Judgment and Order (Oral)
1. Heard Mr. G.P. Bhowmik, learned Senior Counsel for the appellant in both the appeals and Ms. M. Hazarika, learned Senior Counsel for the respondents in both the appeals.
2. RSA No.98/2008 is preferred against the judgment and decree dated 21.01.2008 passed by the learned Civil Judge, Dibrugarh, in Title Appeal No.14/2005 dismissing the appeal and upholding the judgment and decree dated 07.03.2005 passed by the learned Civil Judge (Jr. Divn.) No.1, Dibrugarh, in Title Suit No.9/2002, whereby the suit of the plaintiff was dismissed.
3. RSA No.99/2008 is preferred against the judgment and decree dated 21.01.2008 passed by the learned Civil Judge, Dibrugarh, in Title Appeal No.15/2005 dismissing the appeal and upholding the judgment and decree dated 07.03.2005 passed by the learned Civil Judge (Jr. Divn.) No.1, Dibrugarh, in Title Suit No.39/2001, whereby the suit of the plaintiff was dismissed.
4. Both the second appeals were admitted to be heard by separate orders passed on 11.08.2008 on the following substantial question of law:
Whether a suit filed by the plaintiff can be dismissed as barred by limitation on the ground that no separate application had been filed praying for exclusion of time for proceeding bonafide in Court without jurisdiction under Section 14 of the Limitation Act, 1963 ?
5. By an order dated 07.06.1996, the plaintiff in Title Suit No.39/2001, who at the relevant point of time was holding the post of Principal of Anganwadi Training Centre, Dibrugarh under Indian Council of Child Welfare, Assam State Branch, was informed that the Executive Committee had decided that her services are no longer required w.e.f. 15.07.1996. By an order dated 11.03.1996, the services of plaintiff in Title Suit No.9/2002, who at the relevant point of time was working as Accounts Assistant under Indian Council of Child Welfare, Assam State Branch was terminated with effect from 01.03.1996.
6. Appellant in RSA No.98/2008 challenged the said order dated 11.03.1996 by filing a writ petition under Article 226 of the Constitution of India, which was registered as Civil Rule No.2341/1996 and the said petition was dismissed on 08.10.2001. It was observed as follows:
In view of the above, it cannot be said that the respondent No.3 is a state within the meaning of Article 12 for the purpose of imposing service conditions. Writ petition is accordingly dismissed. No order as to cost.
7. Appellant in RSA No.99/2008 challenged the order dated 07.06.1996 by filing a writ petition under Article 226 of the Constitution of India, which was registered as Civil Rule No.2940/1996. The operative portion of the said order reads as follows:
For the foregoing reasons, the respondent No.2 does not fall within the purview of other authorities as defined under Article 12 of the Constitution. The petition, therefore, is liable to be dismissed. It is accordingly dismissed.
8. A writ appeal was also preferred against the said judgment, which was registered as W.A. No.134/1998 and the same was also dismissed by an order dated 05.03.2001. Thereafter, both the appellants filed their respective suits.
9. Having regard to the substantial question of law as framed, it may not be necessary to dwell upon the stand taken by the defendants in the suit.
10. In Title Suit No.9/2002, following issues were framed:
(i) Whether the suit is maintainable in law and in fact ?
(ii) Whether there is cause of action in the suit ?
(iii) Whether the suit is barred by law of limitation, resjudicate and bad for non-joinder of state of Assam as necessary party ?
(iv) Whether the suit is barred under the specific Relief Act ?
(v) Whether the reasonable opportunity of hearing of the plaintiff was given in the enquiry as per the proper procedure ?
(vi) Whether the order of termination of service of the plaintiff is illegal?
(vii) Whether the plaintiff is entitled to decree as prayed for ?
11. In Title Suit No.39/2001, following issues were framed:
(1) Whether the suit is maintainable in law and in fact ?
(2) Whether plaintiff has right to sue ?
(3) Whether there is cause of action in the suit ?
(4) Whether the suit is barred by law of limitation, resjudicate and under the specific Relief Act ?
(5) Whether the order of termination of service of the plaintiff from his service vide order ICCW/ASB/96-97/A WIC-11Dib/APP/3009 dt. 07.06.96 is illegal and liable to be cancelled ?
(6) Whether the plaintiff is entitled to decree as prayed for ?
12. Mr. Bhowmik, learned Senior Counsel for the appellant(s) has submitted that the learned lower Appellate Court was wholly wrong in dismissing the appeals of the appellants on the ground that no separate application(s) was filed to explain the delay in filing the suit. It is submitted by him that it is not necessary to file a separate application in a case where the plaintiff seeks to avail the benefit of Section 14 of the Limitation Act, 1963 and all that is required is disclosure of relevant facts in the plaint, which would enable the Court to exclude the time taken while computing the period of limitation. Without adverting to the facts pleaded regarding prosecution of the writ proceeding, on an erroneous understanding of law, the appeals were dismissed, causing grave prejudice to the appellants. He has also submitted that the learned lower appellate Court, by one stroke of pen, without any discussion whatsoever, also recorded a finding that the learned Trial Court had decided all the issues in accordance with law and no interference thereto was called for. The Senior Counsel has placed reliance in the judgments of the Apex Court in S.A.L. Narayan Row And Anr. vs Ishwarlal Bhagwandas And Anr., reported in AIR 1965 SC 1818 and in Arbind Kumar Singh vs Nand Kishore Prasad And Ors, reported in AIR 1968 SC 1227 to emphasize that a writ proceeding is a civil proceeding and thus, Section 14 of the Limitation Act can be invoked, subject to fulfillment of other conditions enumerated therein. Senior Counsel concludes his submissions by submitting that in the facts and circumstances of the case, the appeals deserve to be allowed and the cases are liable to be remanded to the learned lower Appellate Court for fresh disposal in accordance with law.
13. Ms. Hazarika, learned Senior Counsel for the respondents, on the other hand, has submitted that once the writ petitions are dismissed by this Court, in absence of any leave taken by the writ petitioners/plaintiffs, the suit filed by them subsequent to dismissal of the writ petitions is not maintainable in law. It has been also strenuously urged by her that it is imperative for the plaintiff to file a separate application in a case where benefit of Section 14 of the Limitation Act, 1963 is sought to be availed of and therefore, when, admittedly, the plaintiff(s) did not file any such application, the courts below were justified in dismissing the suit of the plaintiff(s) on the ground of limitation. It is submitted that once the learned lower Appellate Court had concluded that suit was barred by limitation, it was not necessary for the learned lower Appellate Court to have again embarked upon a detailed discussion on the merits of the case. Accordingly, she submits that the appeals are liable to be dismissed.
14. I have considered the submissions of the learned Senior Counsel for the parties and have perused the materials on record.
15. Section 14 of the Limitation Act, 1963 reads thus:
14 Exclusion of time of proceeding bona fide in court without jurisdiction.
(1) In computing the period of limitation 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 in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding 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.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) 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 nature. Explanation. For the purposes of this section,
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) A plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) Misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
16. In order to get the benefit of exclusion of time in computing the period of limitation under Section 14 of the Limitation Act, 1963, the following conditions have to be satisfied:
(1) 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 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.
17. Whether a proceeding is a civil proceeding or not depends on the nature of the right violated and the relief claimed. A civil proceeding is one in which a person seeks to obtain appropriate relief for infringement of his civil rights against another person of a state.
18. In S.A.L. Narayan Row (supra), proceeding taken before the High Court on a petition under Article 226 of the Constitution of India in the matter of recovery of Income Tax was held to be a civil proceeding . In Arbind Kumar Singh (supra), the Apex Court laid-down that the words civil proceedings used in Article 133 of the Constitution of India cover all proceedings which directly affect civil rights.
19. There is neither any rational nor any logic behind restricting the expression civil proceeding only to those proceedings which arise out of civil suits or proceedings which are tried as civil suits. Similarly, there is no rational to exclude from the purview of civil proceeding any proceeding undertaken under writ jurisdiction under Article 226 of the Constitution to assail infringement of civil rights.
20. A proceeding under Article 226 of the Constitution of India praying for reliefs concerning civil rights is, therefore, a civil proceeding. Wrongful removal, termination, dismissal, discharge from service is infringement of civil rights of a person and when such infringement is called in question in a writ proceeding, it is axiomatic that such a proceeding is a civil proceeding.
21. The purpose of Section 14 of the Limitation Act, 1963 is to afford an opportunity to the litigant to seek redressal in a proper forum after he had prosecuted bona fide and in good faith a civil proceeding in a court which did not have jurisdiction or which was unable to entertain the proceeding for causes of like nature. The underlying policy of Section 14 of the Limitation Act is to give a protective umbrella 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.
22. The question is whether it is necessary to file a separate application explaining the circumstances to avail the benefit of Section 14 of the Limitation Act. Section 14 does not specify that a separate application is required to be filed. Filing of an application is more a matter of form than of substance. In absence of any requirement of filing of any application, it will be impermissible to insist on a separate application for the purpose of consideration of a plea advanced in tune with Section 14 of the Limitation Act. For the said purpose, pleadings offered in the plaint will suffice and the same have to be considered.
23. As had been noticed earlier, the appeals came to be dismissed only on the short ground that no separate application was filed by the plaintiff(s).
24. Mr. Bhowmik is right in submitting that the learned lower Appellate Court also recorded findings in respect of other issues without any discussion. Even in a case of affirmation of the findings recorded by the learned Trial Court, it must appear to the superior Court that the learned lower Appellate Court had adverted to the materials on record. The judgment(s) of the learned lower Appellate Court is clearly falling short on that count.
25. The upshot of the above discussion is that the appeals deserve to be allowed and accordingly, they are allowed. The impugned judgments of the learned lower Appellate Court are set aside and quashed. No cost.
26. The learned lower Appellate Court i.e. the Civil Judge, Dibrugarh will decide the appeals in accordance with law bearing in mind the observations made by this Court. This Court hastens to add that no final opinion is expressed by this Court as to whether in the given facts and circumstances of the case, the benefit of Section 14 of the Limitation Act, 1963, would be available to the plaintiff(s) or that the suit of the plaintiff(s) is otherwise maintainable and it is for the learned lower Appellate Court to decide the appeals on the basis of the materials on record.
27. The parties by themselves or through their counsel will appear before the learned Civil Judge, Dibrugarh on 15.02.2016.
28. Registry will send back the records.