Harishchanra Chandrahas Parikh vs Makbul Mohmadali Vora
2022 Latest Caselaw 7795 Guj

      C/CRA/145/2016                                   ORDER DATED: 12/09/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CIVIL REVISION APPLICATION NO. 145 of 2016
==========================================================
            HARISHCHANRA CHANDRAHAS PARIKH & 1 other(s)
                             Versus
                 MAKBUL MOHMADALI VORA & 1 other(s)
==========================================================
Appearance:
MR MEHUL S. SHAH, SENIOR ADVOCATE with
MR VISHAL C MEHTA(6152) for the Applicant(s) No. 1,2
SAQUIB S ANSARI(7152) for the Opponent(s) No. 1,2
==========================================================
 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 12/09/2022
                   ORAL ORDER

1. RULE. Learned advocate Mr.Ansari, waives service of notice on behalf of the respondents.

2. Since a short issue is involved in the revision application, the same is finally heard and decided, today.

3. At the outset, learned senior advocate Mr.Shah, appearing for the applicants has submitted that the impugned order is required to be set aside since, the same is premised on an incorrect appreciation of facts. It is submitted by him that initially, the applicants have filed an application for condonation of delay caused in filing the Civil Appeal against the judgment and decree dated 09.01.2008 passed in H.R.P. Suit No.2255 of 2004. The respondents, being landlords, filed the said suit to recover arrears of rent and possession of the suit premises against the applicants- tenants. The applicants filed a delay condone application and prayed for condonation of delay of 93 months and 15 days caused in preferring the

C/CRA/145/2016 ORDER DATED: 12/09/2022

civil appeal. He has submitted that the applicants came to know that the concerned suit was disposed of ex parte on 09.01.2008, thereafter they preferred Restoration Application No.187 of 2013, which was dismissed on 30.01.2015, against the said order the applicants preferred Special Civil Application No.3164 of 2015, before this Court which was withdrawn on 04.01.2016, with a view to file appropriate proceedings. Accordingly, it is submitted thart thereafter, the appeal was preferred with the application seeking condonation of delay, which has been rejected by considering the delay of 93 months 15 days. It is submitted by him that the applicants bona fidely pursed their cause in a wrong forum and hence, the Civil Court should have appreciated such fact. It is submitted that there was no mala fide intention on the part of the applicant, hence the delay was required to be condoned. He has further placed reliance on the judgment of the Apex Court in the case of M.P. Steel corporation Vs. Commissioner of Central Excise, [2015 (7) SCC 58] and has submitted that Section 14 of the Limitation Act, is required to be considered liberally. Reliance is also placed on the paragraph Nos.41 to 43. Thus, he has submitted that the impugned order may be quashed and set aside and the matter may be remanded to the concerned Court for deciding the appeal on merits.

4. Learned advocate Mr.Ansari, appearing for the opponents is unable to dispute the aforesaid facts, as narrated hereinabove, and has submitted that appropriate order may be passed.

C/CRA/145/2016 ORDER DATED: 12/09/2022

5. I have heard the learned advocates appearing for the parties. I have also perused the impugned order as well as the facts as stated above.

6. The facts, as established hereinabove, are not in dispute. The applicants, in fact, approached this Court by filing a writ petition being Special Civil Application No.3164 of 2015, which was withdrawn on 04.01.2016, after realizing that they have been pursuing before the wrong forum.

7. At his stage, it would be apposite to refer to the observations made by the Apex Court in the case of M.P.Steel Corporation (supra), wherein the Apex Court has observed thus : -

"41. The language of Section 14, construed in the light of the object for which the provision has been made, lends itself to such an interpretation. The object of Section 14 is that if its conditions are otherwise met, the plaintiff/applicant should be put in the same position as he was when he started an abortive proceeding. What is necessary is the absence of negligence or inaction. So long as the plaintiff or applicant is bonafide pursuing a legal remedy which turns out to be abortive, the time beginning from the date of the cause of action of an appellate proceeding is to be excluded if such appellate proceeding is from an order in an original proceeding instituted without jurisdiction or which has not resulted in an order on the merits of the case. If this were not so, anomalous results would follow. Take the case of a plaintiff or applicant who has succeeded at the first stage of what turns out to be an abortive proceeding. Assume that, on a given state of facts, a defendant - appellant or other appellant takes six months more than the prescribed period for filing an appeal. The delay in filing the appeal is condoned. Under explanation (b) of Section 14, the plaintiff or the applicant resisting such an appeal shall be deemed to be prosecuting a proceeding. If the

C/CRA/145/2016 ORDER DATED: 12/09/2022

six month period together with the original period for filing the appeal is not to be excluded under Section 14, the plaintiff/applicant would not get a hearing on merits for no fault of his, as he in the example given is not the appellant. Clearly therefore, in such a case, the entire period of nine months ought to be excluded.

If this is so for an appellate proceeding, it ought to be so for an original proceeding as well with this difference that the time already taken to file the original proceeding, i.e. the time prior to institution of the original proceeding cannot be excluded. Take a case where the limitation period for the original proceeding is six months. The plaintiff/applicant files such a proceeding on the ninetieth day i.e. after three months are over. The said proceeding turns out to be abortive after it has gone through a chequered career in the appeal courts. The same plaintiff/applicant now files a fresh proceeding before a court of first instance having the necessary jurisdiction. So long as the said proceeding is filed within the remaining three month period, Section 14 will apply to exclude the entire time taken starting from the ninety first day till the final appeal is ultimately dismissed. This example also goes to show that the expression "the time during which the plaintiff has been prosecuting with due diligence another civil proceeding" needs to be construed in a manner which advances the object sought to be achieved, thereby advancing the cause of justice.

42. Section 14 has been interpreted by this Court extremely liberally inasmuch as it is a provision which furthers the cause of justice. Thus, in Union of India v. West Coast Paper Mills Ltd., (2004) 3 SCC 458, this Court held:

"14. ... In the submission of the learned Senior Counsel, filing of civil writ petition claiming money relief cannot be said to be a proceeding instituted in good faith and secondly, dismissal of writ petition on the ground that it was not an appropriate remedy for seeking money relief cannot be said to be 'defect of jurisdiction or other cause of a like nature' within the meaning of Section 14 of the Limitation Act. It is true that the writ petition was not dismissed by the High Court on the ground of defect of jurisdiction. However, Section 14 of the Limitation Act is wide in its application, inasmuch as it is not confined in its applicability only to cases of defect of jurisdiction but it is applicable also to cases

C/CRA/145/2016 ORDER DATED: 12/09/2022

where the prior proceedings have failed on account of other causes of like nature. The expression 'other cause of like nature' came up for the consideration of this Court in Roshanlal Kuthalia v. R.B. Mohan Singh Oberoi[(1975) 4 SCC 628] and it was held 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. 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." Similarly, in India Electric Works Ltd. v. James Mantosh, (1971) 1 SCC 24, this Court held:

"7. It is well settled that although all questions of limitation must be decided by the provisions of the Act and the courts cannot travel beyond them the words 'or other cause of a like nature' must be construed liberally. Some clue is furnished with regard to the intention of the legislature by Explanation III in Section 14(2). Before the enactment of the Act in 1908, there was a conflict amongst the High Courts on the question whether misjoinder and non-joinder were defects which were covered by the words 'or other cause of a like nature'. It was to set at rest this conflict that Explanation III was added. An extended meaning was thus given to these words. Strictly speaking misjoinder or non-joinder of parties could hardly be regarded as a defect of jurisdiction or something similar or analogous to it."

43. As has been already noticed, Sarathy's case i.e. (2000) 5 SCC 355 has also held that the court referred to in Section 14 would include a quasi-judicial tribunal. There appears to be no reason for limiting the reach of the expression "prosecuting with due diligence" to institution of a proceeding alone and not to the date on which the cause of action for such proceeding might arise in the case of appellate or revisional proceedings from original proceedings which prove to be abortive. Explanation (a) to Section 14 was only meant to clarify that the day on which a proceeding is instituted and the day on which it ends are also to be counted for the purposes of Section 14. This does not lead to the conclusion that the period from the cause of action to the institution of such

C/CRA/145/2016 ORDER DATED: 12/09/2022

proceeding should be left out. In fact, as has been noticed above, the explanation expands the scope of Section 14 by liberalizing it. Thus, under explanation

(b) a person resisting an appeal is also deemed to be prosecuting a proceeding. But for explanation (b), on a literal reading of Section 14, if a person has won in the first round of litigation and an appeal is filed by his opponent, the period of such appeal would not be liable to be excluded under the Section, leading to an absurd result.

That is why a plaintiff or an applicant resisting an appeal filed by a defendant shall also be deemed to prosecute a proceeding so that the time taken in the appeal can also be the subject matter of exclusion under Section 14. Equally, explanation (c) which deems misjoinder of parties or a cause of action to be a cause of a like nature with defect of jurisdiction, expands the scope of the section. We have already noticed that the India Electric Works Ltd. judgment has held that strictly speaking misjoinder of parties or of causes of action can hardly be regarded as a defect of jurisdiction or something similar to it. Therefore properly construed, explanation (a) also confers a benefit and does not by a side wind seek to take away any other benefit that a purposive reading of Section 14 might give. We, therefore, agree with the decision of the Madhya Pradesh High Court that the period from the cause of action till the institution of appellate or revisional proceedings from original proceedings which prove to be abortive are also liable to exclusion under the Section. The view of the Andhra Pradesh High Court is too broadly stated. The period prior to institution of the initiation of any abortive proceeding cannot be excluded for the simple reason that Section 14 does not enable a litigant to get a benefit beyond what is contemplated by the Section - that is to put the litigant in the same position as if the abortive proceeding had never taken place. What applies to the facts of this case: the limitation period in Section 128 pre-amendment or post amendment"

8. As per the considered opinion of this Court, the concerned delay was required to be condoned, in view of the

C/CRA/145/2016 ORDER DATED: 12/09/2022

settled proposition of law, hence, the impugned order is quashed and set aside. Civil Misc. Application No.8 of 2016, seeking condonation of delay, is ordered to be restored to its original file. The concerned Appellate Bench of Small Cause at Ahemdabad, shall accordingly pass appropriate orders, as per the observations made by this Court. After the order is passed, the appeal filed by the applicants shall be restored to its original file. Since it is noticed that the parties are litigating since the year 2004, the civil appeal filed against the judgment and decree dated 09.01.2008 passed in H.R.P. Suit No.2255 of 2004, shall be heard expeditiously preferably within a period of eight months from the date of receipt of writ of this order.

9. The civil revision application stands disposed of accordingly.

(A. S. SUPEHIA, J) MAHESH BHATI/48