Punjab-Haryana High Court
Bharat Singh And Ors. vs Deena on 3 February, 1992
Equivalent citations: (1992)102PLR326
JUDGMENT A.S. Nehra, J.
1. This appeal filed by the plaintiff-appellants is directed against the judgment and decree dated 25-5-1987 passed by the Additional District Judge by which their appeal was dismissed and the judgment and decree passed by trial Court dated 10-10-1986 was upheld.
2. Briefly, the facts of the plaintiffs-appellants' case are that defendant Dina had mortgaged his land measuring 9 bighas 18 biswas (after consolidation 47 kanals 13 marlas), as detailed in para No. 1 of the plaint, for a sura of Rs. 2,500/- vide registered mortgage' deed dated 8-2-1947 Ex. P. I with Har Kishan, Bharat Singh and Khubi Ram, predecessors of the appellants and in this regard mutation No. 235 dated 29-6-1947 was sanctioned. On 23-6-1978, defendant Dina had filed an application for redemption of this land before Collector, Jhajjar, which was accepted on 29-2-1980 and land was ordered to be redeemed on payment of Rs. 2,500/- as mortgage money. The plaintiffs have challenged the vires of this order of the Collector, Jhajjar alleging that the same is void and ineffective and does not affect the rights of the plaintiffs because the said application was illegally entertained by the Collector against law. It may be stated here that during the pendency of the suit, plaintiff No. 1 Har Kishan, plaintiff No. 3 Ghogri and plaintiff No. 5 Sohni had expired and accordingly their legal representatives were brought on the file It is also alleged by the plaintiffs that earlier plaintiffs had filed one suit titled as Har Kishan v. Dina in the Court of Sub-Judge, Jhajjar, but during the appeal before the District Judge, Rohtak, the plaintiffs withdrew the said suit with permission to file a fresh one on the same cause of action because there was some formal defect, in the said suit. It is also alleged that as plaintiffs had been prosecuting the said civil suit in good faith and with due diligence, they are entitled to exclude the time from 21-3-1980 to 15 2-1982 spent for pursuing the said suit while computing the period of limitation. (This plea was taken after the plaintiffs filed an amendment application before the learned District Judge, who after allowing the amendment, remanded the case to the trial court vide judgment dated 28-8-1985). Accordingly, defendant was asked to admit the plaintiffs to be the owners of the land in dispute but when he did not agree, plaintiffs filed the present suit for declaration that they are owners in possession of the land and order of Collector, Jhajjar, dated 29-2-1980 is void, ineffective and not binding on their rights.
3. In the written statement, the defendant has taken preliminary objections that the suit is not within time; that suit is bad for non-joinder of necessary parties; that the suit is bad for misjoinder of causes of action and that plaintiffs are estopped from filing this suit by their own act and conduct. The passing of the impugned order dated 29-2-1980 by Collector Jhajjar has been admitted but it is alleged that this order is quite legal and valid and is binding upon the parties. It is then alleged that the earlier suit was withdrawn by the plaintiffs because they knew that the same was to be dismissed and accordingly they have no right to file the present suit as the same is time-barred and that plaintiffs did not pursue the previous suit in good faith and with due diligence and accordingly they are not entitled to exclude the time spent by them in pursuing the said suit from the period of limitation.
4. On these pleadings of the parties, the learned trial Court framed the following issues :-
(1) Whether the plaintiffs have become owners of the suit land as alleged in the plaint ? OPP (2) Whether the order of the Collector dated 29-2-1980 is not binding on the plaintiffs ? OPP.
(3) Whether the suit is time barred ? OPD.
(4) Whether the suit is bad for non-joinder of necessary parties ? OPD.
(5) Whether the suit is bad for mis-joinder of causes of action ? OPD.
(6) Whether the plaintiffs are estopped from filing the suit by their own act and conduct ? OPD.
(7) Whether plaintiffs are entitled for the explusion of timer for the period from 21-3-1980 to 12-2-1982 as alleged in para No. 4-B of the plaint 7 If so, to what effect ? OPP.
(8) Relief,
5. The trial Court dealt with Issue Nos. 1 and 2 together and decided both these issues in favour of the appellants holding that appellants have become owners of the suit land and the order of the Collector is not binding upon them. Issue Nos. 3 and 7 were dealt with together and these were decided against the appellants holding that the suit is time barred and the appellants are not entitled for the exclusion of time spent by them in pursuing the earlier suit. Issue- Nos. 4, 5 and 6 were not pressed before the trial Court and accordingly, these issues were decided against the defendant. As a result of the findings on Issue Nos. 3 and 7, suit of the appellants was dismissed
6. The learned counsel for the plaintiff appellants has argued that in the previous suit, the plaintiffs could not implead Shrimati Ghoghri as a party in the case, and, therefore, in the appeal before the District Judge, the said suit was withdrawn after obtaining permission to file a fresh one on the same cause of action. The learned counsel further submitted that as the plaintiffs had been prosecuting the earlier suit in good faith and with due diligence, therefore, they are entitled to exclude the period spent in pursuing the said suit i.e. from 21st March, 1980 to 15th February, 1982, from the period of limitation in view of the provisions of Section 14 (1) and (3) of the Limitation Act, 1963, which read 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) xxx xxx xx (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 (I) 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.........."
The learned counsel for the appellants has submitted that a fresh suit was instituted after obtaining permission from the court because Shrimati Ghoghri was not joined as a party in the earlier suit. He has placed reliance upon Section 14(3) Explanation (c) of the Act and has submitted that misjoinder and non joinder are only variations of the same defect, namely, the omission to have proper parties or causes of action included in a, suit or application. Misjoinder is joining persons who should not be joined and non-joinder is not joining the persons who should be joined. Expressed mathematically it is only a difference of plus and minus. They are on. the same footing in so far: as in consequence thereof, the court is barred from deciding a suit or application on merits and in this respect they are on the same footing as defect affecting the jurisdiction. Therefore, the appellants are entitled for the exclusion of time for the period from 2lst of March, 1980 to 15th February, 1982 from the period of limitation. In support his arguments, the learned counsel for the appellants has relied upon Ibrahim v. Firm of Ghulam Hussain, A. I. R. 1921 Sind 13, which is fully applicable to the facts of the present case.
7. The learned counsel for the defendant-respondent has argued that before the Consolidation Authorities the appellants admitted themselves to be mortgagees and the defendant to be mortgagor before expiry of the period of limitation and accordingly the said admission amounted to acknowledgment within the provisions of Section 18 of the Limitation Act, therefore, the application for redemption was within time. The defendant-respondent can take benefit of this provision only if he is able to prove that before the Consolidation Authorities, the appellants made certain acknowledgments in writing. However, the defendant-respondent has not proved any such writing of the appellants on the file, therefore, the respondent cannot take any advantage of the provisions of Section 18 of the Limitation Act. Therefore, I see no force in this contention of the learned counsel of the defendant-respondent and reject the same.
8. The order passed by the Collector is dated 29th of February, 19S0, The first suit for declaring order of the Collector as void was filed on 23rd of March, 1980, which was decreed by the trial court. The defendant-respondent filed an appeal before the District Judge and on 15th February, 1982 the appellants were allowed to withdraw the suit which was decreed in their favour by the trial court with permission to file fresh one on the same cause of action. Fresh suit was filed on 24th February, 1982. After hearing counsel for the parties I hold that the suit filed by the appellants is within time and they are entitled for the exclusion of time from 21st March, 1980 to 15th February, 1982. The findings of the lower courts on issues Nos. 3 and 7 are set-aside. In view of the above mentioned discussion the judgment and decree passed by the lower-courts are set-aside and the suit filed by the plaintiff-appellants is decreed. No order as to costs.