Kerala High Court
Kerala State Civil Supplies ... vs M.G.M. Transports on 9 December, 2004
Equivalent citations: III(2005)BC305, 2005(1)KLT467
Author: Pius C. Kuriakose
Bench: Pius C. Kuriakose
JUDGMENT S. Sankarasubban, J.
1. These appeals are filed by the Kerala State Civil Supplies Corporation Ltd. (hereinafter referred to as 'the Corporation') against the judgment and decree in O.S.Nos. 120 and 121 of 1997 of the Sub Court, Ernakulam. Respondents are transport contractors. They provide vehicles for the transport of goods. The respondents are registered with the appellant as contractors. They filed the suits for the balance amount of transportation charges payable to them; But before the suits were filed, the plaintiffs approached this Court by filing O.P.Nos. 7626 and 7586 of 1989. Those Original Petitions were filed challenging the show cause notice issued by the Corporation for cancelling the registration and for arrears of transportation charges due to them. The Writ Petitions were pending in this Court till 30.6.1996. The Writ Petitions were disposed of without going into the merits. It was brought to the notice of the Court that so far as the show cause notice was concerned, no action was taken by the Corporation pursuant to the notice and hence, there was no decision on that aspect. So far as the payment of arrears of transportation charges is concerned, this Court expressed the view that it cannot be possible under Article 226 of the Constitution of India to go into that aspect. Hence, it reserved the right of the contractors to apply to the ordinary Civil Courts for the redressal of their grievances.
2. The petitioners contended before this Court that since the matter was pending before this Court for a long time, the question of limitation will also come up. This Court then observed in the judgment that the Civil Court should take note of the fact that the Original Petitions were pending before this Court. Thus, the Original Petitions were disposed of.
3. Subsequently, the suits were filed as O.S. Nos. 120 and 121 of 1997. The prayer in both those suits is for a decree of money. In paragraph 11 of the plaint, O.S.No. 121 of 1997, it is stated as follows:
"The plaintiff was bona fide prosecuting the matter before the Hon'ble High Court during the period 27.8.1989 to l3.6.1996 and the Hon'ble High Court in its judgment dated 13.6.1996 had further observed with regard to that "I have therefore no hesitation in observing that the petitioners were pursuing this O.P. merit worth consideration for excluding the period of pendency in computing the period of limitation if the petitioners choose to file a suit before a competent Court having jurisdiction". Hence, the aforesaid period during which the plaintiff was prosecuting the O.P. has to be excluded in calculating the period of limitation of the present suit".
The defendant filed written statement challenging the question of limitation and other matters. The Court below, after considering the matter, held that there was no limitation and Section 14 of the Limitation Act (hereinafter referred to as 'the Act') was applicable. It further gave a decree on the merits also. It is against the above judgment and decree that the present appeals are filed.
4. Learned counsel for the appellant submitted that there was no question of applicability of Section 14 of the Limitation Act, as there was no civil proceeding pending as mentioned in Section 14 of the Act. Learned counsel further submitted that all the ingredients under Section 14 of the Act were not satisfied. On the other hand, learned counsel for the respondents submitted that the Court below was correct in holding that Section 14 of the Act was applicable to the facts of this case and the decree and the judgment of the court below are valid.
5. Before we go into the applicability of Section 14 of the Act, we quote the relevant portion of Section 14(1) of the Act.
"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 related 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."
So far as the applicability of Section 14 of the Act is concerned, the following have to be proved: (1) The plaintiff must have been prosecuting another civil proceeding with due diligence. (2) The earlier proceeding and the later proceeding must be founded on the same cause of action and (3) The former proceeding must have been prosecuted in good faith in a Court which from defect of jurisdiction or other cause of like nature is unable to entertain it.
6. There is no doubt that the two Original Petitions had been filed by the respondents before this Court under Article 226 of the Constitution of India. At the time of prosecution of those Original Petitions, the arrears of transportation charges were due to them and there was also a show cause notice issued to the respondents to terminate their registration. The question is whether this is a civil proceeding or not. Learned counsel for the appellant submitted that the power under Article 226 of the Constitution was never exercised when there was a disputed question of fact. It was further argued that it cannot be said that the Original Petitions were disposed of for want of jurisdiction or cause of like nature. So far as the question as to whether the proceeding is a civil proceeding, we have to hold that it is a civil proceeding. According to Stroud's Judicial Dictionary, the expression 'civil proceeding' means a process for the recovery of individual right or redress of individual wrong, inclusive in its proper legal sense, of suits by the Crown. A proceeding in enforcement of a civil right is a civil proceeding. Proceeding which is not a criminal proceeding is a civil proceeding.
7. In Narayan Row v. Ishwarlal, AIR 1965 SC 1818, the Supreme Court held that the proceedings under Article 226 of the Constitution are civil proceedings. In Rameshwarlal v. Municipal Council Tonk and Ors., (1996) 6 SCC 100, the Supreme Court held that the entire time from the date of institution of the Writ Petition till the disposal should be excluded under Section 14 of the Act. In Bru Bushan v. Kewal Kumar, (1998) 7 SCC 447, the Supreme Court held that the delay can be condoned by the High Court and the matter can be relegated to the consideration by appropriate Civil Court. Thus, it cannot be said that the proceeding under Article 226 of the Constitution is not a civil proceeding. Further, in the judgment in the above Original Petitions itself, it has been stated that the petitioners can approach appropriate Court for a relief and the time spent in the High Court will be taken into consideration and hence, it cannot be said that the proceeding pending before the High Court was bona fide prosecuting, since this Court itself expressed the view that the pendency of the Writ Petitions has to be taken into consideration.
8. Next question to be considered is whether there was defect of jurisdiction or other causes, which prevented this Court from granting the relief. Learned counsel for the appellant submitted that no writ of mandamus can be issued for payment of money and those are all matters which can be prosecuted only in the Civil Court. Hence, according to the learned counsel for the appellant, knowing that the Writ Court had no jurisdiction, the Original Petitions were filed. We don't accept that argument made by the learned counsel for the appellant. The High Court can exercise power under Article 226 of the Constitution for the issue of any writ and for any other cause. It is true that usually the High Court does not enter into contractual matters.
9. Learned counsel for the appellant brought to our notice the decisions in Abl International Ltd. and Anr. v. Export Credit Guarantee Corporation of India Ltd. and Ors., (2004) 3 SCC 553, wherein it has been held thus:
"Which Writ Petition involving serious disputed questions of facts which requires consideration of evidence which is not on record, will not normally be entertained by a Court in the exercise of its jurisdiction under Article 226 of the Constitution, but there is no absolute rule that in all cases involving disputed questions of fact the parties should be relegated to a Civil Court. It has even been held (in Gunwant Kaur case, (1969) 3 SCC 769) that in a Writ Petition, if the facts require, oral evidence can be taken. This clearly shows that in an appropriate case, the Writ Court has the jurisdiction to entertain a Writ Petition involving disputed questions of fact and there is no absolute bar for entertaining a Writ Petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact".
In Zafar Khan v. Board of Revenue, U.P., AIR 1985 SC 39, it was held by the Supreme Court as follows:
"In order to attract the application of Section 14(1), the parties seeking its benefit must satisfy the Court that: (i) 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...............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". 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 Section 14 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 Section 14".
In this case, it is clear that the earlier proceeding was not disposed of on merits. Another decision cited is Corporation of Calcutta v. Paulin Chandra Daw and Ors., AIR 1977 Calcutta 443. The above decision deals with Section 14 of the Act. It was held thus:
"On facts, that the claim of the plaintiff in the prior suit having been adjudicated upon anddisposed of on merits, it could not be said that the previous suit was misconceived........"
10. In the above view of the matter, we are of the view that so far as the present suit is concerned, Section 14 of the Act can be applied. If that be so, there is no bar of limitation. We agree with the Court below that Section 14 of the Act would apply to the facts of this case. No other points were argued before us. Appeals are dismissed.
The Cross Appeal has been filed for the enhancement of interest. We don't find any ground with regard to the interest granted by the Court below. Cross Appeal is also dismissed.