Delhi High Court
Jaswant Kaur vs Surjit Singh & Anr on 21 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 21st August, 2017
+ C.R.P. 86/2017 & CM No.13036/2017
JASWANT KAUR ..... Petitioner
Through:Mr. Sanjeev Soni, Adv.
Versus
SURJIT SINGH & ANR ..... Respondents
Through: Mr. Jitender Kumar Dhingra, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Revision Petition under Section 115 of the Code of Civil
Procedure, 1908 (CPC) impugns the order [dated 24 th January, 2017 in
Civ/DJ/613824/2016 of the Court of Additional District Judge (ADJ)-05,
West District, Tis Hazari Courts, Delhi] allowing the application of the
respondent no.1 / plaintiff under Section 14 of the Limitation Act, 1963.
2. Notice of the petition was issued and the counsel for the respondent
no.1 / plaintiff appears.
3. The respondent no.2 is informed to be ex parte in the suit and has not
appeared before this Court despite service.
4. The counsel for the petitioner/defendant has argued i) that the
petitioner had filed a suit against the respondent no.2 for ejectment of the
respondent no.2 from an immovable property claiming that the respondent
no.2 was a tenant under the petitioner at a rent in excess of Rs.3,500/- and
his tenancy had been determined; ii) that the respondent no.2 was proceeded
against ex parte in the said suit; iii) that the respondent no.1 / plaintiff filed
an application under Order I Rule 10 of the CPC for impleadment in the suit
but which application was dismissed and which order attained finality; iv)
C.R.P. No.86/2017 Page 1 of 5
that after an ex parte decree for ejectment of the respondent no.2 was passed
in favour of the petitioner and the petitioner sought execution thereof, the
respondent no.1 / plaintiff again filed objections in the execution and which
objections were dismissed and the first appeal whereagainst was also
dismissed and which order has also attained finality; v) that thereafter the
respondent no.1 / plaintiff filed the suit from which this petition arises and
the learned ADJ vide the impugned order has allowed the application under
Section 14 of the Limitation Act filed along with the plaint in the suit.
5. Section 14 of the Limitation Act provides 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."
C.R.P. No.86/2017 Page 2 of 5
As would be noticed, the application of Section 14 is dependent upon the
prosecution of any civil proceedings with due diligence and in good faith,
which are questions of fact. I have thus enquired from both the counsels as
to how an application under Section 14, if contested, could be decided
without the parties being put to trial. No answer is forthcoming.
6. A Division Bench of this Court, in Firm Khushi Ram Behari Lal Vs.
Firm Jagan Nath Kuthiala ILR (1969) Del 487 held that the question,
whether a plaintiff had prosecuted an earlier proceeding in good faith and
with due diligence is a question of fact, depending upon the circumstances of
each case.
7. In my opinion, whenever a plaint is accompanied with an application
under Section 14 of the Limitation Act and a question of the suit claim being
within limitation without granting extension of time under Section 14 of the
Limitation Act arises, an issue, whether the plaintiff is entitled to exclusion
of time under Section 14 has to be framed and decided at the time of final
adjudication of the suit. Only if, on admitted facts, the application can be
allowed or dismissed, would the question of deciding the same without trial
arise.
8. Neither counsel has made out a case for allowing or dismissing
application under Section 14 of the Limitation Act without evidence.
9. The counsel for the petitioner / defendant has however argued that in
the present case, there was a delay of 74 days which was unexplained.
10. Even if that be so, the matter, in my opinion, cannot be decided
without trial and the order impugned is liable to be set aside on this ground
alone with liberty to the respondent no.1 / plaintiff to, if the occasion for
framing issues in the suit arises, press an issue qua Section 14 of the Act.
C.R.P. No.86/2017 Page 3 of 5
11. The counsels state that the issues have already been framed and no
issue qua limitation has been framed. If that be so, then the learned ADJ in
view of this order, is required to amend the issues.
12. I have hereinabove observed that "if the occasion for framing issues
arises" because it is the contention of the counsel for the petitioner /
defendant no.1 that the suit was not maintainable because the order of
dismissal of objections in the execution has attained finality. It is also the
argument of the counsel for the petitioner / defendant no.1 that the suit is
misconceived inasmuch as the respondent no.1 / plaintiff has sought setting
aside of the decree and not declaration of any rights claimed by him in the
property.
13. On enquiry, it emerges that while the petitioner / defendant no.1
claims title to the property under Agreement to Sell, Power of Attorney, Will
etc. executed by respondent no.2, the respondent no.1 / plaintiff claims title
to the property on the basis of some receipts of payment of sale consideration
issued by one Roshan Lal.
14. I refrain from entering into the said controversy inasmuch as the same
is not the subject matter of the impugned order.
15. The counsels would have liberty to take appropriate steps in the suit in
this regard.
16. Resultantly, the petition succeeds. The order dated 24 th January, 2017
is set aside with liberty aforesaid.
No costs.
17. The counsel for the petitioner / defendant no.1 at this stage states that
vide another order of the same date i.e. 24th January, 2017, the parties have
C.R.P. No.86/2017 Page 4 of 5
been directed to maintain status quo on an application of the respondent no.1
/ plaintiff under Order XXXIV Rules 1&2 CPC.
18. However admittedly, neither has that order been placed before this
Court (meaning that the same is not impugned in this proceeding) nor would
Revision Petition under Section 115 of the Act lie thereagainst, the same
being appealable under Order XLIII Rule 1(r) of the CPC.
19. The petitioner / defendant no.1 is at liberty to take appropriate remedy
with respect thereto.
RAJIV SAHAI ENDLAW, J.
AUGUST 21, 2017
„gsr‟..
