Karnataka High Court
Thippe Rangappa vs Sri. Maranna on 2 December, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
R.P. No.131/2017
BETWEEN:
1. THIPPE RANGAPPA
SINCE DEAD BY HIS LRs
i) SMT.GOWRAMMA
W/O LATE THIPPERANGAPPA
AGED ABOUT 90 YEARS
ii) SMT.JAYAMMA
D/O LATE THIPPERANGAPPA
AGED ABOUT 65 YEARS.
iii) SRI KESHAVA MURTHY
S/O LATE THIPPERANGAPPA
AGED ABOUT 63 YEARS.
iv) SRI GOVINDAPPA
S/O LATE THIPPERANGAPPA
AGED ABOUT 60 YEARS.
v) SRI RAMAKRISHNA
S/O LATE THIPPERANGAPPA
AGED ABOUT 58 YEARS.
vi) SMT.SHARADAMMA
D/O LATE THIPPERANGAPPA
W/O NAGARAJU
AGED ABOUT 55 YEARS.
2
vii) SRI MUDALAGIRIGOWDA
S/O LATE THIPPERANGAPPA
AGED ABOUT 51 YEARS.
viii) SRI RANAGANATHAIAH
S/O LATE THIPPERANGAPPA
AGED ABOUT 48 YEARS.
ALL THE ABOVE LRs ARE
R/O YADALADAKU VILLAGE
HULIKUNTE HOBLI, SIRA TALUK
TUMKURU DISTRICT - 572 137.
...PETITIONERS
(BY SRI KESHAV R AGNIHOTRI, ADVOCATE)
AND:
SRI. MARANNA
SON OF LATE SRI MADAPPA
AGED ABOUT 76 YEARS
AGRICULTURIST
RESIDING AT YADALADAKU VILLAGE
HULIKUNTE HOBLI,
SIRA TALUK
TUMKUR DISTRICT-572 137.
SINCE DECEASED
REPRESENTED BY HIS LRS
1. SRI RAMAKRISHNAPPA
SON OF LATE SRI MARANNA
AGED ABOUT 65 YRS
2 . SRI ERANNA
SON OF LATE SRI MARANNA
AGED ABOUT 63 YEARS
3 . SRI M MADUVAIAH
3
SON OF LATE SRI MARANNA
AGED ABOUT 59 YEARS
ALL ARE RESIDING AT
YADALADAKU VILALGE
HULIKUNTE HOBLI
SIRA TALUK
TUMKUR DISTRICT.
...RESPONDENTS
(BY SRI CHITHAPPA, ADVOCATE
FOR R1, R2(I-VI) & R3)
THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 OF CPC, PRAYING TO REVIEW THE ORDER
DATED:25.01.2017 PASSED IN RSA No.124/2007, ON THE
FILE OF THIS COURT.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel appearing for both the parties.
2. This review petition is filed by the plaintiff/petitioner under Order 47 Rule 1 of CPC read with Article 215 of the Constitution of India, seeking review of the judgment dated 25.01.2017 passed in RSA No.124/2007 by this Court. The petitioner is one 4 Thipperangappa son of Mudalagiriyappa. Since the petitioner is dead now he is represented by his legal representatives.
3. In order to avoid confusion and overlapping, the parties are addressed with reference to their ranking as held by them in the trial Court.
4. When the matter was taken up for dictation in the open Court, learned counsel for the plaintiff/petitioner would submit that Smt. Gowramma wife of Thipperangappa died on 26.08.2020 and filed a memo to that effect. The said memo is taken on record.
5. The review petition is in respect of the judgment passed in RSA No.124/2007 by this Court on 25.01.2017. The operative portion of the said judgment is as under:
The appeal is allowed.5
The judgment and decree dated 27.09.2006 passed in R.A.No.1231/2005 on the file of the Civil Judge (Sr.Dn.), Sira, confirming the judgment and decree dated 25.11.1997 passed in O.S.No.198/1991 on the file of the Civil Judge (Jr.Dn.), Sira is set aside. Consequently, the suit of the plaintiff is dismissed. No order as to costs.
6. The petitioner being aggrieved by the said judgment has come before this Court by filing review petition and that review petition requires to be considered for the very reason that there are errors in the said judgment and on that ground prays for allowing the review petition filed under Order 47 of CPC.
7. It is necessary to mention that though it is a review petition, the same contains different phases of proceedings one interconnected to another as the plaintiff had filed original suit against the respondent in O.S.No.198/1991 before the Civil Judge (Jr.Dn.), 6 Sira and the same was decreed on 25-11-1997 and confirmed in R.A.No.121/2005 by the Civil Judge (Sr.Dn.), Sira on 27-09-2006. In the meanwhile, so many formalities and proceedings have taken place. Against the said judgment in R.A.No.121/2005, the defendant/respondent herein preferred R.S.A.No.124/2007 before this Court which came to be allowed by setting aside the judgment and decree passed in R.A. No.121/2005 on 27.09.2006 and consequently the suit of the plaintiff came to be dismissed.
8. Before adverting the attention on the other aspects more than the assertion and denial of the parties, series of revenue and judicial proceedings occupy the stage.
9. The petitioner-Thipperangappa is the plaintiff, at present who is no more and survived by 7 his legal representatives. During his life time, he filed a petition before the Tahsildar, Sira in RRT- CR:466:80-81 for rectification of entries in respect of land in Sy.No.139/1A of Yadaladaku Village that was wrongly made in favour of respondent herein. Tahsildar after enquiry confirmed the name of defendant/Maranna who is none other than the respondent herein on 15.7.1980.
10. The plaintiff being aggrieved by the order of the Tahsildar, preferred an appeal before the Assistant Commissioner, Madhugiri in RRT:CR.37/80-
81. The Assistant Commissioner, Madhugiri, on enquiry set aside the order of Tahsildar in his order dated 27.09.1982. Against that, defendant/Maranna filed an appeal before the Special Deputy Commissioner, Tumkur District in R.A.No.25/1982-83 and on enquiry, the Special Deputy Commissioner allowed the appeal on 8-11-1984, set aside the order 8 passed by the Assistant Commissioner and confirmed the order of the Tahsidlar passed RRT:CR:466/80-81 on 15.7.1980. Against the said order, plaintiff/Thipperangappa filed writ petition before this Court in W.P.No.18715/1984 and this court disposed of the same on 27.11.1984 observing that it was open to the petitioner/Thipperangappa to establish his right in appropriate suit and as such, the impugned order cannot be considered.
11. It was thereafter, the plaintiff/ Thipperangappa has filed O.S.No.2/1985 (which was subsequently renumbered as O.S.No.198/1991) before Munsiff and JMFC, Sira for declaration and permanent injunction against the said Maranna who is none other than the respondent herein. The deceased respondent was alive at that time and entered caveat and filed the written statement and objection to I.A.No.1. It was contended subsequently in para No.8 9 of the written statement that the suit was barred by time and value of the property is worth more than Rs.45,000/-. At that time, the Munsiff Court did not have pecuniary jurisdiction over the value of subject matter of Rs.45,000/-. As per the Civil Courts Act the limit was Rs.10,000/-.
12. The Munsiff Court at Sira over the controversy between the parties framed issues, out of which, issue No.5 was regarding pecuniary jurisdiction. The parties have also adduced their evidence. The defendant got examined four witnesses. Maranna examined himself as DW.1. Notice to Sub- Registrar was also issued and the representative came and adduced the evidence as DW.2.
13. On 15.03.1989, the Court of Munsiff ordered that it had no jurisdiction to try the matter and returned the plaint to be present before the 10 proper Court. Subsequently there was an amendment to the Civil Courts Act and the pecuniary jurisdiction of Court was enhanced to Rs.50,000/- and the plaintiff-Thipperangappa made an application in the form of I.A.No.8 to take up the matter by virtue of amendment to Karnataka Civil Courts Act, in the matter of jurisdiction. On 28.06.1990 the plaintiff made an application under Section 151 of CPC for returning of documents filed by him and order was passed on 30.05.1991 and documents were returned and no notice was issued.
14. On 12.09.1990, a fresh notice was issued on the same I.A.No.8. It was on 26.11.1990, the respondent-Maranna entered appearance through his advocate and filed objections to I.A.No.8 and the matter was adjourned twice or thrice and thereafter I.A.No.8 was heard and the same was rejected on 07.02.1991. By virtue of rejection of I.A.No.8, the 11 plaintiff had to take back his documents and present the same to the next Court as ordered by the Munisff Court.
15. On 02.03.1991, the plaint, vakalath, valuation slip and Court fee and other papers were taken by the Advocate for plaintiff and presented the same before the Court of Civil Judge at Madugiri wherein it was numbered as O.S.198/1991.
16. Here it is necessary to mention that the pecuniary jurisdiction of the Munsiff was increased to Rs.50,000/- and automatically, the matter has to be returned to the Munsiff at Madhugiri. Accordingly, the learned Civil Judge, Madhugiri returned the plaint for presentation of the same before the proper court, and the same was taken back and presented before the Court of Civil Judge, Sira on 04.06.1991 and the same came to be registered as O.S.No.198/1991. 12
17. On 25.11.1997, the learned Civil Judge, Junior Division Sira decreed the said suit. Being aggrieved by the same, the defendant-Maranna preferred R.A.No.121/2005 before the Civil Judge, Senior Division, Sira. The First Appellate Court on 27.09.2006 dismissed the same and against which, defendant Maranna filed RSA No.124/2007 before this Court. Thus the above has been the journey of the proceedings till they landed in the form of RSA before this Court.
18. While admitting the appeal, this Court framed four substantial questions of law on 19.10.2016.
"1. Whether the suit was barred by limitation?
2. Whether the proceedings of O.S.No.198/1991 on the file of Civil Judge (Jr.Dn.), Sira, can be considered as the continuation of the O.S.No.2/1985 on the file of the same Court?13
3. Whether the lower appellate court was justified in condoning the delay?
4. Whether the courts below were justified in acting on the revenue entries?"
19. After their consideration and after hearing, allowed said appeal on 25.01.2017 and consequently, the suit of the plaintiff came to be dismissed. Against which the present review petition is filed.
20. At this stage, learned counsel Sri.Chithappa for defendant/Maranna, raised objections regarding giving audience to Sri.D.R.Ravishankar, on the ground that learned counsel Sri.D.R.Ravishankar is not the counsel who represented the plaintiff/ Thipperangappa in the second appeal and as such he cannot not plead or argue in review petition generating from R.S.A.No.124/2007. He vehemently opposes for participation of Sri.D.R.Ravishankar either in the 14 deliberation or to submit on behalf of Sri. Keshava R. Agnihotri. In this regard learned counsel Sri. Chithappa relies on the decision in the case of Mohan Lal Bagla Vs Board of Revenue, U.P., Lucknow and others reported in AIR 2005 Allahabad 308.
21. On perusal of the records in RSA No.124/2007, vakalath for plaintiff/ Thipperangappa is filed by Sri.Keshava R. Agnihotri, KAR 513/90 and Sri.P.Hanumanthappa, 1057/99 for M/s. Agnihotri Associates. Meanwhile, Sri.D.R.Ravishankar voluntarily submits that in the light of opposition by learned counsel Sri.Chithappa, he withdraws from making any further submission in the matter and left it to Sri. Keshav R. Agnihotri.
22. In the regular second appeal, however, this court finds that first and second question which are inter dependent as it is pertinent to the proceedings in 15 O.S.No.98/1991 and O.S.No.2/1985 and if the suit filed in O.S.No.198/1991 has to be taken as fresh suit as the date of its filing is 04-06-1991.
23. Learned counsel Sri.Keshav R. Agnihotri submits that the Judgment passed in RSA is illegal, opposed to the cardinal and fundamental principles of law and contrary to the facts of the case and also the law on the point and same requires to be reviewed. It is also submitted that it is settled law Article 58 of the Limitation Act applies only in cases where it is a suit for declaration simplicitor.
24. Learned counsel for petitioner submits that reckoning of the common limitation has been apparently erroneous and deserves to be rectified. Further the error leads to upsetting the settled principles of law of the jurisdiction of the Civil Court. It was also submitted that the petitioner was 16 prosecuting the proceedings in bonafide intention. Further even as the respondent before the appellate court he was represented fair set of facts.
25. Learned counsel Sri. Chithappa appearing for the respondent submits that respondent appeared before the Tahsildar in the year 1980 and specifically denied the title of the petitioner over the schedule property. He would further submit that when once the title is substantially denied the limitation provided is three years from the date of denial.
26. In this connection, learned counsel Sri. Chithappa appearing for the defendant/respondent/ Maranna in this review petition who is appellant in RSA submits that denial of title over the schedule property by the defendant Marappa first dates back to 31.5.1980 when first he opposed the title of the 17 plaintiff in a legal proceedings where both of them have participated. Wherein Tahasildar rejected the contention of plaintiff/Thipperangappa and confirmed the revenue entry in favour of Marappa in his order dated 15.7.1980 in RRT:CR:466/80-81. The said plaintiff/Thipperangappa being aggrieved of the order passed by the Tahasildar went in appeal before the Assistant Commissioner, Madhugiri, in RRT:CR:37:80- 81 and the said appeal came to be allowed and the order of Tahasidlar was reversed confirming the revenue entry in favour of plaintiff/Thipperangappa. Being aggrieved by the order of Assistant Commissioner, Madhugiri, defendant/Maranna preferred an appeal before the Special Deputy Commissioner, in RA No.25/82-83 and that was disposed of on 8.11.1984 setting aside the order of the Assistant Commissioner and confirming the order of Tahsildar. Against the said order, it was the turn of 18 plaintiff/Thipperangappa to approach this court in W.P.No.18715/1984 which came to be disposed of on 27-11-1984. Both the parties agree that this court on 27-11-1984 disposed of the writ petition directing plaintiff/Thipperangappa to initiate civil suit to establish his right over the property in question.
27. Now, at this stage, the point is, parties faced the proceedings against each other in revenue court that started on 31.5.1980 when petition is presented before the Tahasidlar by defendant/Maranna. No doubt, when the matter is contested it also amounts to denial of title. In the beginning, before the Tahasildar, Thipperangappa lost the case, against which, Thipperangappa as appellant challenged the case before the Assistant Commissioner, Madhugiri, which came to be allowed by setting aside the order of Tahasildar. Being 19 aggrieved by the order of Assistant Commissioner, Madhugiri, defendant /Maranna preferred an appeal before the Special Deputy Commissioner, Madhugiri, which came to be allowed by set aside the order passed by the Assistant Commissioner and confirmed the order passed by the Tahasidlar. At this stage, it is concluded that in the first phase of legal battle Thipperangappa lost the case in favour of Maranna. Subsequent to the verdict of the Special Deputy Commissioner, plaintiff/Thipperangappa filed writ petition before this court in W.P.No.18715/1984 which came to be disposed of on 27-11-1984 with observations as under:
"1. The fourth respondent has entered caveat. He is also heard.
2. In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner has sought for quashing the order dated 8.11.1984 passed by the third respondent in R.A.No.26/1982-83 as per Annexure-C. The proceeding in question arises out of chapter-XI of the Karnataka 20 Land Revenue Act, 1964 (hereinafter referred to as the Act). The Tahsildar th directed the name of 4 respondent to be entered in column No.9 and 12(2) of the Record of Rights. In the appeal preferred before the Assistant Commissioner, the said order has been set aside and the case has been remanded. The fourth respondent preferred an appeal before the Special Deputy Commissioner, who has allowed the appeal and has set aside the order of the Assistant Commissioner and restored that of the Thasildar.
3. It is contended by Shri P R Shrirangaiah, learned counsel for the petitioner, that no appeal lies against the order passed in the appeal by the Assistant Commissioner therefore, the order is without jurisdiction. There is a revision provided under section 136 of the Act; and lies to the Deputy Commissioner. Therefore, the order passed by the Special Deputy Commissioner cannot be held to be without jurisdiction. However, it is not possible to grant the relief to the petitioner, because nothing is finally decided in the proceeding under chapter-XI of the Act. The party aggrieved is entitled to file a suit and establish his right to the property involved n the proceeding. The proviso to Section 135 of the Act specifically provides for it. In addition to this, a Division Bench of this Court has held in PAYAPPA Nemmnna Huded V/s. Chamu Appayya Huded, reported in 1969(2) Karnataka Law Journal, 21 P.198 that in each cases the jurisdiction article 226 of the Constitution need not be exercised as the aggrieved party has a right of suit."
Accordingly, this writ petition is disposed of in the following observations:
It is open to the petitioner to establish his right in an appropriate suit, as such, the impugned order cannot be considered or construed to come in the way of the petitioner to establish the right he claims to the property in question."
28. It is seen from the order passed in W.P.No.18715/1984 that this court concluded and observed as under:
" Accordingly, this writ petition is disposed of in the following observations:
It is open to the petitioner to establish his right in an appropriate suit, as such, the impugned order cannot be considered or construed to come in the way of the petitioner to establish the right he claims to the property in question."
25. In view of the above observation, it was open for the petitioner to agitate the matter in 22 appropriate suit. The order passed by the Deputy Commissioner cannot be considered or construed and the impugned order cannot be considered or construed to come in the way of the petitioner to establish his right he claims in respect of the property in question.
29. With this back ground the original suit came to be filed. At the cost of repetition, it is necessary to state, the writ petitioner/ plaintiff/Thipperangappa filed the original suit which borne different numbers in different courts and finally, it was numbered as OS 198/1991. The trial court framed eight issues, out of which, issue No.4 was regarding the bar of Limitation, and then the suit was decreed, in his favour and also was filed in time. Regular Appeal was filed in R.A. No.121/2005 by defendant/Maranna that came to be dismissed on 23 27.9.2006 then RSA No.124/2007 by the defendant/Maranna came into existence.
30. As I have stated above, the substantial questions of law raised in appeal both 1 and 2 centered on timings in the filing as the first substantial question of law was, "whether the suit was barred by limitation? and second question, "whether the proceedings in O.S.No.198/1991 on the file of Civil Judge (Jr.Dn) Sira can be considered as the continuation of the proceeding in O.S.No.2/1985 on the file of the same Court?
31. The bone of contention between the parties is that, whether the denial of title has to be reckoned from 31.5.1980 in which event the right born within three years and right dies somewhere during 1983. On the other hand, if the lis between the parties continues and final destination has been 24 before this court in W.P.No.18715/1984, the cause of action would be the date of disposal of the said writ petition on 27.11.1984.
32. It is submitted by learned counsel that jurisdiction of revenue court are in the nature of quasi judicial and despite the out come of the revenue courts, the law of limitation cannot stop. In other words, the revenue proceedings cannot apply their break in judicial orders. It was the serious contention of learned counsel Sri. Chithappa for defendant/Maranna that all the matters are covered in Regular Second Appeal and discussed as well and it does not go or takes its birth in review petition. Thus, the point of real controversy in the case would be, a question in a composite manner as to "whether the prosecution of proceedings before a wrong court specifically, revenue courts and thereafter before the High court in writ petition wherein this 25 court directed the parties to the litigation could be considered as prosecution of the matter before the wrong court in order to avail benefit of Section 14 of the Limitation Act, which provides for exclusion of time of proceeding bonafide in court without jurisdiction.
The said Section 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 26 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 (5 of 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."
33. The substance of the said Section is where a party as a plaintiff has been prosecuting with due diligence in an another civil proceeding whether in a court of first instance or of appeal against the 27 defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, the very defect of jurisdiction or other cause of a like nature, is unable to entertain it. Thus, if a proceeding is prosecuting in a wrong court in good faith, the time consumed for that process of prosecuting in wrong court is to be excluded.
34. The crux of the present matter is that revision petition is filed under Order 47 Rule 1 of CPC, to review the judgment passed in RSA 124/2007 and to allow the review petition.
35. The review petition is filed in respect of judgment and decree passed in the regular appeal filed under Section 100 of CPC, which basically pertains to substantial questions of law. Now the aspect that the respondent in regular second appeal 28 has come before this court and sought to review the judgment passed in RSA No.124/2007 and the reliefs sought in the present petition are exactly within the scope provided under Order 47 Rule 1 of CPC to modify the mistake or errors which comes within the jurisdiction of the Court that passed the Judgment. Here, it is necessary to extract Order XLVII Rule 1 of Code of Civil Procedure which reads as under:
"1. Application for review of judgment.
(1) Any person considering himself aggrieved-
(a) by a decree or order from which
an appeal is allowed, but from
which no appeal has been
preferred.
(b) by a decree or order from which
no appeal is allowed, or
(c) by a decision on a reference from
a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due 29 diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review."
34. The words used in the said order is on account of mistake or error apparent on the face of the record or any other sufficient reason it desires the 30 review, the case against them may apply for review of the judgment. This Court cannot sit as an Appellate Court over the judgment in question. What all necessary is an error, mistake, oversight, slippery and any other sufficient reasons, if found later that was escaped and it could not have been considered at the time of passing of the judgment which is an amenable decision under review. Otherwise appreciation of evidence, re-assessment of the oral evidence, re-interpretation of the document which are done, altered cannot be reassessed insofar as substantial evidence is concerned. Now the question herein is indicating the substantial questions of law itself.
36. This Court framed four substantial questions of law on 19.10.2016 in RSA as under:
"1. Whether the suit was barred by limitation?31
2. Whether the proceedings of O.S.No.198/1991 on the file of Civil Judge (Jr.Dn.), Sira, can be considered as the continuation of the O.S.No.2/1985 on the file of the same Court?
3. Whether the lower appellate court was justified in condoning the delay?
5. Whether the courts below were justified in acting on the revenue entries?"
37. As I have stated earlier all the questions are interrelated and the third question is whether lower court was justified in condoning the delay and again the said question is interrelated but question Nos.1 and 2 were framed in a way, if there is an error in taking commencement date of limitation, that error percolates into question regarding bar of limitation.
38. Thus, this Court has observed in paragraph No.12 of the judgment which is as under: 32
"12. Entries in revenue records will not confer title is the settled legal proposition. A perusal of the judgment and decree of the courts below will reflect that finding of fact was recorded not on the sole ground of revenue entries. The authorities relied for the respondent/plaintiff have no semblance to the substantial questions of law under discussion in this appeal and the suit is hopelessly barred by limitation. The findings of facts recorded cannot culminate into relief in favour of the plaintiff for the discussions supra. The judgments of the courts below hence are liable to be set aside."
39. Thus, this Court was right in applying the provisions of Section 14 of the Limitation Act. It means institution of fresh suit required commencement of trial afresh and if the same is called before the Court which is lack of jurisdiction and in sum and substance, the limitation date considered 33 by this Court on the earlier occasion is that it is barred by limitation.
40. Apparently suit will be barred by limitation, if it is taken from the conclusion of the bar of jurisdiction that means when the title was denied first in the year 1980 before the Tahsildar. As submitted by learned counsel for defendant Sri.Chithappa when once the title is disputed even in a revenue court that becomes the beginning point of limitation and it starts running. The proceedings before the revenue court continued Tahsildar rejected the claim of plaintiff- Thipperangappa. Assistant Commissioner allowed the appeal and reversed the order of Tahsildar. Thereafter in the revision that was preferred before the Deputy Commissioner he ordered for setting aside order passed by the Assistant Commissioner and upheld the order of the Tahsildar and date of Deputy Commissioner's order is 08.11.84. 34 Thus, the suit was filed on 03.1.85 by that time limitation was already over if order of the Deputy Commissioner is considered. It is at this juncture the Judgment passed in writ petition filed by plaintiff came into consideration. The said writ petition was filed by Thipperangappa challenging the order passed by Deputy Commissioner as stated above.
41. In the operative portion of the Writ petition it was observed by this Court that it is open to the petitioner Thipperangappa or survivors to establish his right in a proper suit as such the impugned order cannot be considered or construed to come in the way of the petitioner to establish right to claim the property in question.
42. The words are crystal clear in the context that the matter has to be adjudicated afresh after the writ petition. This court did not give something which 35 is already happened and it showed the way how parties have to agitate.
43. Thus, it is on 27.11.84 this court concluded that the parties are at liberty to start from the scratch. Sri.Chithappa submitted that this court in RSA No.124/2007 has considered all the circumstances and allowed the appeal to dismiss the suit. It has also made clear regarding calculation of limitation in respect of the filing the suit on 03.01.85.
44. Now the question is, if the days are taken from 1985, definitely suit is barred by limitation. On that score this court held that it was barred by limitation. The selection of date of starting of cause of action whether right selection or wrong selection and selection of a wrong date of limitation irrespective of the result of the case if wrong date is taken instead of 36 date that ought to have been taken the result is, it requires correction or rectification.
45. The next question that comes is, whether that is within the scope of review. If the starting date of limitation was erroneously considered the same could be rectified under review.
46. Now the impact of reckoning of date of starting of cause of action then it comes right court or wrong court. Whenever a matter is prosecuted before a wrong court bonafide that is branded as prosecution of proceeding before a wrong court. Wrong court may be wrong in many ways either the court not having territorial jurisdiction and pecuniary jurisdiction other jurisdiction like in matrimonial cases made in other court other than the competent court. The journey commenced from Tahsildar court wherein the petition 37 was filed during the year 1980 by Thipperangappa but it went upto the Deputy Commissioner court wherein Thipperangappa group lost the case. In the sense Tahsildar in the order dated 15.07.1980 rejected the representation of Thipperangappa. Assistant Commissioner in RRT:CR-37/80-81 set aside the order of Tahsildar on 27.09.82 and ordered to enter Thipperangappa's name in the revenue records. It was Deputy Commissioner in RA-25/1982-83 on 08.11.84 who held in favour of Maranna. It is against the said order writ petition was preferred in W.P.No.18715/84 by Thipperangappa.
47. Regarding applicability of extension of time classified under Section 14 are highlighted in some of the following decisions:
(1) Smt.Nrityamoni Dassi Vs Lakhan Chandra Sen reported (1916) ILR 43;
(2) P.Sarathy Vs State Bank of India reported in (2000)5 SCC 355;38
(3) Gujarat Housing Board Vs Harilal Jethlal reported in AIR 2001 Guj 259;
(4) Kunhikutti Ali Vs Kunhammad reported in AIR 1923 Mad 347;
(5) Ahmed Ali Khan Vs Asgarunissa Begum (1968) 2 An WR 400;
(6) Laxminarayan Vs Gopalaswami - AIR 1957 Pat 139;
(7) Commissioner MP Housing Board Vs Mohanlal and Company reported in AIR 2016 SC 2592;
(8) Commissioner of Sales Tax Vs Parson Tools and Plants reported in AIR 1970 ALL 428;
(9) Mathura Singh Vs Bhawani Singh reported in (1900) ILR 22;
(10) Ganapathi Mudaliar Vs Krihanmachari reported in (1922) 70 IC 743;
(11) Kavunny Chekkiar Vs Govinda Gurukkal reported in AIR 1975 Kar 182;
(12) Kunhikutti Vs Kunhammad reported in (1922) 44 MLJ 179;
48. The principles of Section 14 are applicable not only in cases where person brings his suit in the wrong court but also where the suit is brought in the right court but inspite of it fails to get trial on merits due to defect though not of jurisdiction, of something analogous to it.
39
49. Insofar as declaration of title is concerned revenue court has no jurisdiction and if any person thinks that the title is to be decided by revenue court, it is a wrong thinking. Because despite the revenue court holding a particular person's name is entitled to be entered in the revenue records, on the judicial side on the basis of appropriate evidence and materials the Judgment of the judicial side will be having a overriding effect over the order of the revenue Court. So it is not the case that Thipperangappa went to court of Civil Judge and entire proceedings was lost.
50. Now question is, nodoubt denial made in a proceeding where adversary is a party amounts to denial of title. But classification are two -revenue side and judicial side. Nodoubt it is started but authenticated direction came up from this court while 40 adjudicating writ petition on 27.11.84. The effect of Section 14 is not to register the suit after re-filing a continuation of original suit consequently the period that suit was determined as it was a new suit. Here the proceedings are filed before the revenue court. Revenue court even if they are made by mistake it has to be noted that filing of case before a wrong court due to mistake of counsel by pursuing remedy under wrong law, appeal cannot be held as time barred. Section 5 and 15 though are not interrelated but they rely on the reasons forwarded as to whether just or sufficient. In the case of 'Kumaradasan Nair Vs IRIC reported in AIR 2009 SC 1333' it was held by Their Lordships that principles thereof would be applicable for condonation of delay in filing revision application and the factor that matters is due diligence. Here parties went on prosecuting the same 41 on the revenue side and revenue order is challenged in judicial side in Writ petition No.18715/84.
51. Learned counsel for petitioner has relied on the following decisions:
"1.(2014)1 SCC 648 - Oil and Natural Gas Corporation Limited Vs Modern Construction and Company;
2. AIR 2005 SC 592 - Board of Control for Cricket, India and anr Vs Netaji Cricket Club and others;
3. (2000) 1 SCC 666 - M.M.Thomas Vs State of Kerala and another;
4. AIR 1995 SC 455 - Smt.Meera Bhanja VS Smt.Nirmala Kumari Choudhury;
5. (2008)7 SCC 169 - Consolidated Engineering Enterprises Vs Principal Secretary, Irrigation Department and others."
52. Learned counsel for respondents has relied on the following decisions:
"(1) AIR 1970 SC 1273 - Patel Narshi Thakershi and other Vs Pradyumansinghji Arjunsinghji;
(2) AIR 1979 SC 1047 - Aribam Tuleshwar Sharma Vs Aribam Pishak Sharma and others;42
(3) AIR 2006 SC 1317 - Avinash Hansraj Gajbhiye Vs Official Liquidator, M/s.V.Pharma(P) Ltd;
(4) AIR 2006 SC 1634 - Haridas Das Vs Smt.Usha Rani Banik and others;
(5) (1983) 2 KANT LJ 448 - Abdul Sattar and others Vs Shan Taveeappa Dundappa and others;
(6) ILR 1986 872 - M/s.Maruthi Enterprises Vs Muniyanjamma;
(7) AIR 2003 MADHYA PRADESH 248 -
Ratanlal Vs Bardi Bai and other;
(8) AIR 2005 ALLAHABAD 308 - Mohan Lal Bagla Vs Board of Revenue, UP Lucknow and others;
(9) AIR 2005 Allahabad 412 -Shiv Ganesh and others Vs State;
(10) AIR 2006 Delhi 12 - Smt.Sarla Devi Jain Vs Union of India and others;
(11) AIR 2009 SC 3115 - Shyam Lal alias Kuldeep Vs Sanjeev Kumar and others;
(12) AIR 2011 SC 3590 - Khatri Hotels Private Limited and anr Vs Union of India and another;
(13) AIR 2019 SC 832 - Asharti Devi by LRs Vs State of UP and others."
43
53. Nodoubt reckoning of exclusion of time differs from one situation to another. For example when a plaint is returned for proper presentation to court, that party is counted for excluding and at the same time if the file after receiving is kept for unreasonable period party cannot claim exclusion. Further when the plaint is rejected for the grounds made therein under Order VII Rule 11 CPC it becomes decree and it is appealable. But when suit was presented in time and was rejected for non payment of court fee and time limit prescribed for presentation of suit is still within limitation one cannot come and sit in the same court for review.
54. Suit was dismissed when the matter was within limitation and when representation is also within limitation. When a suit is withdrawn with liberty to file a fresh suit on the same action which 44 means the cause of action mentioned in the suit it is not from the date of withdrawal of the suit. Bifurcation is made in every cases when the mistake happens and mistake is wrongly taken. From the two kinds of mistake bonafide mistake and intentional mistake, bonafide acts are always in substantial matters law will come to aid but not for intentional mistake. Suppose say he has not pleaded some grounds and he pleads that some more grounds are to be pleaded then review is not accepted. On the other hand, consideration of limitation commencing date with reference to section by this court was wrongly considered and according to me it is an error. The commencement of cause of action or review petition in this case is judicial matter went on from 1980-84. Thereafter in pursuance to original suit basing on Assistant Commissioner order O.S.No.2/85 thereafter pecuniary jurisdiction is taken it was ordered to come 45 back to Madhugiri court when it was so ordered the pecuniary limit of Junior Division was increased to Rs.50,000/- then plaintiff made application for retaining suit by virtue of change of amendment in the Karnataka Civil Court Acts. But it did not happen, court despite application sent the matter to Madhugiri Court. It was Civil Judge, Madhugiri on the basis of amendment to Civil Court Acts sent back the matter to Shira and it was there it became O.S.No.198/91. Here we can also say courts also contributed for proceedings to move along. When application was filed before Madhugiri court to retain the matter by virtue of amendment and it was not sent. But the question is file was kept in the court about one year as submitted by learned counsel for defendant Sri.Chithappa. Later after being sent back from Madhugiri to Shira court, in compliance with the amendment matter started light of the day in the form 46 of O.S.No.198/91. The journey that started before the revenue court (wrong court) transferred nook and corner and finally started the journey in filing civil suit before the court of Shira in O.S.No.198/91. As I have stated the court is a court whether it is judicial or quasi judicial power if revenue matter like tenancy Civil court is barred under Section 61 of Karnataka Land Revenue Act which reads as under:
61. Exclusive Jurisdiction of Revenue Courts and bar of jurisdiction of Civil Courts.
--(1) Save as otherwise provided in this Act, or any other law for the time being in force, a Revenue Court shall have jurisdiction to determine, decide or dispose of, any matter which it is, by or under this Act, empowered to determine, decide or dispose of and no Civil Court shall exercise jurisdiction as to any of such matters.
(2) Subject to the exceptions hereinafter specified, no Civil Court shall exercise jurisdiction as to any of the following matters, namely:
-- (a) claims against the Government relating to any property appertaining to any office or for any service whatsoever;
(b) objections,--
(i) to the amount or incidence of any assessment of land revenue under this Act, or 47
(ii) to the mode of assessment or levy, or to the principle on which such assessment or levy is fixed, or
(iii) to the validity or effect of the notification of survey or settlement;
(c) claims connected with or arising out of any proceedings for the realisation of land revenue or other demands recoverable as arrears of land revenue under this Act, or any other law for the time being in force;
(d) claims to set aside, on account of irregularity, mistake, or any other ground, except fraud, sales for arrears of land revenue;
(e) claims against the Government,--
(i) to be entered in the revenue survey or settlement records or any land record as liable for the revenue or as superior holder, inferior holder, occupant, mortgagee, landlord or tenant;
(ii) to have any entry made in any record of a revenue survey or settlement, or
(iii) to have any such entry either omitted or amended;
(f) the distribution of land or allotment of land revenue on partition of any estate under this Act or any other law for the time being in force;
(g) claims against the Government,--
(i) to hold land wholly or partly free from payment of land revenue; or
(ii) to receive payments charged on or payable out of the land revenue; or
(iii) to set aside any cess or rate payable under the provisions of any law for the time being in force; or
(iv)respecting the occupation of waste or vacant land belonging to Government;
(h) claims regarding boundaries fixed under this Act or under any other law for the time being in force, or to set aside any order passed by a 48 competent officer under any such law with regard to boundary marks or survey marks:
Provided that if any person claims to hold land wholly or partially exempt from payment of revenue under,--
(a) any law for the time being in force expressly creating an exemption not before existing in favour of an individual, or of any class of persons, or expressly confirming such an exemption on the ground of its being shown in a public record, or of its having existed for a specified term of years, or
(b) any written grant from the Government expressly creating or confirming such exemption, -such claim shall be cognizable by a Civil Court.
55. At the same time, if the suit is civil in nature it should be filed before the trial court and it cannot be presented before the revenue court. If at all, it is presented it is a wrong court and it has to go back to right court. Further insofar as writ petition is concerned, is without reading much into the order of the Deputy Commissioner, it is ordered for fresh trial and petitioner however filed civil suit. 49
56. Rest is history. Suit was decreed before the trial court and appeal was dismissed and appeal in RSA No.124/2007 came to be filed. Thus the limitation to file the proceedings has to be reckoned with commencement date along with rules applicable thereunder. When once commencement date is wrong, it affects right of a party to the suit. Here date of commencement of limitation is taken from the year 1980 when the defendant Maranna filed objections to the claim of Thipperangappa the plaintiff, limitation started in the year 1980 and suit filed in the year 1985 was barred by limitation. But it was on 27.11.84 High Court directed the plaintiff to agitate his matter in civil suit. It is a court order or direction, and trial court could not have refused to entertain it, as it has got due respect to the said order passed in Writ petition. Thus limitation started in the year 1985. On substantial questions framed by this court appeal was 50 allowed mainly on the ground of limitation in RSA No.124/2007. The entire Judgment passed in RSA No.124/2007 on 25.01.2017 is as under:
"This Regular Second Appeal is directed against the judgment and decree dated 27.9.2006 in R.A.No.1231/2005 on the file of the Civil Judge (Sr. Dn.), Sira, thereby dismissing the appeal preferred against the judgment and decree dated 25.11.1997 in O.S.No.198/1991 on the file of the Civil Judge (Jr.Dn.), Sira.
2. By the impugned judgment, the suit of the plaintiff in O.S.No.198/91 on the file of Civil Judge (Jr.Division), Sira, is decreed and confirmed in appeal.
3. To put the facts in a nutshell, the respondent (plaintiff) herein filed a suit against the appellant (defendant) for declaration and permanent injunction against the appellant/defendant and his men from interfering with the possession and enjoyment of the suit schedule property. The claim of the plaintiff was, the suit property is his ancestral property and he is in un-interfered possession and enjoyment of the same, and the defendant having no right, title or interest is interfering with his possession.
4. The defendant contested the suit and denied the title of the plaintiff to the disputed property. His defence was, in collusion with the plaintiff, the Revenue Authorities entered plaintiff's name in column No.9 and 12(2) of the Pahani for the year 1975- 76 in respect of the suit property. In this regard, 51 there were proceedings before the Revenue Authorities which ended up in the plaintiff filing Writ Petition before the High Court in W.P.No.18715/84 which came to be dismissed. Suppressing the above facts, the plaintiff has filed the suit.
5. On the basis of pleadings, the Trial Court framed as many as eight issues. Among others, one of the issues was about suit being barred by limitation. However, this issue was not treated as preliminary issue. After a full fledged trial, the suit came to be decreed by answering the issues in favour of the plaintiff. With regard to the question of limitation, the Trial Court referred to the history that initially plaintiff filed the suit before Munsiff & JMFC, Sira, in O.S.No.2/1985 and the plaint was ordered to be returned for want of pecuniary jurisdiction and the plaintiff was directed to present the suit before competent Court vide order dated 15.3.1989. But the plaintiff presented the plaint before Civil Judge Court, Madhugiri only on 2.3.1991 and it was registered as O.S.No.198/91. Due to enhancement of the pecuniary jurisdiction of the Munsiff Court from Rs.10,000/- to Rs.50,000/-, the Civil Judge (Sr. Dn.) by Civil Court Amendment Act returned the plaint with a direction to present the suit before the Civil Judge(Jr.Dn.), Sira and thus the suit O.S.No.198/91 came to be registered before the Civil Judge (Jr. Dn.), Sira. The defence that the earlier proceedings in O.S.No.8/91 does not amount continuation of proceedings of O.S.No.2/15 and was not brushed aside, thus answered against the defendant.
6. Now this appeal is admitted to adjudicate the following question of law.52
1. Whether the suit was barred by limitation?
2. Whether the proceedings of O.S.No.198/1991 on the file of Civil Judge (Jr.Dn.), Sira, can be considered as the continuation of the O.S.No.2/1985 on the file of the same Court?
3. Whether the lower appellate court was justified in condoning the delay?
4. Whether the courts below were justified in acting on the revenue entries?
7. Learned Counsel for the appellants Sri.Chithappa submits that the respondent did not choose to take back the plaint and present it before the court having pecuniary jurisdiction to try the suit despite there being pleading in the written statement that suit was under valued. The Munsiff Court, Sira framed issues, recorded evidence on Issue No.5, heard arguments and passed order on 15.3.1989 holding that the Court has no jurisdiction and directed the plaintiff to take return of the plaint and to present it before proper court. The respondent/plaintiff took return of plaint on 2.3.1991 and presented it before the Court of Civil Judge at Madhugiri on 2.3.1991 and the same was registered as O.S.No.8/1991. On enhancement of the pecuniary jurisdiction of the Court of Munsiff & JMFC to Rs.50,000/-, the plaint was returned by the Civil Judge, Madhugiri, on 30.5.1991 and the plaintiff/respondent took return of plaint on 3.6.1991 and presented the same before the Court of Munsiff & JMFC, Sira, on 4.6.1991 and the suit came to be registered as O.S.No.198/1991. The appellant had taken a contention both in O.S.Nos.2/1985 and 198/1991 that plaintiff's claim was time barred.53
Learned Counsel further submits, so far the issue of limitation is concerned, the Trial Court held that filing of suit O.S.No.2/1985, taking back the plaint and presenting the same before the court of Civil Judge at Madhugiri in O.S.No.8/1991 and further taking back the plaint from the Court of Civil Judge, Madhugiri presenting the same before the Trial Court in O.S.No.198/91 is continuation of the proceedings of O.S.No.2/1985 and therefore held that suit was not barred by limitation. The 1st Appellate Court concurred with the finding of the Trial Court and further held that even if there is a little delay, it could be condoned and accordingly condoned the delay. A party prosecuting the suit in good faith in the Court having no jurisdiction is entitled for exclusion of that period under Section 14 of Limitation Act. The expression "good faith" as used in Section 14 means "exercise of due care and attention".
In the context of Section 14 expression "good faith" qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. The finding as to good faith or the absence of it is a finding of fact. But, there is no plea or evidence given by respondent/plaintiff to seek benefit of Section 14 of Limitation Act. Learned Counsel continues to submit that, Article 58 of Limitation Act stipulates three years commencing from the date of cause of action in respect of a Declaratory suit. The cause of action to file the suit arose for the respondent/plaintiff on 31.5.1980 when the defendant denied his right, title or interest over the property in the revenue proceedings before the Tahsildar, Sira Taluk and subsequently in the further proceedings before the Asst. Commissioner, Madhugiri Sub-Division. Therefore the suit filed in the year 1985 before 54 Munsiff Court, Sira was barred by time. The provision of Section 5 of Limitation Act cannot be invoked to condone the long delay in filing a suit and lower appellant Court has no jurisdiction to condone the delay. The plaintiff was not able to place cogent evidence to prove his title and possession over the suit property. Still the Trial Court acted upon the revenue entries to decree the suit.
But the revenue entries neither create nor extinguish title of any person and have no preemptive value on title.
In that view of the matter, impugned judgments cannot be sustained. Irrespective of finding recorded on other issues, the suit should have been dismissed as barred by time, thus not maintainable.
8. Sri.Keshav R.Agnihotri, learned Counsel appearing for the respondent while seeking to sustain the judgments of the court below placing his reliance on:
i) (2015) 7 S.C.C. 58 MP Steel Corporation Vs. Commissioner Central Excise.
ii) (2011) 15 S.C.C. 30 Ketan Parekh Vs. Spl.Director
iii) (2009) 12 S.C.C. 175 J.Kumaradasan Nair Vs. State of Bihar
iv) (2009) 7 S.C.C. 786 Shakti Tubes Ltd., Vs. State of Bihar
v) (2008) 7 S.C.C. 169 Consolidated Engineering Enterprises Vs. Prl. Secy.
vi) I.L.R. 2005 KARNATAKA 1777 Hutti Gold Mines Vs. Vinay Heavy Equipments submits that the Trial Court on proper appreciation of evidentiary material has decreed 55 the suit. The defendant, who denied the title of the plaintiff, set up the defence of adverse possession thereby had admitted the title of the plaintiff. He was unable to establish his title to the suit property with documentary proof. The litigation fought on revenue side is limited to revenue entries. As such, revenue entries do not confer title of a property on its holder. Though there was delay of almost two years on his part in taking back the plaint in O.S.No.2/1985 from the Munsiff Court, Sira and presenting the same before the Civil Judge Court, Madhugiri, it is to be construed that on re-presentation of the plaint, the proceedings continued. Section 14 of the Limitation Act empowers the Court to condone the delay in the interest of justice in respect of the time spent before the Court having no jurisdiction, in this case, Munsiff Court, Sira. The cause of action arose for the plaintiff only when the defendant interfered with his actual possession of the suit property. Thus, the suit filed within 10 days thereupon is well within time. The delay in representing the plaint before the Civil Judge Court, Sira is saved by Section 14 of the Limitation Act. Rightly the lower Appellate Court has held that there is no delay and the present appeal lacks merits.
9. In the light of the substantial question of law framed and the rival submission made at the Bar, the controversy centers around the question of limitation. Admittedly, both parties entered into battle field when the revenue entries pertaining to the disputed property was questioned by the defendant in the R.R.T. proceedings in the year 1980. The plaintiff was very much conscious of the denial of his title by the appellant /defendant at that stage itself. Article 58 of Part III of Schedule to the 56 Limitation Act stipulates three years' limitation from the date when right to sue accrues to file a suit for declaration. Original Suit in O.S.No.2/1985 was filed without reference to the revenue proceedings that commenced in 1980. The cause of action was that the defendant interfered with the possession of the plaintiff 10 days prior to filing of the suit. That being so, the cause of action to file a suit for the relief of declaration and injunction arose during December 1980 subsisted for 3 years only and not later to that. The courts below have not counted upon the grey period between 15.3.1989 (when the plaintiff was directed to take back the plaint for presentation before the proper court) to 2.3.1991 (when it was presented before Civil Judge court, Madhugiri). The appellate court on its own has considered it as continuation of the original suit. The law on the point is covered by the judgment of the Apex Court in (1) AIR 1973 SC 313 Amr Chand Inani -vs- Union of India (2) (2014) 1 SCC 648 Oil and Natural Gas Corporation Limited -vs- Modern Construction and Company. Thus, presentation of plaint in proper court after return is not continuation of a suit as filed in wrong court so as to attract Section 14 of the Limitation Act. It amounts to institution of a fresh suit requiring commencement of trial afresh even if same had concluded before the court which lacks jurisdiction. That being so, the suit filed in the year 1991 in respect of the cause of action that arose during December 1984 was time barred and hit by Article 58 of the Limitation Act. The Limitation Act does not contemplate condonation of delay in filing a suit 57 though delay in filing an appeal can be condoned under Section 5 of Limitation Act.
10. Sub-section (1) of Section 14 of the Limitation Act is stressed on behalf of the defendant for the first time before this court. Said provision 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".
The hindrance for the plaintiff to take shelter under the above provision is, he had instituted the suit having territorial jurisdiction. He did receive back the plaint, even after objection raised by the defendant in his written statement regarding pecuniary jurisdiction. It was only after the order of the court on holding enquiry to return the plaint after a delay of about 2 years, he has taken back the plaint.
11. The expressions 'good faith' and 'defect of jurisdiction' were elaborated by the Apex Court in Deena -vs- Bharath Singh reported in AIR 2002 SCC 2768 at paras-15 and 16, which reads thus:
"15. The main factor which would influence the Court in extending the benefit of S.14 to a litigant is whether the prior proceeding had been prosecuted with due diligence and good faith.58
The party prosecuting the suit in good faith in the Court having no jurisdiction is entitled to exclusion of that period. The expression 'good faith' as used in S.14 means "exercise of due care and attention". In the context of S.14 expression 'good faith' qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. The finding as to good faith or the absence of it is a finding of fact. This Court in the case of Vijay Kumar Rampal and others v. Diwan Devi and others, AIR 1985 SC 1669, observed:
"The expression 'good faith' qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. Failure to pay the requisite Court-fee found deficient on a contention being raised or the error of judgment in valuing a suit filed before a Court which was ultimately found to have no jurisdiction has absolutely nothing to do with the question of good faith in prosecuting the suit as provided in S.14 of the Limitation Act".
16. The other expressions relevant to be construed in this regard are 'defect of jurisdiction' and 'or other cause of a like nature.' The expression "defect of jurisdiction" on a plain reading means the Court must lack jurisdiction to entertain the suit or proceeding. The circumstances in which or the grounds on which, lack of jurisdiction of the Court may be found are not enumerated in the section. It is to be kept in mind that there is a distinction between granting permission to the plaintiff to withdraw the suit with leave to file a fresh suit for the same relief under O.23, R.1 and exclusion of the period of pendency of that suit for the purpose of computation of limitation in the subsequent 59 suit under S.14 of the Limitation Act. The words "or other cause of a like nature" are to be construed ejusdem generis with the words 'defect of jurisdiction,' that is to say, the defect must be of such a character as to make it impossible for the Court to entertain the suit or application and to decide it on merits. Obviously S.14 will have no application in a case where the suit is dismissed after adjudication on its merits and not because the Court was unable to entertain it". Thus, plaintiff, who did not value the suit properly while presenting the plaint, cannot take the shelter under the umbrage of Section 14 of the Limitation Act. That apart, Section 14 of the Limitation Act was not his case before the Courts below nor the courts below had jurisdiction to extend the benefit of said provision to his case.
12. Entries in revenue records will not confer title is the settled legal proposition. A perusal of the judgment and decree of the courts below will reflect that finding of fact was recorded not on the sole ground of revenue entries. The authorities relied for the respondent/plaintiff have no semblance to the substantial questions of law under discussion in this appeal and the suit is hopelessly barred by limitation. The findings of facts recorded cannot culminate into relief in favour of the plaintiff for the discussions supra. The judgments of the courts below hence are liable to be set aside.
The appeal is allowed. The judgment and decree dated 27.9.2006 passed in R.A.No.1231/2005 on the file of the Civil Judge (Sr. Dn.), Sira, confirming the judgment and decree dated 25.11.1997 passed in O.S.No.198/1991 on the file of the Civil Judge (Jr.Dn.), Sira, is set aside. Consequently, the 60 suit of the plaintiff is dismissed. No order as to costs."
57. Judgment came to be passed on the basis of substantial question of law raised. In the background of the reasons which are given at length as extracted above the exclusion of time in filing of O.S.2/85 by the plaintiff Thipperangappa thereafter beginning of O.S.8/91 and thereafter becoming O.S.198/91 are nothing but continuation when once exclusion applies under Section 14 of the Act. Intermediary proceedings before the wrong court amounts to same proceedings. However, number does not matter but function and legal effects matters. Prosecuting before a wrong court in the bonafide belief has to be considered by due consideration of the bonafide prosecution before 'wrong court' are to be understood in larger perception.
61
58. When person prosecutes before wrong court with an oversight and also as a slip irrespective of the length of time till he is reminded, has to be considered bonafide and the benefit of Section 14 Limitation Act is available. In this case after the disposal of the writ petition if longer period than the prescribed one for limitation was considered then the position would have been different.
59. Wrong section of time is definitely an over sight. This applies to the commencement of the period of limitation. In this case commencement of limitation is considered erroneously. It attracts the provisions for review under 41 Rule 1 of CPC and the petitioner is entitled for the benefit of exclusion of time under Section 14 Limitation Act.
Thus, the error in reckoning of the limitation can be reviewed and if found erroneous it has to be 62 rectified. Further the proceedings were conducted before the Tahsildar, Assistant Commissioner and Deputy Commissioner and writ petition was preferred before this court by the plaintiff against the order of Deputy Commissioner. At the cost of repetition the operative portion of the writ petition is as under:
"Accordingly, this writ petition is disposed of in the following observations:
It is open to the petitioner to establish his right in an appropriate suit, as such, the impugned order cannot be considered or construed to come in the way of the petitioner to establish the right he claims to the property in question."
60. Thus, it is through the order of writ petition No.18715/1984 dated 27.11.1984 agitating for his right over the suit schedule property was confirmed.
For the afore assigned reasons, Review petition is allowed. Judgment dated 24.01.2017 passed by this court in RSA No.124/2007 is set aside. Suit is 63 held as filed in time. Consequently RSA No.124/2007 is restored to its file.
To here on any other substantial question of law, list RSA No.124/2007 on 16.12.2020.
Sd/-
JUDGE JS/tsn*/HJ/SBN