Report No. 89
Section 14: Time Taken in Infructuous Legal Proceedings
14.1. Section.-Exclusion of time taken by infructuous legal proceedings.- It often happens that a litigant pursues civil proceedings bona fide and with due diligence, but the proceedings fail because the Court is unable to entertain them by reason of defect of jurisdiction or other cause of a like nature. The litigant is therefore, compelled to institute fresh proceedings in a competent court in the proper manner.
It is but fair that the time taken in the earlier civil proceedings should be given credit, when computing the period of limitation for the later proceedings. Though the English law recognises no such rule, the Indian legislature has, for a long time, given recognition to this principle, in regard to certain situations. Section 14 codifies the principle. Sub-section (1) covers suits relating to the same matter in issue. Sub-section (2) covers applications for the same relief.
Sub-section (3), which was inserted for the first time in 1963, is meant for a case where the first suit was withdrawn under Order 23, rule 2 of the Code of Civil Procedure, with permission to file a fresh suit. In all the three sub¬sections, it is necessary that the earlier proceeding must have failed by reason of a "defect in jurisdiction or other cause of a like nature".1
An Explanation to the secti.-
(a) provides that the day of institution and the day of termination of the earlier civil proceeding are both to be counted;
(b) makes it clear that a plaintiff or an applicant resisting an appeal shall be deemed to be 'prosecuting' a proceeding; and,
(c) expressly provides that misjoinder of parties or of causes of action shall be deemed to be "a cause of a like nature with defect of jurisdiction".
In the Indian Limitation Bill, 1908, as circulated for comments, the Explanation regarding inclusion of misjoinder of parties or causes of action was absent, with the result that a number of comments were received,2 urging the Legislative Department to resolve the conflict3 on the question whether misjoinder of parties or cause of action fell within this clause. These suggestions were accepted, and that is how the Explanation made its appearance on the statute book.
1. For various conditions of the section, see Peerappa v. Basamnia, AIR 1981 Kam 163.
2. Chief Justice of Calcutta High Court, No. 602, dated 21st February, 1908; Chief Justice L. Jenkins of Bombay High Court, No. 2469, dated 18th December, 1907; District Judge, Dacca, No. 1982, dated 5th December, 1907.
3. ILR 29 Born 225; 6 WRCR 184; ILR 10 Cal 86: ILR 23 Cal 821; ILR 22 Mad 494; ILR 10 Born 608; ILR 22 All 248.
14.2. Section 4 and section 14.- An important question that has arisen in the context of section 14 may be considered at the outset, since it concerns section 4 as well. Put in simple terms, the question is th.-Can a plaintiff avail himself of the combined benefit of section 4 and section 14. A Supreme Court case1 illustrates the problem. A suit for damages was filed in a Karnal Court on 2nd March, 1959. Limitation had expired on 1st March, 1959, but that was a holiday.
The presentation being to a wrong court, the Karnal Court returned the plaint on October 28, 1959, and it was presented the next day, i.e., on 29th October, 1959 to the Ambala Court, which had jurisdiction to try the same. The plaintiff claim.-(1) exclusion of the delay of one day in presenting the plaint in the Karnal Court under section 4, and (ii) exclusion of the succeeding period spent in the Karnal Court under section 14. The Supreme Court, relying on an earlier decision of the Privy Council2, held that section 4 is inapplicable where the plaint is presented to a wrong court, and observed as under:
"If the plaintiff had filed the suit in the trial court on March 2, 1959, then certainly the suit would have been within time under section 4, as that was the proper Court in which the suit should have been filed. As the Karnal Court had no jurisdiction to entertain the plaint, it was not the proper Court. The fact that the plaintiff would be entitled to take advantage of the provisions of section 14 of the Act would not, in any way, affect the question whether the suit was filed within the time as provided in section 4 in the Karnal Court.
Section 14 of the Act only provided for the exclusion of the time during which the plaintiff has been prosecuting with due diligence another civil proceeding against the defendant, where the proceeding is founded upon the same cause of action 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. Even if the plaintiff was entitled to get an exclusion of the time during which he was prosecuting the suit in the Karnal and Panipat Courts, the suit would not be within time, as the filing of the suit in the Karnal Court was beyond the period of limitation".
1. Anwr Chand Irani v. Union of India, AIR 1973 SC 373: (1973) 1 SCC 115.
2. Maqbul Ahmed v. Pratap Narain Singh, AIR 1935 PC 85.
14.3. Madras case.- A strict interpretation to the effect that nothing more than the exact period during which the suit was pending in a Court which discovered that it had no jurisdiction to try the same was given earlier in a Madras case.1 The last day of filing the suit was.-9-1918, which was a holiday. The plaint was presented to a wrong court on 10-9-1918. It was returned on 23-1-1920 for presentation to the proper Court and was represented on 26-1-1920.
So far as the period from 10-9-1918 to 26-1-1920 was concerned, section 14 was held to be applicable and the period from 24-1-1920 to 26-1-1920 was held to be covered by section 4 of the Act. But the one day between.-9-1918 and 10-9-1918 could not be excluded, either under section 4 or under section 14 and hence the suit was held to be time-barred. The inapplicability of section in such cases has been reiterated by that High Court,2-3 in subsequent decisions.
1. Govindasami Padayachi v. R. Sarni Padayachi, AIR 1923 Mad 114(2) (116, 119).
2. jayarama Aiyar v. S. Rajagopalan, AIR 1965 Mad 459.
3. Ramachandra lyer v. Annamalai, AIR 1968 Mad 103 (105).
14.4. Nagpur case.- A Nagpur case1 has followed the majority trend in holding that section 4 of the Limitation Act cannot refer to other Courts in which an unsuccessful attempt at institution of a suit was made during the summer vacation when the Court was closed. However, in a later case2, this ruling was distinguished and it was held that section 4, which by itself excludes no time, can be tacked on to section 14 of the Limitation Act.
1. Wamanrao v. Umrao, AIR 1937 Nag 215 (216): ILR 1937 Nag 217.
2. Chudamansao v. Ramkumar, AIR 1948 Nag 15.
14.5. Lahore case.- The inapplicability of section 4 to such cases has been the view in Lahore1 also.
1. Dharaman Ram v. Ganga Ram, AIR 1929 Lah 425.
14.6. In a judgment of the Bombay High Court1 we have the following observations:
"Clearly the plaintiff is entitled to take advantage of those days during which the first Court was closed for the vacation, and the computation should be made in the same way as if the second Court had been closed for the vacation."
1. Basayanappa v. Krishnadas, AIR 1921 Born 379 (380).
14.7. Need for amendment.- Having considered that matter at some length we are of the view that the situation as in the Supreme Court case1 requires to be remedied. We take the view that where a plaintiff, filing a suit in a Court without jurisdiction on a day next following the day when the limitation period expired because the earlier day was dies non, finds himself denied the benefit of section 4, hardship is bound to result.
If the principle of section 4 is that a plaintiff or applicant should not be penalised merely because the day on which he should have filed the plaint or application in court was a court holiday, there is no reason why the principle should not be extended to the situation when the plaintiff bona fide files the plaint in a Court which later on discovers that it has no jurisdiction to try the suit.
1. Amar Chand Irani v. Union of India, AIR 1973 SC 373: (1973) 1 SCC 115 (para. 14.2, supra).
14.8. Explanation to be inserted.- We therefore-recommend that a suitable Explanation should be added to section 4, on the point discussed above.1
1. See para. 14.23, infra, proposed section 4, Explanation II.
14.9. Appeals.- Another question relating to the scope of section 14 pertains to the nature of the proceedings covered by the section. Section 14 speaks of computation of the period of limitation for any "suit", and in view of the definition of the word 'suit' in section 2(1), the section does not apply to appeals.
14.10. However, several decisions hold that even though section 14 has no application to appeals which are governed by section 5, the principles of section 14 will apply even to proceedings in appeal.1
In a Saurashtra case,2 the High Court relied on three Privy Council rulings on the subject3-5 and summarised the result of these cases thus:
"These three Privy Council rulings seem to lay down that although section 14 of the Limitation Act is not directly applicable to appeals, the principles underlying it on grounds of equity should be applied to appeals in considering an application under section 5 of the Limitation Act. The existence of circumstances contemplated by section 14 has consequently been regarded as a ground for excusing the delay caused by the wrong proceedings, and a sufficient cause for the delay within the meaning of section 5 of the Limitation Act, it being assumed that the party would be deemed to have acted with reasonable diligence where such circumstances existed."
1. Subedar Baman v. Mt. Masti, AIR 1960 HP 14.
2. Bai Hirubai v. Girdhnr Keshav, AIR 1962 Sau 20.
3. Brij Indar Singh v. Kanshi Ram, 1918 ILR 45 Cal 94.
4. Sunderbai v. Collector of Belgaum, AIR 1918 PC 135.
5. Rajendra Bahadur Singh v. Rajeshwar Bali, AIR 1937 PC 276.
14.11. A few other cases on the subject also take the same view.1-3
1. Munshi Rain v. Raghubir Chand, AIR 1953 HP 15.
2. Balbir Chand v. Gopal Chand, AIR 1954 PEPSU 126.
3. Ananti Ram v. Mt. Chaduri, AIR 1956 Assam 63.