The main legal point established in the judgment is that for the benefit of Section 14 of the Limitation Act, 1963 to apply, the prior proceeding must have been prosecuted with due diligence and good faith. The Court clarified that the Trial Court erred in not examining this aspect and concluding that the suit was not barred by limitation.

JUDGMENT

Jyoti Singh, J. (Oral)

1. Present petition has been filed by the Petitioners laying a challenge to the impugned order dated 21.10.2019 passed by the Trial Court in Case No. 10505/2016, whereby their application under Order VII Rule 11 CPC has been dismissed. Petitioners are Defendants before the Trial Court and Respondents No. 1 and 2 herein are the Plaintiffs and parties hereinafter are referred to by their litigating status before the Trial Court.

2. At the outset, it needs to be mentioned that while the application was filed by the Defendants raising numerous grounds for rejection of the plaint, learned counsel for the Defendants submits that he would restrict his arguments to the objection relating to the bar of limitation.

3. Plaintiff No. 2 is the real brother of late Sh. Shyam Sunder Goyal and at the time of inception of Plaintiff No. 1 Society in 1986, Plaintiff No. 2 was the President of the Society. As per the Defendants, Plaintiff No. 2 remained as a President for only one year and thereafter the Governing Body of the Society represented by Defendant No. 1 as President of the Society has been managing affairs of the Seth Bhagwan Dass School set up by Plaintiff No. 1. Disputes are stated to have arisen between the parties after the death of late Sh. Shyam Sunder Goyal on 18.12.2011 with respect to the property as well as management of the Society and the School.

4. Plaintiffs earlier filed a suit being Suit No. 500/2014. In the said suit, Ms. Kamlesh Kumari filed an application under Order I Rule 10 CPC for impleadment as a party. Defendant therein filed a written statement taking a plea that the suit was not maintainable as it suffered from the defect of non-joinder of necessary parties. Plaintiff filed an application under Order XXIII Rule 1(3) CPC seeking withdrawal of the suit. Vide order dated 05.04.2016 Trial Court, taking into consideration the nature of suit, defence taken by the Defendant and material on record, dismissed the suit as withdrawn with liberty to the Plaintiffs to file fresh suit as per law, on the same cause of action. In terms of the liberty granted by the Trial Court, the present suit was filed in July, 2016.

5. Written statement was filed by the Defendants upon receipt of summons. Thereafter, an application was filed under Order VII Rule 11 CPC by the Defendants seeking rejection of the plaint on numerous grounds including the bar of limitation, with which this revision petition concerns. Trial Court has dismissed the application rejecting the other grounds raised by the Defendants and concluded that the suit is not barred by limitation.

6. While the stand of the Defendants was that the alleged cause of action for filing the suit arose on 19.12.2011 and thus the suit filed in July, 2016 is barred by limitation, Plaintiffs had urged that the suit is within limitation since Plaintiffs had filed suit bearing No. 500/2014 in 2014, which was disposed of as withdrawn on the ground of defect of non-joinder of necessary parties by filing an application under Order XXIII Rule 1(3) CPC and the Court had granted liberty to file a fresh suit on the same cause of action. Trial Court dismissed the application and on the aspect of limitation rendered a finding that as per the averments in the plaint the suit is not barred by limitation since the Court had granted permission to withdraw the suit and the period of earlier litigation has to be excluded under Section 14 of the Limitation Act, 1963 (hereinafter referred to as the `Act').

7. Counsel for the Defendants contends that the Trial Court has erroneously placed reliance on Section 14 of the Act which was inapplicable to the present case. A plain reading of the said provision shows that Section 14 comes into effect only when the earlier proceeding was not maintainable on account of defect of jurisdiction or other causes of a like nature and it is not even the case of the Plaintiffs that the earlier suit was filed in the Court not having ju