Supreme Court - Daily Orders
Mirabai Madhav Kossambe vs Laxmi Narayan Naik . on 2 September, 2014
Bench: Ranjan Gogoi, R.K. Agrawal
1
ITEM NO.6 COURT NO.11 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
PETITION(S) FOR SPECIAL LEAVE TO APPEAL (C) NO(S). 12407/2010
(ARISING OUT OF IMPUGNED FINAL JUDGMENT AND ORDER DATED 16/12/2009
IN SA NO. 7/2009 PASSED BY THE HIGH COURT OF BOMBAY AT GOA)
MIRABAI MADHAV KOSSAMBE & ORS. Petitioner(s)
VERSUS
LAXMI NARAYAN NAIK & ORS. Respondent(s)
(WITH OFFICE REPORT)
(FOR FINAL DISPOSAL)
WITH
SLP(C) NO. 12652/2010
(WITH OFFICE REPORT)
Date : 02/09/2014 These petitions were called on for hearing today.
CORAM : HON'BLE MR. JUSTICE RANJAN GOGOI
HON'BLE MR. JUSTICE R.K. AGRAWAL
For Petitioner(s) Mr. Vikash Singh, Sr. Adv.
Mr. Dhruv Mehta, Sr. Adv.
Mr. Kirat Singh Nagara, Adv.
Mr. Monish Panda, Adv.
Mr. Praveen Kumar, Adv.
For Respondent(s) Mr. Arunabh Chowdhury, Adv.
Mr. Ninad Laud, Adv.
Mr. Jayant Mohan, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted in both the Special Leave Petitions. The appeals are allowed in terms of the signed order.
[VINOD LAKHINA] [ASHA SONI]
COURT MASTER COURT MASTER
Signature Not Verified
Digitally signed by
Vinod Lakhina
Date: 2014.09.04
17:14:38 IST
[SIGNED ORDER IS PLACED ON THE FILE] Reason: 1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.8455 OF 2014 [Arising out of Special Leave Petition (Civil) No.12407 of 2010] MIRABAI MADHAV KOSSAMBE & ORS. ...APPELLANTS VERSUS LAXMI NARAYAN NAIK & ORS. ...RESPONDENTS WITH CIVIL APPEAL NO.8456 OF 2014 [Arising out of Special Leave Petition (Civil) No.12652 of 2010] MIRABAI MADHAV KOSSAMBE ...APPELLANT VERSUS LAXMI NARAYAN NAIK & ORS. ...RESPONDENTS ORDER Leave granted in both the Special Leave Petitions.
2
This is plaintiffs' appeal against the judgment and decree passed in Second Appeal by the High Court of Bombay at Goa confirming the reversal of the decree granted in favour of the plaintiffs by the learned Trial Court.
Two primary issues arose for determination in the Second Appeal before the High Court. The first was with regard to the plaintiffs' suit being barred by limitation under Article 58/59 of the Limitation Act, 1963, and the second as to the maintainability of the suit in view of the provisions of the Tenancy Act inasmuch as what was the subject matter of the suit was an order of the Mamlatdar passed in a revenue proceeding.
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The High Court noticing the fact that the order of the Mamlatdar passed on 3rd February, 1972 was within the knowledge of the plaintiff No.2 on 17th June, 1974, as the said plaintiff participated in the mutation proceedings before the Mamlatdar, held that the suit filed in the year 1978 was barred by limitation. In view of the finding on the issue of limitation, the High Court did not consider it necessary to go into the second question inasmuch as the issue with regard to limitation, according to the High Court, went to the root of the matter. Accordingly, the Second Appeal was dismissed and the order of the first appellate Court reversing the decree passed by the learned trial Court was upheld.
4
We have heard Mr. Vikash Singh, learned Senior Counsel appearing for the appellants and Mr. Arunabh Chowdhury, learned counsel appearing for the respondents.
Mr. Vikash Singh, learned Senior Counsel appearing for the appellants has drawn our attention to the materials on record particularly the judgment and decree of the learned trial Court to contend that there was an earlier proceeding between the parties i.e. Suit No.10 of 1968 filed by the defendant No.1. The same was dismissed. Thereafter, the plaintiff Nos. 2 and 3 had filed an application dated 8th July, 1976 for restoration of the suit property which was 5 dismissed by the learned Trial Court on 1st February, 1978 holding that the plaintiffs 2 and 3 may file a separate suit for recovery of possession. On the basis of the said order, according to the plaintiffs, they had filed an application seeking leave from the Civil Court to file a suit against defendant No.1 inasmuch as he was the Receiver appointed by the Court. On the basis of the said application, leave was granted by the Civil Court to the plaintiffs to file a suit against defendant No.1. This was on 19th June, 1978. Thereafter, the instant suit was filed. On the aforesaid facts, it is the contention of the learned counsel for the appellants that during the aforesaid period in question i.e. from the date of filing of the application for restoration of possession upto the date of 6 grant of leave by the Civil Court, the plaintiffs were diligently prosecuting another litigation connected with the suit out of which the present appeals have arisen. It is, therefore, contended that the benefit of Section 14 of the Limitation Act, 1963 should have been afforded to the plaintiffs while computing the period of limitation. Learned counsel has further contended that the aforesaid entitlement of the plaintiffs was considered by the learned Trial Court though not by the learned First Appellate Court and by the High Court.
Mr. Arunabh Chowdhury, learned counsel appearing for the respondents has resisted the contentions advanced on behalf of the appellants and has submitted 7 that the suit filed by the plaintiffs being not maintainable in view of the provisions of the Tenancy Act and the issue of limitation having been rightly decided, the judgment and decree of the High Court would not require any interference.
Having considered the submissions advanced on behalf of the parties and noticing the discussions of the learned trial Court in Para 48 of its judgment on Additional Issue No.4, we are of the view that the High Court ought to have considered the entitlement, if any, of the plaintiffs to the benefit under Section 14 of the Limitation Act, 1963 before holding the suit filed by them to be barred by limitation. We do not find any discussion 8 whatsoever on the facts noticed by us hereinabove in the light of the provisions of Section 14 of the Limitation Act. In the absence of such consideration, the ultimate conclusion of the High Court that the suit of the plaintiffs was barred by limitation is not acceptable. We, therefore, do not consider it necessary to go into any of the other issues that have been raised before us by the learned counsel for the respondents including the issue with regard to the maintainability of the suit in view of the provisions of the Tenancy Act. This is for the High Court to consider if the issue of limitation is to be decided in favour of the appellants/ plaintiffs. 9
We, therefore, set aside the order of the High Court dated 16th December, 2009 and request the High Court to decide the issue of limitation in the light of what has been held by us above. We make it clear that we have not expressed any opinion whatsoever with regard to the entitlement of the appellants – plaintiffs to the benefit of the provisions of Section 14 of the Limitation Act, 1963 and the said issue would naturally be decided by the High Court on its own merits. Consequently and in the light of the aforesaid discussion, these appeals are allowed to the extent indicated above.
....................,J.
(RANJAN GOGOI) ....................,J.
(R.K. AGRAWAL) NEW DELHI SEPTEMBER 02, 2014