DEENA (DEAD) THROUGH L.RS.versusBHARAT SINGH (DEAD) THROUGH L.RS. AND ORS.

                    DEENA (DEAD) THROUGH L.RS.                                     A
                                      V.

        BHARAT SINGH (DEAD) THROUGH L.RS. AND ORS.

                               JULY 29, 2002

         [D.P. MOHAPATRA AND K.G. BALAKRISHNAN, JJ.]                               B

      limitation Act, 1963-Section 14 (/) and (3)-Suit~Withdrawal a/-
Order XXIII-Applicability of-Held, Provision under Section/ 4(3) is in the
nature of proviso to Order XX/II, Rule 2 and for its application certain           C
stipulated conditions are required to be satisfied-Civil Procedure Code,
I 908- Order XXIII, Rules I and 2.

       Instituting subsequent suit with permission of Court-Limitation-
Exclusion of time of earlier proceeding-Held, party prosecuting the earlier
suit in good faith in Court having no jurisdiction is entitled to exclusion of D
that period.

      Suit-Non impleadment of necessary party-Subsequent withdrawal of
the suit-Whether such prosecution is in good faith-Held, no, it is a clear
case of /aches on the part of plaintiff.
                                                                                   E
      Words and Phrases: 'good faith', 'defects of jurisdiction' and 'or the
cause of like natun' '-Meaning of in the context of Section 14 of the Limitation
Act.

      Legal Maxims:
                                                                                   F
      'ejusdem generis '-Meaning and applicability of

       Appellant-defendant had mortgaged his land in consideration of
certain amount with possession in favour of predecessor-in-interest of
respondents. Subsequently, appellant had filed an application for
redemption of the mortgage. Collector ordered redemption on payment G
of the mortgage money. Plaintiff-respondents filed a suit for declaring
them owners of the property and to declare order of the Collector as null
and void. Trial court decreed the suit. Aggrieved, defendants filed appeal.
During the pendency of appeal, plaintiffs withdrew the suit with perm"iss\on
to file fresh suit and subsequently filed a fresh suit on the same cause of H
                                    289
    290                     SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A action. Defendants took the plea that suit was barred by limitation. Trial
    court decided in favour of defendants holding that the plaintiffs did not
    pursue the proceedings in the previous suit with due diligence and good
    faith. Appellate court confirmed the order of the trial court. In second
    appeal, High Court set aside the judgment and decree passed by the lower
B   courts holding that the suit was filed within time and the appellants were
    entitled for the exclusion of time as provided under Section 14 of the
    Limitation Act year. Hence this appeal.

        It was contended for the appellants that High Court was in error in
  upsetting decision of the Courts below in exercise of its jurisdiction under
C Section 100 of the Civil Procedure Code since prosecuting the previous
  proceedings in good faith is pre-condition for application of Section 14 of
  the Limitation Act; that plaintiffs were prosecuting the previous suit in
  good faith is a question of fact; and that first appellate court as the final
  court of fact had held that the plaintiffs had not been prosecuting the
  previous suit with due diligence and in good faith.
D
         It was contended for the respondents that the appellate court on
    being satisfied that the suit was likely to fail by reason of formal defect of
    non-joinder of a necessary party had granted leave to plaintiffs to
    withdraw the suits with permission to file fresh suit; therefore, plaintiffs
    were entitled to the exclusion of the period under Section 14 of the
E   Limitation Act.

          Allowing the appeal, the Court

         HELD: 1.1. From the provisions of Section 14 of the Limitation Act,
    1963 it is clear that it is in the nature of a proviso to Order XXIll Rule 2
F   CPC. The non-obstante clause provides that notwithstanding anything
    contained in rule (2) of Order XXIII CPC the provisions of sub-section
    (1) of Section 14 shall apply in relation to a fresh suit instituted on
    permission granted by the Court under rule 1 of Order XXIII. For
    applicability of the provision in sub-section (3) of Section 14 certain
G   conditions are to be satisfied. [296-B, CJ

           1.2. The main factor which would influence the court in extending
    the benefit of Section 14 to a litigant is that the prior proceeding had been
    prosecuted with due diligence and good faith. The party prosecuting the
    suit in good faith in the court having no jurisdiction is entitled to exclusion
H   of that period. The expression 'good faith' as used in Section 14 means           L
                                                                                      I




                                                                                      L
                         DEENA v. BHARAT SINGH                           291

"exercise of due care and attention". In the context of Section 14 expression   A
'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. 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   B
means the court must lack jurisdiction to entertain the suit or proceeding.
                                                      [296-E, F, H; 297-A[

      Vijay Kumar Rampa/ and Ors. v. Diwan Devi and Ors., AIR (1985) SC
1669, relied on.

      2. There is a distinction between granting permission to the plaintiff
                                                                                c
to withdraw the suit with leave to file a fresh suit for the same relief under
Order XXlll, Rule 1 and exclusion of the period of pendency of that suit
for the purpose of computation of limitation in the subsequent suit under
Section 14 of the Limitation Act. The words "or other cause of a like
nature" are to be const~ued ejusdefn generis with the words 'defect of D
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 Section 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. 1297-B, q
                                                                                E
      3.1. In the instant case, previous suit filed by the respondents was
decreed by the trial court; and the defendant had filed appeal against the
judgment and decree of the trial court. It does not appear from the
discussions in the impugned judgment that there was any finding of the
court in the previous suit holding the suit to be not entertainable on any p
ground. The ground on which withdrawal of the suit was sought was that
one of the mortgagors, had not been impleaded in the suit. It is not the
case of the plaintiffs that the court had found the suit to be not
maintainable on that ground. Non impleadment of one of the mortgagors,
a necessary party in the suit, was a clear case of !aches on the part of the
plaintiffs. In such circumstances, it could not be said that the plaintiffs G
were prosecuting the previous suit in good faith. Objection regarding non
impleadment of necessary party was taken in the written statement.
Despite such objection the plaintiffs chose to prosecute the suit. Therefore,
trial court and the first appellate court were right in holding that the
plaintiffs were not entitled to exclusion of the period under Section 14 of H
    292                      SUPREME COURT REPORTS (2002) SUPP. I S.C.R.

A   the Limitation Act, as claimed, and that the suit was barred by limitation.
                                                       1274-D, E, H; 298-A, Bl

          Rabindra Nath Samuel Dawson v. Sivakami and Ors., AIR (1972) SC
    730, relied on.

B        3.2. Concurrent decisions of the Courts below have been reversed
    by the High Court with a general observation that on the facts and
    circumstances of the case the plaintiffs were entitled to exclusion of the
    period under Section 14 of the Limitation Act, as claimed. Therefore, the
    judgment of the High Court is clearly unsustainable. [298-CI

C           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2965 of
    1992.

         From the Judgment and Order dated 3.2.1992 of the High Court of
    Punjab and Haryana at Chandigarh in R.S.A. No. 2040 of I 987.

D           Mahabir Singh for the Appellants.

            P.C. Jain and Manoj Swamp for the Respondent.

            The Judgment of the Court was delivered by

          D.P. MOHAPATRA, J.,This appeal filed by the defendant is directed
E   against the judgment dated 3.2.1992 of the High Court of Punjab and Haryana
    in Regular Second Appeal No.2040 of I 987 allowing the appeal filed by the
    plaintiffs who are respondents herein on reversing judgment of the first
    appellate court confirming the decision of the trial court.

           On analysis of the case of the parties and findings recorded by the
F   Courts below the question that arises for determination is whether on the
    facts found the plaintiffs are entitled to exclusion of the period from 21.3. I 980
    to 15.2.1982 under Section 14 of the Limitation Act, 1963 for computation
    of the period of limitation for filing the suit. The facts relevant for
    determination of the question, sans unnecessary details may be stated thus:
G
           The appellant Deena (deceased represented by legal heirs) had
    mortgaged his land measuring 9 bighas 18 biswas (after consolidation 47
    kanals 13 marlas) in Khewat No.39 Khasra No.34 situated in the village
    Manakwas, Tehsil Jhajjar in the State of Haryana, for Rs. 2,500 with
    possession, on 7.2.1947 with plaintiffno.2 and father of plaintiff nos. 15 to
H   19 and Khubi Ram @ Khushi Ram who is the predecessor in interest of
              DEENA v. BHARAT SINGH [D.P. MOHAPATRA, I.]                    293

plaintiffs 2 to 14. On 23.6.1978 Deena had filed an application for redemption A
of the land before Collector, Jhajjar which was accepted on 29.2.1980 and
the land was ordered to be redeemed on payment of the mortgage money Rs.
2,500. The plaintiffs filed a suit in the Court of the Sub-Judge Jhajjar titled
Harkishan v. Deena seeking a declaration that they had become owners of
the property and that the order of the Collector dated 29.2.1980 was null and B
void The said suit was decreed by the trial court and the decree was challenged
in appeal by the defendant. During pendency of the appeal in the Court of
the District Judge, Rohtak the plaintiffs withdrew the suit with permission to
file fresh suit. Thereafter the present suit, Civil Suit No.115/82 was filed on
24.2.1982 seeking a declaration that the plaintiffs were owners of the suit
property and that the order passed by the Collector was void and inoperative C
and did not affect their rights. In his written statement the defendant took the
plea, inter alia, that the suit was barred by limitation.

      The trial court framed 8 issues of which issue No.3 was whether the
suit was barred by time and issue no. 7 was whether the plaintiffs were entitled
for exclusion of time during the period from 21.3.80 to 24.2.1982, if so, to        D
what effect ?

       In support of their claim of exclusion of the period the case of the
plaintiffs was that they were prosecuting the previous suit in good faith
which was permitted by the court to be withdrawn with leave to file fresh suit
on the sam: ',..ause of action; therefore, they were entitled to exclusion of the   E
period from 21.3.80 to 15.2.1982 under the provisions of section 14 of the
Limitation Act and considered on that basis the suit is not barred by limitation.

      The case of the defendant on the other hand was that the plaintiffs
cannot claim to have prosecuted the previous suit in good faith since in the
written statement itself it was specifically stated that the suit was bad for non- F
joinder of necessary party, Smt. Ghogri who had been impleaded in the
proceeding before the Collector as one of the mortgagors. The plaintiffs
being aware of the objection had pursued the matter. The suit was decreed
by the trial court. The defendant had challenged the judgment in appeal.
During pendency of the appeal on the prayer of the plaintiffs seeking leave G
to withdraw the suit with permission to file fresh suit the court granted the
prayer and the suit was withdrawn. In the circumstances the defendant
contended the exclusion of the period sought under section 14 of the Limitation
Act could not be granted. The trial court answered the issues 3 and 7 in
favour of the defendant holding inter a/ia that the plaintiffs did not pursue
the proceedings of the previous suit with due diligence and good faith. In H
    294                      SUPREME COURT REPORTS [2002) SUPP. I S.C.R.

A   appeal the learned Additional District Judge, placing reliance on the decision
    of the Supreme Court in the case of Rabindra Nath Samuel Dawson v.
    Sivakami and Ors., AIR (1972) SC 730 held:
            "Therefore in view of this authority of the Hon 'ble Supreme Court
            and for the reasons discussed above, it cannot be said that plaintiffs
B           had been prosecuting the earlier suit in good faith or with due diligence.
            Accordingly it is held that they are not entitled to take benefit of
            Section 14(1) and (III) of the Indian Limitation Act."

        In the second appeal filed by the plaintiffs the High Court set aside the
  judgment Of the first appellate court confirming the decision of the trial court
C and decreed the suit with the following observations:
            "The order passed by the Collector is dated 29th of February, 1980.
            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
D            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, I 982. 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 I 5th February, 1982.
E           The findings of the lower courts on issues No.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 cost."

           Shri Mahabir Singh, learned counsel appearing for the appellant
F   strenuously urged that on the facts and circumstances of the case the High
    Court was clearly in error in upsetting the concurrent decision of the courts
    below in exercise of its jurisdiction under section I 00 of the Code of Civil
    Procedure. Elucidating the point Shri Singh submitted that prosecuting the
    previous proceedings in good faith is a pre-condition for application of section
G   14 of the Limitation Act. Whether the plaintiffs were prosecuting the previous
    suit in good faith is a question of fact. The first appellate court, which was
    the final court of fact, concurring with the finding recorded by the trial court
    had held that the plaintiffs had not been prosecuting the previous suit with
    due diligence and in good faith. The High Court in second appeal, Shri Singh
    contended, had no jurisdiction to disturb the concurrent finding of fact recorded
H   by the appellate court.
               DEENA v. BHARAT SINGH [D.P. MOHAPATRA, J.]                    295

       Per contra Shri P.C. Jain, learned senior counsel appearing for the           A
  respondents contended that the plaintiffs are entitled to exclusion of the period
  between the date of withdrawal of the suit and the filing of the fresh suit
  under the provision in section 14(3) of the Limitation Act. Since the appellate
  court on being satisfied that the suit was likely to fail by reason of formal
  aefect of non-joinder of a necessary party had granted leave to the plaintiffs B
  to withdraw the suit with permission to file a fresh suit, the High Court
, rightly took the view that the plaintiffs were entitled to exclusion of the
  period under section 14 of the Limitation Act.

        Order XXIll of the Code of Civil Procedure deals with withdrawal and
 adjustment of suits. In Rule I sub-rule (3) thereof it is laid down that where      C
 the court is satisfied (a) that a suit must fail by reason of some formal defect,
 or (b) that there are sufficient grounds for allowing the plaintiff to institute
 a fresh suit for the subject-matter or a part of the claim, it may, on such terms
 as it thinks fit, grant the plaintiff permission to withdraw from such suit or
 such part of the claim with liberty to institute a fresh suit in respect of the
 same subject-matter or part of the claim.                                           D
      In rule 2 of Order XXIll it is provided that in any fresh suit instituted
 on permission granted under the last preceding rule, the plaintiff shall be
 bound by the law of limitation in the same manner as if the first suit had not
 been instituted.
                                                                                     E
       Section 14 of the Limitation Act so far as material for the purpose of
 the present case is quoted hereunder:

         "14. Exclusion of time of proceeding bona fide in court without
        jurisdiction
                                                                                     F
        (I)   In computing the period oflimitation 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 G
              in good faith in a court which, from defect of jurisdiction or
              other cause of a like nature, is unable to entertain it.

              xxx                    xxx                   xxx

        (3) Notwithstanding anything contained in rule 2 of Order XXlll of
            the Code of Civil Procedure, 1908 (5 of 1908), the provisions of H
    296                      SUPREME COURT REPORTS [2002) SUPP. I S.C.R.

A                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 manner."

B          From the provisions it is clear that it is in the nature of a proviso to
    Order XXIII Rule 2. The non-obstante clause provides that notwithstanding
    anything contained in rule (2) of Order XXIII of the Code of Civil Procedure·
    the provisions of sub-section (I) of section 14 shall apply in relation to a
    fresh suit instituted on permission granted by the court under rule I of Order
C   XXIII. For applicability of the provision in sub-section (3) of section 14
    certain conditions are to be satisfied. Before section 14 can be pressed into
    service the conditions to be satisfied are : (I) Both the prior and subsequent
    proceedings are civil proceedings prosecuted by the same party; (2) the prior
    proceeding had been prosecuted with due diligence and good faith; (3) the
    failure of the prior proceeding was due to defect of jurisdiction or other cause
D   of like nature; (4) the earlier proceeding and the later proceeding must relate
    to the same matter in issue, and (5) both the proceedings are in a court.

          The main factor which would influence the Court in extending the
    benefit of section 14 to a litigant is whether the prior proceeding had been
    prosecuted with due diligence and good faith. The party prosecuting the suit
E   in good faith in the court having no jurisdiction is entitled to exclusion of that
    period. 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. This Court in the case of Vijay Kumar Rampa/ and Ors. v.
F
    Diwan Devi and Ors., 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
G           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 section 14 of the Limitation Act."

          The other expressions relevant to be construed in this regard are 'defect
H   of jurisdiction' and "or other cause of a like nature". The expression 'defect
             DEENA v. BHARAT SINGH [D.P. MOHAPATRA. J.]                 297

of jurisdiction' on a plain reading means the court must lack jurisdiction to A
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 Order XXIII Rule I and exclusion of the B
period of pendency of that suit for the purpose of computation of limitation
in the subsequent suit under section I 4 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 section 14 will have no C
application in a case where the suit is dismissed after adjudication on its
merits and not because the Court was unable to entertain it.

      Coming to the case on hand, as noted earlier, the previous suit filed by
the respondents was decreed by the trial court; and the defendant had filed
appeal against the judgment and decree of the trial court. It does not appear D
from the discussions in the impugned judgment that there was any finding of
the Court in the previous suit holding the suit to be not entertainable on any
ground. The ground on which withdrawal of the suit was sought was that
Smt. Ghogri, one of the mortgagors, had not been impleaded in the suit. It
is not the case of the plaintiffs that the Court had found the suit to be not E
maintainable on that ground. Non impleadment of Smt. Ghogri a necessary
party, in the suit was a clear case of !aches on the part of the plaintiffs. In
such circumstances it could not be said that the plaintiffs were prosecuting
the previous suit in good faith.

      The trial court and the first appellate court based their findings on the F
question of good faith on the evidence Jed by the parties and the law laid
down by this Court in the case of Rabindra Nath Samuel Dawson (supra) in
which it was held that a person who has registered the objection regarding
non-joinder of parties at the initial stage and also at the revisional stage and
taken the risk of proceeding with the suit without impleading the necessary G
parties cannot be said to have acted in good faith taking due care and attention;
consequently, such person will not be entitled to benefit of section 14 of the
Act for excluding the time spent by him in that proceeding in a fresh suit. In
the present case concededly the objection regarding non impleadment of
necessary party was taken in the written statement. Despite such objection
the plaintiffs chose to prosecute the suit. Indeed they succeeded in the trial H
    298                      SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A   court and the matter was pending before the first appellate court when the
    petition under Order XXIII seeking withdrawal of the suit with permission to
    file a fresh suit for the same relief was filed by them. Therefore, the trial
    court and the first appellate court were right in holding that the plaintiffs
    were not entitled to exclusion of the period between 21.3 .1980 to 15.2.1982
    under section 14 of the Limitation Act as claimed and that the suit was barred
B   by limitation. The High Court in the impugned judgment has not discussed
    the materials on the basis of which the courts below recorded the finding of
    fact relating to lack of good faith on the part of the plaintiffs. It has also not
    discussed the reason for taking a contrary view on that question. The concurrent
    decisions of the courts below have been reversed with a general observation
C   that on the facts and circumstances of the case the plaintiffs were entitled to
    exclusion of the period under section 14 of the Limitation Act as claimed.
    Therefore, the judgment of the High Court is clearly unsustainable.

          In the result the appeal is allowed with costs. The judgment of the High
    Court in Second Appeal No. 2040 of 1987 is set aside and the judgment of
D   the Additional District Judge-III in CA No.3713/1986 confirming the judgment
    of the trial court in Civil Suit No.115/82 is restored. Hearing fee is assessed
    at Rs. 10,000.

    S.K.S.                                                          Appeal allowed.