint. Application for amendment in the plaint was made not only after the preliminary issue was framed, but after the Court started hearing the parties on the preliminary issue. Ultimately, the Court granted the amendments. But even in the amended plaint, though claim was made that in the City Civil Court suit was prosecuted in good faith, no particulars were given. It is clear that the plaintiffs have not been able to establish that they are entitled to claim benefits of Section 14 of the Limitation Act. It is the case of the plaintiffs also that the matter in issue in both suits is the same and therefore obviously the cause of action for instituting the present suit arose in 1994 and as the plaintiffs are not entitled to claim benefits of Section 14 of the Limitation Act, the suit is barred by the law of limitation. AIR 1973 P&H 269; (2002) 6 SCC 336; AIR 1958 SC 767 - Referred.

       Civil Procedure Code, 1908 - Section 9-A Limitation Act, 1963, Section 14 Scope and applicability of Section 14 of Limitation Act Plaint returned by a Court having no jurisdiction to entertain suit Presentation again shall be treated as fresh suit Earlier suit not continued Section 14(1) of Limitation Act applicable when suit filed after limitation period. Perusal of provision s of Sub-section (1) of Section 14 quoted above shows that the requirement of Section 14 are that the previous legal proceeding (i) must be prosecuted with due diligence in the Court of first instance or of appeal or revision; (ii) should relate to the same matter in issue; (iii) should be against the same Defendant; (iv) should be prosecuted in good faith in a Court which is unable to entertain it due to want of jurisdiction or other causes of like nature.

       In so far as the present suit is concerned, I have already held that the matter in issue in two suits is the same. The only question, therefore, that is to be considered is whether the city civil Court suit was prosecuted with due diligence and in good faith. Order VII Rule 6 of Civil Procedure Code provides that where a suit is instituted after the period of limitation, the plaint must show that grounds upon which the exemption from such law is claimed. Admittedly, when the present suit was filed the Plaintiffs did not plead any ground claiming exemption of any period in computing the period of limitation laid down by the law of limitation. As observed above, after the preliminary issue was framed the plaint was amended and alongwith other paragraph, paragraph 31(c) was introduced.

       The said suit was prosecuted with due diligence and in good faith by the Plaintiffs. All the Defendants therein are also the Defendants in the present suit. The matters in issue in both suits are the same. In the abovementioned circumstances it is submitted that even if April, 1994 is to be taken as the date when the Plaintiffs cause of action to file a suit against the Defendants arose the time spent in prosecuting Suit No. 6734 in the Hon’ble City Civil Court i.e., from 8th November to 16th is required to be excluded and the present suit is accordingly filed within the period of limitation.