Judgment:
Hemant Gupta, J.
1. The challenge in the present revision petition is to the order dated 22.9.2009, whereby an application filed by the plaintiff-petitioner under Section 14 and Section 5 of the Limitation Act, 1963 (for short 'the Act)] for exclusion of the time spent in prosecuting the suit for permanent injunction, was dismissed and as a sequel, the plaint of the suit for specific performance was rejected as barred by limitation.
2. The plaintiff has filed the present suit on 11.3.2002 for specific performance of agreement to sell dated 19.3.1990, alongwith an application under Section 14 read with Section 5 of the Act, to exclude the time spent in prosecuting his earlier suit for permanent injunction. The sale deed in pursuance of such agreement was to be executed on 1.6.1991.
3. The plaintiff-petitioner has earlier filed a suit for permanent injunction on 11.4.1990, before the date fixed for execution of the sale deed in terms of agreement dated 19.3.1990, on the ground that the defendant intends to sell the property to other persons even though he has entered into a agreement for sale with the plaintiff. In the written statement dated 4.9.1990, in the aforesaid suit, an objection was raised that the suit of the plaintiff was not maintainable in its present form. Copy of the said written statement has been produced during the course of hearing. It was on 2.6.2001, the defendant filed an application in the aforesaid suit for permanent injunction that the suit is not maintainable as it was only suit for specific performance which was maintainable. On the said application, the learned trial court had passed on order on 11.2.2002 (Annexure P-4) rejecting the plaint. Thereafter the present suit has been filed after receipt of the certified copy of the order passed by the learned trial Court.
4. The application for exclusion of time spent in prosecuting the previous suit has been dismissed by the learned trial court on the ground that no liberty was granted to the plaintiff in the order dated 11.2.2002, to file the suit for specific performance. The Court has found that time spent in prosecuting the suit can be condoned if the delay was due to inadvertence and despite due diligence. It was found that the cause of action arose to plaintiff on 1.6.1991, that is the target date for execution of the sale deed but the plaintiff did not institute the suit for specific performance, within a period of limitation, therefore, the plaintiff cannot seek condonation of delay.
5. In Roshanlal Nuthiala and Ors. v. KB. Mohan Singh Oberoi : A.I.R. 1975 Supreme Court 824, it was held that the defects that will attract the provisions of Section 14 of the Act, are not merely jurisdictional strictly so called, but others, more or less neighbours, to such deficiencies. Any circumstance legal or factual, which inhibits entertainment or consideration by the Court of the dispute on the merits, comes within the scope of the section and a liberal touch must inform the interpretation of the Act, which deprives the remedy of one who has a right. While referring to the earlier judgment reported as Associated Hotels of India, Ltd. and Anr. v. R.B. Jodha Mal Kuthalia : A.I.R. 1961 S.C. 156, it was held that the question was one of the initial jurisdiction of the Court to entertain the proceedings.
6. In Deena (Dead) through LRs. v. Bharat Singh (Dead) through LRs., and Ors. : (2002) 6 Supreme Court Cases 336, it was held that the main factor, which would influence the Court in extending the benefit of Section 14 of the Act is that whether the prior proceedings have been prosecuted with due diligence and good faith. The expression good faith as used in Section 14 of the Act, means exercise of due care and attention and expression good faith qualifies prosecuting proceedings in the Court, which ultimately is found to have no jurisdiction. It was held to the following effect:
15. The other expressions relevant to be construed in this regard are 'defect of jurisdiction' and 'or other cause of a like nature'. The expression 'defect of jurisdiction' on a plain reading means the court must lack jurisdiction to entertain the suit or proceeding. The circumstances in which or the grounds on which, lack of jurisdiction of the court may be found are not enumerated in the section. It is to be kept in mind that there is a distinction between granting permission to the plaintiff to withdraw the suit with leave to file a fresh suit for the same relief under Order 23 Rule 1 and exclusion of the period of pendency of that suit for the purpose of computation of limitation in the subsequent suit under Section 14 of the Limitation Act. The words 'or other cause of a like nature' are to be construed ejusdem generis with the words 'defect of jurisdiction', that is to say, the defect must be of such a character as to make it impossible for he court to entertain the suit or application and to decide it on merits. Obviously Section 14 will have no application in a case where the suit is dismissed after adjudication on is merits and not because the court was unable to entertain it.
7. A perusal of the above principles would show that it is lack of jurisdiction or any such factor which is close to the lack of jurisdiction, which prohibited the Court to entertain the suit alone on satisfaction of good faith and due diligence, can be excluded under Section 14 of the Act. If the Court has the jurisdiction to entertain the suit, but the claim of the plaintiff has been found to be not meritorious, then the provisions of Section 14 of the Act, will not come to the rescue of such plaintiff. Such is the view taken by a Full Bench of the Lahore High Court in a judgment reported as Bhai Jai Kishen Singh v. Peoples Bank of Northern India (in liquidation) through Bhagwati Shankar, Official Liquidator A.I.R. 1944 Lahore 136 (F.B.). In the said case, the Court was seized of the question whether the period spent by a creditor in prosecuting a petition for his debtor's adjudication as an insolvent, can be excluded under Section 14 of the Act, in computing the limitation prescribed for a subsequent execution petition, when the petition for insolvency was dismissed on the ground that the acts of the debtor did not fall within the scope of Provincial Insolvency Act. It was held that the dismissal of a petition of an insolvency under the Provincial Insolvency Act, cannot possibly be held 'a result of Court's inability to entertain the petition for defect of jurisdiction or other cause of a like nature.' It was held to the following effect:
The words 'or other cause of a like nature,' in Section 14 must be read so as to convey something ejusdem generic or analogous with the preceding words relating to the defect of jurisdiction. If these words are read along with the expression 'is unable to entertain,' they would denote that the defect must be of such a character as to make it impossible for a Court to entertain the suit or application either in its inception or at all events as to prevent it from deciding it on its merits. It is not possible to give an exhaustive list of defects that these words 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 a case, they may fall within the purview of these words. If, on the other hand, the court has got to go into the merits before a case can be dismissed, the defect will not come within the ambit of these words. Illustrations of such defects which are covered by the words 'or other cause of a like nature' in Section 14 may be found in cases where a suit had failed because it was brought without proper leave, or because no notice under Section 80 Civil P.C. was given or because of non-production of the Collector's certificate required by Section 6, Pensions Act. These go to show that although the Court had jurisdiction to decide them, it was unable to entertain them on account of a technical defect and it was not possible for the Court to proceed and consider them on their merits. It would follow that if a plaint or a petition does not disclose a cause of action, it will have to be rejected but the time spent in its prosecution cannot be excluded under Section 14. The fact of the matter is that if on the facts the relief asked for by a plaintiff or a petition is found by the courts to have been misconceived either because it is not warranted by the facts mentioned by them or because the facts stated in the plaint or the petition do not disclose a good and complete cause of action and the plaint or petition is consequently dismissed or rejected, the provisions contained in Section 14 could not be of any help.
8. Following the judgment in Bhai Jai Kishen Singh's case (supra), a Division Bench of this Court in a judgment reported as Munsha Singh and Ors. v. Gurdit Singh and Ors. (1964) 66 P.L.R. 1066, refused to exclude the period spent by the plaintiff in a reversionary suit when such suit was dismissed being premature. It was held to the following effect:.In the previous litigation, which concluded in 1951, there had been an investigation not only on one of the main points in controversy between the parties but also the Court could not be regarded as having been unable to entertain the suits from defect of jurisdiction or other cause of a like nature. It is true that the decisions rested on the ground that since Kishan Singh had not been proved to have died the suits were premature, but according to the principles which have been enunciated by the Lahore Full Bench in Bhai Jai Kishan Singh's case with regard to the scope and ambit of the material words in Section 14(1), even if the plaints in the three suits had been rejected in the very beginning by the Court on the ground that they did not disclose any cause of action, the provisions of Section 14(1) would not have been attracted. It is difficult to hold that they would be applicable when the Court, after a trial of the suits, came to the conclusion that the cause of action had not yet arisen. It has not been argued nor could it be legitimately argued that the Court was debarred by any statutory provisions or otherwise or by the requirement of fulfillment of a condition precedent from entertaining the suits. All that it did was to decline to grant relief on the grounds that the suits were premature. I fail to understand how it can be said that a Court is unable to entertain a suit on the ground of defect of jurisdiction etc., when it is perfectly competent to entertain it but for some reasons or the other cannot or does not grant relief. In this view of the matter, the period taken by the previous litigation could not be excluded under Section 14(1) of the Limitation Act.
9. In Hari Singh v. Gurdial Singh : (2000-2) 125 P.L.R. 250, the plaintiff earlier filed a suit for specific performance of an agreement to sell before the date fixed by the parties for execution of the sale deed. The suit was dismissed as premature by the trial Court, but in appeal, the plaint was rejected. In a subsequent suit, the plaintiff sought to exclude the time spent in prosecuting the previous suit. It was found that the period spent in prosecuting the earlier suit cannot be excluded. Reliance was placed upon the Full Bench judgment of the Lahore High Court in Bhai Jai Kishen Singh's case (supra). It was held to the following effect:
The reading of the above citation would show that the Hon'ble Full Bench has clearly ruled out that if a plaint or petition does not disclose a cause of action, it has to be rejected but the time spent in prosecution cannot be excluded under Section 14. So was held in (1964) 66 P.L.R. 1066, Munsha Singh v. Gurdit Singh, that where in the previous litigation, the suit was dismissed on the ground of being premature, it cannot be said that court had refused to grant relief on account of defect or jurisdiction or other cause of the like nature within the meaning of Section 14(1) of the Limitation Act. Therefore, the time spent in the previous litigation cannot be excluded in computing the limitation for the subsequent suits. The ratio of both these cited judgments are applicable to the facts in hand.
10. A Single Bench of the Kerala High Court in a judgment reported as Thankamma v. Bharathi Pillai 1994 (1) RRR 218, was seized of an identical dispute, wherein earlier a suit for injunction was filed by the prospective vendee. There was an order of ad-interim injunction and subsequently, the plaintiff filed suit for specific performance and also sought withdrawal of the earlier suit for injunction. It was held that the previous suit did not fail for want of jurisdiction and in regard to the question whether it failed for other cause of the like nature, it was held that Section 14 of the Act, speaks of the inability of the Court to entertain a suit. Such inability does not mean inability to grant relief to the plaintiff, but inability to give a trial at all. It was held to the following effect:.Section 14 speaks of the inability of the Court to entertain a suit or proceeding on certain specific grounds, which are of a formal nature, and that the inability to entertain a suit means not inability to grant relief to the plaintiff, but inability to give a trial at all. When the suit is dismissed not because the Court had no jurisdiction to entertain it or for any other cause of a like nature, but because it was misconceived or because the proceeding or the suit was not one recognized by law as legal in its initiation, then Section 14 is not attracted. In that case, the plaintiff sued for rendition of accounts against the son of a deceased agent, which was plainly not maintainable, and being thwarted at the threshold, followed it with a suit for recovery of amounts allegedly due. The Court held that the first suit was wholly misconceived and the plaintiff could not therefore get the advantage of the pendency of that suit to save the bar of limitation.
7. What is required for the purpose of Section 14(1) is a defect of jurisdiction or other similar cause which renders the Court unable to entertain the suit and to proceed to trial. A mere inability to grant the relief claimed in a particular suit because it is not grantable, or because a suit of that nature is not maintainable, though the suit is within the jurisdiction of the Court is not a case which fall sunder Section 14(1).
11. In the aforesaid case, the Court has laid down the ingredients for exclusion of time spent in the proceedings:
From a reading of Sub-section (1) it will be seen that the following ingredients have to concur for the subsection to apply:- (a) the plaintiff must have been prosecuting another civil proceeding whether in a Court of first instance or of appeal or revision, (b) it must be against the defendant, (c) it must have been prosecuted with due diligence, (d) that proceedings must relate to the same matter in issue, (e) that must have been prosecuted in good faith, and (f) the court where the proceeding was pending was unable to entertain it for defect of jurisdiction or other cause of a like nature.
12. The judgments referred to by the petitioners were distinguished and it was held that the proceedings should have been prosecuted in good faith before a wrong forum whereas it was found that the plaintiff has failed to show his bona-fide in prosecuting the case for permanent injunction. Rather mala fides on the part of the petitioners are clearly apparent as they were aware that the nature of the relief sought by them, cannot be granted in the suit for permanent injunction.
13. Before this Court, learned Counsel for the petitioner relied upon the judgments of Supreme Court reported as Union of India and Ors. v. West Coast Paper Mills Ltd. and Anr. (III), : (2004) 3 S.C.C. 458; M/s Shakti Tubes Ltd. Tr. Director v. State of Bihar and Ors. 2009 (1) R.C.R. (Civil) 512 and the judgment of Karnataka High Court reported as Defence Colony Co-operative Housing Society Ltd. v. Lt. Col. B.J. Shantharaj and Anr. A.I.R. 1998 Kant20 and the judgment passed by this Court reported as Prem Chand v. Haryana Industrial Development Corpn. Ltd. and Ors. 2006 (2) R.C.R. (Civil) 468, to contend that the suit for permanent injunction was being prosecuted in good faith, therefore, the time spent in prosecuting the suit for injunction is to be excluded while determining the question of limitation for a suit for specific performance.
14. In West Coast Paper Mills Ltd.'s case (supra), the period spent in prosecuting the writ proceedings was excluded to determine the period of limitation for filing suit for recovery, before the Civil Court of the amount of freight collected by the Railway Administration. It was held by the Hon'ble Supreme Court that filing of a writ petition by the respondents cannot be said to be actuated by mala fides or want of good faith in instituting the writ proceedings as the legality and reasonability of the claim of freight of Railway Administration was finally decided by the Hon'ble Supreme Court, itself.
15. In M/s Shakti Tubes Ltd.'s case (supra), the application filed under Section 14 of the Act, was allowed so as to exclude the period spent in prosecuting the writ petition calling upon the respondents to make the payment of the admitted dues. In the aforesaid case, the claim of the petitioner was partly admitted but the claim of the petitioner in respect of the escalated price was not accepted and the writ petition was found to be not maintainable to that extent. Thus, it was found, that the period spent in prosecuting the writ petition is liable to excluded for determining the period of limitation in a Civil Suit for recovery of the amount.
16. In Defence Colony Co-operative Housing Society Ltd. 's case (supra), the learned Single Bench of the Karnataka High Court, held that an order in writ petition challenging the order passed by the Karnataka Appellate Tribunal, remitting the matter to the Joint Registrar, Co-operative Societies to get the dispute adjudicated afresh in accordance with law, can be excluded, in the subsequent proceedings.
17. In Prem Chand's case (supra), the dispute was that before which Court, an application for making the Award rule of the Court, would be maintainable. It was held at one stage that such application would be maintainable before the High Court as the respondents have stated before the High Court that the matter stands referred to an Arbitrator, whereas earlier in a Civil Suit challenging the resumption order, proceedings were stayed in view of the arbitration clause in the agreement between the parties. Such disputed question in respect of the Court before whom application would be maintainable was said to be bona-fide and thus, the period was ordered to be excluded under Section 14 of the Act.
18. In the present case, the cause of action to seek specific performance arose to plaintiff on 1.6.1991, i.e., the target date for execution of the sale deed. Even though, the cause of action arose to the plaintiffs, no steps were taken either to seek the amendment of the plaint of a suit for permanent injunction so as to claim specific performance or to file a fresh suit to claim specific performance of the agreement within the period of limitation. Thus, the prosecution of the suit for permanent injunction cannot be said to be under mistaken belief and/or that such suit was being prosecuted with due diligence and good faith.
19. In the present case, it cannot be said that the suit for permanent injunction was not maintainable before the Civil court. The Civil Court has the territorial jurisdiction. It falls within the pecuniary jurisdiction of the Court. Mere fact that the relief could not be granted to the plaintiff after the agreed date for execution of the sale deed does not lead to an inference that the suit was not maintainable for the defect of jurisdiction. There was no law prohibiting filing of such a suit. Only the relief could not be granted to the plaintiff in such a suit after the agreed date for performance of the agreement.
In view of the above, I do not find any patent illegality or irregularity in the order passed by the learned trial Court, which may warrant interference by this Court in the present revision petition.
Hence, the present revision petition is dismissed.