Paras Nath vs Ram Jee And Others
2014 Latest Caselaw 2554 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                                             'AFR'
 
                                                             Judgment reserved on 28.04.2014                                                                                                                    	                                                 Judgment delivered on 07.07.2014               
 
Case :- FIRST APPEAL FROM ORDER No. - 411 of 2000
 

 
Appellant :- Paras Nath
 
Respondent :- Ram Jee And Others
 
Counsel for Appellant :- Triveni Shankar
 
Counsel for Respondent :- D.S.P.Singh, A.K.Arora, A.K.Misra, A.K.Rai, A.N. Bhargava, Ashok Kumar, K.C. Shukla, Ramesh Narayan Pandey, S.K.Singh, Shailendra Singh
 

 
Hon'ble Manoj Misra, J.

1. The instant appeal has been filed under Order 43, Rule 1(u) of the Code of Civil Procedure (hereinafter referred to as 'Code') against the judgment and order dated 26.02.2000 by which the Civil Appeal No. 45 of 1998 preferred by the plaintiff-respondent (Ram Jee), who is now represented through his legal representatives, was allowed by the Court of XIVth Additional District Judge, Varanasi thereby setting aside the judgment and decree dated 24.01.1998 passed by the Court of Civil Judge (Jr. Div.), Varanasi in Original Suit No. 564 of 1981 and remanding the matter to the trial court with direction to decide the suit on merits.

2. The facts, in brief, are that the defendant-appellant (Paras Nath @ Goonga) had instituted a Suit No. 358 of 1977 in the Court of Deputy Collector (Revenue), Varanasi, under section 229-B of the UP Zamindari Abolition and Land Reforms Act, for declaration that he is a co-bhumidhar/ co-sirdar of the disputed property having one-sixth share along with defendants first set (Ram Jee s/o late Kanhaiya, who is the plaintiff-respondent in this appeal); Bharat Lal; Chature Jee; Gopal Jee; Prabhu Jee all sons of Late Nanku; and Jagar Nath s/o Beer. It was also prayed that a direction be issued to the authorities to record his name as such. The case set up in that suit was that the disputed land, which was situated in City (proper) of Tehsil and District Varanasi, was sirdari of Kanhaiya (the predecessor-in-interest of the plaintiff-respondent in this appeal), Nanku and Jagannath, all sons of Beer Koeri and each one of them had one third share. Paras Nath alleged that Kanhaiya, in his life time, had created sub-tenancy right over one half portion of his one third share in the property in his favour and consequent to the abolition of zamindari, by notification dated 01.07.1966, under the U.P. Urban Areas Zamindari Abolition Act, he became a co-bhumidhar to the extent of one-sixth share and was entitled to be declared as such. In that suit a joint written statement was filed by the defendants first set, namely, Ram Jee (the plaintiff-respondent in this appeal), Bharat Lal, Chatur Jee, Gopal Jee, Prabhu Jee and Jagannath admitting the claim of the plaintiff. Consequently, by judgment and decree dated 09.08.1977, Suit No. 358 of 1977 was decreed. On 8-9/3/1978, Ram Jee (plaintiff-respondent in this appeal) filed an application, purportedly under Order 9 Rule 13 C.P.C., alleging therein that he was not served with summons of Suit No.358 of 1977 and that the plaintiff of that suit in collusion with the rest of the defendants, by playing fraud, manipulated service of summons on him and thereby obtained the decree dated 09.08.1977 of which knowledge was received by him on 01.03.1978 when the record was examined. Ram Jee further alleged that his father (Nanku) had instituted suit No. 563 of 1968 in the Court of Judge, Small Causes, Varanasi which was decreed and in which connection an Execution No. 298 of 1976 was pending wherein Ram Kishun (the father of Paras Nath Goonga - defendant-appellant of this appeal) was appointed Supurdar, against whom proceedings are also continuing. It was alleged that the decree has been obtained by playing fraud on court and, therefore, the same be recalled.

3. The above application of Ram Jee was rejected by the Asst. Collector, Ist Class/Deputy Collector (Revenue), Varanasi by order dated 26.02.1979 on ground that there was a signed vakalatnama and a written statement, purported to have been signed by Ram Jee, on record, and that Ram Jee had not denied his signature either on the vakalatnama or on the written statement, therefore, it would be deemed that he had complete knowledge of the proceedings since 15.7.1977 i.e. the date of filing of the vakalatnama and, as such, the application to set aside the judgment and decree was barred by limitation. Aggrieved by the rejection of his application, Ram Jee preferred an appeal under section 331 of the U.P. Z.A. & L.R. Act, which was dismissed by judgment and order dated 14.04.1981 passed by the Additional Commissioner, Varanasi Region, Varanasi thereby affirming the order of the trial court.

4. Having failed in getting a recall of the judgment and decree dated 09.08.1977, Ram Jee (the plaintiff-respondent in this appeal), on 27.05.1981, instituted Original Suit No. 564 of 1981 for cancellation of the judgment and decree dated 09.08.1977 passed by the Court of Deputy Collector (Revenue), Varanasi in Suit No. 383 /358 of 1977 (Paras Nath v. Ram Jee and others) on ground that the same was obtained by playing fraud on court. It was alleged that service of summons on him was fraudulently manipulated even though no summons were actually received by him and that his signature was forged on the vakalatnama as well as the written statement. In paragraph 8 of the plaint, it was specifically stated that the plaintiff came to know about the decree upon examination of the record on 01.03.1978.

5. The defendant-appellant contested the suit pleading, inter alia, that the suit was barred by principles of res judicata, inasmuch as, having failed to secure recall of the decree by filing application before the Revenue Court on ground of non service of summons, the plaintiff had no right to bring a fresh suit to cancel the decree on ground that summons were not served on him. It was also pleaded that the limitation for instituting a suit to cancel a decree is three years from the date of knowledge of the decree (vide Article 59 of the Schedule to the Limitation Act) and as, admittedly, the knowledge of the decree was received on 01.03.1978, whereas the suit for its cancellation was instituted on 27.05.1981, therefore it was beyond the period of limitation and, as such, was barred by limitation. Based on the aforesaid pleas, the trial court framed issue nos. 7 and 8, as follows:-

Issue No.7- Whether the suit is barred by the provisions of section 11 C.P.C.?

Issue No.8- Whether the suit is barred by limitation?

6. Both the aforesaid issues were taken as preliminary issues and were decided by the trial court against the plaintiff vide judgment and order dated 24.01.1998 against which the plaintiff-respondent preferred an appeal, which was allowed by the impugned judgment and order. The lower appellate court while deciding issue no.7 held that the suit cannot be said to be barred by principles of res judicata, inasmuch as, the instant suit was instituted for cancellation of the decree on ground of fraud which plea was not decided by the court of Deputy Collector while rejecting the application of the plaintiff to recall/ set aside the decree. It further held that the suit was not barred by limitation as the plaintiff, by virtue of section 14 of the Limitation Act, was entitled to exclusion of the period during which he pursued his application for recall of the decree.

7. I have heard Sri Triveni Shankar for the defendant-appellant and Sri Ramesh Narayan Pandey for the heirs of the deceased-plaintiff-respondent.

8. Sri Triveni Shanker, the learned counsel for the defendant-appellant, submitted that where non service of summons is an issue in a suit to set aside an ex parte decree then, if on an application to set aside an ex parte decree a finding has been returned by the court that passed the ex parte decree that there was due service of summons, the subsequent suit to set aside the ex parte decree would be barred by section 11 of the Code of Civil Procedure. It was submitted that in the instant case, the application of the plaintiff-respondent before the Court of Deputy Collector to set aside the decree was rejected by returning a finding that the applicant had not denied his signature on the written statement as well as vakalatnama filed in that case and, therefore, it would be deemed that he had knowledge of the proceedings. It was thus submitted that the question of service of summons was no longer open to adjudication as it was decided by a court of competent jurisdiction and, therefore, the instant suit, raising the same plea, was barred by principles of res judicata. In support of his submission, the learned counsel for the appellant placed reliance on two decisions of this Court, namely, Ismail and another v. Zahir Ahmad and others: 2005 A. L.J. 2924; and Har Bilas v. Jiwa Ram and another : 1971 A.L.J. 543.

9. On the question of limitation, the learned counsel for the appellant submitted that by Article 59 of the Schedule to the Limitation Act, the limitation for instituting a suit to set aside a decree is three years from the date when the facts entitling the plaintiff to have the instrument or decree canceled or set aside become known to him. It was submitted that as admittedly the plaintiff had examined/ inspected the record of suit No. 383/358 of 1977 on 01.03.1978 and had, accordingly, come to know about the alleged fraud in procuring the said decree, the period of limitation for instituting a suit for its cancellation expired by the end of the month of February, 1981. Therefore, the suit for its cancellation, which was instituted on 27.05.1981, was barred by limitation. It was submitted that the benefit of section 14 of the Limitation Act would not be available to the plaintiff, inasmuch as, the benefit of section 14 is available in a case where the plaintiff has been prosecuting with due diligence another civil proceedings in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. It was submitted that the application of the plaintiff for setting aside/ recall of the decree was not rejected because that Court from defect of jurisdiction or other cause of a like nature, was unable to entertain it. It was thus submitted that the judgment and order passed by the lower appellate court deserves to be set aside.

10.In reply to the above submissions, the learned counsel for the

plaintiff-respondent submitted that as in the instant case the application of the plaintiff-respondent to set aside the decree was rejected by the Court of Deputy Collector on ground of being barred by limitation and there was no adjudication, on merits, of the plea that the decree was obtained by fraud, the subsequent suit seeking cancellation of decree on ground of fraud having been played on court, in collusion with the other defendants of that suit, was not barred by principle of res judicata as enshrined under section 11 of the Code. It was submitted that fraud vitiates all solemn proceedings, accordingly, in absence of there being any adjudication of the plea relating to fraud, there can be no question of the applicability of the principle of res judicata.

11. On the question of limitation, the learned counsel for the respondent submitted that the period during which the plaintiff-respondent pursued the proceedings before the Court of Deputy Collector as well as the Court of Additional Commissioner for recall of the decree would be excluded under section 14 of the Limitation Act, inasmuch as, it is the civil court alone which has jurisdiction to set aside a decree on ground of fraud. It was thus submitted that the judgment and order passed by the lower appellate court in deciding the preliminary issues 7 and 8 against the defendant appellant requires no interference. In support of the aforesaid submission, the learned counsel for the plaintiff-respondent cited Apex Court's decision in the case of Rameshwar Lal v. Municipal Council Tonk & ors. : (1996) 6 SCC 100; and this Court's decision in the case of Jagat Narain Lal v. Ram Sakal (D) by L.Rs & ors. : 2009 LawSuit (All) 1054 = 2010(1) AWC 241. In Rameshwar Lal's case (supra) it has been observed that where a writ petition is dismissed on ground of alternative remedy then the period during which the plaintiff pursued the writ petition should be excluded while determining as to whether the civil suit was instituted within limitation or not. In Jagat Narain's case (supra) this court observed that section 14 of the Limitation Act is intended to provide relief against bar of limitation in cases of mistaken remedy or selection of a wrong forum.

12. Upon consideration of rival submissions of the learned counsel for the parties and on perusal of the record, this Court is of the view that the present suit of the plaintiff-respondent cannot be said to be barred by principle of res judicata, inasmuch as, for applicability of the bar of res judicata on a Court to try any suit or issue, one of the conditions is that the concerned suit or issue must have been heard and decided, either actually or constructively, in earlier proceedings by a court of competent jurisdiction to try the subsequent suit or proceeding. In the instant case, a perusal of the record reveals that the application of the plaintiff-respondent for recall of the decree dated 09.08.1977 was rejected by the Court of Asst. Collector, 1st Class /Deputy Collector (Revenue), Varanasi on ground that it was barred by limitation. While deciding the issue as to whether the application was barred by limitation, the court of Asst. Collector observed that the applicant (the plaintiff herein) had not challenged his signature on the vakalatnama or on the written statement and had not made any effort to obtain an expert's opinion with regards to his signature on the said documents. Thus, the plea taken by the plaintiff-respondent in the instant suit that the decree was obtained by playing fraud on the Court has neither been actually nor constructively decided. The appellate court also did not enter on the merits of that plea while affirming the order. There was thus no adjudication, either actually or constructively, on the plea taken in the instant suit that the decree of the earlier suit was obtained by manipulating service of summons as also by filing a vakalatnama and written statement containing forged signatures of the plaintiff herein thereby admitting the claim, which amounted to fraud on Court. In absence of any decision, either constructively or actually, on the plea taken by the plaintiff-respondent that the earlier decree was obtained by playing fraud on court, the present subsequent suit seeking cancellation of decree on ground of fraud cannot be said to be barred by principle of res judicata. The decisions which have been cited by the learned counsel for the defendant-appellant are therefore of no help. Even otherwise, the decision of this Court in Har Bilas v. Jiwa Ram (supra) places reliance on a Privy Council decision in the case of Khagendra Nath Mahata v. Pran Nath Roy : 29 ILR Calcutta 395 where it was held that a suit for setting aside an ex parte decree and sale in execution of such decree as illegal, fraudulent and collusive was maintainable notwithstanding the fact that the plaintiff had been unsuccessful in applications under sections 108 and 311 C.P.C. to set aside the ex parte decree and sale in execution. In view of the discussion made above, this Court is of the considered view that the lower appellate court was legally justified in deciding issue no.7 in the negative.

13. So far as the issue as to whether the suit is barred by limitation is concerned, before deciding the same, it would be useful to first examine certain provisions of the Limitation Act, 1963. Section 3 of the Limitation Act provides that subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. Section 2 (j) of the Limitation Act provides that the period of limitation means period of limitation prescribed for any suit, appeal or application by the Schedule. Article 59 of the Schedule to the Limitation Act provides a limitation of three years for institution of a suit to cancel or set aside an instrument or decree or for the rescission of a contract. The period of three years is to be counted from the date when the facts entitling the plaintiff to have the instrument or decree canceled or set aside or the contract rescinded first become known to him. The instant suit has been instituted for cancellation of the decree dated 09.08.1977 passed in suit no.383/358 of 1977. In paragraph 8 of the plaint, it is stated that on 28.02.1978, the plaintiff came to know through rumors that some decree has been obtained by the defendant against him and when, on 01.03.1978, the record of the said suit was inspected then it was discovered that by playing fraud and by collusion of the plaintiff with other defendants, by avoiding service of summons on the plaintiff, a decree was obtained against him by forging his signature on the vakalatnama as well as written statement in which the claim of the plaintiff of that suit was admitted. From above, it is clear that according to the own case of the plaintiff-respondent the knowledge of the facts entitling the plaintiff-respondent to seek cancellation of the decree became known to him on 01.03.1978 and, therefore, the period of limitation of three years for instituting the suit for cancellation of the decree would commence with reference to that date. As admittedly the instant suit has been filed on 27.05.1981 that is, after three years from the date of having knowledge of the facts entitling the plaintiff to have the decree canceled or set aside, the suit has been filed beyond the period of limitation. What is, therefore, to be seen is whether the plaintiff is entitled to the benefit of section 14 of the Limitation Act for excluding the period during which he pursued his application before the Court of Deputy Collector for recall of the said decree. The application for recall of the decree was filed on 08/09.03.1978, which was rejected on 26.02.1979. Against which an appeal was preferred before the Asst. Commissioner, which was dismissed on 14.04.1981. According to the learned counsel for the plaintiff-respondent, the period starting from 08.03.1978 up to 14.04.1981 deserve to be excluded while counting the period of limitation for instituting the suit for cancellation/setting aside of the decree by virtue of sub-section (2) of Section 14 of the Limitation Act.

14. Therefore, the question that requires determination is whether the plaintiff-respondent is entitled to the benefit of section 14 (2) of the Limitation Act. For the said purpose it would be useful to examine the provisions of Section 14 of the Limitation Act, which reads as under:

"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."

15. In the case of M/s. Consolidated Engineering Enterprises v. Principal Secretary (Irrigation Department) and others : (2008) 7 SCC 169, the apex court, in paragraph 21 of the report, culled out the necessary conditions which need to be satisfied before one can avail the benefit of Section 14 of the Limitation Act. Paragraph 21 of the report is reproduced herein below:-

"21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:

(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 in 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 latter proceeding must relate to the same matter in issue and;

(5) Both the proceedings are in a court."

16. In the instant case, the earlier application of the plaintiff for recall/ setting aside of the decree was not rejected due to defect of jurisdiction. It was rejected as being barred by limitation. Therefore, the question that requires determination is whether rejection of an application on ground of being barred by limitation would amount to rejection of an application on ground of defect of jurisdiction or other cause of like nature.

17. It is well settled in law that a Court has power to recall / set aside an order or decree passed by it, if it is satisfied that the same has been obtained by playing fraud on it, inasmuch as, fraud vitiates all solemn proceedings. Accordingly, it cannot be said that the Court of Deputy Collector did not have jurisdiction to entertain the application of the plaintiff-respondent, which was filed to set aside a decree allegedly obtained by the plaintiff of that suit by playing fraud on court in collusion with the other defendants. Moreover, the Court of Deputy Collector did not reject the application on ground that it had no jurisdiction to entertain the same. The application was rejected on ground that it was filed beyond the period of limitation. Accordingly, the decisions cited by the learned counsel for the plaintiff-respondent are not applicable to the facts of the case. What requires determination is whether rejection of an application as barred by limitation would amount to inability of a court to entertain the application for defect of jurisdiction or other cause of like nature as contemplated by section 14 (2) of the Limitation Act.

18. In the case of Bisambhar Haldar v. Bonomali Haldar: 26 Calcutta 414, a Full Bench of the Calcutta High Court approved the observations made in the order of reference, which were to the effect that where an appeal or an application fails because it is barred by limitation, it fails for reasons other than a defect of jurisdiction or other cause of a like nature. The said view was later followed by the Calcutta High Court in the case of Sri Madan Mohan Jew v. Smt. Bejoyabati Dassi & others: AIR 1954 Calcutta 202.

19. In the case of Beena v. Bharat Singh : 2002 (6) SCC 336, the apex court observed that words "or other cause of like nature" as used in section 14 are to be construed ejusdem generis with words "defect of jurisdiction", that is to say, the defect must be of such a character as to make it impossible for the Court to entertain the suit or application and to decide it on merits. It was observed that section 14 will have no application in a case where the suit is dismissed after adjudication on its merits and not because the court was unable to entertain it. In the case of Union of India v. West Coast Paper Mills Ltd., (2004) 3 SCC 458, the apex court, following its earlier three judges bench decision in the case of Roshan Lal Kuthalia V. R.B. Mohan Singh Oberoi : (1975) 4 SCC 628, observed that Section 14 of the Limitation Act is wide enough to cover such cases where the defects are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. It was observed that 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 Limitation Act which deprives the remedy of one who has a right. In Gurdit Singh v. Munsha Singh, (1977) 1 SCC 791, another three judges bench of the apex court observed that the words "or other cause of a like nature" which follow the words "defect of jurisdiction" in section 14 are very important. Their scope has to be determined according to the rule of ejusdem generis. According to that rule, they take their colour from the preceding words "defect of jurisdiction" which means that the defect must have been of an analogous character barring the court from entertaining the previous suit or proceeding.

20. A conspectus of the authorities noticed above would go to show that even if a liberal interpretation is accorded to the expression "or other cause of like nature" following the words "defect of jurisdiction", as it occurs in Section 14 of the Limitation Act, the defect should be of such a character that it bars the court from entertaining the previous suit or proceeding. It is of significance that the legislature in its wisdom used the expression "unable to entertain", as against "unable to decide", in the aforesaid section. This Court is, therefore, of the view that subject to fulfillment of other conditions, the benefit of sub section (2) of Section 14 of the Limitation Act could be claimed by the plaintiff or applicant of the subsequent suit/ proceeding only where the Court, either for defect of jurisdiction or other cause of like nature, was unable to entertain the earlier suit or application taken by the said plaintiff /applicant.

21. In a case where an application is rejected as barred by limitation it cannot be said that the court was unable to entertain the application for defect of jurisdiction or other cause of a like nature, because, in such a case, the Court has jurisdiction to condone the delay and enter on the merits of the case. This Court is, therefore, in agreement with the view taken by the Calcutta High Court in Sri Madan Mohan Jew (supra) and Bisambhar Haldar (supra) that where an appeal or an application fails because it is barred by limitation, it fails for reasons other than a defect of jurisdiction or other cause of a like nature.

22. Reverting to the facts of the instant case, it cannot be said that the court of Deputy Collector, Varanasi, before whom the application was filed for setting aside the decree, was by defect of jurisdiction or other cause of like nature unable to entertain the application. The said court had jurisdiction to enter on the merits of the case had sufficient cause been shown by the applicant for condoning the delay in filing the application. Accordingly, this Court is of the view that in computing the period of limitation for instituting the present suit the plaintiff-respondent was not entitled to seek for exclusion of the period spent in pursuing the recall application. As admittedly, the suit was instituted by the plaintiff-respondent beyond the period of limitation provided by Article 59 of the Schedule to the Limitation Act, the suit was barred by limitation. The finding to the contrary recorded by the lower appellate court is erroneous and is liable to be set aside and that of the trial court, on that issue, is entitled to be restored.

23. In view of the discussion made above, the appeal is partly allowed. The judgment and order dated 26.02.2000 passed by the XIVth Additional District Judge, Varanasi in Civil Appeal No. 45 of 1998 is set aside to the extent it reverses the decision of the trial court on issue no.8. The finding of the trial court on issue no. 8 is restored and it is held that the suit of the plaintiff is barred by limitation. However, the finding of the lower appellate court on issue No.7 is affirmed. The record of the trial court will be sent back to it for passing appropriate orders. There is no order as to costs.

Order Date :- 07.07.2014

Sunil Kr Tiwari