Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 943-944 OF 2009
(Arising out of SLP (C) Nos. 28449-28450 of 2008)
J. Kumaradasan Nair & Anr. … Appellants
Versus
IRIC Sohan & Ors. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. Interpretation and/or application of Section 14 of the Limitation Act,
1963 (for short, ‘the Act’) is in question in this appeal. It arises out of a
judgment and order dated 13.11.2008 passed by a learned Single Judge of
the High Court of Judicature at Kerala at Ernakulam in IA No.1895 in CRP
No.593 of 2008(B) dismissing the said application as barred by limitation.
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3. The basic fact of the matter is not in dispute. First Respondent
obtained a decree in a suit filed in the court of Munsif, Trivandrum being
Original Suit No.150 of 1965, wherein it was directed :
“It is hereby decreed that the plaintiff is entitled
for a declaration of title and possession over the
plaint schedule property; and it is directed that the
wooden hut placed by the Defendant No.1 be
removed by him at his expense, failing which the
Court shall remove the same and deliver
possession of the property to the Plaintiff. The
plaintiff is entitled to mesne profits at the rate of
Rs.50/- from the date of suit till delivery of
possession.”
The description of the property in the said decree was as under :
“8 cents of property with trees, building, well and
a bunk (mobile hut) and all appurtenants thereto in
Survey 365 described in Pandara Otti Partition
Deed (marked Vol-II Plan)”, situated in
Chengazhassery Village, Trivandrum.”
The said decree was put in execution by Fanuval Stephen, the Decree
holder in Original Suit No.150 of 1965 being Execution Petition No.705 of
1977. Fanuval Stephen died on or about 28.3.1985. Respondent Nos.1 to 5
herein, being his heirs and legal representatives, were impleaded as
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additional decree holder Nos.2 to 6 therein. The said execution petition was
dismissed by an order dated 8.7.1996.
4. The judgment debtor appears to have suffered another decree passed
in Original Suit No.274 of 1982. Execution Petition No.271 of 1986 was
filed for execution of the said decree. A sale certificate was issued in
respect of the suit property. It is said to have been charged towards the
satisfaction of the debt sought to be recovered in O.S. No.274 of 1982 by
the State Bank of Travancore. Appellant purchased the said property in
auction.
5. Respondent Nos.1 to 5, however, filed a Second Execution Petition
on or about 11.9.2001. Appellants were impleaded as Respondent Nos.16
and 17 therein. They filed an objection in regard to the maintainability of
the said execution petition, inter alia, contending that the same was barred
by limitation.
6. By an order dated 6.9.2005, the said objection petition was rejected.
An appeal was preferred thereagainst on or about 3.10.2005 which was
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marked as AS No.301 of 2005. The said appeal was held to be not
maintainable by the learned First Appellate Court by an order dated
5.10.2005. However, the merit of the matter was also considered therein.
7. Aggrieved by and dissatisfied with the said order dated 6.9.2005, the
appellants preferred an Execution Second Appeal before the High Court
which was marked as Execution Second Appeal No.17 of 2005. By reason
of a judgment and order dated 13.6.2008, the High Court disposed of the
said second appeal opining that the First Appellate Court was not correct in
entering into the merit of the matter despite holding that the appeal was not
maintainable. The said appeal was disposed of, directing :
“I am convinced that the request made by the
learned counsel for the appellants is necessitated
by reason of the first appellate court wrongly
entering into merits of the case and considering
the right of the appellants after holding that the
appeal is not maintainable and that therefore,
setting aside the judgment of the first appellate
court, the Execution Second Appeal deserves to be
disposed of without prejudice to the rights of the
appellants to move for appropriate reliefs by way
of revision or otherwise, if so advised.
In the result, I dispose of this appeal setting aside
the judgment appealed against to the extent it has
gone to the merits of the contentions of the
appellants after holding that the appeal itself was
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not maintainable. With a view to enable the
appellants to seek for appropriate relief, it is
ordered that the decree holders shall not take
delivery of the decree schedule property for a
period of one month from today. Inasmuch as the
appellants are being referred to seek for their
reliefs in appropriate proceedings, substantial
question of law formulated as Sl. No.4 in the
appeal memorandum on which also the appeal was
admitted is left open. Registry shall return the
certified copies of documents produced by the
appellants in this Execution Second Appeal to the
counsel for the appellants.”
8. Pursuant to or in furtherance of the said observations, a Revision
Application was filed by the appellant on 30.6.2008 which was marked as
C.R.P. No.593 of 2008(B). Along with the said application, an application
for condonation of delay in terms of Section 5 of the Act was also filed.
However, later on the said application was withdrawn and an application
under Section 14 thereof was filed. An affidavit was affirmed in support
thereof, inter alia, stating :
“The impugned order is dated 6.9.2005. The first
appeal was filed on 3.10.2005. The second appeal
was disposed of by this Hon’ble Court on
28.6.2008. This Revision Petition is filed on
7.7.2008. Hence in any view of the matter this
Revision Petition is well within time. It is also
submitted that the time taken for obtaining
certified copies also is liable to be excluded.”
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9. By reason of the impugned judgment, the High Court, however,
opined that Section 14 of the Limitation Act is not attracted in the facts and
circumstances of this case, stating :
“The meaning of the expression “other cause of
like nature” came up for consideration in Zafar
Khans’s case. It was held that the expression
‘cause of like nature’ has to be read as ejusdem
generis with the expression ‘defect of jurisdiction’
and that so construed, the expression ‘other cause
of like nature’ must be so interpreted as to convey
something analogous to the preceding words
“from defect of jurisdiction” and that prima facie it
appeared that there must be some preliminary
objection which if it succeeds the court would be
incompetent to entertain the proceeding on merits,
such defect could be said to be of the like nature as
defect of jurisdiction. The same view was taken
by a Full Bench of the Lahore High Court in Bhai
Jai Kishen v. Peoples Bank (AIR (31) 1944 Lah.
36 (FB) where it was held that it is not possible to
give an exhaustive list of defect that the said
expression 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 the
case, they may fall within the purview of those
words. Illustrations of such defects which are
covered by the words “or other cause of a like
nature” in Section 14 may be found where a suit
had failed because it was brought without proper
leave, want of powers of attorney in favour of the
person who sued on behalf of the plaintiff, or
because no notice under Section 80 of the Code
was given, etc. It was pointed out in the said
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decision that it would indicate that although the
court had jurisdiction to decide the issue, it was
unable to entertain it on account of the technical
defect and it was not possible for the court to
proceed and consider the case on merit.”
10. Mr. Krishnamurthy, learned senior counsel, in support of the appeal,
inter alia, would contend that the High Court committed a serious error
insofar as it failed to take into consideration that the appellant herein was
bona fide prosecuting the first appeal and second appeal before a wrong
forum and, thus, Sub-section (2) of Section 14 of the Limitation Act would
be attracted.
11. Mr. C.N. Sree Kumar, learned counsel appearing on behalf of the
respondents, would, on the other hand, contend that the provision of Sub-
section (2) of Section 14 of the Limitation Act is not applicable as the same
applied in a suit. It was pointed out that the appellants in fact filed an
application under Section 5 of the Limitation Act but withdrew the same.
12. The question which arises for consideration is as to whether only
because a mistake has been committed by or on behalf of the appellants in
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approaching the appropriate forum for ventilating their grievances, the same
would mean that the provision of Sub-section (2) of Section 14 of the
Limitation Act, which is otherwise available, should not be taken into
consideration at all. The answer to the said question must be rendered in the
negative. The provisions contained in Sections 5 and 14 of the Limitation
Act are meant for grant of relief where a person has committed some
mistake.
The provisions of Sections 5 and 14 of the Limitation Act alike
should, thus, be applied in a broad-based manner. When Sub-section (2) of
Section 14 of the Limitation Act per se is not applicable, the same would
not mean that the principles akin thereto would not be applied. Otherwise,
the provisions of Section 5 of the Limitation Act would apply. There cannot
be any doubt whatsoever that the same would be applicable to a case of this
nature.
13. There cannot furthermore be any doubt whatsoever that having regard
to the definition of ‘suit’ as contained in Section 2(l) of the Limitation Act,
a revision application will not answer the said description. But, although
the provisions of Section 14 of the Limitation Act per se are not applicable,
in our opinion, the principles thereof would be applicable for the purpose of
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condonation of delay in filing an appeal or a revision application in terms of
Section 5 thereof.
14. It is also now a well-settled principle of law that mentioning of a
wrong provision or non-mentioning of any provision of law would, by itself,
be not sufficient to take away the jurisdiction of a court if it is otherwise
vested in it in law. Wile exercising its power, the court will merely consider
whether it has the source to exercise such power or not. The court will not
apply the beneficient provisions like Sections 5 and 14 of the Limitation Act
in a pedantic manner. When the provisions are meant to apply and in fact
found to be applicable to the facts and circumstances of a case, in our
opinion, there is no reason as to why the court will refuse to apply the same
only because a wrong provision has been mentioned. In a case of this
nature, Sub-section (2) of Section 14 of the Limitation Act per se may not
be applicable, but, as indicated hereinbefore, the principles thereof would be
applicable for the purpose of condonation of delay in terms of Section 5
thereof.
In Ramlal and others v. Rewa Coalfields Ltd. [AIR 1962 SC 361],
this Court held as under:
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“12. It is, however, necessary to emphasise that
even after sufficient cause has been shown a party
is not entitled to the condonation of delay in
question as a matter of right. The proof of a
sufficient cause is a condition precedent for the
exercise of the discretionary jurisdiction vested in
the court by Section 5. If sufficient cause is not
proved nothing further has to be done; the
application for condoning delay has to be
dismissed on that ground alone. If sufficient cause
is shown then the court has to enquire whether in
its discretion it should condone the delay. This
aspect of the matter naturally introduces the
consideration of all relevant facts and it is at this
stage that diligence of the party or its bona fides
may fall for consideration; but the scope of the
enquiry while exercising the discretionary power
after sufficient cause is shown would naturally be
limited only to such facts as the court may regard
as relevant. It cannot justify an enquiry as to why
the party was sitting idle during all the time
available to it. In this connection we may point out
that considerations of bona fides or due diligence
are always material and relevant when the court is
dealing with applications made under Section 14
of the Limitation Act. In dealing with such
applications the court is called upon to consider
the effect of the combined provisions of Sections 5
and 14. Therefore, in our opinion, considerations
which have been expressly made material and
relevant by the provisions of Section 14 cannot to
the same extent and in the same manner be
invoked in dealing with applications which fall to
be decided only under Section 5 without reference
to Section 14.”
In Ghasi Ram and Others v. Chait Ram Saini and Others [(1998) 6
SCC 200], this Court opined:
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“10. Learned counsel appearing for the
respondents urged that, assuming the High Court
suffered from disability to decide the rights of
party on facts, the plaintiff-appellant did not
prosecute the revision petition before the High
Court in good faith; therefore, the appellant cannot
derive any benefit of Section 14 of the Act. Before
the High Court, it was not disputed that the
plaintiff-appellant has prosecuted the other civil
proceeding with due diligence. What is disputed is
that the plaintiff did not prosecute the civil
proceeding in good faith. “Good faith” is defined
in the Act as under:
“2. (h) ‘good faith’ — nothing shall be deemed to
be done in good faith which is not done with due
care and attention;”
The aforesaid definition shows that an act done
with due care and attention satisfies the test of
“good faith”. “Due care” means that sufficient care
was taken so far as circumstances demanded and
there was absence of negligence. In other words,
the plaintiff has taken sufficient care which a
reasonable man is expected to take in order to
avoid any injury. It is not shown here that the
plaintiff-appellant has not taken sufficient care in
prosecuting the remedy. Where a plaintiff is
illiterate and is not acquainted with the procedural
law, the only thing that he can do is to consult
some lawyer for advice. It is not disputed that the
plaintiff-appellant filed the revision before the
High Court on the advice of his counsel, although
it may be that he was ill-advised. Learned counsel
for the respondents contended that any act done in
violation of law cannot be described as act done
with due care. No doubt, when a party proceeds
contrary to a clearly expressed provision of law, it
cannot be regarded as prosecuting the other civil
proceeding in good faith. It is based on sound
principle of law. But the said rule cannot be
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enforced in rigidity in every case. Each case has to
be judged on its own merits. In the present case,
the plaintiff-appellant is not a legally-trained
person and thus he sought advice of his counsel
for future course of action. The counsel advised
him to file revision in the High Court instead of
bringing a fresh suit under Order 21 Rule 103
CPC. It is also true that at that time, there was no
unanimity about remedy of revision amongst the
various High Courts. The plaintiff-appellant’s
revision was entertained for hearing by the High
Court and that gave expectation to the plaintiff-
appellant that the order of the executing court may
be set aside and further, there was no inordinate
delay in filing the suit under Rule 103. If, on
examining the facts, it is found that there was no
lack of due care, there is no reason why the
plaintiff-appellant should not be accorded the
benefits of Section 14 of the Act. Does the interest
of justice demand that the plaintiff should be
refused the benefit of Section 14 of the Act on
account of the negligence on the part of his
counsel, ill-advising him to file a revision instead
of filing a fresh suit? An illiterate litigant cannot
be made to suffer when he is ill-advised by his
counsel. On the facts and circumstances of this
case, we are satisfied that the plaintiff-appellant
prosecuted the earlier civil proceeding in good
faith.”
In Consolidated Engineering Enterprises v. Principal Secretary,
Irrigation Department and Others [(2008) 7 SCC 167], this Court held:
“22. The policy of the section is to afford
protection to a litigant against the bar of limitation
when he institutes a proceeding which by reason
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of some technical defect cannot be decided on
merits and is dismissed. While considering the
provisions of Section 14 of the Limitation Act,
proper approach will have to be adopted and the
provisions will have to be interpreted so as to
advance the cause of justice rather than abort the
proceedings. It will be well to bear in mind that an
element of mistake is inherent in the invocation of
Section 14. In fact, the section is intended to
provide relief against the bar of limitation in cases
of mistaken remedy or selection of a wrong forum.
On reading Section 14 of the Act it becomes clear
that the legislature has enacted the said section to
exempt a certain period covered by a bona fide
litigious activity. Upon the words used in the
section, it is not possible to sustain the
interpretation that the principle underlying the said
section, namely, that the bar of limitation should
not affect a person honestly doing his best to get
his case tried on merits but failing because the
court is unable to give him such a trial, would not
be applicable to an application filed under Section
34 of the Act of 1996. The principle is clearly
applicable not only to a case in which a litigant
brings his application in the court, that is, a court
having no jurisdiction to entertain it but also
where he brings the suit or the application in the
wrong court in consequence of bona fide mistake
or (sic of) law or defect of procedure. Having
regard to the intention of the legislature this Court
is of the firm opinion that the 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.”
See M/s. Shakti Tubes Ltd. Through. Director v. State of Bihar &
Ors. [(2009) 1 SCC 786].
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15. For the reasons aforementioned, the impugned judgment cannot be
sustained which is set aside accordingly. The appeals are allowed and the
matter is remitted to the High Court for consideration thereof on merits.
However, we would request the High Court to dispose of the revision
application filed by the appellants herein as expeditiously as possible and
preferably within a period of three months from the date of communication
of this order. We are making this unusual request keeping in view the fact
that the respondents have obtained a decree as far back as in 1969.
However, in the facts and circumstances of the case, there shall be no order
as to costs.
………………………….J.
[S.B. Sinha]
..…………………………J.
[Dr. Mukundakam Sharma]
New Delhi;
February 12, 2009