Gujarat High Court
Babubhai Ushmanbhai Mandli vs Mehbubbhai Rasulbhai Mandali on 19 September, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/236/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 236 of 2018
With
CIVIL APPLICATION NO. 1 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
Circulate this judgment in the subordinate judiciary.
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BABUBHAI USHMANBHAI MANDLI
Versus
MEHBUBBHAI RASULBHAI MANDALI
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Appearance:
MR APURVA R KAPADIA(5012) for the PETITIONER(s) No. 1
MR AAMEER R KADRI(7330) for the RESPONDENT(s) No. 1,2.1,2.2
MR PRATIK Y JASANI(5325) for the RESPONDENT(s) No. 1,2.1,2.2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 19/09/2018
ORAL JUDGMENT
1. This Second Appeal under Section 100 of the Code of Civil Procedure is at the instance of the original plaintiff and is directed against the judgment and order dated 17th May 2017 passed by the 2nd Additional District Judge, Dhrangadhra, in the Regular Civil Appeal No.37 of 2010 arising from the Page 1 of 64 C/SA/236/2018 JUDGMENT judgment and decree passed by the Senior Civil Judge, Dhrangadhra, dated 21st August 2010 in the Regular Civil Suit No.7 of 1998 filed by the appellant herein - original plaintiff no.1 for declaration, partition and cancellation of the registered gift- deed and a Will.
2. For the sake of convenience, the appellant herein shall be referred to as the original plaintiff and the respondents herein shall be referred to as the original defendants.
3. The case put up by the plaintiff is that three residential houses bearing City Survey Nos.2095, 2140 and 2141 respectively are of the ownership of his father. The father of the plaintiff had three wives in his lifetime. The plaintiff was born in the second wedlock. The father of the plaintiff was serving with the Gujarat State Road Transport Corporation and was residing at Viramgam.
4. It is the case of the plaintiff that all the properties of his father situated at Dhrangadhra were dealt with by the defendant no.1. The defendant no.1 had lot of influence over the father of the plaintiff. The defendant nos.2 and 3 are the sons of the defendant no.1. According to the plaintiff, between his father and the defendant no.1, there was partition of the properties and the property bearing Old Lekh No.112 came to the share of the defendant no.1, whereas the properties bearing Old Lekh No.271 and Old Lekh No.22 respectively came to the share of the father of the plaintiff.
5. It is the case of the plaintiff that as his father was under
the influence of the defendant no.1, the defendant no.1 fraudulently got one gift deed executed in his favour through the Page 2 of 64 C/SA/236/2018 JUDGMENT father of the plaintiff dated 12th August 1960 with respect to the property which came to the share of the father of the plaintiff. It is also the case of the plaintiff that in a similar manner, fraudulently the defendant no.1 got one Will executed of the father of the plaintiff dated 24th July 1968 in his favour with respect to the property bearing City Survey Nos.2041 and 2141. In such circumstances, the plaintiff prayed for the following reliefs in the suit :
"1. Declare that the gift deed dated 12/8/60 and the Will dated 15/10/71 which were got executed by the respondent no.1 from the father of the plaintiff misusing his influence and powers are unlawful and revoke them, in the interest of justice.
2. Declare that the plaintiff nos.1 and 2 are legally entitled as the successors to receive the suit property belonging to Usman Yakubbhai Mandli, the father of the plaintiff no.1.
3. Declare that the suit property obtained vide gift deed dated 12/8/60 and the Will dated 15/10/71 is unlawfully possessed by the respondents and pass an order against the respondents to handover the possession of the property to the plaintiffs, in the interest of justice.
4. Decide the share of the plaintiff nos.1 and 2 in the suit property as per the Muslim Law and pass an order to handover the possession of the same the plaintiffs, in the interest of justice.Page 3 of 64
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5. Grant permanent injunction against the respondents restraining them from transferring the suit properties through any kind of transactions till the disposal of the suit.
6. Grant any other relief which the Ld. Court may deem fit and proper.
7. Order the respondents to pay all the costs of the suit. "
6. The defendants appeared before the trial court and contested the suit by filing their written-statement Exh.13. The defendants denied all the allegations levelled by the plaintiff in the plaint.
7. Having regard to the pleadings of the parties, the trial court framed the following issues vide Exh.30 :
"(1) Whether the Plaintiff proves that the residential houses bearing City Survey Nos.2095/2140/2141 situated in Dhangadhra are possessed and owned by the plaintiff's father ?
(2) Whether the Plaintiff proves that the defendant No.1 received the property mentioned in deed No. 122 and the Plaintiff's father received property mentioned in deed Nos. 271 and 22 while apportionment of the ancestral immovable properties between them ?
(3) Whether the Plaintiff proves that the defendant No.1 was the administrator of the properties came to the share of the Plaintiff's father ?Page 4 of 64
C/SA/236/2018 JUDGMENT
(4) Whether the Plaintiff proves that inspite of having a
child, the defendant no.1 shown the plaintiff no.1 as without successor and got executed a Will of the properties bearing survey Nos.2095/2140/2141 on 24/07/1968 and 14/10/1971 in favour of his son ?
(5) Whether the Plaintiff proves that the defendant No. 1 has illegally obtained the property by executing a gift deed and a Will ?
(6) Whether the Plaintiff is entitled to get the relief as prayed in para -13 of the plaint ?
(7) Whether the defendant proves that suit instituted by the plaintiff suffers from the bar of limitation ?
(8) What order and decree ?"
8. The issues framed by the trial court referred to above came to be answered as under :
(1) As per Issue No. 7, in the negative.
(2) As per Issue No. 7, in the negative.
(3) As per Issue No. 7, in the negative.
(4) As per Issue No. 7, in the negative.
(5) As per Issue No. 7, in the negative.
Page 5 of 64
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(6) As per Issue No. 7, in the negative.
(7) In the affirmative.
(8) As per final order."
9. It appears that although various issues of law and fact were framed, yet the trial court thought fit to address itself only on the issue no.7, i.e. with regard to limitation. The trial court picked up the issue of limitation and took the view that the suit filed by the plaintiff was time-barred. In such circumstances, the trial court did not find it necessary to answer the other issues framed. Ultimately, the suit came to be dismissed on the ground that the same was barred by limitation.
10. Being dissatisfied with the judgment and decree passed by the trial court dismissing the suit on the point of limitation, the plaintiff preferred the Regular Civil Appeal No.37 of 2010 in the District Court at Dhrangadhra. The lower appellate court dismissed the appeal and thereby affirmed the judgment and decree passed by the trial court dismissing the suit only on the point of limitation.
11. Being dissatisfied with the judgment and decree passed by the lower appellate court, the plaintiff is here before this Court with this Second Appeal under Section 100 of the Code of Civil Procedure.
12. The Appeal has been admitted for hearing of the parties on 29th August 2018 on the following substantial questions of law :Page 6 of 64
C/SA/236/2018 JUDGMENT "1. Whether the two Courts below committed an error in holding that the suit filed by the appellant herein - original plaintiff was time barred and Section-14 of the Limitation Act would not save the period of limitation ?
2. Whether the revenue proceedings before the revenue authorities could be termed as civil proceedings for the purpose of Section-14 of the Limitation Act."
SUBMISSIONS ON BEHALF OF THE PLAINTIFF :
13. Mr.Apurva Kapadia, the learned counsel appearing for the plaintiff, vehemently submitted that the trial court committed a serious error in dismissing the suit only on the point of limitation. According to Mr.Kapadia, the trial court was obliged to answer all the issues framed vide Exh.30. According to Mr.Kapadia, the trial court could not have picked up only one issue with regard to limitation and dismiss the suit holding that the same is time-barred. Mr.Kapadia would submit that neither the learned advocate appearing for the plaintiff nor the learned advocate appearing for the defendants, requested the trial court to decide the issue with regard to limitation as a preliminary issue. In such circumstances, according to Mr.Kapadia, the trial court, having framed various issues, could not have tried only the issue with regard to limitation. Mr.Kapadia would submit that the procedure followed by the trial court is in breach of the provisions of Order 14 Rules 1 and 2 of the CPC. Mr.Kapadia submitted that this aspect has been overlooked even by the lower appellate court. According to Mr.Kapadia, the lower appellate court also committed a serious error in dismissing the first appeal. Mr.Kapadia next submitted that the plaintiff was Page 7 of 64 C/SA/236/2018 JUDGMENT pursuing his remedy before the revenue authorities. Mr.Kapadia submits that although the Will in question is dated 24th July 1968 and the registered gift deed is dated 12th August 1960, yet the plaintiff came to know about the same only in the year 1997 and, therefore, the suit filed in the year 1998 could be said to be within the period of limitation. According to Mr.Kapadia, since the plaintiff was pursuing remedy before the revenue authorities as regards the mutation of names of the defendants in the record of rights on the basis of the gift deed and the Will, the time consumed in such proceedings should have been taken into consideration by the trial court as well as by the lower appellate court in accordance with Section 14 of the Limitation Act.
14. In such circumstances referred to above, Mr.Kapadia prays that there being merit in this Second Appeal, the same be allowed and the impugned judgment and order passed by the lower appellate court be quashed and the suit of the plaintiff be allowed.
15. On the other hand, this Second Appeal has been vehemently opposed by Mr.A.R.Kadri, the learned counsel appearing for the defendants. Mr.Kadri would submit that no error, not to speak of any error of law, could be said to have been committed by the courts below in holding that the suit filed by the plaintiff is hopelessly time-barred. According to Mr.Kadri, assuming for the moment without admitting that Section 14 of the Limitation Act is applicable, for the purpose of seeking the benefit of Section 14, the plaintiff is first obliged to lay a foundation. Mr.Kadri would submit that there has to be a proper pleading with regard to Section 14 of the Limitation Act. In the absence of the foundation or pleading with regard to Section 14 Page 8 of 64 C/SA/236/2018 JUDGMENT of the Limitation Act before the courts below, the plaintiff cannot take the shelter of Section 14 of the Limitation Act for the first time before this Court in a Second Appeal.
16. Mr.Kadri submits that the submission of the learned counsel appearing for the plaintiff as regards the breach of the mandatory provision of Order 14 Rules 1 and 2 CPC is without any merit. Mr.Kadri submits that at the most such a lapse on the part of the trial court could be termed as an irregularity and such an irregularity is not a substantial question of law for the purpose of this Second Appeal. Mr.Kadri, in such circumstances, prays that there being no merit in this Second Appeal, the same may be dismissed.
ANALYSIS :
17. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the courts below committed any error in passing the impugned judgments and orders.
18. Let me first deal with the issue with regard to Order 14 Rules 1 and 2 of the CPC. Indisputably, the trial court framed seven issues vide Exh.30. Those issues are of law and fact. The issue with regard to limitation is issue no.7. It is not in dispute that the trial court thought fit to only address itself on the issue of limitation, and having answered the issue of limitation against the plaintiff, thought fit not to touch the other issues and record appropriate findings on such issues.Page 9 of 64
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19. Rule 2 of Order 14 of the Civil Procedure Code, as it presently stands, reads as under :-
"2. Court to pronounce judgment on all issues.-(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to -
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue".
20. The present structure of Rule 2 was brought about by the Civil Procedure Code (Amendment) Act, 1976. Before its amendment by the aforesaid amending Act of 1976, Rule 2 read as under :-
"Order XIV, Rule 2 - Issues of law and of fact.- Where the issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first and for that purpose may, if it thinks fit, Page 10 of 64 C/SA/236/2018 JUDGMENT postpone the settlement of the issues of fact until after the issues of law have been determined."
21. When one draws a comparison between the earlier Rule 2 and the amended Rule 2, the comparison immediately leads to a conclusion that where under the old Rule 2 it was mandatory for a court to try the issues of law in the first instance and to postpone the settlement of issues of fact until after the findings had been arrived at with respect to the issues of law, under the new, amended Rule 2, as has been spelt out and clearly stipulated in sub-rule (1) thereof, the Legislature has mandated that a court shall pronounce judgment on all issues, both of law as well as facts, notwithstanding that a case may be disposed of only on a preliminary issue. Under the new Rule 2, the only exception is contained in sub-rule (2) thereof which, in a manner of speaking, relaxes the aforesaid legislative mandate to a limited extent by conferring a discretion upon the court that if it is of the opinion that the case or any part thereof may be disposed of on a issue of law only, it may try that issue first, in the process postponing the settlement of other issues until the issue of law has been determined. This discretion even though conferred by the aforesaid legislative amendment has, however, been circumscribed and limited, specifically and explicitly, only to two situations and these are that the issue or issues of law, only upon which the case or any part of the case may be disposed of, must relate to either the jurisdiction of the court or a bar to the suit created by any law for the time being in force. By a combined reading of sub-rule (1) and sub-rule (2) of Rule 2 what, therefore, emerges is that, except in situations covered by sub- rule (2), a court must dispose of a suit as a whole, try all issues of law and fact together and accordingly pronounce judgment on Page 11 of 64 C/SA/236/2018 JUDGMENT all such issues even though the case may be disposed of on a preliminary issue. More importantly, and for the purposes of our case, in the light of the specific reference on the formulated question of law, Rule 2 as it presently stands caters to and creates two sets of situations in a suit. One situation is where, at the stage of framing of issues the court exercises its discretion conferred upon it under sub-rule (2) and frames, in the first instance, issues of law only and passes an order specifically and explicitly proposing to try issues of law only, in the process postponing the settlement of other issues until after it has decided the issue of law only. In this situation, at the stage of determining or deciding the issues of law only the court may either dispose of the suit based on such determination of the issues of law only, of course these issues of law relating to the jurisdiction of the court or a bar to the maintenance of the suit created by law for the time being in force, or upon determination of issues of law only the court may hold that the suit is maintainable and/or that it has jurisdiction also to try the suit and thus, consequently to proceed to settle other issues for trial and determination. Such a situation is contemplated by sub-rule (2) and there is no manner of doubt that in taking recourse to such a situation the court has the mandate as well as the sanction from the legislature.
22. The second situation which may arise is that the court does not exercise its discretion, for any reason whatsoever, valid or otherwise, and at the stage of framing of the issues, frames all the issues, of law as well as of fact and proceeds to decide all such issues together. This course of action is contemplated by an explicit mandate of the Legislature in sub-rule (1). The question which has fallen for our consideration in this reference Page 12 of 64 C/SA/236/2018 JUDGMENT is that if a suit falls under the second situation where the court has not exercised its discretion under sub-rule (2) and it has not only framed all the issues, of law as well as of fact and has also tried all such issues together, is it open to the court, after the conclusion of the trial on all the issues, to take up issues of law only and by adopting this principle of severability to proceed to dispose of the suit on the issues of law only, without, at the same time, according its consideration to other issues.
23. While examining the repercussions of the unamended Rule 2 and the ramifications arising therefrom, the Law Commission of India had opined as under :-
"This rule has led to one difficulty. Where as case can be disposed of on a preliminary point (issue) of law, often the Courts do not inquire into the merits, with the result that when, on an appeal against the finding on the preliminary issue the decision of the Court on that issue is reversed, the case has to be remanded to the Court of first instance for trial on the other issues. This causes delay. It is considered that this delay should be eliminated, by providing that a Court must give judgment on all issues, excepting, of course, where the Court finds that it has no jurisdiction or where the suit is barred by any law for the time being in force."
24. The Statement of Objects and Reasons accompanying the amending Act of 1976 whereby Rule 2 was amended read thus :-
"Clause 67-sub-clause (ii).- Rule 2 is being substituted to provide that although a suit can be disposed of on a preliminary issue, the Court shall ordinarily pronounce Page 13 of 64 C/SA/236/2018 JUDGMENT judgment on all issues; but where any issue relating to the jurisdiction of the Court or a bar created by any law for the time being in force, the Court may postpone settlement of the other issues until the preliminary issue with regard to the jurisdiction of the Court or such bar has been determined and the Court may deal with the suit in accordance with the determination of such preliminary issue."
25. The legislative mandate is very clear and unambiguous. In the light of the past experience that the old Rule 2 whereby, in the fact-situation of the trial court deciding only preliminary issues and neither trying nor deciding other issues, whenever an appeal against the judgment was filed before the appeal court and the appeal court on finding that the decision of the trial court on preliminary issues deserved to be reversed, the case per force had to be remanded to the trial court for trial on other issues. This resulted in delay in the disposal of the cases. To eliminate this delay and to ensure the expeditious disposal of the suits, both at the stage of the trial as well as at the appeal stage, the legislature decided to provide for a mechanism whereby, subject to the exception created under sub-rule (2), all issues, both of law and fact were required to be decided together and the suit had to be disposed of as a whole, of course based upon the findings of the trial court on all the issues, both of law and fact.
26. Based upon the aforesaid reasons therefor, and in the light of legislative background of Rule 2 and the legislative intent as well as mandate based upon such background, as well as on its plain reading, I have no doubt in my mind that except in situations perceived or warranted under sub-rule (2) where a court in fact frames only issues of law in the first instance and postpones settlement of the other issues, under sub-rule (1), Page 14 of 64 C/SA/236/2018 JUDGMENT clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court in such a situation to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. This course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. Sub- rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been framed together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the Court covering all the issues framed in the suit.
27. Neither the plaintiff nor the defendants moved the trial court to try issue no.6 as a preliminary issue. The trial court, while dealing with the matter, has presumed that he was disposing of the issue no.7 as a preliminary issue.
28. Order 14 Rule 2(1) CPC mandates that notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all the issues. In other words, the court is obliged to pronounce judgment on all the issues amounting thereby that there must be a decision in accordance with Order 20 CPC. The only escape from this rule was sub-rule (2) of Rule 2 of Order 14 CPC, where both issues of law and fact arise in the same suit and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue Page 15 of 64 C/SA/236/2018 JUDGMENT first if that issue relates to - (a) the jurisdiction of the court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose, the court may postpone the settlement of the other issues until after that issue has been determined and may deal with the suit in accordance with the decision on that issue. The law has categorically used the words 'pronouncement of judgment', 'decision', 'postponement of settlement of issues', etc. In that view of the matter, unless the court decides to take up an issue as a preliminary issue for determination and disposal, the whole suit cannot be disposed of without deciding the other issues of law and fact. In this case, the trial court as well as the lower appellate court has totally failed to apply their minds regarding this mandatory provision. In all cases, the issue with regard to limitation cannot be said to be a pure question of law. The issue of limitation is a mixed question of law and fact. The bar of limitation has so many ingredients. If a party to the litigation sets up a contention that the suit is barred by limitation, the court has, first of all, to examine (1) the cause of action in the suit, (2) when the cause of action commences, (3) when the parties act in a particular fashion as to fix the cause of action and (4) ultimately what is the result flowing from such cause of action.
29. In the aforesaid context, let me now look into some case- law:
30. I may refer to and rely upon a Division Bench decision of the Calcutta High Court in the case of Synthetic Plywood Industries (P) Limited v. Manjulika Bhaduri, 1998(1) Cal.L.T.
350. The Division Bench was called upon to answer three questions referred to by a learned Single Judge while deciding an Page 16 of 64 C/SA/236/2018 JUDGMENT application under Section 115 of the CPC. The three questions are as under :
"(a) Whether in deciding a matter under section 17(2) of the West Bengal Premises Tenancy Act touching the question of relationship or existence of landlord and tenant and an issue pertaining thereto can be decided as a preliminary issue under Order 14 Rule 2 of the Code of Civil Procedure while disposing of the application under section 17(2) of the West Bengal Premises Tenancy Act?
(b) Whether West Bengal Premises Tenancy Act, being a special statute, and particularly section 17(2) of the Act, being a special provision in that statute will override and get precedence over the general provision under Order 14 Rule 2 of the Code of Civil Procedure?
(c) Whether the law laid down in decisions of Aloka Ghosh v.
Inspector General reported in 66 CWN 302, Union of India v. N.K. Chowdhury reported in 79 CWN 371, Paral Banerjee v. Anand Kumar Agarwalla reported in 1979(2) CLJ 297. Btswa Bfiusan Base v. Kusum Agarwalla reported in 1981(1) CLJ 1 and Wanda Gopal Das v. Rabindranath De reported in 1987(1) CHN 362 are no longer good taws and are judgments per incurian?"
31. Justice Bhaskar Bhattacharya (As His Lordship then was) held as under :
"[19] Therefore, as the amended Order 14 Rule 2 stands, a court can dispose of a suit on the basis of decision on a Page 17 of 64 C/SA/236/2018 JUDGMENT preliminary issue if such issue is an issue of law relating to the Jurisdiction of court or to a bar to the suit created by any law for the time being in force. Only under the aforesaid two conditions, a court can dispose of a suit on the basis of its decision on preliminary issue. But the aforesaid provision does not prohibit a court from deciding even an issue of fact if the court does not dispose of the suit on the basis of decision of such issue. There is no dispute that an issue as to relationship of landlord and tenant between the parties is essentially an issue of fact. Therefore, after the decision on such issue, even if it is answered in a negative, in view of the aforesaid provision of the Code, a court cannot dismiss the suit then and there on the basis of such decision but is bound to deliver judgment on all issues framed in the suit.
[20] Thus, the aforesaid amended provision contained in Order 14 Rule 2 of the Code does not put any restriction on court to decide a particular issue of fact as a preliminary issue if it does not dispose of the entire suit on the basis of decision made thereon. It appears that unless such an issue, if raised in a suit, is decided as a preliminary issue, the provision contained in section 17 of the Act cannot be given effect to."
32. Justice V.K.Gupta, in his separate but concurring judgment, has observed as under :
"[26] At the centre of the controversy is the applicability of Order 14 Rule 2 CPC vis-a-vis section 17(2) of the West Bengal Premises Tenancy Act. 1956. In considering the question whether Order 14 Rule 2 CPC creates any bar for Page 18 of 64 C/SA/236/2018 JUDGMENT the court to decide. In isolation, a question or any issue relating to the status of the defendant under section 17(2) of the 1956 Act when he claims that either he is not the tenant, or the plaintiff is not the landlord of the suit property. The question may assume importance if in a given case, the decision on such issue is closely and directly linked with the merits of the application under section 17(2) of the Act. The two provisions of law, namely Order 14 Rule 2 and section 17(2) of the Act have to be so harmoniously constructed by us, in a way read together, that they complement each other, rather than attempting to exclude the operation of one qua the other.
[27] If a defendant makes any application in the court under section 17(2) of 1956 Act claiming that either he is not the tenant of the premises or that the plaintiff is not the landlord (in other words disputing the relationship of landlord and tenant between the parties qua the property in dispute). In such an application the court has to return a definite finding about such a relationship because unless such finding is returned, the court cannot pass an order on such an application directing or not directing the defendant to deposit the arrears of rent and to pay the future rent in accordance with that section. if therefore for deciding any question relating to such relationship between the parties the court frames an issue, there is no bar under Order 14(2) CPC for the court to adjudicate upon such issue at the threshold of the suit so as to enable the court to decide upon the relationship between the parties arid thus to issue proper directions relating to the liability, if any, of the defendant Page 19 of 64 C/SA/236/2018 JUDGMENT under section 17(2) of the 1956 Act.
[28] Order 14 Rule 2 CPC in our opinion has two basic contours; one that the court should pronounce judgment on all issues, even if there are preliminary issues arising in the case, such is the mandate of sub-rule (1). Sub-rule(2) however creates an exception in the sense and to the extent limited therein, that if on a pure question of law touching upon either the Jurisdiction of the court or the creation of any bar to the suit by any law, the suit can be disposed of. without settling other issues, the court has the power to first frame such issues, being pure issues of law and depending upon the findings of the court on these preliminary issues, to dispose of the suit accordingly. This is the second contour of Order 14 Rule 2. if one reads both sub-rule(l) and sub-rule(2) of Rule 2 of Order 14 conjunctively and not in isolation of each other, one gathers the intention of the legislature that whereas sub-rule (2) is restrictive in its application, under sub-ruled) a discretion shall always vest with the court, after framing all issues together, whether or not to decide such preliminary issues first which might have a bearing on the progress of the suit and which may advance the cause of Justice, but with a condition that ultimately in the suit the court shall have to pronounce the Judgment on all the issues. In other words what sub-ruled) says is that alter you have settled all the issues based upon the pleadings of the parties, you can take up an issue or issues for your consideration even at the preliminary stage if you find that your decision on these issues will help you in the direction of proper progress of the case and you may accordingly decide such issues even before proceeding to deal with other Page 20 of 64 C/SA/236/2018 JUDGMENT issues. The only rider is that while deciding these issues at the preliminary stage, you cannot dispose of the suit on the basis of your findings on these issues, since the law casts an obligation on you that other issues also have to be decided because you have to "pronounce Judgment on all the issues together". Take for instance the question relating to improper verification of a plaint or a dispute raised by the defendant in the written statement regarding the valuation of the suit, or for that matter whether the suit suffers from any mischief of non-joinder of proper or necessary parties. Now these are such questions which may not warrant or permit postponement of decision at the stage of initial trial, in the sense that if the court finds merit in the objection of the defendant on any of such questions, it can decide such relevant issues at the threshold of the trial and give opportunity to the defaulting plaintiff to either come forward With proper verification, make up the deficiency in the court fee. properly value the suit, or apply for addition of necessary or proper parties and so on and so forth so as to avoid the mischief which may erupt later and cause him such loss at the final stage which may then be rendered Irreparable. The condition is that if the plaintiff complies with these directions, the suit shall progress accordingly. Even if, however He does not comply with these directions, the suit cannot be disposed of at that stage and the other issues have also to be taken up so that the suit is finally disposed of ultimately by pronouncing the judgment on all the issues. The language employed in sub-ruled) therefore. In our view permits such course of action for being adopted by the court. it does not create any bar for the court to deal with a suit in Page 21 of 64 C/SA/236/2018 JUDGMENT such a manner if such an eventuality arises. it is immaterial if the court's decision on such preliminary issues, as is covered under sub-rule(1), is based either purely on questions of law or by taking evidence in the matter.
[29] Coming to the other contour of Order 14 Rule 2, regarding the scope of sub-rule(2), we find that the position is entirely different. The language employed in sub-rule(2), is quiet distinct and altogether different from that finding place in sub-ruled). Whereas subruled) operates as a complete bar for the court in so far as deciding a suit at the initial stage is concerned, based on its findings upon the preliminary issues, sub-rule(2) permits the court to even dispose of a suit at the initial stage by taking up preliminary issues for consideration, subject of course to the condition that the preliminary issues must be pure issues of law, which in other words means that no evidence at all is required to be taken and that, as observed earlier, these relate only to the above referred twin purposes, namely the Jurisdiction of the court or the creation of any legal bar. There thus we find a complete dichotomy between the two situations in Order 14 Rule 2 itself, one permitting the court to take up for consideration and decide preliminary issues, both on facts and in law, but not disposing of the suit on the basis of its findings on these issues, and the other permitting the court to take up preliminary issues for consideration, but confining to and restricting itself only such issues which are pure issues of law and also additionally permitting the court to finally dispose of the suit on the basis of its findings on these issues. if the issues touch upon the twin questions relating to the jurisdiction of the court or the creation of any legal bar.Page 22 of 64
C/SA/236/2018 JUDGMENT [30] Applying the aforesaid touchstone to the merits of the controversy in the present case, we find that since the question relating to the relationship between the defendant and the plaintiff was vital for bringing into operation the applicability of section 17(2) of the Act, it was permissible for the court, rather desirable that it should have taken up the issues relating to such relationship at the threshold so that the parties would have been made aware of their status vis- a-vis each other, in order to avoid any future complications. In the present case therefore there was no need for the learned trial court to defer or postpone deciding this issue for the final stage, since the course of action adopted by the court in taking up the issue at the initial stage did not run counter to the policy of Order 14 Rule 2 CPC."
33. The principle of law discernible from the above decision of the Calcutta High Court is that Order 14 Rule 2 of the Code does not put any restriction on the court to decide a particular issue of fact as a preliminary issue if it does not dispose of the entire suit on the basis of the decision made thereon. His Lordship was considering Section 17(2) of the West Bengal Premises Tenancy Act, 1956. The issue was one touching the question of relationship or existence of landlord and tenant. His Lordship took the view that a court dealing with a suit for eviction on any of the grounds referred to in Section 13(1) of the West Bengal Premises Tenancy Act can hear out an issue of relationship of landlord and tenant between the parties as a preliminary issue, but it must not dispose of the said suit on the basis of the decision on such issue if such issue is answered in the negative. His Lordship has explained a fine principle that in such a case Page 23 of 64 C/SA/236/2018 JUDGMENT notwithstanding the decision of the court on such issue in the negative, the court is obliged to adjudicate all other issues involved in the suit and is also obliged to give decisions on all issues.
34. In this connection reference may also be made to a decision of the learned Single Judge of this Court in the case of Saurashtra Cement and Chemical Industries Ltd. v. Esma Industries Pvt. Ltd., reported in 1989(2) 30 GLR 1263. In para 17 of the decision, after referring to Order 14 Rule 2 of the Code, it observed as follows :
"After the amendment in this provision in 1976, it becomes clear that the legislature, has frowned upon trial of suits piece-meal. The reason is obvious. If on a preliminary issue, the suit is tried and if the issue is decided one way or the other, it would lead to further proceedings by way of appeal or revision. Number of years would lapse and ultimately when the highest Court which is approached in hierarchy decides the matter one way or the other a stage may be reached where the suit has to be tried further and that would involve lot of delay and the parties would be tried further and that would involve lot of delay and the parties would get completely exhausted and exasperated by passage of time underlying such piece-meal trial of suits. With' a view to avoiding such delay and exasperation to the litigating public, this provision of Order 14, Rule 2 in the amended form has, been brought in the statute book. Consequently, underlying principle of this provision is laudable and beneficial one. As per this provision, it is indicated by the legislature that suit must be tried as a whole in all issues."Page 24 of 64
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35. A learned Single Judge of the Patna High Court, in the case of Chandrama Singh alias Nathuni Singh v. Registrar, Civil Court and another, AIR 2012 Patna 175, was called upon to answer the question, whether the trial court erred in observing that the issue of limitation being a mixed question of fact and law cannot be tried as a preliminary issue. The learned Single Judge addressed himself on the question as to in what circumstance an issue of limitation can be tried as a preliminary issue. I may quote the relevant observations thus :
"12. Before I take up the issue, it would be necessary to notice the relevant laws; particularly Order XIV, Rules 1 and 2, CPC which is quoted hereinbelow:
"XIV(1) Framing of issues- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
(4) Issues are of two kinds: (a) issues of fact, (b) issues of law.Page 25 of 64
C/SA/236/2018 JUDGMENT (5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and (after examination under Rule 2 of Order X and after hearing the parties or their pleaders), ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.
(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence".
"XIV(2) Court to pronounce judgment on all issues- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose, may, if it thinks fit, postpone the settlement of the other issues until after Page 26 of 64 C/SA/236/2018 JUDGMENT that issue has been determined, and may deal with the suit in accordance with the decision on that issue".
13. The principle emerging from provision of Order XIV, Rules (1) and (2), CPC is that court would generally pronounce judgment on all issues. This general rule is not in absolute terms as the provision itself admits of exception. It states that if a case or any part of it can be disposed of on point of law only, the same can be tried as a preliminary issue, provided it relates to (a) jurisdiction of the court or (b) a bar to the suit created by any law for the first time enforce. The Court in such circumstances may postpone the settlement of other issues until such issue has been decided as preliminary issue.
14. It is no more res integra that where an issue involves both mixed question of fact and law, it cannot be taken up as a preliminary issue. The Hon'ble Apex Court in the case of Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta and Ors., reported in (2006) 5 SCC 638 : (AIR 2006 SC 3672), while observing the scope and object of Order 14, Rule 2 observed as followed in paragraphs 13 and 19 which are quoted herein below:
"13. Sub-rule (2) of Order 14, Rule 2, CPC lays down that where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the court, or (b) a bar to the suit Page 27 of 64 C/SA/236/2018 JUDGMENT created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon, (AIR 1964 SC 497, Page 502 of AIR) and it was held as under: (SCR p. 421) "Under Order 14, Rule 2, Code of Civil Procedure where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit."
Though there has been a slight amendment in the language of Order 14, Rule 2, CPC by the amending Act, 1976 but the principle enunciated in the above quoted decision still holds good and there can be no Page 28 of 64 C/SA/236/2018 JUDGMENT departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue.
19. A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order 7, Rule 11(d), CPC would also include the ground that it is barred by law of limitation has been recently considered by a two-Judge Bench of this Court to which one of us was a member (Ashok Bhan, J.) in Balasaria Construction (P) Ltd. v. Hanuman Seva Trust it was held: (SCC p. 661, para 8) "8. After hearing counsel for the parties, going through the plaint, application under Order 7, Rule 11(d), CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time."
Page 29 of 64C/SA/236/2018 JUDGMENT This principle would be equally applicable to a company petition. Therefore, unless it becomes apparent from the reading of the company petition that the same is barred by limitation the petition cannot be rejected under Order 7, Rule 11(d), CPC."
15. In the case of Balasaria Constructions (P) Ltd. v. Hanuman Seva Trust and Ors., reported in (2006) 5 SCC 658, the Apex Court was considering the issue of rejection of plaint under Order 7, Rule 11(d), CPC on the ground limitation. The Apex Court observed that the question of limitation is a mixed question of law and fact, unless and until it is apparent ex facie on reading of the plaint that the suit is barred by limitation, the petition or plaint cannot be rejected under Order 7, Rule 11(d), CPC. Furthermore, a suit should not be ordinarily dismissed, as barred by limitation without proper pleading, framing of issues of limitation and taking of evidence.
16. Counsel for the petitioner argued that if an issue of limitation arises, the court cannot proceed further unless the issue of limitation is decided. The petitioner in support of his submissions has placed reliance upon a decision in the case of Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee and Ors., reported in 1964 SC 1336. The relevant extract of paragraph 9 is being reproduced hereinbelow for easy reference.
"9. Section 3 of the Limitation Act enjoins a Court to dismiss any suit instituted, appeal preferred and Page 30 of 64 C/SA/236/2018 JUDGMENT application made, after the period of limitation prescribed therefor by Schedule I irrespective of the fact whether the opponent had set up the plea of limitation or not. It is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed. The Court had no choice and if in construing the necessary provision of the Limitation Act or in determining which provision of the Limitation Act applies, the subordinate Court comes to an erroneous decision, it is open to the Court in revision to interfere with that conclusion as that conclusion led the Court to assume or not to assume the jurisdiction to proceed with the determination of that matter."
17. The aforesaid paragraph of judgment on which the petitioner has placed reliance would be of no help to him, as the facts and issues are different. In the said judgment, the Hon'ble Apex court made those observations where a limitation in the case is not saved by any of the conditions mentioned in sections 4 to 24 of the Limitation Act. While examining the scope of section 3 of the Limitation Act, the Hon'ble Apex Court observed that the provision enjoins the court to dismiss any suit instituted, appeal preferred and application made, after the period of limitation prescribed thereof in Schedule-I. The Apex Court in this context observed that it is the duty of the court not to proceed with the application, if it is made beyond the period of limitation prescribed.
Page 31 of 64C/SA/236/2018 JUDGMENT
18. Here the issue is different as the dispute is whether the issue of limitation is to be tried as preliminary or is to be tried with other issues. The issue is not whether the limitation petition itself is to be proceeded with or not. In other words, if plea of limitation is not saved under sections 4 to 24 of Limitation Act, then as per judgment of Hon'ble Apex Court, reported in AIR 1964 SC 1336 relied upon by the petitioner, the court ought not to proceed with the limitation application. The position is obvious from bare perusal of section 3 of the Limitation Act which is quoted hereinbelow:
"3. Bar of limitation- (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
(2) For the purposes of this Act-
(a) A suit is instituted-
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator;Page 32 of 64
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(b) any claim by way of a set-off, or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted-
(i) in the case of a set-off, on the same date as the suit in which the set off is pleaded;
(ii) in the case of a counter claim, on the date on which the counter claim is made in Court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court".
19. Thus section 3 of the Limitation Act on which the petitioner has relied is subject to the provisions contained in section 4 to section 24 of the Limitation Act which provides exclusion of period while computing period of limitation in circumstances mentioned thereof in those provisions. The case law relied upon by the petitioner would have no application to the facts and issues involved in this case. The respondents have also filed petition for condonation of delay in terms of sections 14(1) and (2) of the Limitation Act, 1956 which states that the time period spent in pursuing a civil proceeding with due diligence and in good faith in a court which on account of defect of jurisdiction or other causes of a like nature, is unable to entertain it. It is relevant to state here that a separate limitation petition is not necessary along with plaint for condonation of delay or exclusion of time as Page 33 of 64 C/SA/236/2018 JUDGMENT the same can be explained in the plaint itself. It has already been observed that a plaint or petition can be rejected only if it can be shown ex facie that it is barred by limitation.
36. The learned Single Judge, thereafter, proceeded to even consider Sections 14(1) and (2) of the Limitation Act. I may quote the relevant observations made by His Lordship in regard to Section 14 of the Limitation Act as under :
"14. Exclusion of time of Proceeding bona fide in Court without jurisdiction.- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."
In order to ascertain the period which could be excluded under Section 14(2) of Limitation Act or to find out the starting point of limitations, one necessarily will have to enter Page 34 of 64 C/SA/236/2018 JUDGMENT into facts. The trial court has rightly observed that the issue of limitation would involve adjudication of mixed question of law and facts and should be decided together with other issues.
It would be relevant to state that the Hon'ble Supreme in the case of Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee and others, reported in AIR 1964 SC 1336, observed in paragraph 10 that Section 5 of the Limitation Act empowers the court to admit an application presented after expiry of specified period of limitation, if it is satisfied that the applicant had sufficient cause for not presenting it within time. The Supreme Court further observed that the court, therefore, has jurisdiction to determine whether there was sufficient cause for the appellants in not making the application for setting aside the abatement of suit in time. It would be relevant to quote paragraph 10 of the said judgment on which the petitioner has relied upon.
"10. Section 5 of the Limitation Act, on the other hand, empowers the Court to admit an application, to which its provisions are made applicable, even when presented after the expiry of the specified period of limitation if it is satisfied that the applicant had sufficient cause for not presenting it within time. The Court therefore had jurisdiction to determine whether there was sufficient cause for the appellants not making the application for the setting aside of the abatement of the suit in time and, if so advised, to admit it."Page 35 of 64
C/SA/236/2018 JUDGMENT It would be worthwhile to state that 1976 amendment has made changes in the language of Sections 14(1) and 14(2) insomuch so the word 'shall' has been substituted by the word 'may' occurring under Order 14, Rule 2, CPC. In view of the amendment, it may not be obligatory for the trial court to determine an issue as a preliminary issue. Nonetheless, it is left to the court to determine whether such issue is to be tried as a preliminary issue in the given situation. In this context reference may be made to the decision in the case of Jitendra Nath Ojha and Anr. v. Rameshwar Sahu and Ors., reported in 1992 (1) PLJR 465 rendered by Hon'ble Mr. Justice S.B.Sinha (as His Lordship then was). Paragraphs 12 and 13 of the aforesaid decision is quoted herein below for easy reference:
"12. There cannot be any doubt that in terms of Order XIV, Rule 2 of the Code of Civil Procedure, it is no longer, obligatory on the part of the trial court to determine jurisdictional issue as a preliminary issue.
13. By reason of Code of Civil Procedure (Amendment) Act, 1976, emphasis has also laid down by the Parliament to try and dispose of all the issues together instead of disposal of the suit. The intention of the legislation becomes evident in view of the amendment made in Order XIV, Rule 2 of the Code of Civil Procedure by reason of Code of Civil Procedure (Amendment) Act, 1976 whereby and whereunder the word 'shall' occurring by Order XIV, Rule 2 of the Code Page 36 of 64 C/SA/236/2018 JUDGMENT of Civil Procedure as stood before amendment has been replaced by the word 'may'."
The respondents had argued that the Limitation Act would not be applicable where the court is called upon to exercise the inherent power under Section 151 of the Act. The petitioner in this context has relied upon the case of Mrs.Minnie Lal v. Mahadeo Lall Marwari and Ors., reported in AIR (36) 1949 Pat 112, wherein the learned Division Bench approvingly quoted the following passage of Justice Mahmud rendered in the case of Raghunath Das v. Raj Kumar, reported in (1885) 7 Allahabad 276 : (1885 AWM-
25).
"...the law of limitation relates to the action of parties, but not to the action of the Court," and "the mere fact that one of the parties had made an application asking the Court to exercise that power will not?.. render the action of the Court subject to the rule of limitation".
The decision is an authority where no definite period of limitation is provided by law within which action must be taken. However, where a provision is made in law for a particular relief, it necessarily excludes any inherent power in the court to grant that relief. In this case the period of limitation is provided for setting aside compromise decree of a court as well as period that may be excluded under Section 14(2). Thus, mere filing of a case under Section 151, CPC would not itself render the issue of limitation inapplicable. As such this court cannot profess to such wide proposition of law canvassed by respondents that in all circumstances the Page 37 of 64 C/SA/236/2018 JUDGMENT inherent power under Section 151, CPC will not be affected by rule of limitation. But as the respondent has succeeded on other points, even if this point is decided against him, it would not affect the result of the case.
In backdrop of the aforesaid discussions, the legal position which emerges is as follows: (i) The general principle is that all issues ordinarily are to be tried together and only such issue is to be tried as a preliminary issue if it can be disposed of on issue of law alone; if the same relates to jurisdiction of a court or bar to the suit created by any law for the time being in force. The Code confers no jurisdiction on a court to try a suit on mixed question of facts and law as a preliminary issue. In view of 1976 amendment in language of Sections 14(1) and (2) whereby the word 'shall' has been substituted with 'may', it may not be obligatory for trial court to determine an issue as preliminary issue. Only in appropriate cases the court may try an issue of limitation as a preliminary issue which instance is rare and fewer, if it can be disposed of on point of law alone without there being any need to examine the facts or to ascertain the starting point of limitation or to compute the period that may have to be excluded under the Limitation Act or any other statutes or rules. Order 14, Rule 2 is distinct from Order 7, Rule 11(d) where a plaint can be rejected even before filing of the written statement and framing of issue, if it ex facie emerges from perusal of the plaint that it is barred by limitation. There is no requirement of filing a separate limitation petition along with plaint as the delay or exclusion of time in filing of the same can be explained itself in the plaint."
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37. I may refer to one another decision of this very Court in the case of Chetan Textiles, a registered partnership firm, Bombay v. M/s.Jethabhai Hirji and Co. a partnership firm and others, reported in AIR 1985 Gujarat 95. A learned Single Judge of this Court did not approve the procedure adopted by the court below in giving finding only on one issue and refraining from giving findings on other issues, more particularly, after framing of the issues and recording evidence on all issues. I may quote the relevant observations thus :
"As stated above, the Court had not reached a conclusion that an issue of law as contemplated by O.XIV R.2(2) had arisen in the present case. As a matter of fact, the Court had declined in both the matters to hear the issue of jurisdiction as a preliminary issue and it thereafter proceeded to record evidence on all issues and hear arguments also. In the circumstances, it is clear in view of the provisions of O.XIV R.2 of the Civil P.C. that it was not open for the Court after framing all issues and recording evidence on all issues to give a finding only on one issue and refrain from giving findings on other issues. The trial Court has obviously adopted a course which was not permissible under the law in view of the mandate under O.XIV R.2 of the Civil P.C. Such orders therefore cannot be permitted to subsist and have to be set aside. In this connection, it has been urged by Miss V. P. Shah, the learned Advocate for the appellants in both the cases that since evidence has been led and the trial Court has decided the issue of jurisdiction on merits, this Court should look into the merits of the case also and ignore the irregularity in procedure adopted by the trial Court. In Page 39 of 64 C/SA/236/2018 JUDGMENT view of the clear mandate under O.XIV R.2 and also in view of the fact that the trial Court had declined to hear the issue of jurisdiction as a preliminary issue and also in view of the fact that the issue of jurisdiction in the present case was not an issue of law only, it is not possible to accept the said submission of Miss Shah. The spirit behind O.XIV R.2 of the Civil P.C. is to have all issues decided at a time except where an issue of law only arises as contemplated in O.XIV R.2 and even in the latter case Legislature has clothed the Court with a discretion as stated therein. In this connection, Miss Shah had referred to Talati Kantilal Bhurabai v. Lalitaben, (1977) 3 SCC 516 : (AIR 1977 SC 2133). This was an appeal before the Supreme Court from a judgment of this Court dated Mar. 5, 1973, on a preliminary point holding that the Civil Judge (Senior Division), Godhra had jurisdiction to entertain and try the suit filed by the respondent. Setting aside the finding of the learned Civil Judge that he had no jurisdiction to entertain the suit and therefore the plaint must be returned for presentation to the proper Court, the High Court had remanded the suit to the trial Court with a direction to determine the "other issues" raised in the suit in the light of the evidence on record and in accordance with law. The said order of remand passed by the High Court was confirmed and the appeal was dismissed with costs. It is difficult to see how the said judgment supports the case of the present appellants. The Supreme Court in this case has clearly observed that in view of the fact that the entire evidence in this case had been recorded by the trial Court and considering that nine years had already passed over the decision of a preliminary point, it was undesirable to dispose Page 40 of 64 C/SA/236/2018 JUDGMENT of the matter piecemeal and that the interests of justice required peremptorily that the trial Court should proceed to dispose of the suit on the issue which it had not yet decided.
It is pertinent to quote the following observations made in the said case by the Supreme Court :
"We must, however, clarify that the dismissal of this appeal will not preclude the appellants from raising the question of jurisdiction or any other question which has been concluded by the judgment of the High Court, in any appeal which the appellants may file in this Court hereafter. If the suit is dismissed, there will be no occasion for the appellants to challenge the finding on the question whether the amount had been kept by the respondent with the appellants by way of deposit or was in the nature of a loan or on the question of jurisdiction. On the other hand, if the suit is decreed, appellants have a statutory right to challenge the decree of the trial Court by filing an appeal in the High Court. But since the High Court has already decided the preliminary question of jurisdiction, the appellants cannot be allowed to reopen that question in the appeal before the High Court. The question of jurisdiction must be treated as finally concluded so far the trial Court and the High Court are concerned. If, however, the appellants fail in the High Court, it would be open to them, by filing an appeal in this Court, to challenge the decree of the High Court on all points decided against them including the points decided by the High Court by its judgment dated Mar. 5. 1973. In other words, so far Page 41 of 64 C/SA/236/2018 JUDGMENT as this Court is concerned the question of jurisdiction must be treated as open, despite the dismissal of this appeal.""
38. Thus, the legal position can be summed up as under :
Only an issue of law can be decided as a preliminary only where it is such that its decision does not necessitate investigation into the facts and it relates either to the jurisdiction of the court or to the suit being barred under any prevailing law, and that, in the opinion of the court the decision of the issue will result in the decision of the whole or a part of the suit. The discretion in this regard must always be exercised on the basis of sound judicial principles. It may, however, be made clear that even if an issue of law can be decided as a preliminary issue as aforesaid, the court is not always bound to decide it as a preliminary issue and can, in its discretion, postpone its decision also along with other issues, whether of law or fact. The whole purpose behind the amended provision is to restrict piecemeal decision and unnecessary multi-tier appeals at intermediate stages on preliminary issue alone and thus avoid procrastination of litigation. The new provision justly aims at abridging the proceeding in the suit rather than permitting prolongation thereof.
39. However, the moot question for me to consider is, whether the irregularity is sufficient to hold that the judgment and decree passed by the trial court and affirmed by the lower appellate court is illegal or a nullity. There is no doubt that there is a procedural irregularity, but at the same time, it does not give Page 42 of 64 C/SA/236/2018 JUDGMENT rise to a substantial question of law. I am saying so because in answering the issue with regard to limitation against the plaintiff, no error, much less an error of law, could be said to have been committed by the courts below, and for saying so, I shall assign my reasons in this regard a little later. However, so far as the argument of the learned counsel appearing for the plaintiff as regards Order 41 Rules 1 and 2 of the Code is concerned, should fail.
SECTION 14 OF THE LIMITATION ACT, 1963 :
40. The above takes me to consider the argument with regard to Section 14 of the Limitation Act. Let me be very specific that the argument with regard to Section 14 of the Limitation Act is being argued for the first time before this Court in this Second Appeal. If the plaintiff wants to seek the benefit of Section 14 of the Limitation Act for the purpose of bringing his suit within limitation, then he has to lay a foundation for the same. The plaintiff is supposed to plead with necessary evidence for the purpose of taking shelter of Section 14 of the Limitation Act. In the case on hand, all that has been submitted is that the plaintiff was pursuing his remedy before the revenue authorities. However, it appears that the proceedings pursued by the plaintiff before the revenue authorities were with regard to the record of rights and the mutation of names in the record of rights.
41. Mr.Kapadia, the learned counsel appearing for the plaintiff, would argue that the proceedings before the revenue authorities are civil proceedings and such proceedings would be covered for the purpose of Section 14 of the Limitation Act. Mr.Kapadia, in Page 43 of 64 C/SA/236/2018 JUDGMENT support of his submissions, has placed reliance on three decisions.
42. The first decision relied upon by him is of the Supreme Court in the case of Ramesh and another v. Gendalal Motilal Patni and others, reported in AIR 1966 SC 1445, wherein the Supreme Court has observed in paragraph 9 as under :
"9. Article 133 must cover all civil proceedings because no exception is indicated. The question is whether the proceedings in the High Court can be described as civil proceedings. The High Court in the present case was invited to interfere by issuing writs of certiorari and prohibition against the reopening of the case in which the Claims Officer had discharged a debt due to the answering respondent. The revenue authorities in such matters act analogously to civil courts, have a duty to act judicially, and pronounce upon the rights of parties. In the present case the Claims Officer purported to exercise a jurisdiction under which he could order the discharge of a debt which means that the order affected the civil rights of the parties. The Commissioner's order reversing the order of the Claims Officer also affected the same civil rights of the parties. The proceedings before the revenue authorities thus were concerned with the civil rights of two contending parties. They were civil proceedings. The proceedings in the High Court must also be regarded as of the same nature. The term civil proceeding has been held in this court to include, at least all proceedings affecting civil rights, which are not criminal. The dichotomy between civil and criminal proceedings made by the Civil Law Jurists is Page 44 of 64 C/SA/236/2018 JUDGMENT apparently followed in Arts. 133 and 134 and any proceeding affecting civil i.e., in private rights, which is not criminal in nature, is civil. This view was expressed recently by this Court in Narayana Row v. Ishwarlal Bhagwandas, AIR 1965 SC 1818 Shah J., speaking for the majority, first summarises all the provisions in the Constitution bearing upon appeals to this Court and after analysis, holds that the words "civil proceeding'' are, used in the widest sense, that in contradistinction to criminal proceedings they cover all proceedings which affect directly civil rights. A proceedings under Article 226 for a writ to bring up a proceeding for consideration must be a civil proceeding, if the original proceeding concerned civil rights. Here the civil rights of the parties were directly involved and the proceeding before the High Court was thus a civil proceeding. The first requisite for the application of Art. 133 (1) is thus satisfied."
43. The second decision relied upon by Mr.Kapadia is of this Court in the case of Ambalal Ranchhoddas (Decd. by his heirs) and another v. Shamjibhai Ladhabhai Patel and another, reported in 1969(10) GLR 197, wherein a learned Single Judge of this Court has observed as under :
"No doubt under sec. 84 of the Tenancy Act, the Collector refused to entertain such an application by the final order passed on 19-5-59, by directing him to obtain decision of the Mamlatdar under sec.70(b). Ambalal had without waiting for this final order already moved the Mamlatdar on 11-4-59 for obtaining a decision on this question under sec.70(b). Ambalal was, therefore, bona fide and with due diligence Page 45 of 64 C/SA/236/2018 JUDGMENT prosecuting his claim, before the Collector under sec. 84 on the basis that opponent No.1 was not a tenant, and which could not be entertained by the Collector for want of jurisdiction. Therefore, sec. 14(2) of the Limitation Act 1908 clearly applied and the running of limitation against Ambalal from the date of the Mamlatdar's Court order on 22-9-58 would be clearly suspended. The Revenue Tribunal has held that Ambalal was not entitled to get exclusion of this period under sec. 14(2) of the Limitation Act, read with sec. 29 of the Indian Limitation Act, 4908, on the ground that the Collector has passed the final order only on 19-5-59, before which he had already filed the present application. That would only curtail the time. What is material to be seen for such exclusion of time under sec. 14(2) is the fact that the plaintiff was prosecuting his claim bona fide with due diligence before another Court, which was not competent to entertain the same. The Revenue Tribunal's view in this respect is, therefore, patently erroneous and is plainly inconsistent with sec. 14(2) of the Indian Limitation Act and it must be set aside. If the period is excluded for the application under sec. 84 from 4-8-58 till the present application was filed on 11-4-59 there is no bar of limitation even if the cause of action is taken to have accrued from the date of the order of the Mamlatdar's Court on 22-9-58. It should also be kept in mind that the Mamlatdar had acted upon only a pencil entry, and as soon as the same was sought to be confirmed by a notice issued to Ambalal on 11- 10-58, Ambalal felt that the threat was going to materialise by final entry being made in the record of rights. He immediately filed the present application within six months Page 46 of 64 C/SA/236/2018 JUDGMENT on the last date of the limitation period on 11-4-59. The Mamlatdar has relied on both the grounds for holding that the application of Ambalal was within time as he had approached within six months from the receipt of the notice for confirming the pencil entry in the record of rights and because the period taken in the application under sec.84 should be excluded. The Revenue Tribunal's order is patently erroneous in so far as it has reversed this order of the two lower authorities on the ground that cause of action for such a compulsory declaration arises as soon as there is a mere assertion of title on ore side and denial by the other. If the threat was not going to materialise or was bound to be ineffective and futile and which it would have been if Ambalal was able to prove that he was in possession, no such cause of action for a compulsory declaration or a decision could be deemed to accrue to Ambalal. Therefore, even in respect of Ambalal, the order of the Revenue Tribunal is patently erroneous and it must be quashed It is true that Mr. Amin also wanted the exclusion of time for the proceedings In the Mamlatdar's Court where Ambalal was resisting the claim of opponent No. 1 for injunction. Mr. Amin relied upon sec. 14 of the Limitation Act in this connection, in so far as Explanation II provides that for the purpose of that section a plaintiff or an applicant resisting the appeal shall be deemed to be prosecuting the proceeding. Sec. 14(1) deals with the plaintiff for excluding time of the proceeding prosecuted by him bona fide and with due diligence in a Court without jurisdiction against the defendant whether in the first Court or in the Court of appeal, while sec. 14(2) deals with the applicant who prosecutes any application in Page 47 of 64 C/SA/236/2018 JUDGMENT such circumstances. The explanation would only show that the plaintiff or the applicant would be considered to be plaintiff or the applicant even when at the stage of the appeal he might be the respondent resisting the appeal. The material criterion for the application of the section is that the plaintiff must be prosecuting his claim whether in the first Court or in the appeal by resisting the appeal. This provision could never apply to the original defendant or opponent in an application. Mr. Amin sought to rely on the decision of the Privy Council in Ramdutt Ramkissandass v. E. D. Sasoon & Co. I.L.R. 56 Cal. 1042. In that case Their Lordships of the Judicial Committee excluded the time occupied by the plaintiff bonafide and with due diligence not only in obtaining the previous award on the same cause of action but in resisting the suit which had been filed by the other side for setting aside that award. This decision could not help Mr. Amin for the simple reason that even in the original arbitration it was the same plaintiff who was prosecuting his claim by obtaining the previous award and he was only resisting the suit filed for setting aside that previous award ii his favour for want of jurisdiction in the arbitrator. In these circumstances at page 1059 Their Lordships observed that the respondents were prosecuting with due diligence their claim against the appellants and that the second arbitration was founded on the same cause of action and was prosecuting in good faith before the previous arbitrator, who from defect of jurisdiction was found not competent to exercise jurisdiction in the matter. If the period in question during which the respondent's claim was held because the proceeding instituted for the purpose of setting aside the first Page 48 of 64 C/SA/236/2018 JUDGMENT award and in obtaining final judgment on that questions excluded from the period of limitation, there could be no doubt that the respondents were within the period prescribed. The case was therefore on its own facts and it does not lay down any different principle. Mr.Amin also relied upon decision of the Privy Council in Nrityamoni Dassi v. Lakhan Chandra Sen, I.L.R. 43 Cal. 660. In that case also Their Lordships had excluded the period under sec. 14, as In fact it was found that in the previous suit, where the present plaintiffs were joined as defendants they were in reality supporting the plaintiffs and asking for a declaration of their, shares and, therefore, they had associated themselves with the plaintiff for getting their shares and sought a declaration in those proceedings for adjudication of their own rights. Mr. Amin also tried to rely upon a decision in Somabikharswami v. Shivappa 26 Bom.L.R. 863, where Sir Lallubhai Shah, Ag. Chief Justice sitting with Mr. Justice Crump, observed at page 866 that under certain conceivable circumstances the applicant may be said to be prosecuting with due diligence a proceeding, in which he is contesting the proceeding initiated by his opponent within the meaning of the sec. 14(2). Such a conceivable case would be one where the defendant or the opponent would be supporting the plaintiff and seeking adjudication of his rights in the same proceeding, as it happened in the aforesaid decision of the Judicial Committee, I.L.R. 43 Cal. 660. In fact the ratio of the Division Bench is clearly against Mr. Amin as it has in terms held that sec. 14 could not be invoked to exclude the period taken in another proceeding for the plaintiff was not prosecuting in civil proceeding but was merely defending a suit brought Page 49 of 64 C/SA/236/2018 JUDGMENT against him. In that view of the matter, Mr. Amin's contention cannot be upheld so far as he wants the period in the Mamlatdar's Court, where the petitioner Ambalal was resisting the claim of opponent No. 1, to be excluded and to that extent, the Revenue Tribunal was right In its order. As, however, I have held that Ambalal was entitled to get the period excluded for the proceeding under sec. 84 of Tenancy Act, the order of the Revenue Tribunal must be quashed as the application by Ambalal and his brother Chandulal was obviously within time. On clear misconception of law, Revenue Tribunal has held that these applications were time barred. The order being patently erroneous on this question of limitation must be set aside and this petition must be allowed. It is, therefore not necessary to go with the wider question by Mr. Amin in his first ground."
44. The third decision relied upon by Mr.Kapadia is also of this Court in the case of Dhrangadhra Taluka Sahakari Kharid Vhechan Sangh Ltd. v. Rampratap Hakimchand and Company, Bombay and others, reported in AIR 1985 GUJ 78.
45. Mr.Kadri, the learned counsel appearing for the defendants, on the other hand, submitted that present is the case where the provision of Section 14 of the Limitation Act would not apply because the plaintiff has failed to plead that he was prosecuting the earlier litigation with due diligence in relation to the same matter in issue and was prosecuting in good faith in a court which, from the defect of jurisdiction or other cause of the like nature, was unable to entertain it.
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46. Section 14 of the Limitation Act reads as under :
"14. Exclusion of time of proceeding bona fide in court without jurisdiction. - (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil Procedure, 1908, the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.Page 51 of 64
C/SA/236/2018 JUDGMENT Explanation :-For the purposes of this section,-
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) mis-joinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
47. I am at one with Mr.Kadri, the learned counsel appearing for the defendants, that a fair understanding of Section 14 of the Limitation Act would clearly provide that the requirement of Section 14 is not only to be argued but it is to be pleaded, and unless the requirement is pleaded and there are full pleadings, a party cannot be allowed to lead evidence or rely upon a provision of law without factual foundation. Mr.Kadri is right in his submission that in a case where a party seeks benefit under Section 14 of the Limitation Act, it has to plead that the plaintiff was prosecuting with due diligence some other civil proceedings in a court of first instance or appeal or revision and he was prosecuting the proceedings in good faith in a court which, from the defect of jurisdiction or other causes of like nature, was unable to entertain it.
48. Let me for the time being proceed on the footing that the proceedings before the revenue authorities could be said to be Page 52 of 64 C/SA/236/2018 JUDGMENT civil proceedings. However, the situation is not saved for the plaintiff. Section 14 talks about defect of jurisdiction. What is this 'defect of jurisdiction' ? This principle of defect in jurisdiction as stipulated in Section 14 of the Limitation Act has been very succinctly explained by the Supreme Court in the case of Zafar Khan and others v. Board of Revenue, U.P. and other, reported in AIR 1985 SC 39. I may quote the relevant observations of the Supreme Court as under :
"10. Reverting to the two points on which the suit of the appellants was dismissed. Mr. Lodha pointed out that the High Court and all the statutory authorities were in error in denying to the appellants in the facts and circumstances of this case, the benefit of the provision contained in Sec. 14 of the Limitation Act and dismissed the suit as barred by limitation. After the appellants lost up to the High Court in the proceeding arising upon their application under Sec. 144 of the Code of Civil Procedure, the appellants filed a suit under Ss. 209 and 229(b) of the 1950 Act. Under the order of the Additional Commissioner. the respondents obtained possession of the plots on June 21, 1956. The present suit was filed in August, 1966. Suit under Sec. 209 of the 1950 Act has to be filed within the prescribed period of limitation and it is not in dispute that the suit filed by the appellants in August, 1966 was filed beyond the period of limitation. The appellants submitted that they are entitled to the benefit of the provision contained in Sec. 14 of the Limitation Act. The learned Judge and the Division Bench of the High Court have concurrently held that the appellants were not entitled to the benefit claimed by them.Page 53 of 64
C/SA/236/2018 JUDGMENT Sec. 14(1) of the Limitation Act reads as under :
"14(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it."
11. In order to attract the application of Sec. 14(1), the parties seeking its benefit must satisfy the Court that : (1) that the party as the plaintiff was prosecuting another. civil proceeding with due diligence; (ii) that the earlier proceeding and the later proceeding relate to the same matter in issue and (iii) the former proceeding was being prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. It may be assumed that the earlier proceeding under Sec. 144 of the Code of Civil Procedure was a civil proceeding for the purpose of Sec. 14. It may as well be assumed in favour of the appellants that they were prosecuting the same with due diligence and in good faith, as they relentlessly carried the proceeding up to the High Court invoking its extraordinary jurisdiction. The first of the aforementioned three cumulative conditions can be said to have been satisfied.
12. The appellants must further satisfy the Court that the earlier proceeding i.e. the one under Sec. 144 of the Code of Page 54 of 64 C/SA/236/2018 JUDGMENT Civil Procedure related to the same matter in issue, as in the present suit. There the appellants are not on sure ground. In a proceeding under Sec. 144 of the Code of Civil Procedure, the party applying for restitution has to satisfy the Court of first instance that a decree under which it was made to part with the property is varied or reversed or modified in apeal or revision or other proceeding or is set aside or modified in any suit instituted for the purpose and therefore, restitution must be ordered. Sec. 144 is founded on the equitable principle that one who had taken advantage of a decree of a Court should not be permitted to retain it, if the decree is reversed or modified. That is why the marginal note to Sec. 144 (1) reads application for restitution and the word 'restitution' in its etymological sense means restoring to a party on the modification, variation or reversal of a decree what has been lost to him in execution of the decree or in direct consequence of the decree. In such a proceeding, the party seeking restitution is not required to satisfy the Court about its title or right to the property save and except showing its deprivation under a decree and the reversal or variation of the decree. On the reversal by the Board of Revenue in the appeal filed by the appellants of the order of the Additional Commissioner under which the respondents obtained possession, the appellants merely claimed in their application under See. 144 that in view of the reversal of the order by the Board of Revenue the respondents are not entitled to retain possession and that restitution should be ordered because the appellants lost possession under the order of the Additional Commissioner which was reversed by the Board of Revenue. The cause of action was the reversal Page 55 of 64 C/SA/236/2018 JUDGMENT of the order of the Additional Commissioner. When they failed to obtain restitution, the appellants filed a substantive suit under Ss. 209 and 229(b) of the 1950 Act in which they claimed that they have become the Bhumidars of the plots in dispute and that the respondents are not entitled to retain possession as their possession is not in accordance with the provisions of 1950 Act. It was suit on title as Bhumidars for possession against respondents alleging unauthorised retention of possession. It had nothing to do with the order of the Additional Commissioner. In this suit the appellants were bound to prove that the respondents were not entitled to retain possession under any of the provisions of the Act. Incidentally, the order of the Additional Commissioner and its reversal would figure as evidence but it is difficult to accept that the subsequent proceeding relates to the same matter in issue as was involved in the earlier proceeding. In the application under Sec. 144 Code of Civil Procedure only allegation to be proved for relief of restitution is that the decree or order under which respondents obtained possession from appellants has been reversed, modified or varied. They need not prove title or right to be in possession. In the suit, not only title to the land as Bhumidar must be proved but also the respondents bad not a tittle of title to retain possession. And respondents can allege and prove that under the very 1950 Act under which appellants became Bhumidars, the respondents have become adhivasis entitled to retain possession against the appellants. This defence was not open to them in the proceeding under Sec.
144. It was, however, submitted that the appellants were seeking. in both the proceedings, possession of the plots Page 56 of 64 C/SA/236/2018 JUDGMENT involved in the dispute on the ground that they are ultimately entitled to the possession thereof and the possession of the respondents vis-a-vis the appellants was unauthorised and they were not entitled to retain possession against the appellants. This is far from convincing. One can at best say there is a grey area and that as the provision of Sec. 14 is required to be construed liberally, therefore, we may not have denied the benefit if this was the only aspect against the appellants.
13. The question however is whether the third condition for attracting Sec. 14(1) is satisfied. The appellants must further satisfy the Court that the earlier proceeding failed on account of defect of jurisdiction or other cause of a like nature. Now at no stage it was contended that the authority to whom the application was made for restitution had no jurisdiction to entertain the application, nor through the course of the proceedings up to the High Court anyone, anywhere, questioned the jurisdiction of the authority to grant restitution. Therefore, it can be safely said that the previous proceeding did not fail on account of defect of jurisdiction.
14. The next limb of the submission was that as in the former proceeding restitution was refused on the ground that in the proceeding under the 1953 Act the .land in dispute was allotted to the respondents and the allotment had become final, it can safely be said that the proceeding failed on account of a cause of like nature such as defect of jurisdiction and the appellants would be entitled to exclude the time spent in that proceeding while computing the period of limitation in the suit. It is true that where the expression as Page 57 of 64 C/SA/236/2018 JUDGMENT A whole reads from defect of jurisdiction or other cause of a like nature is unable to entertain it, the expression cause of a like nature' will have to be read ejusdem generis with the expression 'defect of jurisdiction.' So construed the expression 'other cause of a like nature' must be so interpreted as to convey something analogous to the preceding words 'from defect of jurisdiction.' The defect of jurisdiction goes to the root of the matter as the Court is incompetent to entertain the proceeding. The proceeding may as well fail for some other defect. Not all such defects can be said to be analogous to defect of jurisdiction. Therefore the expression 'other cause of a like nature' on which some light is shed by the Explanation (C) to Sec. 14 which provides "misjoinder of parties or causes of action shall be deemed to be a cause of like nature with defect of jurisdiction," must take its colour and content from the just preceding expression, 'defect of jurisdiction.' Prima facie it appears that there must be some preliminary objection which if it succeeds, the Court would be incompetent to entertain the proceeding on merits, such defect could be said to be of the like nature' as defect of jurisdiction. Conversely if the party seeking benefit of the provision of Sec. 14 failed to get the relief in earlier proceeding not with regard to anything connected with the jurisdiction of the Court or some other defect of a like nature, it would not be entitled to the benefit of Sec. 14. Where therefore, the party failed in the earlier proceeding on merits and not on defect of jurisdiction or other cause of a like nature, it would not be entitled to the benefit of Sec. 14 of the Limitation Act. See India Electric Works Ltd. v. James Mantosh (1971) 2 SCR 397 : (AIR 1971 SC 2313).
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15. The appellants failed in the earlier proceeding not on the ground that the authority had no jurisdiction to entertain the application nor on the ground that there was any other defect of a like nature, but on merits inasmuch as the authorities and the High Court held that in view of the decision of the authorities under 1953 Act, the appellants are not entitled to restitution. That was the decision on merits of the dispute and the appellants' application was rejected. Therefore. the High Court rightly declined to grant benefit of the provision of Sec. 14 of the Limitation Act to the appellants."
49. Thus, in the case on hand also, it cannot be said that the plaintiff failed in the proceedings before the revenue authorities on the ground that the authorities had no jurisdiction to entertain the application or appeal or revision filed by the plaintiff nor on the ground that there was any other defect of a like nature. In fact, the proceedings before the revenue authorities as noted by me earlier were with respect to mutation of entries in the record of rights. Even otherwise, the law is well- settled that the revenue authorities cannot go into the issue of title or the legality or validity of any instrument like a gift-deed or a sale-deed or a Will. Therefore, in my view, the argument of Mr.Kapadia with regard to Section 14 of the Limitation Act would not save the situation.
50. In the aforesaid context, I may refer to and rely upon a decision of this Court in the case of State of Gujarat v. Gangaben Polabhai, reported in 2007(2) GLR 921, wherein a learned Single Judge of this Court has observed as under :
Page 59 of 64C/SA/236/2018 JUDGMENT "...In the opinion of this Court, in absence of the pleadings relating to good faith, diligence and defect of jurisdiction, the State would not be allowed to say that they are entitled to the benefit of Sec. 14. 'Good faith' are not plain and simple words, but in fact, they carry deep sense in those. One has to show to the Court that he had some belief, some faith and the said belief was based on appropriate appreciation of the legal position or the factual foundation, and therefore, the faith was good faith and not ordinary faith. In the present case, the State Government unfortunately did not raise any pleadings that what was the good faith or how the matter was contested diligently or with due diligence before the Court which had no jurisdiction. At this stage, it must also be appreciated that the High Court in a single Bench or Letters Patent Court in Appeal or the Supreme Court in its appellate jurisdiction were entitled to grant relief to the present plaintiff, therefore, it cannot be said that the High Court or the Supreme Court had no jurisdiction to entertain the writ application or the Letters Patent Appeal or Special Leave Petition. Section 14 would apply to a case where the Court from the defect of jurisdiction or other cause of like nature is unable to entertain the suit, another civil proceedings or appeal or revision. If the High Court or Supreme Court had jurisdiction to grant relief, but they were of the opinion that relief was not be granted, then present cannot be said to be a case of 'defect of jurisdiction' falling under Sec.14 of the Limitation Act.
In the matter of Gopal Sardar v. Karuna Sardar, reported in AIR 2004 SC 3068, the Supreme Court has clearly observed Page 60 of 64 C/SA/236/2018 JUDGMENT that if a particular law provides a particular limitation, then such limitation has to be observed and if such limitation is not observed, then right to file the suit would stand foreclosed. In the said suit, the plaintiff came to the Court to exercise his right of preemption under the provisions of the West Bengal Land Reforms Act. Under the said Act, a suit is required to be filed within a period of three months from the date of the transfer, the said plaintiff filed the suit after six years and four years and the Supreme Court held that the suits were not maintainable."
51. The plaintiff questioned the gift-deed of the year 1960 and the Will of the year 1968. The suit came to be filed in the year 1998. Going by the period of limitation as prescribed under Article 59 of the Limitation Act, the suit should have been filed within three years from the date of knowledge of the fact that the transaction which, according to the plaintiff was void or voidable, had taken place. In the aforesaid context, I may refer to and rely upon a Supreme Court decision in the case of Abdul Rahim and others v. Sheikh Abdul Zabar and others, reported in 2009(5) GLR 4347, wherein the Supreme Court has held as under :
"26. Limitation for filing a suit in a case of this nature is governed by Article 59 of the Schedule appended to the Limitation Act, which reads as under:
"Description of Suit Period of Limitation Time from which period begins to run 59 To cancel or set aside an instrument or decree or for the rescission of a contract. Three years When the Page 61 of 64 C/SA/236/2018 JUDGMENT facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him."
27. Respondent No.1 in his suit prayed for cancellation of and setting aside of the deed of gift dated 21.2.1973. He became aware of the deed of gift in the proceedings before the Tahasildar. He had filed objections on the Razak's application for grant of lease in his name in respect of the small patch of lands which was being used for ingress to and egress from the property in question. In that proceeding itself, the donor himself had prayed for mutation of Razak's name in respect of the property in question.
28. A suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act. The suit, therefore, should have been filed within a period of three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place. The suit having not been filed within a period of three years, the suit has rightly been held to be barred by limitation.
29. In Md. Noorul Hoda v. Bibi Raifunnisa and Ors. [1996 (7) SCC 767], this Court held:
"....There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter-se parties. The question is whether in case of person claiming title through the party to the decree or Page 62 of 64 C/SA/236/2018 JUDGMENT instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by a specific declaration, whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word 'person' in Section 31 of the Specific Relief Act is wide enough to encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years Page 63 of 64 C/SA/236/2018 JUDGMENT from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him.""
{See also Sneh Gupta v. Devi Sarup and Ors. [2009 (2) SCALE 765]}
52. In view of the aforesaid discussion, I have reached to the conclusion that I should not disturb the judgment and order passed by the two courts below.
53. In the result, this Second Appeal, therefore, fails and is hereby dismissed. Civil Application, if any, stands disposed of.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 64 of 64