Ved Prakash Sharma vs Dapinder Pal Singh & Ors.
2012 Latest Caselaw 3466 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI



+            IA No. 1335/2012 in CS(OS) 1874/2011


                               Judgment delivered on: 24.05.2012


      VED PRAKASH SHARMA              ..... Plaintiff
                   Through Mr. P L Sharma, Advocate

                    versus

      DAPINDER PAL SINGH & ORS.          ..... Defendant
                    Through Mr. Amit S Chadha, Sr. Advocate
                    with Mr. Sanjeev Soni and Mr. Kunal Sinha,
                    Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR:

KAILASH GAMBHIR, J.

1. By this application filed under Section 14 of the Limitation

Act, 1963 read with Section 151 CPC, the plaintiff seeks directions for

granting him the benefit of computing the period of limitation after

excluding the time spent by the plaintiff in the civil suit filed before the

District Court.

2. Arguing the present application, Mr. P.L. Sharma, learned

counsel for the plaintiff submitted that the plaintiff had earlier filed this

suit before the District Court with all due diligence based on the

valuation of the property as was assessed by the plaintiff. Counsel also

submitted that the plaintiff had applied through RTI to find out the

valuation of the said property and after receiving information under

RTI the plaintiff moved the concerned Court for the return of the

plaint. Counsel further submitted that on 7.4.2011 the plaintiff had

moved an application to seek return of the plaint and vide order dated

28.5.2011, the Court of Shri Anurag Sain, Additional District Judge of

Delhi, who was seized with the matter, had given a direction for the

return of the plaint to the plaintiff and the said plaint was returned to

the plaintiff on 31.5.2011 wherafter the plaintiff filed the present suit

on 2.7.2011. Counsel thus stated that the plaintiff was bonafidely

prosecuting his case with all due diligence before the District Court

and, therefore, time spent before the District Court in the said suit may

be excluded. In support of his arguments, counsel for the plaintiff has

placed reliance on the following judgments:

1. M/S Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department & Ors. JT 2008(6)SC 22

2. Vijay Kumar Rampal Vs. Diwan Devi & Ors. AIR1985 SC1669

3. Mohan Lal Goela vs. Shri Krishan AIR1978 Delhi 92

4. Dasarath Behera & Ors. vs. Katai Dei & Ors. AIR 1991 Orissa 160

5. Subhanand Chaudhary vs. Bindeshwari Thakur & Ors.AIR 1959 Patna 365

6. Binodilal vs. Satyendrasingh AIR 1956 MB 97

3. Opposing the present application, Mr. Amit S. Chadha, learned

Senior counsel for the defendants argued that the plaintiff has filed the

present suit on 2.7.2011 wherein the plaintiff has valued the subject

property of the suit at Rs. 23,32,200/-. Counsel further stated that in

the written statement filed by the defendants, to the suit filed by the

plaintiff before the District Court, in the preliminary objections as well

as in reply to the relevant para for valuation, objection was raised by

the defendant challenging the valuation of the suit wrongly fixed by the

plaintiff at Rs.4 lacs while the correct value of the subject property of

the suit was much more than Rs. 4 lacs and in fact, as per the circle

rates as prevalent on the date of the filing of the suit, it went beyond

the pecuniary jurisdiction of the District Courts. Counsel further

submitted that the defendants had filed the application under Order 7

Rule 10 CPC before the District Court which application was

contested by the plaintiff and it is only when the learned trial court

passed the order dated 23.3.2011 for return of plaint due to lack of

pecuniary jurisdiction, and thereafter only, the plaintiff moved an

application on 7.4.2011 to seek return of the plaint and on the said

application of the plaintiff, the court vide order dated 28.05.2011

directed return of the plaint. Counsel further submitted that counsel

for the plaintiff in the present application nowhere has disclosed any

reasons showing his bona fide and due diligence in prosecuting the

said suit before the trial court and in fact, the plaintiff has suppressed

the facts by not disclosing to the court that it is the defendant who has

raised objection in the written statement regarding under valuation of

the said suit and also by virtue of application moved by the defendant

under Order 7 Rule 10 of the CPC. Counsel thus submitted that it is not

a fit case where this court would exercise jurisdiction qua the plaintiff

by allowing the present application under Section 14 of the Limitation

Act, 1963.

4. Counsel also submitted that the present application was not

filed by the plaintiff along with the plaint and it is only when the

defendant raised objection and thereafter the plaintiff has preferred

the present application. Counsel also submitted that in the earlier suit

bearing No. 341/1997 filed by the defendant against the plaintiff in

respect of the same property, the plaintiff who was the defendant in

the said suit had taken objection with regard to the valuation of the

property by stating that the valuation of the property was more than

Rs. 50 lacs as on that date. Counsel further stated that the plaintiff

was well aware of this fact that the valuation of the property was much

more than Rs. 4 lacs and even going by the circle rates, the valuation of

the property was more than Rs. 45 lacs as on the date of the filing of

the said suit. In support of his arguments, counsel for the defendant

placed reliance on the following judgments:

1. Ramji Pandey vs. Swaran Kali AIR 2011 SC 489

2.Karnataka Slum Clearance Board, Bangalore vs. H.T Annaji AIR 2006 Karnataka 241

3. Des Raj vs. Ram Singh AIR 1960 J & K 130

4. Firm Bansi Dhar Baldeo Pershad & Anr. vs. Firm Alopi Pershad & Sons Ltd. AIR 1963 Punjab 556

5. Madhavrao Narayan Rao Patwardhan vs. Ram Krishna Govind Bhanu & Ors. AIR 1965 SC 767

5. I have heard learned counsel for the parties at considerable

length and given by anxious consideration to the arguments advanced

by them.

6. Before dealing with the application in hand on merits, it is

necessary to give a brief background of the facts of the case which led

to the filing of the present application. The suit for possession,

damages/mesne profit and permanent injunction was filed by the

plaintiff before the District Court on 1.9.2008 after valuing the suit

property at Rs. 4 lakhs. No serious objection to the competence of the

jurisdiction of the District Court on the ground of lack of pecuniary

jurisdiction was raised by the defendant till the application was moved

by the defendant under Order 7 Rule 10 & 11 CPC through which the

defendant prayed for the return of the plaint because of lack pecuniary

jurisdiction of the Court. The defendant had placed reliance on the

circle rates of the properties as were notified by the Government of

Delhi and based on the circle rates value of the property was found to

be more than Rs. 45 lakhs. The said application moved by the

defendant was conceded by the plaintiff as would be evident from the

order dated 23rd March, 2011, wherein the counsel appearing for the

plaintiff submitted that even from their own enquiries made from the

office of the Sub-Registrar, it was found that the value of the suit

property for the purposes of jurisdiction was beyond Rs. 20 lakhs and

around Rs. 23 lakhs. Allowing the said application of the defendant,

learned Trial Court vide order dated 23.3.2011 directed the return of

the plaint to plaintiff as per rules. The plaintiff thereafter had moved an

application on 5.4.2011 to seek return of the original documents and

the plaint, as were filed by the plaintiff and vide order dated 28.5.2011,

the learned Trial Court directed return of the original plaint along with

original documents. It is thereafter that the present suit was filed

before this Court on 2.7.2011 after the same was returned to the

plaintiff from the District Court on 31.5.2011.

11. To deal with the present application and for better

appreciation of the controversy, it is important to reproduce Section 14

of the Limitation Act as under:

"Section 14 in The Limitation Act, 1963

14. Exclusion of time of proceeding bonafide 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."

On a plain reading of the above provision, it is evident that the same

affords protection to a litigant who was honestly and bonafidely

prosecuting a case before a Court which had no jurisdiction. The

principle underlying the said section is based on justice, equality and

good conscious to save a litigant from getting his suit barred by

limitation if he is able to satisfy the Court that he was prosecuting his

suit in a Court which lacked jurisdiction due to bona fide reasons, but

with due diligence. The following conditions thus will have to be

satisfied by a litigant who is seeking protection under Section 14 of the

Limitation Act:-

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 before a court.

12. The expression "good faith" as used in Section 14 of the

Limitation Act means "exercise of due care and attention". In Ghasi

Ram vs. Chait Ram Saini (1998)6SCC200, the Hon'ble Apex Court

elaborated the definition of "good faith" as occurring in section 2(h) of

the limitation Act as under:

"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 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."

Hence, it is evident that due care has to be taken while prosecuting the

suit before a wrong forum and the plaintiff has to satisfy that he has

taken sufficient care as is expected of any prudent man in pursuing his

remedy before a wrong forum to claim the benefit of Section 14 of

the Limitation Act. It is also settled legal position that Section 14 has to

be liberally construed and unless there is sufficient material on record

to come to the conclusion that the plaintiff is dishonest and lacks good

faith, he cannot be denied the benefit of Section 14 of the Limitation

Act. This has been held by the Apex Court in the case of three bench

decision in Consolidated Engg. Enterprises vs. Irrigation

Department (2008)7SCC169 wherein it was held as under:

"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 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 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."

However along with the aforesaid observation , the Apex Court also

held the following:

"19. To attract the provisions of Section 14 of the Limitation Act, five conditions enumerated in the earlier part of this Judgment have to co-exist. There is no manner of doubt that the section deserves to be construed liberally. Due diligence and caution are essentially pre-requisites for attracting Section 14. Due diligence cannot be measured by any absolute standards. Due diligence is a measure of prudence or activity expected from and ordinarily exercised by a reasonable and prudent person under the particular circumstances. The time during which a court holds up a case while it is discovering that it ought to have been presented in another court, must be excluded, as the delay of the court cannot affect the due diligence of the party. Section 14 requires that the prior proceeding should have been prosecuted in good faith and with due diligence. The definition of good faith as found in Section 2(h) of the Limitation Act would indicate that nothing shall be deemed to be in good faith which is not done with due care and attention. It is true that Section 14 will not help a party who is guilty of negligence, lapse or inaction. However, there can be no hard and fast rule as to what amounts to good faith. It is a matter to be decided on the facts of each case. It will, in almost every case be more or less a question of degree. The mere filing of an application in wrong court would not prima facie show want of good faith. There must be no pretended mistake intentionally made with a view to delaying the proceedings or harassing the opposite party."

The above judgment has been relied upon by the counsel for the

plaintiff to support his argument that the provision has to be liberally

construed. There is no dispute with the said legal position enunciated

above, but however the necessity of exercising due care and caution

cannot be done away with in construing the provision beneficially.

Section 14 cannot help a party who is guilty of inaction and undue

indifference. To demonstrate lack of bona fides and lack of due

diligence on the part of the plaintiff, counsel for the defendant pointed

out that earlier when the defendant had filed a suit bearing No.

341/1997 titled "Dapinder Pal Singh & Ors. vs. Ved Prakash Sharma"

for permanent injunction wherein the plaintiff as a defendant himself

had stated the valuation of the same property at more than Rs. 50 lakhs

only. Counsel also submitted that the said written statement filed by

the plaintiff herein was filed almost 12 years ago from the date of the

filing of the said suit. Counsel further submitted that it is not the

plaintiff himself who had asked for the return of the plaint from the

District Court for the lack of pecuniary jurisdiction but it is only when

the defendant moved an application under Order 7 Rule 10 & 11 CPC

the Court gave direction for the return of the plaint. Counsel for the

defendant also took a stand that even in the written statement filed by

the defendant, serious objection was raised with regard to the lack of

pecuniary jurisdiction of the District Court as the suit was grossly

undervalued by the plaintiff. Instead of conceding to the said objection

raised by the defendant, the plaintiff not only reiterated and reaffirmed

the valuation of the suit disclosed by him but proceeded with the said

case for a period of almost three years and ultimately the Court gave

the direction for the return of plaint on the application moved by the

defendant under Order 7 Rule 10 & 11 CPC on 28.5.2011. Counsel for

the defendant also took a stand that the plaintiff has also failed to

disclose any reasons for not filing the plaint before this Court till

2.7.2011 even though the same was received by the plaintiff on

31.5.2011. This court finds merit in the said submissions made by the

counsel for the defendant. The plaintiff has not denied the fact that in

the suit of permanent injunction filed by the defendant i.e. suit No.

341/1997, objection was raised by the plaintiff with regard to the lack

of pecuniary jurisdiction of the Court and in reply to the valuation, the

plaintiff himself had assessed the value of the property at more than

Rs. 50 lakhs. There is a wide difference between these valuations i.e.

Rs. 4 lakhs has been assessed by the plaintiff in the suit filed by the

plaintiff before the learned Trial Court and in juxtaposition the plaintiff

himself assessed valuation of property at more than Rs. 50 lakhs in the

suit filed by the defendant. The plaintiff has also not denied the fact

that the objection with regard to the lack of pecuniary jurisdiction was

also raised by the defendant in the written statement but yet the

plaintiff did not choose to seek the withdrawal of the said case till an

application was moved by the defendant under Order 7 Rule 10 & 11

CPC on which the Court gave direction for return of the plaint.

13. The counsel for the plaintiff has relied upon the judgment of the

Apex Court in the case of Vijay Kumar vs. Diwan Devi AIR1985SC 1669

wherein the court held that the failure to pay the requisite court fee or

the error in judgment in valuing a suit has nothing to do with good

faith. The other judgment of Orissa High Court in Dasarath Behera

(supra) cited by the plaintiff also relies on Diwan Devi(supra).

However it is also a settled legal position that the question of good

faith is a question to be determined on facts of each case and in the

present case the question is not of error in judgment in the valuation of

suit but of convenient stands taken by the plaintiff; one in which he as

a defendant has valued the property at more than Rs.50 lakhs and in

the present wherein he has valued the suit at 4 lakhs and then at 23

lakhs. Taking of such contrary stands thus is a crystal clear

manifestation of lack of good faith of the plaintiff. The other judgments

relied upon by the counsel for the plaintiff will not be applicable to the

facts of the case at hand in the light of the discussion hereinabove.

14. In the light of the above discussion, the present case does not

deserve exercise of discretion by this Court in favour of the plaintiff as

the plaintiff has failed to satisfy this Court that he was prosecuting the

case before the District Court with due diligence and good faith by

valuing the suit property at Rs. 4 lakhs.

15. There is no merit in the present application and the same is

hereby dismissed.

KAILASH GAMBHIR, J May 24, 2012 p/rkr