Jagat NaraIn Lal Vs. Ram Sakal (D) by L.Rs. and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [s.b. sinha & h.s. bedi, jj ] determination of compensation meaning of income of victim held, the term income has different connotations for different purposes. a court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount of tax payable thereupon must be deducted. - earlier proceedings were under mistaken legal advice and as such the court below after being fully satisfied with the explanation given by the respondents, allowed the benefit of section 14 of the limitation act. therefore, the assertions of the petitioners are wholly misconceived and the petitioner has failed to point out any apparent error or perversity in the impugned judgment and as such no interference is warranted. the deputy director of consolidation, varanasi, after considering the amended and unamended provisions came to the conclusion that the petitioner was pursuing the proceedings bona fide and in good faith. 10. it is further relevant to point out that the cause of action and the relief demanded by the contesting respondents in all the previous proceeding were the same which they were being prosecuted under good faith and with due diligence but were rejected being not maintainable. prior proceeding had been prosecuted with due diligence and in good faith; failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; in the orders of the courts below, it is clearly mentioned that the earlier proceedings were dismissed on the technical ground. 16. as regard the assertion of the petitioner that nothing shall be deemed to be done in good faith, which is not done with due care and attention, it may be mentioned that there can be no hard and fast rule as to what amounts to good faith. section 14 only requires that prior proceeding should have been prosecuted in good faith and with due diligence.rajiv sharma, j.1. heard learned counsel for the parties.2. the petitioner, who is said to be an adopted son of late baijnath lal, claimed himself to be the sole tenure-holder of the entire land in dispute, which was rejected by all the three consolidation courts hence the petitioner has filed the instant writ petition for quashing of the orders passed by the consolidation courts.3. according to the petitioner, the consolidation officer declared ram sakal, respondent no. 1 to be sirdar of khata no. 34, smt. phuleshara, respondent no. 2 as sirdar of khata no. 33. the petitioner was declared as bhumidhar of khata no. 28 except plot no. 99/2. the settlement officer, confirmed the judgment of the consolidation officer with regard to khata nos. 34 and 35. however, he reversed the findings of the consolidation officer with regard to plot nos. 39/2, 77 and 119/2 and declared ram sakal and smt. phuleshara to be sirdars of the aforesaid plots. the revision preferred by the petitioner was also dismissed vide judgment and order dated 13.4.1976.4. counsel for the petitioner contends that the right of the contesting opposite parties had already extinguished under section 210 of the u.p.z.a. and l.r. act and the petitioner became sirdar under section 210 of the said act. the claim of the opposite parties was barred by limitation under section 209 of the u.p.z.a. and l.r. act. the consolidation authorities have wrongly declared them sirdar of the land in dispute and allowed their claim, though time barred, by giving benefit of section 14 of the limitation act.5. the claim of the opposite parties is on the basis of their name recorded as sub-tenant before zamindari abolition is against brij nath lala recorded tenure holder, who was disabled. brij nath lala died on 26.9.1947. thereafter zamindar of the land in dispute filed a suit for ejectment under section 180 of the u.p. tenancy act against jagat narain lal. the suit was compromised on 12.8.1949 and some of the land in dispute was given to jagat narain lal and dakhal-dahani was taken by the petitioner on 11.7.1952. therefore, opposite party was not sub-tenant and would not become an adhivasi and thereafter sirdar after zamindari abolition act. reliance in this regard has been placed on ram das and anr. v. deputy director of consolidation, ballia and ors. : air 1971 sc 673.6. it has also been argued that opposite party did not file any suit under section 209 of the act within stipulated time after taking dakhal dahani by the petitioner in the year 1953 and wrongly initiated proceedings under section 232 of the act. thereafter, he filed a suit under section 209 of the act on 14.10.1959 much after prescribed time for filing the suit. however, the said suit was abated. therefore, the opposite parties are not entitled to be recorded as sirdar of the land in dispute. the consolidation authorities wrongly and illegally held opposite party as sirdar without considering the facts and circumstances of the case.7. counsel for the contesting respondents submitted that the possession of the contesting respondents is a question of fact about which a clear finding has been recorded by the court below. he further submitted that the proceedings were pending continuously and immediately after termination of proceedings, which were refused being not maintainable, the suit under section 209 of the u.p.z.a. and l.r. act was filed. earlier proceedings were under mistaken legal advice and as such the court below after being fully satisfied with the explanation given by the respondents, allowed the benefit of section 14 of the limitation act. therefore, the assertions of the petitioners are wholly misconceived and the petitioner has failed to point out any apparent error or perversity in the impugned judgment and as such no interference is warranted.8. the consolidation officer has recorded a categorical finding that baijnath lal was disabled person. the issues nos. 4, 5 and 6 also went against the petitioner. the settlement officer after appreciating the materials on record, recorded a clear cut finding that ram sakal and gajadhar were sub tenants of the entire land in dispute and were recorded occupants in 1366 fasli. they became adhivasis and subsequently sirdars. he further held that lower court was not justified in holding ram sakal and widow of gajodhar as sirdars of disputed plots of khata no. 28. therefore, he ordered for expunging the names of mst. kalawati and gorakhnath from plot no. 119/2, 145/1, 39/2 and 77.9. in revision after the order dated 7.4.1972, passed in writ petition no. 2624 of 1969, the point to be considered was regarding benefit of section 14 of indian limitation act. the deputy director of consolidation, varanasi, after considering the amended and unamended provisions came to the conclusion that the petitioner was pursuing the proceedings bona fide and in good faith. therefore, the benefit of section 14 of the indian limitation act has rightly been accorded to the contesting opposite parties.10. it is further relevant to point out that the cause of action and the relief demanded by the contesting respondents in all the previous proceeding were the same which they were being prosecuted under good faith and with due diligence but were rejected being not maintainable. the contesting respondents cannot be allowed to suffer on account of mistaken legal advice, which fault cannot be attributed to them.11. in salem advocates bar association v. union of india 2003 (23) lcd 1250 (sc) : 2003 (3) awc 2238 (sc), the hon'ble supreme court has held as under:the rules of procedure are made to advance the cause of justice and not to defeat it. construction of the rule or procedure, which promotes justice and prevents miscarriage has to be preferred. the rules of procedure are hand maid of justice and not its mistress.12. as regard the application of section 14 of the indian limitation act, the policy of section 14 of the limitation act is to afford protection to a litigant against the bar of limitation when he institutes a proceedings which by reason of some technical defect cannot be decided on merits and is dismissed. an element of mistake is inherent in invocation of section 14. in fact, the section is intended to provide relief against bar of limitation in cases of mistaken remedy or selection of a wrong forum.13. what is essential for extending the benefit of section 14 of the limitation act, that the prior and subsequent proceedings are civil proceedings prosecuted by the same party; prior proceeding had been prosecuted with due diligence and in good faith; failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; earlier proceedings and the latter proceeding must relate to the same matter and both the proceedings are in a court.14. it is not disputed by the petitioner that earlier proceeding and the latter proceeding are not related with the same matter, or both are not similar and civil in nature; and the proceedings were before the court.15. having regard to the intention of the legislature, 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. in the orders of the courts below, it is clearly mentioned that the earlier proceedings were dismissed on the technical ground. further, it was also mentioned that under the facts and circumstances of the case, exclusion of period of litigation, i.e., from 29th december, 1953 to 10th of the september, 1959, their suit under section 209 of the u.p.z.a. and l.r. act would be deemed to be in time and rejected the assertion that the claim of ram sakal and gajadhar was barred by limitation.16. as regard the assertion of the petitioner that nothing shall be deemed to be done in good faith, which is not done with due care and attention, it may be mentioned that there can be no hard and fast rule as to what amounts to good faith. it is a matter to be decided on facts of each. section 14 only requires that prior proceeding should have been prosecuted in good faith and with due diligence.17. for the reasons aforesaid, i find no infirmity or illegality in the impugned orders and the writ petition lacks merits. accordingly, the writ petition is dismissed. cost.