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Report No. 89

14.12. Need to extend section 14 to appeals.- No doubt, even though section 14 does not apply to appeals, invoking the provisions of section 5 may in practice solve the hardship that would otherwise result.1 We, are, however, of the view that a right should be given to an appellant to exclude the time taken in proceedings bona fide in a court without jurisdiction, rather than leaving the matter to the discretion of the court under section 5 to be exercised for "sufficient cause". While interpreting the expression "sufficient cause," the courts may take conflicting views which appear to be worth avoiding on such matters.

We, therefore, recommend the extension of section 14 to appeals by express phraseology2.

1. Ram Lal v. Rewa Coalfields, AIR 1962 SC 361 (365).

2. See para. 14.23, infra, section 14(2A) as proposed.

14.13. Time taken in journey.- When the plaint is returned and the plaintiff is required to undertake some journey to present the plaint to the proper court, the question may arise whether the time taken in such a journey should also count for the purposes of section 14. It has been held in an Allahabad case,1 that reasonable time spent for going to place of proper court can be excluded but if the plaintiff falls ill after the plaint was returned, the period of his illness can, in no case, be excused to condone the delay.

We are of the view that in a country as diverse as ours, with means of communications not always satisfactory, a plaintiff or applicant is bound to take some time in performing the physical act of carrying the plaint from the court which pronounces want of jurisdiction, to the proper court. The period spent in performing this physical process would depend upon the distance between these two courts, but it cannot be gainsaid that some time is bound to be spent in this journey. Consequently, we recommend that the Explanation to section 14 should be amended suitably for the purpose.2

1. Rihkab Doss v. Chandro, AIR 1971 All 234.

2. See para. 14.23, infra, Explanation to section 14, clause (a)(ii), as proposed.

14.14. Arbitrations.- At this stage, it is proper to refer to a point concerning the applicability of section 14 to arbitration proceedings. The question is whether the benefit of section 14 can be claimed where the earlier infructuous proceedings took place before arbitrators, and not before courts. In this context, one has to make a distinction betwe.-(i) arbitrations governed by the Arbitration Act, 1940, and (ii) arbitrations not governed by that Act. As regards the first category of arbitrations, section 37(5) of the Arbitration Act, 1940 has made a suitable provision for the exclusion of time taken in an arbitration.

As regards the second category of arbitrations, though the Arbitration Act, 1940 will naturally be inapplicable, it seems from a fairly recent judgment of the Allahabad High Court1 that the benefit of section 14 can be availed of in such arbitrations. It also appears that before the incorporation of the relevant provisions in the Arbitration law,2 there were other rulings which regarded section 14 as applicable to the arbitration3-4. We do not, of course, consider it necessary to suggest any express amendment on the above point.

1. Chaman Lal v. State of Uttar Pradesh, AIR 1980 All 308.

2. See also State of Uttar Pradesh v. Satya Prakash, 1978 A1114 564.

3. RanaJun Ramkissandass v. E.D. Sassoon, (1929) 56 Ind App 128 (PC).

4. Abdul Rahim v. Ojamshee, 1930 MR 56 Cal 139.

14.15. Time taken in copies.- In connection with section 14 it is of interest to refer to one suggestion which was made by a District Judge1 in 1907. He suggested the addition of the following further clause to section 14:

"(3) The time requisite for obtaining a copy of the decree or order in the cases mentioned in clauses (1) and (2) and the time which the plaintig or the applicant prosecuting the suits or application with due diligence requires in going to the proper court, shall be excluded."

The suggestion falls in two parts: (i) exclusion of the time spent in obtaining copies of the final order of the court, where the plaintiff or the applicant was wrongly prosecuting his claim; (ii) exclusion of the time required by the plaintiff or the applicant in physically performing the journey from the wrong court to the proper court.

The second part deals with a point that has been already attended to.7 The first point is dealt with below.

1. Para. 14.13, supra.

14.16. Conflict of views.- An examination of the case law discloses that there is some conflict on the subject. For example, an Andhra Pradesh case1 takes the view that the time occupied in obtaining certified copies of the judgment, and in taking other indispensable and necessary steps preparatory to an initiation of the proceedings in a court which ultimately proved to be fruitless, should also be regarded as the time during which the plaintiff has been prosecuting the civil proceedings.

1. Tirumareddi v. State of Andhra Pradesh, AIR 1965 AP 388 (FB).

14.17. The Patna High Court has, however, taken a contrary view on the subject.1

"There is nothing in section 14(1) which can justify the view that the time taken by a party in taking steps for invoking the aid of the Court should also be excluded while computing the period of limitation. Explanation 1 to section 14 dearly provides that in excluding the time during which a former suit or application was pending, the day on which a former suit or application was pending, the day on which the suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted.

Section 14 has to be read as a whole along with the Explanation to that section. It is true that in section 14(1), the word 'prosecution' has been mentioned, but in Explanation 1 the word 'pending' has been mentioned. The position thus is that reading section 14(1) along with Explanation 1, it is the pendency of a Civil proceeding, either in a Court of first instance or in a Court of appeal, which has to ascertain the period during which the proceeding actually remained pending".

In an earlier Patna case,2 Fasl Ali, J. had also propounded the view that the only period that the plaintiff is entitled to exclude while computing the period of limitation is the period during which the plaint was pending in the Court returning the plaint.

1. Narain Das v. Banarsi Lal, AIR 1970 Pat 50.

2. Firm Jiwanram Ramchandra v. Jagernath Sahu, AIR 1937 Pat 496.

14.18. A judgment of the Madhya Pradesh High Court1 allowed, however, the time requisite for obtaining certified copies for filing appeal as the period which counted in favour of the plaintiff.

1. Duliyabai (Mst.) v. Vilayatalli, AIR 1959 MP 271.

14.19. Still earlier, a single judge of the Lahore Court1 said held that the time spent in challenging the soundness of the order of the court of first instance in returning the plaint was also excluded under section 14 of the Limitation Act.

1. Gurdit Singh v. Mota Singh, AIR 1939 Lah 47.

14.20. No change needed.- Upon a review of the conflict of decisions, we are of the view that to allow maximum latitude to the plaintiff or applicant by allowing him exclusion (from the prescribed period) of time spent in obtaining copies of orders, decrees or arguments or challenging in higher courts the order of want of jurisdiction may encourage dilatory tactics and hence no change of law is needed on this point.



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