& ANR. Vs. Iric Sohan & Ors.  INSC 291 (12 February 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 943-944 OF 2009
(Arising out of SLP (C) Nos. 28449-28450 of 2008) J. Kumaradasan Nair &
Anr. ... Appellants Versus IRIC Sohan & Ors. ... Respondents
S.B. Sinha, J.
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 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(B) dismissing the
said application as barred by limitation.
basic fact of the matter is not in dispute. First Respondent obtained a decree
in a suit filed in the court of Munsif, Trivandrum being Original Suit No.150
of 1965, wherein it was directed :
"It is hereby
decreed that the plaintiff is entitled for a 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 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 (mobile hut) and all
appurtenants thereto in Survey 365 described in Pandara Otti Partition Deed
(marked Vol-II Plan)", situated in Chengazhassery Village,
The said decree was
put in execution by Fanuval Stephen, 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 3 additional decree holder Nos.2 to 6
therein. The said execution petition was dismissed by an order dated 8.7.1996.
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 property.
It is said to have been charged towards the satisfaction of the debt sought to
be recovered in O.S. No.274 of 1982 by the State Bank of Travancore. Appellant
purchased the said property in auction.
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 barred by limitation.
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 4 marked as AS No.301
of 2005. The said appeal was held to be not maintainable by the learned First
Appellate Court by an order dated 5.10.2005. However, the merit of the matter
was also considered therein.
by and dissatisfied with the said order dated 6.9.2005, the appellants
preferred an Execution Second Appeal before the High Court which was marked as
Execution 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 that the appeal was not maintainable. The said appeal was
disposed of, directing :
"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 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.
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 5 not maintainable. With a view to 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, substantial question of law
formulated as Sl. 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
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(B).
Along with the said application, an application for condonation of delay in
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 :
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 submitted that the time taken for
obtaining certified copies also is liable to be excluded."
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 :
"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 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 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.
(FB) where it was
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 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 under Section 80 of the Code was given, etc. It was
pointed out in the said 7 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."
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 forum and, thus,
Sub-section (2) of Section 14 of the Limitation Act would be attracted.
C.N. Sree Kumar, learned counsel appearing on behalf of the respondents, would,
on the other hand, contend 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.
question which arises for consideration is as to whether only because a mistake
has been committed by or on behalf of the appellants in 8 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, 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.
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 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.
cannot furthermore be any doubt whatsoever that having regard to the definition
of `suit' as contained in Section 2(l) 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 9 condonation of
delay in filing an appeal or a revision application in terms of Section 5
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. 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 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 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 Ramlal and others
v. Rewa Coalfields Ltd. [AIR 1962 SC 361], this Court held as under:
10 "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 for the
exercise of the discretionary jurisdiction vested in the court by Section 5. If
sufficient cause is not proved 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 of all relevant facts and it is at this stage that diligence of
the party or its bona fides 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
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 Section 14 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 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 [(1998) 6 SCC 200], this Court opined:
11 "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 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 disputed is that the plaintiff did not prosecute the civil 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 attention;"
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 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 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 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 proceeding in good faith. It is based
on sound principle of law. But the said rule cannot be 12 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 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 that gave expectation to the plaintiff- appellant that the order 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 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 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
Engineering Enterprises v. Principal Secretary, Irrigation Department and
Others [(2008) 7 SCC 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 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 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 or selection of a wrong forum.
On reading Section 14
of the Act it becomes clear that the 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 affect a person honestly doing his best to get his case
tried 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 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 of)
law or defect of procedure. Having regard to the intention of the legislature
this Court 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 M/s. Shakti Tubes
Ltd. Through. Director v. State of Bihar & Ors. [(2009) 1 SCC 786].
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 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 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.
[Dr. Mukundakam Sharma]
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