Supreme Court of India
J. KUMARADASAN NAIR & ANR.versusIRIC SOHAN & ORS.
- Citation
- 2009 INSC 165
- Decided
- 12 February 2009
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
Even when Section 14(2) of the Limitation Act does not strictly apply, its principles may be invoked for condonation of delay under Section 5, and a mistake in approaching the wrong forum or citing a wrong provision does not defeat the court’s jurisdiction to grant relief.
Summary
The case involved an appeal by J. Kumaradasan Nair & Anr. against Iric Sohan & Ors. concerning the applicability of Section 14 of the Limitation Act, 1963, after the appellants had prosecuted appeals in the wrong forum and cited an incorrect provision. The Kerala High Court had held that Section 14 was not attracted and dismissed the revision as barred by limitation. The Supreme Court examined whether a mistake in choosing the forum or mentioning a wrong provision defeats the court’s power to condone delay under Section 5, and whether the principles of Section 14 can be applied even when its subsection (2) does not strictly apply. It held that Sections 5 and 14 must be interpreted broadly, and the principles of Section 14 may be invoked for condonation of delay despite the technical defect. Accordingly, the Supreme Court set aside the impugned judgment, allowed the appeals and remitted the matter to the High Court for expeditious disposal within three months.
Issues considered
- The applicability of Section 14(2) of the Limitation Act, 1963 when the appellant files an appeal in the wrong forum and cites a wrong provision
- Whether the principles of Section 14 can be applied even if Section 14(2) is not per se applicable
- The relevance of Section 5 of the Limitation Act for condonation of delay in such circumstances
- Whether mentioning a wrong provision defeats the jurisdiction of the court to grant relief
- The classification of a revision application as a 'suit' under Section 2(1) of the Limitation Act
Legislation cited
- Limitation Act, 1963s. 14, s. 2(1), s. 5
Subjects
Limitation ActSection 14Section 5condonation of delaywrong forumjurisdictionrevision applicationgood faithCivil Procedure
Judgment
[2009) 3 S.C.R. 238
A -"
J. KUMARADASAN NAIR & ANR.
II.
IRIC SOHAN & ORS.
(Civil Appeal Nos. 943-944 of 2009)
FEBRUARY 12, 2009
B
[S.8. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
r
LIM/TA TION ACT, 1963: '
c Section 14 - Interpretation/application of - In the facts of
the case especially since the party was prosecuting the first
appeal and second appeal before the wrong forum, and
mentioning a wrong provision, S.14(2) per se may not be
applicable but the principles thereof would be applicable for
)
D the purpose of condonation of delay in terms of S.5 - Matter
remitted to High Court with a request to dispose of the matter
as expeditiously as possible preferably within three months.
Interpretation and/or application of Section 14 of the
Limitation Act, 1963 is in question in this appeal as the
E appellant was prosecuting the first and second appeals
before a wrong forum, mentioning a wrong provision.
On behalf of the appellant, it was contended that the
High Court committed a serious error insofar as it failed
F to take into consideration that the appellant was bona fide
prosecuting the first appeal and second appeal before a
wrong forum and, thus, Sub-section (2) of Section 14 of
the Limitation Act would be attracted.
On behalf of the respondents, it was contended that
G the provision of Sub-section (2) of Section 14 of the
Limitation Act is not applicable as the same applied in a
suit; and that the appellants in fact filed an application
under Section 5 of the Limitation Act but withdrew the
same.
H 238
J. KUMARADASAN NAIR & ANR. v. IRIC SOHAN & ORS. 239
Allowing the appeal, this Court A
HELD: 1. The provisions of Sections 5 and 14 of the
Limitation Act alike should, thus, be applied in a broad-
based manner. When Sub-section (2) of Section 14 of the
Limitation Act per se is not applicable, the same would not
8
mean that the principles akin thereto would not be
applied. Otherwise, the provisions of Section 5 of the
Limitation Act would apply. There cannot be any doubt
whatsoever that the same would be applicable to a case
of this nature. [Para 12] [245-G; 246-A]
c
2. There cannot furthermore be any doubt
whatsoever that having regard to the definition of 'suit'
as contained in Section 2(1) of the Limitation Act, a
revision application will not answer the said description.
But, although the provisions of Section 14 of the D
Limitatio·n Act per se are not applicable, the principles
thereof would be applicable for the purpose of
condonation of delay in filing an appeal or a revision
application in terms of Section 5 thereof. [Para 13] [246-
B] E
3.1. It is also now a well-settled principle of law that
mentioning of a wrong provision or non-mentioning of
any provision of law would, by itself, be not sufficient to
take away the jurisdiction of a court if it is otherwise
vested in it in law. While exercising its power, the court F
will merely consider whether it has the source to exercise
such power or not. The court will not apply the beneficient
provisions like Sections 5 and 14 of the Limitation Act in
a pedantic manner. When the provisions are meant to
apply and in fact found to be applicable to the facts and G
.f circumstances of a case, there is no reason as to why the
court will refuse to apply the same only because a wrong
provision has been mentioned. In a case of this nature,
Sub-section (2) of Section 14 of the Limitation Act per se
may not be applicable, but, as indicated hereinbefore, the H
240 SUPREME COURT REPORTS [2009] 3 S.C.R.
,<
A principles thereof would be applicable for the purpose of
condonation of delay in terms of Section 5 thereof. [Para
14) [246-D]
3.2. The impugned judgment cannot be sustained
which is set aside accordingly, the matter is remitted to
B
the High Court for consideration thereof on merits. High
Court is requested to dispose of the revision application
filed by the appellants herein as expeditiously as possible
and preferably within a period of three mont:1s from the
.,.
•
date of communication of this order. This unusual
c request is made keeping in view the fact that the
respondents have obtained a decree as far back as in
1969. [Para 15] [250-E]
Ram/al and others v. Rewa Coalfields Ltd. AIR 1962 SC
D 361; Ghasi Ram and Others v. Chait Ram Saini and Others
(1998) 6 SCC 200; Consolidated Engineering Enterprises v.
Principal Secretary, Irrigation Department and Others (2008)
7 SCC 167 and Mis. Shakti Tubes Ltd. Through. Director v.
State of Bihar & Ors. (2009) 1 SCC 786, relied on.
E
Case Law Reference:
AIR 1962 SC 361 relied on Para 14
(1998) 6 sec 200 relied on Para 14
F (2008) 1 sec 167 relied on Para 14
(2009) 1 sec 786 relied on Para 14
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
943-944 of 2009.
G
From the final Judgment and Order dated 13.11.08 of the ;.
High Court of Kerala at Ernakulam in I.A. No. 1895/2008 in
C.R.P. No. 593 of 2008.
P. Krishna Moorthy, B.V. Deepak and K.B. Pradeep M/s.
H
J. KUMARADASAN NAIR & ANR. v. IRIC SOHAN & ORS. 241
,,
T.T.K. Deepak and Co. for the Appellants. A
C.N. Sree Kumar, P.R. Nayak and Dushyant Parashar for
the Respondent.
The Judgment of the Court was delivered by
B
S.B. SINHA, J.1. Leave granted.
-I
\ )
2. Interpretation and/or application of Section 14 of the
Limitation Act, 1963 (for short, 'the Act') is in question in this
appeal. It arises out of a judgment and order dated 13.11.2008 c
passed by a learned Single Judge of the High Court of
Judicature at Kerala at Ernakulam in IA No.1895 in CRP
No.593 of 2008(8) dismissing the said application as barred
by limitation.
\_
3. The basic fact of the matter is not in dispute. First D
Respondent obtained a decree in a suit filed in the court of
Munsif, Trivandrum being Original Suit No.150of1965, wherein
it was directed :
"It is hereby decreed that the plaintiff is entitled for a E
declaration of title and possession over the plaint schedule
property; and it is directed that the wooden hut placed by
the Defendant No.1 be removed by him at his expense,
failing which the Court shall remove the same and deliver
possession of the property to the Plaintiff. The plaintiff is F
entitled to mesne profits at the rate of Rs.50/- from the date
of suit till delivery of possession."
The description of the property in the said decree was as under
"8 cents of property with trees, building, well and a bunk G
.f
(mobile hut) and all appurtenants thereto in Survey 365
described in Pandara Otti Partition Deed (marked Vol-II
Plan)", situated in Chengazhassery Village, Trivandrum."
The said decree was put in execution by Fanuval Stephen,
H
242 SUPREME COURT REPORTS [2009) 3 S.C.R.
A the Decree holder in Original Suit No.150 of 1965 being
Execution Petition No.705 of 1977. Fanuval Stephen died on
or about 28.3.1985. Respondent Nos.1 to 5 herein, being his
heirs and legal representatives, were impleaded as additional
decree holder Nos.2 to 6 therein. The said execution petition
B was dismissed by an order dated 8. 7.1996.
4. The judgment debtor appears to have suffered another
decree passed in Original Suit No.274 of 1982. Execution
'
Petition No.271 of 1986 was filed for execution of the said
decree. A sale certificate was issued in respect of the suit
c property. It is said to have been charged towards the
satisfaction of the debt sought to be recovered in O.S. No.274 .,
1~
of 1982 by the State Bank of Travancore. Appellant purchased
the said property in auction.
J
D 5. Respondent Nos.1 to 5, however, filed a Second
Execution Petition on or about 11.9.2001. Appellants were
impleaded as Respondent Nos.16 and 17 therein. They filed
an objection in regard to the maintainability of the said
execution petition, inter alia, contending that the same was
E barred by limitation.
6. By an order dated 6.9.2005, the said objection petition
was rejected. An appeal was preferred thereagainst on or about
3.10.2005 which was marked as AS No.301 of 2005. The said
appeal was held to be not maintainable by the learned First
F
Appellate Court by an order dated 5.10.2005. However, the
· merit of the matter was also considered therein.
7. Aggrieved by and dissatisfied with the said order dated
6.9.2005, the appellants preferred an Execution Second
G Appeal before the High Court which was marked as Execu 1.
ion Second Appeal No.17 of 2005. By reason of a judgment
and order dated 13.6.2008, the High Court disposed of the said
second appeal opining that the First Appellate Court was not
correct in entering into the merit of the matter despite holding
H that the appeal was not maintainable. The said appeal was
... J. KUMARADASAN NAIR & ANR. v. !RIC SOHAN & ORS. 243
[S.B. SINHA, J.)
,,
disposed of, directing : A
"I am convinced that the request made by the learned
counsel for the appellants is necessitated by reason of the
first appellate court wrongly entering into merits of the case
and considering the right of the appellants after holding that
B
.the appeal is not maintainable and that therefore, setting
~ aside the judgment of the first appellate court, the
Execution Second Appeal deserves to be disposed of
"
without prejudice to the rights of the appellants to move for
appropriate reliefs by way of revision or otherwise, if so
advised.
c
In the result, I dispose of this appeal setting aside the
judgment appealed against to the extent it has gone to the
merits of the contentions of the appellants after holding that
" the appeal itself was not maintainable. With a view to D
enable the appellants to seek for appropriate relief, it is
ordered that the decree holders shall not take delivery of
the decree schedule property for a period of one month
from today. Inasmuch as the appellants are being referred
to seek for their reliefs in appropriate proceedings, E
substantial question of law formulated as SI. No.4 in the
appeal memorandum on which also the appeal was
admitted is left open. Registry shall return the certified
copies of documents produced by the appellants in this
Execution Second Appeal to the counsel for the F
appellants."
8. Pursuant to or in furtherance of the said observations,
a Revision Application was filed by the appellant on 30.6.2008
which was marked as C.R.P. No.593 of 2008(8). Along with
the said application, an application for condonation of delay in G
kt
terms of Section 5 of the Act was also filed. However, later on
the said application was withdrawn and an application under
Section 14 thereof was filed. An .affidavit was affirmed in
support thereof, inter alia, stating :
H
244 SUPREME COURT REPORTS [2009] 3 S.C.R. ...
,,
A "The impugned order is dated 6.9.2005. The first appeal
was filed on 3.10.2005. The second appeal was disposed
of by this Hon'ble Court on 28.6.2008. This Revision
Petition is filed on 7.7.2008. Hence in any view of the
matter this Revision Petition is well within time. It is also
B submitted that the time taken for obtaining certified copies
also is liable to be excluded."
...
9. By reason of the impugned judgment, the High Court,
however, opined that Section 14 of the Limitation Act is not
attracted in the facts and circumstances of this case, stating :
c
"The meaning of the expression "other cause of like
nature" came up for consideration in Zafar Khans's case.
It was held that the expression ·cause of like nature' has
to be read as ejusdem generis with the expression ·defect •
D of jurisdiction' and that so construed, the expression ·other
cause of like nature' must be so interpreted as to convey
something analogous to the preceding words "from defect
of jurisdiction" and that prima facie it appeared that there
must be some preliminary objection which if it succeeds
E the court would be incompetent to entertain the proceeding
on merits, such defect could be said to be of the like nature
as defect of jurisdiction. The same view was taken by a
Full Bench of the Lahore High Court in Bhai Jai Kishen v.
Peoples Bank (AIR (31) 1944 Lah. 36 (FB) where it was
F held that it is not possible to give an exhaustive list of
defect that the said expression may be taken to cover, but
if they are such as have got to be decided before the
merits of the case can be gone into and if they do not
necessitate an examination of the merits of the case, they
may fall within the purview of those words. Illustrations of
G ~-
such defects which are covered by the words "or other
cause of a like nature" in Section 14 may be found where
a suit had failed because it was brought without proper
leave, want of powers of attorney in favour of the person
who sued on behalf of the plaintiff, or because no notice
H
J. KUMARADASAN NAIR & ANR. v. IRIC SOHAN & ORS. 245
[S.B. SINHA, J.]
,, under Section 80 of the Code was given, etc. It was A
.(
pointed out in the said decision that it would indicate that
although the court had jurisdiction to decide the issue, it
was unable to entertain it on account of the technical defect
and it was not possible for the court to proceed and
consider the case on merit." B
10. Mr. Krishnamurthy, learned senior counsel, in support
. of the appeal, inter alia, would contend that the High Court
~
committed a serious error insofar as it failed to take into
consideration that the appellant herein was bona fide
prosecuting the first appeal and second appeal before a wrong
c
forum and, thus, Sub-section (2) of Section 14 of the Limitation
Act would be attracted.
11. Mr. C.N. Sree Kumar, learned counsel appearing on
behalf of the respondents, would, on the other hand, contend D
"' that the provision of Sub- section (2) of Section 14 of the
Limitation Act is not applicable as the same applied in a suit.
It was pointed out that the appellants in fact filed an application
under Section 5 of the Limitation Act but withdrew the same.
E
12. The question which arises for consideration is as to
whether only because a mistake has been committed by or on
behalf of the appellants in approaching the appropriate forum
for ventilating their grievances, the same would mean that the
provision of Sub-section (2) of Section 14 of the Limitation Act,
F
which is otherwise available, should not be taken into
consideration at all. The answer to the said question must be
rendered in the negative. The provisions contained in Sections
5 and 14 of the Limitation Act are meant for grant of relief where
a person has committed some mistake.
G
~1'
The provisions of Sections 5 and 14 of the Limitation Act
alike should, thus, be applied in a broad-based manner. When
Sub-section (2) of Section 14 of the Limitation Act per se is
not applicable, the same would not mean that the principles akin
thereto would not be applied. Otherwise, the provisions of H
246 SUPREME COURT REPORTS [2009) 3 S.C.R.
.~
A Section 5 of the Limitation Act would apply. There cannot be
any doubt whatsoever that the same would be applicable to a ~·
case of this nature.
13. There cannot furthermore be any doubt whatsoever that
having regard to the definition of· suit' as contained in Section
8
2(1) of the Limitation Act, a revision application will not answer
the said description. But, although the provisions of Section 14
'>
of the Limitation Act per se are not applicable, in our opinion,
the principles thereof would be applicable for the purpose of
condonation of delay in filing an appeal or a revision application
c in terms of Section 5 thereof. .
14. It is also now a well-settled principle of law that
mentioning of a wrong provision or non-mentioning of any
provision of law would, by itself, be not sufficient to take away
D the jurisdiction of a court if it is otherwise vested in it in law.
Wile exercising its power, the court will merely consider whether
it has the source to exercise such power or not. The court will
not apply the beneficient provisions like Sections 5 and 14 of
the Limitation Act in a pedantic manner. When the provisions
E are meant to apply and in fact found to be applicable to the facts
and circumstances of a case, in our opinion, there is no reason
as to why the court will refuse to apply the same only because
a wrong provision has been mentioned. In a case of this nature,
Sub-section (2) of Section 14 of the Limitation Act per se may
F not be applicable, but, as indicated hereinbefore, the principles
thereof would be applicable for the purpose of condonation of
delay in terms of Section 5 thereof.
In Ram/al and others v. Rewa Coalfields Ltd. [AIR 1962
SC 361], this Court held as under:
G
"12. It is, however, necessary to emphasise that even after ...
,~
sufficient cause has been shown a party is not entitled to
the condonation of delay in question as a matter of right.
The proof of a sufficient cause is a condition precedent
H for the exercise of the discretionary jurisdiction vested in
J. KUMARADASAN NAIR & ANR. v. IRIC SOHAN & ORS. 247
[S.B. SINHA, J.)
... the court by Section 5. If sufficient cause is not proved A
nothing further has to be done; the application for
condoning delay has to be dismissed on that ground alone.
If sufficient cause is shown then the court has to enquire
whether in its discretion it should condone the delay. This
aspect of the matter naturally introduces the consideration B
of all relevant facts and it is at this stage that diligence of
.,, the party or its bona tides may fall for consideration; but
the scope of the enquiry while exercising the discretionary
~
power after sufficient cause is shown would naturally be
limited only to such facts as the court may regard as c
relevant. It cannot justify an enquiry as to why the party was
sitting idle during all the time available to it. In this
connection we may point out that considerations of bona
fides or due diligence are always material and relevant
when the court is dealing with applications made under
~ D
Section of the Limitation Act. In dealing with such
applications the court is called upon to consider the effect
of the combined provisions of Sections 5 and 14.
Therefore, in our opinion, considerations which have been
expressly made material and relevant by the provisions of
Section 14 cannot to the same extent and in the same E
manner be invoked in dealing with applications which fall
to be decided only under Section 5 without reference to
Section 14."
In Ghasi Ram and Others v. Chait Ram Saini and Others F
.. [(1998) 6 SCC 200], this Court opined:
"10. Learned counsel appearing for the respondents urged
that, assuming the High Court suffered from disability to
decide the rights of party on facts, the plaintiff-appellant did
G
not prosecute the revision petition before the High Court
~· in good faith; therefore, the appellant cannot derive any
benefit of Section 14 of the Act. Before the High Court, it
was not disputed that the plaintiff-appellant has prosecuted
the other civil proceeding with due diligence. What is
H
248 SUPREME COURT REPORTS [2009] 3 S.C.R.
'
A disputed is that the plaintiff did not prosecute the civil ,r
proceeding in good faith. "Good faith" is defined in the Act
as under:
"2. (h) 'good faith' -- nothing shall be deemed to be done
in good faith which is not done with due care and
B
attention;"
The aforesaid definition shows that an act done with due
care and attention satisfies the test of "good faith". "Due "
care" means that sufficient care was taken so far as
c circumstances demanded and there was absence of
negligence. In other words, the plaintiff has taken sufficient
care which a reasonable man is expected to take in order
to avoid any injury. It is not shown here that the plaintiff-
appellant has not taken sufficient care in prosecuting the
D remedy. Where a plaintiff is illiterate and is not acquainted •
with the procedural law, the only thing that he can do is to
consult some lawyer for advice. It is not disputed that the
plaintiff-appellant filed the revision before the High Court
on the advice of his counsel, although it may be that he
E was ill-advised. Learned counsel for the respondents
contended that any act done in violation of law cannot be
described as act done with due care. No doubt, when a
party proceeds contrary to a clearly expressed provision
of law, it cannot be regarded as prosecuting the other civil
F proceeding in good faith. It is based on sound principle of
law. But the said rule cannot be enforced in rigidity in every
case. Each case has to be judged on its own merits. In
the present case, the plaintiff-appellant is not a legally-
trained person and thus he sought advice of his counsel
for future course of action. The counsel advised him to file
G
revision in the High Court instead of bringing a fresh suit
under Order 21 Rule 103 CPC. It is also true that at that .,,~
time, there was no unanimity about remedy of revision
amongst the various High Courts. The plaintiff-appellant's
revision was entertained for hearing by the High Court and
H
J. KUMARADASAN NAIR & ANR. v. !RIC SOHAN & ORS. 249
[S.B. SINHA, J.]
--"· that gave expectation to the plaintiff- appellant that the order A
of the executing court may be set aside and further, there
was no inordinate delay in filing the suit under Rule 103.
If, on examining the facts, it is found that there was no lack
of due care, there is no reason why the plaintiff-appellant
should not be accorded the benefits of Section 14 of the B
Act. Does the interest of justice demand that the plaintiff
should be refused the benefit of Section 14 of the Act on
,, account of the negligence on the part of his counsel, ill-
advising him to file a revision instead of filing a fresh suit?
An illiterate litigant cannot be made to suffer when he is c
ill-advised by his counsel. On the facts and circumstances
of this case, we are satisfied that the plaintiff-appellant
prosecuted the earlier civil proceeding in good faith."
In Consolidated Engineering Enterprises v. Principal
.. Secretary, Irrigation Department and Others [(2008) 7 SCC D
167], this Court held:
"22. The policy of the section is to afford protection to a
litigant against the bar of limitation when he institutes a
proceeding which by reason of some technical defect E
cannot be decided on merits and is dismissed. While
considering the provisions of Section 14 of the Limitation
Act, proper approach will have to be adopted and the
provisions will have to be interpreted so as to advance the
cause of justice rather than abort the proceedings. It will F
be well to bear in mind that an element of mistake is
inherent in the invocation of Section 14. In fact, the section
is intended to provide relief against the bar of limitation in
cases of mistaken remedy ~r selection of a wrong forum.
On reading Section 14 of the Act it becomes clear that the
G
legislature has enacted the said section to exempt a
.. ~ certain period covered by a bona fide litigious activity .
Upon the words used in the section, it is not possible to
sustain the interpretation that the principle underlying the
said section, namely, that the bar of limitation should not
H
250 SUPREME COURT REPORTS [2009] 3 S.C.R.
A affect a person honestly doing his best to get his case tried .i-
on merits but failing because the court is unable to give
him such a trial, would not be applicable to an application
filed under Section 34 of the Act of 1996. The principle is
clearly applicable not only to a case in which a litigant
B brings his application in the court, that is, a court having
no jurisdiction to entertain it but also where he brings the
suit or the application in the wrong court in consequence
of bona fide mistake or (sic on law or defect of procedure.
Having regard to the intention of the legislature this Court
c is of the firm opinion that the equity underlying Section 14
should be applied to its fullest extent and time taken
diligently pursuing a remedy, in a wrong court, should be
excluded."
See Mis. Shakti Tubes Ltd. Through. Director v. State of
D Bihar and Ors. [(2009) 1 SCC 786]. •
15. For the reasons aforementioned, the impugned
judgment cannot be sustained which is set aside accordingly.
The appeals are allowed and the matter is remitted to the High
E Court for consideration thereof on merits. However, we would
request the High Court to dispose of the revision application
filed by the appellants herein as expeditiously as possible and
preferably within a period of three months from the date of
communication of this order. We are making this unusual
F request keeping in view the fact that the respondents have
obtained a decree as far back as in 1969. However, in the facts
and circumstances of the case, there shall be no order as to
costs.
G.N. Appeal dismissed.
# .•
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