Gujarat High Court
M/S Daimler Chrysler India Private ... vs M/S Kloeckner Desma Machinery Pvt Ltd on 11 October, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/CRA/403/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 403 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI Sd/-
=============================================
1 Whether Reporters of Local Papers may be allowed to Yes
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 ?
=============================================
M/S DAIMLER CHRYSLER INDIA PRIVATE LIMITED (NOW MERCEDES
BENZ
Versus
M/S KLOECKNER DESMA MACHINERY PVT LTD & 2 other(s)
=============================================
Appearance:
MR.S.N.SOPARKAR, SENIOR ADVOCATE WITH MR.BIJAL CHHATRAPATI,
ADVOCATE WITH MR.TABISH SAMDANI, ADVOCATE FOR J SAGAR
ASSOCIATES(8162) for the Applicant(s) No. 1
MR JF MEHTA(461) for the Opponent(s) No. 1,2
MR ZUBIN F BHARDA(159) for the Opponent(s) No. 3
=============================================
CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 11/10/2019
CAV JUDGMENT
[1] The present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 is filed for the purpose of seeking following reliefs:
Page 1 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT"7.(A) to call for the record and proceedings of Suit No.411 of 2011 pending in the Ahmedabad City Civil Court at Ahmedabad and more particularly Application dated 26.08.2013 at Exhibit 56 and quash and set aside the judgment and order dated 07.05.2016 passed below the said Application dated 26.08.2013 at Exhibit 56 and allow the same.
(B) to stay pending the hearing and final disposal of the present Civil Revision Application further proceedings of Suit No.411 of 2011 pending in the City Civil Court at Ahmedabad;
(C) to provide for the costs of the present Civil
Revision Application, and
(D) to grant such other further reliefs as this Hon'ble
Court deems just and proper in the facts and
circumstances of the present case."
[2] The case of the petitioner - original defendant No.1
is that present respondent No.1 - company i.e. M/s. Kloeckner Desma Machinery Private Limited had purchased a Mercedes Benz car on 16.03.2007 from respondent No.3 who was, at the relevant point of time, Authorized Dealer of the present petitioner. The respondent No.2 i.e. Mahendrabhai Patel is a Managing Director of respondent No.1 - company, who purchased the Car. As per the averments, contained in the plaint, on 02.06.2007, Manishbhai, the son of respondent No.2
- Mahendrabhai was driving the Mercedes Benz car in question, accompanied by two other occupants, and were going to play golf at Kensville Golf Club, Gandhinagar early in the morning at 6.30 am., the said Mercedes Benz car was stated to be driven Page 2 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT at the speed of 140 Kms. per hours. However, near Uvarsad cross road on Sarkhej - Gandhinagar Highway, one Jeep coming from right side dashed with Manishbhai's Mercedes Benz car on the rear part of its right side, resultantly, leading to an accident and also the sad demise of said Manishbhai subsequently. However, two other occupants in the car could survive in the said accident, whereas, Manishbhai, who died, a son of respondent No.2 herein, has left behind his wife Brinda and a minor son.
[2.1] On account of such accident, the widow and the minor child of late Manishbhai filed a Motor Accident Claims Petition bearing MACP No.2048 of 2008 before the Motor Accident Claims Tribunal, Ahmedabad (Rural) against the driver of the offending Jeep, its owner and its Insurance Company to the extent of claim of Rs.6,27,50,000/- substantially, on the premise that driver of the Jeep vehicle was driving in a rash and negligent manner which caused accident, in which, the said Manishbhai passed away. It is the case of the petitioner that simultaneously as per the averments in the plaint itself and the documents produced alongwith, it appears that respondents No.1 and 2 herein alongwith the wife of respondent No.2, filed a Consumer Complaint in the National Consumer Disputes Redressal Commission at New Delhi bearing Consumer Complaint No.146 of 2009 seeking prayer to claim Rs.44 crores to be paid by way of compensation and damages arising out of a car accident, causing death of Manishbhai, while he was driving a defective car manufactured by present petitioner and sold by respondent No.3, being Authorized Dealer. The said Consumer Complaint before the National Consumer Disputes Redressal Page 3 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT Commission at New Delhi was filed against the petitioner whereas widow and minor child of deceased Manishbhai claimed ignorance about such complaint being filed.
[2.2] It is the case of the petitioner that admittedly the Insurance Company has settled the claim towards the accidental damage caused to the Mercedes Benz cars, which admission is reflecting in paragraph No.22 of the plaint, wherein, the claim towards the accidental damage caused to the car is settled by Tata AIG Insurance Company. Simultaneously, widow as well as minor child of late Manishbhai, pending aforesaid Consumer Complaint No.146 of 2009 have filed Consumer Complaint No.26 of 2009 and prayed for a compensation of Rs.75 lakhs with interest at the rate of 12% per annum, and Rs.1,50,000/- as compensation for mental agony, pain and suffering etc. and the said Consumer Complaint No.26 of 2009 was filed against the petitioner and respondent No.3 i.e. Authorized Dealer and two others. During the course of time, the Consumer Complaint No.146 of 2009 by the National Consumer Commission was summarily dismissed vide judgment and order dated 05.01.2010, wherein, it was clearly concluded that by virtue of a ratio laid down by the Apex Court in a decision, which is in the case of Chairman, Thiruvalluvar Transport Corporation vs. The Consumer Protection Council reported in (1995) 2 SCC 479, the complaint is not maintainable. The petitioner has pointed out, at this juncture, that in fact apart from its maintainability even this Consumer Complaint No. 146 of 2009 is barred by limitation, since the same is beyond the period of two years and the accident took place on 02.06.2007 whereas the complaint came to be filed on 02.07.2009 i.e. after two years Page 4 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT and one month.
[2.3] It is further the case of the petitioner that feeling aggrieved and dissatisfied with the said judgment dated 05.01.2010 passed by the National Consumer Disputes Redressal Commission, New Delhi, the present respondents No.1 and 2 alongwith the wife of respondent No.2 filed a Special Leave Petition before the Hon'ble Supreme Court on 09.02.2010 i.e. almost after a period of more than six months. The Hon'ble Supreme Court vide order dated 22.02.2010 was pleased to dismiss the Special Leave Petition leaving the question of law open, to be decided in an appropriate case, but has also observed that the impugned order of the National Consumer Commission and order of the Hon'ble Supreme Court itself shall not preclude the petitioner from availing any other appropriate remedies. It is in this background, the respondents No.1 and 2 taking an advantage of such observations made by the Hon'ble Supreme Court almost after a period of one year from dismissal of their Special Leave Petition filed a suit on 22.02.2011 and the same was registered as Civil Suit No.411 of 2011. A further fact is mentioned by the petitioner that Smt. Naynaben M. Patel, one of the petitioners, wife of respondent No.2, who was a party in Special Leave Petition is not a party in the present suit and though, according to the petitioner, suit is not maintainable ex facie, respondents No.1 and 2 have averred in the plaint that they are entitled to the benefit of Sections 5 and 14 of the Limitation Act, and thereby, suit is within the period of limitation. Paragraph No.43 of the plaint has further asserted that widow of late Manishbhai has already initiated proceedings for compensation under the provisions of Motor Vehicles Act, and in the suit, Page 5 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT respondents No.1 and 2 filed a separate application for temporary injunction and the said application is pending.
[2.4] The petitioner has further come out with a case that present petitioner and two others (i.e. opposite party Nos.1, 2 and 3 of the Consumer Complaint No.26 of 2009 of the widow and minor child of late Manishbhai) filed their common affidavit-in-reply of Consumer Complaint No.26 of 2009 of widow and minor child of late Manishbhai and the Gujarat Consumer Commission vide judgment and order dated 17.04.2012 was pleased to dismiss the Consumer Complaint. In the suit proceedings, the present petitioner has submitted a written statement on 06.06.2011 and a list of document has also been placed alongwith it on that very day and petitioner also filed a separate affidavit-in-reply on 06.06.2011 to the application for temporary injunction. To this, the respondents No.1 and 2 have also submitted affidavit-in-rejoinder on 23.07.2012. The pleadings have been completed by respective sides, in which, several contentions have been raised at length.
[2.5] In view of the aforesaid background, since the suit itself is beyond the period of limitation and for want of jurisdiction and maintainability, the petitioner has submitted an application at Exh.56 on 26.08.2013 under Order 7 Rule 11 of the C.P.C. seeking rejection of plaint. To this application, respondents No.1 and 2 have filed joint affidavit-in-reply on 03.01.2014 and the petitioner submitted a rejoinder on 31.01.2014. This application was then dealt with by learned trial Judge, who by way of judgment and order dated 07.05.2016 was pleased to reject the petitioner's application Page 6 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT Exh.56, and it is this order of rejection of Order 7 Rule 11 of the C.P.C. application, the present revision application is filed under Section 115 of the Code of Civil Procedure.
[3] Present Civil Revision Application appears to have been entertained originally on 02.08.2016 and it has come up for consideration time and again and thereafter, on 20.03.2017, the Court was pleased to admit the petition and the Trial Court's proceedings have been stayed. With this background, the present Civil Revision Application then has come up for consideration before this Court on 17.07.2019 and the Court heard the matter at length.
[4] Learned senior counsel Mr.S.N.Soparkar with learned advocate Mr.Bijal Chhatrapati and learned advocate Mr.Tabish Samdani for J.Sagar Associates appearing on behalf of the petitioner has vehemently submitted that the aforesaid chronology of event would make it clear that the impugned order is passed without considering the relevant submissions made before the Court. It has further been submitted by learned senior counsel Mr.Soparkar that the suit proceedings are ex facie time barred and by virtue of any of the provisions contained from Articles 72 to 91 of the Limitation Act, the suit would be barred by limitation in any case. Apart from that, learned senior counsel Mr.Soparkar has submitted that even assuming that the suit stated to be under the provisions of Fatal Accidents Act, 1855, there also the period of limitation would be two years from the date of accident i.e. on 02.06.2007. So, even assuming that the suit is to be considered as a suit in Tort then also the said is barred by limitation. As a result of this, the suit itself since not within the Page 7 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT period of limitation, the same is not entertainable and it becomes the duty of learned trial Judge to pass appropriate order moment the proceedings are not maintainable. Learned senior counsel Mr.Soparkar for the petitioner has further contended that even apart from this, the effect of Sections 5 and 14 of the Limitation Act also, will not come to rescue to maintain the suit since such provisions are not available in case of the present background. First of all, the Consumer Complaint No.146 of 2009 before the National Consumer Commission will not be a Court within the meaning of Section 14 of the Limitation Act and even if the same can be treated to be a Court then also respondents No.1 and 2 will not be entitled to exclusion of time spent by them in prosecuting the aforesaid complaint, even the said complaint itself is also barred by law. As a result of this, the proceedings which are not maintainable or entertainable are not to be allowed to precipitate any further.
[4.1] For substantiating the contentions, learned senior counsel Mr.Soparkar for the petitioner has drawn the attention to Section 24 of the Consumer Protection Act which prescribes the period of two years and two years have already been elapsed on 02.06.2009 whereas undispudedly the complaint i.e. Consumer Complaint No.146 of 2009 is filed beyond two years i.e. on 02.07.2009. It has further been submitted that this non-maintainable proceedings carried further before the Apex Court and the Apex Court also did not entertain the Special Leave Petition and disposed of by specific order, as indicated above, and the resultant effect is that Section 14 of the Limitation Act under this process is not available to the original plaintiff. Additionally, learned senior counsel Page 8 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT Mr.Soparkar has further submitted that even otherwise also take it everything against the petitioner on the point of limitation so far as complaint is concerned, but then also, the suit which has been filed is also on 22.02.2011. So even assuming that respondents No.1 and 2 herein are entitled to the exclusion of time for prosecuting their Consumer Complaint No.146 of 2009 from 02.07.2009 to 22.02.2010 then also the suit is beyond the period of limitation and so much so that undisputedly the Hon'ble Supreme Court passed an order on 22.02.2010 whereas civil suit is filed after almost one year i.e. on 22.02.2011. As a result of this, the application under Order 7 Rule 11 of the C.P.C. deserves to be allowed. It has further been contended that Consumer Commission is a quasi judicial body and as such does not fall within the purview of Court to stretch the provisions of Section 14 of the Limitation Act.
[4.2] A further contention has been raised by learned senior counsel Mr.Soparkar for the petitioner is that in addition to the aforesaid circumstances, the suit itself is not maintainable, in view of the nature of provisions contained under the Motor Vehicles Act and Section 165 of the Motor Vehicles Act 1988 read with Section 175 of the Act, if to be read closely, the jurisdiction of Civil Court is ousted by this specific statute and the remedy which is available before the Motor Accidents Claim Tribunal seeking compensation is already availed by the legal heirs. Hence, in no case, the suit proceedings are entertainable.
[4.3] Learned senior counsel Mr.Soparkar for the petitioner has further submitted that apart from this, even the Page 9 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT Hon'ble Supreme Court has also in terms examined the case and left the question of law, open and maintained that the Consumer Complaint No.146 of 2009 is not maintainable and as such, in any case, the benefit of Sections 5 and 14 of the Limitation Act is not available to the original plaintiff. By referring to a further Section of Limitation Act, 1963, precisely Section 9 of the Act, a contention is raised that once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it; resultantly, the suit is ex facie, not entertainable. The effect of Section 14 of the Limitation Act is not to render the suit after re-filing in proper Court, a continuation of the original proceedings and as such the period of limitation has to be determined for Civil Suit No.411 of 2011, as a new suit hence, this sequence of event will not save the suit proceedings. It has been further submitted by learned senior counsel Mr.Soparkar for the petitioner that the Civil Suit is barred by limitation, not only under Article 82 of the Limitation Act, but also under Article 113 of the Limitation Act as well. The sequences of events have been summarized by learned senior counsel for demonstrating that suit is not saved by any of the protection under the Limitation Act. It has been contended that Section 9 of the C.P.C. contemplates for the courts which have jurisdiction to try all suits excepting the suits of which their cognizance is either expressly or impliedly barred. Now, the effect of Section 175 of the Motor Vehicles Act, 1988, is clearly debarring the jurisdiction of Civil Courts, as a result of this, even otherwise suit is not maintainable. By referring to Section 165 of the Motor Vehicles Act, it has been contended that the reliefs which are claimed in the Civil Suit, which are covering this ban, resultantly, the suit is not entertainable.
Page 10 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT[4.4] Learned senior counsel Mr.Soparkar for the petitioner has further submitted that there is a machinery prescribed under the statute to claim for compensation and as such when a specific statutory mechanism is provided, the Civil Courts jurisdiction is impliedly ousted whereas here in the instant case, there is specific exclusion provision by virtue of Section 175 of the Motor Vehicles Act. That being so, the learned Judge has committed a serious error in passing the order impugned in the present Civil Revision Application. Additionally, the learned senior counsel Mr.Soparkar has also referred to a provisions contained under Order 2 Rule 2 of the C.P.C., which contemplates that where a plaintiff omits a suit in respect of or intentionally relinquishes any portion of his claim, he shall not be afterwards sue in respect of the portion so relinquished and for that purpose, Order 2 Rule 2 of the C.P.C. is referred to by learned senior counsel, and therefore, even in terms of this provisions also, Suit No. 411 of 2011 is not maintainable. Learned senior counsel Mr.Soparkar has further submitted that merely because of the fact that the Apex Court has observed that question of law has been kept open, cannot justify the rejection of application of petitioner at Exh.56. Hence, learned senior counsel has requested to set aside the impugned order. Learned senior counsel Mr.Soparkar has further submitted that law is clear on this subject of Order 7 Rule 11 of the C.P.C. and catena of decisions have propounded that moment the proceedings are not entertainable as found apparently, it becomes the duty of the Court not to allow the same to be precipitated further. As a result of this, the learned Judge has chosen not to exercise the discretion / jurisdiction though vested in law which call for interference under Section 115 of the C.P.C.
Page 11 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT[4.5] Learned senior counsel Mr.Soparkar for the petitioner has further relied upon following decisions to substantiate the relief reference whereof are made as under:
(i) In the case of Damini and another versus
Managing Director, Jodhpur Vidyut Vitran
Nigam Limited and another reported in (2017) 9 SCC 443.
(ii) In the case of Damini and Anr. versus
Managing Director, Jodhpur Vidyut Vitran
Nigam Limited, Jodhpur passed on 29.06.2015 in S.B.Civil First Appeal No.189/2015 by the High Court of Rajasthan at Jodhpur.
(iii) In the case of Kunti Kumari @ Manju Singh versus The State of Bihar & Ors. reported in 1998 SCC OnLine Pat 539.
(iv) In the case of Uppala Subbaiah versus
Chitrala Narsimloo reported in AIR 1956 Hyd
161.
(v) In the case of Harshad Chimanlal Modi (II)
versus DLF Universal Ltd. and another reported in (2006) 1 SCC 364.
(vi) In the case of Gujarat State Road
Transport Corporation, Ahmedabad versus
Union of India and others reported in (1987) 1 GLH 344.
Page 12 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT[4.6] By submitting the aforesaid decisions, learned senior counsel Mr.S.N.Soparkar for the petitioner has requested the Court to set aside the impugned order and grant the relief, as prayed for, at Exh.56 by rejecting the plaint.
[5] To meet with the stand taken by learned senior advocate Mr.S.N.Soparkar for the petitioner, learned advocate Mr.J.F.Mehta appearing for respondents No.1 and 2 whereas learned advocate Mr.Zubin F.Bharda appearing on behalf of respondent No.3 have vehemently objected on the ground substantially that the issue of limitation is a mix question of law and facts, and as such, whenever there is an element of facts to be examined by the Court, no such jurisdiction be exercised under Order 7 Rule 11(d) of the C.P.C. So long as, the facts are not examined at length on the point of limitation, the suit may not be rejected at the threshold. It has further been contended that judgments are to that effect, that since the question of limitation is a mix question of law and facts, even the same shall not be treated as a preliminary issue as well. When that be so, there is hardly any reason to entertain revision application. It has further been contended that on the basis of averments, contained in the plaint, the case is made out by the plaintiff to try the suit and for that purpose, a reference is made to a relevant paragraph contained about the cause of action and about the explanation of limitation. It has been contended by learned advocate Mr.J.F.Mehta for the respondents No.1 and 2 that by virtue of Sections 5 & 14 of the Limitation Act, the suit is well within the time and this question has to be determined by the trial Court upon examination of relevant facts and as such whether Sections 5 & 14 of the Page 13 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT Limitation Act will come to an aid to suit is a mix question of law and facts, to be determined by the Court below resultantly, the discretion which has been exercised by the trial Court is not erroneous in any form.
[5.1] Learned advocate Mr.J.F.Mehta for the respondents No.1 and 2 has further submitted that at this stage of the proceedings specially when the pleadings are completed and the written statement is already filed to entertain application at this stage is to defeat the very adjudicatory process of the suit and no doubt application under Order 7 Rule 11 of the C.P.C. can be given at any stage of the suit but normally the same may not be entertained after submission of written statement and disclosure of defence. Be that as it may, the proposition of Order 7 Rule 11 of the C.P.C. is to the effect that whenever there is any element of facts to be examined, no such power be exercised. Here, in the instant case, the sequence of events which are narrated in the plaint at length would clearly indicate that the suit deserves to be entertained and triable issues raised in it are required to be adjudicated and as such to throw-way the plaint at this stage at threshold would not be in the interest of justice. Again, it has been pointed out by the learned advocate Mr.Mehta that a detail reply is filed to the application under Order 7 Rule 11 of the C.P.C., in which, a clear submission is made that by virtue of effect of Sections 5, 14 and 24 of the Limitation Act, the period of limitation would not come to an end on expiration of 02.06.2009 in any case. Apart from that, the effect of Section 175 of the Motor Vehicles Act vis-a-vis Section 9 of the C.P.C. will have to be a determining factor and the issues related to it are triable enough which would not warrant the exercise of Page 14 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT jurisdiction under Order 7 Rule 11 of the C.P.C. The interpretation of the aforesaid provisions would indicate that the contentions which have been raised about tenability of the plaint, is a question at large to be tried at an appropriate stage of the suit. A recent decision of the Apex Court on the issue that on a point of limitation, no Order 7 Rule 11 of the C.P.C. be exercised or applied resultantly, the present Civil Revision Application deserves to be dismissed.
[5.2] Apart from that, learned advocate Mr.Zubin F.Bharda for the respondent No.3 as well as learned advocate Mr.J.F.Mehta for the respondents No.1 and 2 have further contended that the learned trial Judge has exercised his discretion well within the bounds of his authorities and has passed a reasoned order upon consideration of several provisions and simply because another view is possible, the same cannot be substituted in exercise of revisional jurisdiction specially when there is no perversity is reflecting, a mere different conclusion is no ground for exercising jurisdiction under Section 115 of the C.P.C. That being so, the order in question and the exercise of discretion do not call for any interference. Learned trial Judge has not only taken into consideration the provisions contained under the Fatal Accidents Act provisions contained under the Limitation Act, but has also contended the provisions related to ban of Civil Court's jurisdiction contained under Section 175 of the Act. As a result of this, the revision application being devoid of merit deserves to be dismissed. Learned advocates have further submitted that at the best, at an appropriate stage of the suit, this point of limitation is always permissible for the petitioner and as such no prejudices likely to cause if the impugned order Page 15 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT is not set aside hence, in the absence of any perversity, in the absence of any material irregularity, the view taken by the learned trial Judge may not be substituted in the large interest of justice. By virtue of dismissal of revision application, the defendant No.1 i.e. present petitioner is not becoming a remedy less nor his defence is going to be curtailed since enough opportunity is available at an appropriate stage to throw-way the litigation at this stage in this peculiar background of facts would not be in the interest of justice. Hence, a request is made to dismiss the revision application.
[6] Having heard learned advocates appearing for the respective parties and having gone through the material on record and the submissions made by the respective sides, at a first breath, it appears that no doubt the learned trial Judge has considered the relevant provisions contained under various Acts, as stated above, but whether the said view is corrected or not, is a center issue, to be dealt with by this Court in the present order. Hence, the following circumstances are not possible to be unnoticed by this Court.
[7] A perusal of application under Order 7 Rule 11 of the C.P.C. is to the effect that the Suit No.411 of 2011 is beyond the period of limitation. A brief application, which has been given after almost a period of more than 2 years from the filing of the suit with a contention that at the best period of limitation expired on 02.06.2010 and apparently the law of limitation is not permitting the Court to proceed ahead with the suit. Another aspect which has been pointed out in the application is that by virtue of the provisions contained under the Motor Vehicles Act, 1988, since the mechanism is provided Page 16 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT to ventilate the grievance, bar of Section 175 of the Act debars the Civil Court from considering the relief in the present suit and this is more so that plaintiff No.1 has claimed and collected compensation from Insurance Company towards the damage cause to the vehicle. So essentially point of limitation and point of jurisdiction are raised in an application under Order 7 Rule 11 of the C.P.C.
[8] As against this, it is settled position of law that averments contained in the plaint only to be looked into while determining the issue related to Order 7 Rule 11 of the C.P.C. It is conjoint reading of the averments contained in plaint, is making clear that there is a specific stand taken by the plaintiff in a suit that by virtue of effect of Section 5 read with Section 14 of the Limitation Act, the suit proceedings are well within the period of limitation and as such the application came to be contested by filing a detail reply which is visible on page 249 onwards of the petition compilation. Here is the case, in which, the National Consumer Disputes Redressal Commission at New Delhi has processed the Consumer Complaint of 2009 and has then decided on 05.01.2010 by coming to the conclusion that complaint is not maintainable and as such after referring to a binding decision of the Apex Court, the complaint came to be disposed of, which resulted into filing the Special Leave Petition before the Hon'ble Supreme Court. This Consumer Complaint appears to have been filed by not only Mahendrabhai Patel and widow of deceased but by the Authorized Dealer as well and the main base alleged in the complaint was that car was defectively manufactured by opponent No.1, which has resulted into loss and death of a person. The Hon'ble Supreme Court while disposing of Special Page 17 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT Leave Petition has mentioned categorically that the order of the National Consumer Disputes Redressal Commission at New Delhi in Complaint No.146 of 2009 is not interfered with, but has categorically observed that this disposal of Special Leave Petition shall not preclude the petitioner from availing any other appropriate remedies and it is by virtue of this observations, the plaint has been submitted before the City Civil Court, Ahmedabad. Since, suit has been filed by two of the original litigants of the complaint, the same is essentially for the purpose of claiming damages / compensation with a specific assertion about the limitation contained in paragraph 56, which reads as under:
"56. Suit is within the period of limitation, as plaintiffs, only came to know about the car having inherent manufacturing defect on 02-06-2007, when accident took place near Uvarsad cross road on Sarkhej Gandhinagar High Way. This plaintiffs entitled to the benefit of Sec.5 and 14 of the Limitation Act as plaintiffs preferred petitions before the Hon'ble Nation Consumer redressal Commission and Supreme Court of India, to redress their grievances that car has inherent manufacturing defects."
[9] Now this specific assertion of the plaintiff on the issue of limitation is that they are entitled to seek the benefit of Sections 5 and 14 of the Limitation Act, this assertion will have to be examined by the Trial Court and the same is appearing to be triable and debatable whether in the background of peculiar facts and circumstances, such benefit of provision whether available or not this is requiring not only examination of the facts, but also appears to be a triable issue.
Page 18 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENTSections 5 and 14 of the Limitation Act, therefore, is center of controversy, being agitated by the present petitioner, which read as under:
"Sec.5Extension of prescribed period in certain cases
- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."
Sec.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 proceedings, 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 Page 19 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT 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."
[10] In the light of aforesaid provisions, if we see Section 5 of the Act, any appeal or any application, other than an application under any of the provisions of Order XXI of the C.P.C. may be admitted after the prescribed period of limitation, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. So far as Section 14 of the Limitation Act is concerned, it contains a provision about navigating exclusion of time of proceeding bona fide in Court without jurisdiction. So the Section 14 of the Act appears to be much emphasized by the original plaintiffs while preferring suit after disposal of the Special Leave Petition from the Hon'ble Supreme Court. A close reading of this provision indicates that while computing the period of limitation, the time during which the petitioner has been prosecuting another civil proceeding whether in a Court of first instance or of appeal or revision, the same shall be excluded, where such proceeding in good faith is prosecuted in a Court which from defect of jurisdiction, is unable to entertain. So here under the Page 20 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT provisions of Consumer Protection Act 1986, the original plaintiff appears to have prosecuted the proceedings of Consumer Complaint No.146 of 2009 which ultimately decided as not maintainable and then without expressing about the other available appropriate proceeding, the Apex Court has affirmed the view that complaint is not maintainable. So, it appears that such proceedings have been in doubt which ultimately found to be not maintainable, and thereafter, this suit so whether the said proceeding carried out by the original plaintiff before the National Commission can be said to be a civil proceeding or whether such Commission can be construed as a Court within the meaning of Section 14 of the Limitation Act, and thereby, whether to extend the benefit of such exclusion period are the issues triable enough during the course of adjudication of the suit, and therefore, at this stage, to opine anything would have the effect of throttling the proceedings at this initial stage itself, without giving enough chance to establish during adjudication. So the reading of these provisions and the issues raised by the learned senior counsel Mr.Soparkar for the petitioner are the issues which are not only requiring an examination of fact, but are debatable and when such is the disputed version of facts, to generate an opinion at this stage, would not be appearing to be just and proper more particularly when the suit has been apparently filed for relief with a specific assertion that benefit of Sections 5 and 14 of the Limitation Act are available to the plaintiff.
[11] The Consumer Protection Act is a specific statute created prescribing a mode of claiming compensation and the definition of "suit" contained under Section 2 (l) of the Limitation Act, which has defined the "suit", does not include Page 21 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT an appeal or an application. Now, whether this Consumer Complaint can be said to be a suit or not is also a question debatable enough in the proceeding and as such whether the exclusion of time is available or not is a controversy, for which, both the sides are required to be given an opportunity to deal with. The assertions which have been made in the plaint appear to be not sufficient enough to reject the plaint under Order 7 Rule 11 of the C.P.C. on any hyper technical approach. If, the time to be excluded as requested then next question would be what is the period of limitation to be construed. It has been settled by catana of decisions that question of limitation is a mix question of law and fact and as such even i.e. not permissible to be raised as a preliminary issue and here for the purpose of exercising jurisdiction under Order 7 Rule 11 of the C.P.C. as well moment there is an element of examination of fact, is requiring in such a situation normally powers are not to be exercised. A recent pronouncement of the decision by the Apex Court in the case of Pawan Kumar versus Babulal since deceased through legal representatives and others reported in (2019) 4 SCC 367, since it has been considered by this Court, the same is reproduced hereinafter:
"13. In the present case, the controversy has arisen in an application under Order VII Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the Plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject matter of assessment at the stage when Page 22 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT application under Order VII Rule 11 CPC was taken up for consideration. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not. We may quote the following observations of this Court in Popat and Kotecha Property vs. State Bank of India Staff Association:
"10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force."
[12] With respect to an issue related to Section 175 of the Motor Vehicles Act, which has been emphasized by learned senior counsel Mr. Soparkar for the petitioner on that issue, a close reading of Section 175 of the Act has prescribed a bar on Civil Courts to exercise jurisdiction but then it is related to a question of claim for compensation which ordinarily to be claimed by the legal heirs of representatives. Section 165 of the Act contained in Chapter 12 deals with claims tribunal and Section 166 of the Act is prescribing regarding application for compensation. The peripheral reading of Section 166 of the Act is prescribing an application for compensation arising out Page 23 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT of an accident by the persons which are mentioned in it, for close perusal, the said provisions, Section 166 of the Act, reads as under:
"Sec.166. Application for compensation -
(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made -
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any or the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
[(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.] [] [(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.]"Page 24 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT
[13] This mechanism which has been provided under the provisions of the Motor Vehicles Act is essentially relates to a person only entitled to a claim of compensation either by way of injured person or by the legal heirs of deceased person. But, a perusal of reading of the relief, contained in the plaint, it appears that essentially this is not merely for the purpose of claiming compensation by the legal heirs, but it is compensation by the plaintiffs in which the widow is not a party since a separate amount of compensation under the Motor Vehicles Act is already filed. So, to arrive at a conclusion, at this stage, that this proceedings are not maintainable at all is appearing to be unwarranted, in view of the reliefs which are contained in paragraph No.55 of the plaint. The relief contained in paragraph 55, which reads as under:
"55. Plaintiffs therefore prays that a. Decree for sum of Rs.175 crores be passed against the defendants, till realization with running interest there on at rate of 18% there on from the date of the suit.
b. This Hon'ble Court will be pleased to restrained the defendant no.1 from selling its plant, machinery and land from where the cars are being manufactured by the defendant no.1 permanently so as to secure the damages claimed by the plaintiff in the present suit or in alternative defendant no.1 be directed to furnish sufficient security in form of bank guarantee or in any other nature so as to secure the damages claimed in the suit till realization of the amount of decree that may be passed in the suit.
Page 25 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENTc. Defendant no.2 be restrained from selling its show room situate at Khanpur At Ahmedabad, and also be further directed to furnish the equivalent amount of security of the damages claimed in the suit to the plaintiffs till realization of the amount of decree that may be passed in the suit.
d. Any other relief deem fit and proper in nature of justice be granted to the plaintiffs.
e. Cost of this suit be awarded to be plaintiffs."
[14] Looking to the aforesaid circumstances, whether such relief is permissible or not, whether can be considered or not, is not a question to be ascertained by the Court at this stage of the proceeding and it may be that, after disposal of the suit, such relief may not be granted by the Court, but after considering the submissions of learned senior counsel Mr.Soparkar for the petitioner to assume at this stage that such reliefs are not available at all is too premature to arrive at. Resultantly, the Court would not like to consider this plea of the present petitioner.
[15] Further, it appears that from the reasons which are assigned by the Court that order impugned is a well-reasoned order after taking into consideration the detail facts and then arrived at a conclusion which is not possible to be construed by this Court as perverse. The Court appears to have rightly held that nature of suit and the averments at length are required to be considered at an appropriate stage. Therefore, rightly not entertained application under Order 7 Rule 11 of the C.P.C.
Page 26 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT[16] From the aforesaid discussion, since this being a question of limitation essentially posed before this Court, this Court is unable to accept the submissions made by learned senior counsel Mr.Soparkar appearing for the petitioner.
[17] Additionally, whether bar of Section 175 of the Motor Vehicles Act is available to the present suit is a question which will have to be examined at length at an appropriate stage. Resultantly, no case is made out. The purpose of enactment of the Motor Vehicles Act is to compensate the persons who are involved in the accident and the persons who are consequently affected by effect of accident, so the legal heirs and representatives as well of the deceased who died during the accident. So, prma facie, whether the relief contained in the plaint, as mentioned above, is barred by Section 175 of the Motor Vehicles Act and the Civil Court will not have jurisdiction by virtue of this provision, is appearing to be a quite debatable serious issue, which is not apparently available looking to the nature of the suit and the parties who are connected to the suit proceedings. Had there been, a suit by the legal heirs of the deceased for claiming compensation only on account of death under various heads probably learned senior counsel might have been justified in invoking Section 175 of the Motor Vehicles Act, so apparently, this issue is not like open and shut case on the basis of which the entire suit can be thrown at this stage itself.
[18] In the light of aforesaid situation, which is brought to the notice, the judgments which have been relied upon appears to have not been pressed into service before the Court Page 27 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT concerned, but this application being under Order 7 Rule 11 of the C.P.C., the Court since pressed upon, would like to consider. The first judgment in this context, which has been submitted, is a decision in the case of Damini and another (supra), in which, the suit under Section 1(a) of the Fatal Accidents Act, 1855 was dealt with, in which, whether Article 82 or Article 113 of the Limitation Act is applicable or not. Now here apparently, the plaint, which has been submitted, has not been under the provisions of fatal accidents claim, but it is a suit for damages, there might be a fatal accident occurred, but that would not ifso facto be treated as a suit only under Fatal Accidents Act, 1855 specially when the averments in the plaint are not supporting such stand taken by the petitioner. Therefore, this judgment apparently since in a different contextual circumstance, the Court is unable to apply the same. Next judgment in line is a judgment related to the First Appeal No.189 of 2015 is also again on the similar line, the Court as such would not apply the same as a straitjacket formula, when background of facts are different.
[19] Yet another decision which has been relied upon is a decision delivered by Patna High Court in the case of Kunti Kumari @ Manju Singh (supra), in which, the question of effect of Section 5 of the Limitation Act is apparently held to be not applicable in the matter of preferring a suit whereas here it is not the case that Section 5 of the Limitation Act is the only provision which stated to have been taken in aid by the plaintiff, but has specifically resorted to Section 14 of the Limitation Act, and as such also, the averments contained are not permitted the Court to apply this ratio as a straitjacket formula.
Page 28 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT[20] Yet another decision which is empathetically pressed into service by the learned senior counsel Mr.Soparkar for the petitioner is a decision which is in the case of Harshad Chimanlal Modi (supra), is resulted to a proposition about continuation of proceeding initiated in a wrong Court, but the Hon'ble Supreme Court, in this judgment, was dealing with the other incidental provision and was essentially confronted with a situation as to whether provisions under Order 18 Rule 5 of the C.P.C. would be applied or not. So in that circumstance and the controversy, if observations are made then the same are not to be applied as a straitjacket formula. On the contrary, here is the case, in which, the suit has been filed for the damages and thereto by the persons other than apparent legal heirs of the deceased and all these issues which are raised, are requiring a detail examination of facts and for examination of facts, the trial Court is a proper forum to adjudicate these issues. Hence, this Court is unable to come to a positive conclusion that this is a fit case for exercising jurisdiction under Order 7 Rule 11 of the C.P.C. at this stage of the proceedings. The Court is also of the opinion that, if out of one accident, if few cases are arising, the same would not be ground to discard the same at this initial stage, resultantly, it may be that reasons at length have not been expressed by the learned trial Judge, but the main crux is considered by the Court which requires an element of examination of facts and certain issues at an appropriate stage of the suit and as such instead of taking too technical view of the matter, the Court deems it proper not to entertain the impugned order, which is under challenge.
Page 29 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT[21] The present Civil Revision Application basically is an application under Section 115 of the C.P.C. and the scope which has been propounded by the Apex Court is such in which normally the view taken by the Court below cannot be substituted simply because another view is possible on the basis of same material. Looking to the circumscribed discretion of Section 115 of the C.P.C., the Court is of the opinion that the stand of the petitioner has not been accepted by the Court below, not only on the issue of limitation but also on the issue of jurisdiction and the arrival of such conclusion cannot be substituted in the absence of any perversity or material irregularity. The word perversity has been defined time and again by the Apex Court which does not appear to have been committed here on case on hand and as such in a limited jurisdiction of Section 115 of the C.P.C., this Court is not inclined to exercise, nor inclined to disturb the decision which has been delivered by the Court below. Accordingly, the revision application found to be devoid of merits. The observations contained on the issue of exercise of Section 115 of the C.P.C. jurisdiction, the same is precisely narrated in a judgment in the case of Ambadas Khanduji Shinde & Ors. v. Ashok Sadashiv Mamurkar & Ors., reported in AIR 2017 SC 2527. Relevant observations of the said decision are in Para.13 which quoted, thus;
"13. Apart from the factual aspect, order lacks merit on the ground of jurisdiction. The High Court cannot interfere with the concurrent factual findings while exercising jurisdiction under Section 115 of the Civil Procedure Code. It is settled law that revisional jurisdiction of the High Court is restricted to cases of illegal or irregular exercise by the subordinate courts.Page 30 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019 C/CRA/403/2016 CAV JUDGMENT
Under Section 115 of the CPC, it is not open for the High Court to correct errors of facts or law unless they go to root of the issue of jurisdiction. In the facts on hand, the Courts below have passed reasoned orders well within the jurisdiction conferred upon them. We arrive at the conclusion that the High Court committed error in interfering with the judgment and decree of the trial court."
[22] From the aforesaid discussion and in view of the circumstances visible from the record peculiar enough, it is not possible to accept the stand taken by the petitioner. Resultantly, the impugned order is not disturbed.
[23] However, while parting with the present order, since the suit is of the year 2011, the same is directed to be decided as expeditiously as possible preferably within a period of two years from the date of receipt of the order of this Court.
[24] With these observations, present Civil Revision Application stands dismissed with no order as to costs. Rule is discharged.
Sd/-
(A.J. SHASTRI, J) DHARMENDRA KUMAR Page 31 of 31 Downloaded on : Sat Oct 12 05:06:41 IST 2019