[Cites 3, Cited by 0]

Himachal Pradesh High Court

Reserved On: 08.01.2026 vs Rajeev Kumar on 23 February, 2026

                                                                                     2026:HHC:3561



    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                              Cr. MP(M) No. 88 of 2025




                                                                                   .
                                              Reserved on: 08.01.2026





                                              Date of Decision: 23.02.2026.
    ______________________________________





    M/s Bharti Filling Station through its Proprietor
                                                                       ...Applicant/Appellant




                                                     of
                                           Versus

    Rajeev Kumar                                                                 ...Respondent


    Coram
                           rt
    Hon'ble Mr Justice Rakesh Kainthla, Judge.

    Whether approved for reporting?1 Yes

    For the Applicant/Appellant :                      Mr Naveen K. Dass, Advocate.


    For the Respondent                          :      Mr Naveen Awasthi, Advocate.




    Rakesh Kainthla, Judge

The present application has been filed for condonation

of 01 year, 11 months and 05 days' delay in filing the appeal. It has

been asserted that the applicant was suffering from cancer and

was under treatment. He filed Cr.MMO No. 890 of 2023, but it was

withdrawn. The applicant approached another counsel who has

filed the present application. The delay in filing the appeal is not

willful but due to the circumstances beyond the applicant's

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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control. Hence, it was prayed that the present application be

allowed and the delay in filing the appeal be condoned.

2. The application is opposed by filing a reply taking

preliminary objections regarding the lack of maintainability, and

the applicant having not approached the Court with clean hands.

of It was asserted that the application had been filed to harass the

respondent. The long delay in filing the appeal has not been rt explained. The applicant failed to pursue the complaint from

October, 2018 till its dismissal on 01.07.2022. The applicant had

no sufficient cause for condonation of the delay. Hence, it was

prayed that the present application be dismissed.

3. I have heard Mr Naveen K. Dass, learned counsel for

the applicant and Mr Naveen Awasthi, learned counsel for the

respondent.

4. Mr Naveen K. Dass, learned counsel for the applicant,

submitted that the applicant was suffering from cancer due to

which he could not appear before the Court. He filed the petition,

which was registered as Cr.MMO No. 890 of 2023, and was

withdrawn. The time spent in pursuing the petition should be

deducted while computing the limitation in the present case.

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Hence, he prayed that the present application be allowed and the

delay in filing the appeal be condoned.

5. Mr Naveen Awasthi, learned counsel for the

respondent/accused, submitted that the applicant did not appear

before the learned Trial Court for more than 4 years, and the

of learned Trial Court dismissed the complaint for non-prosecution.

The application was not filed within the period of limitation, and rt the applicant has failed to assign any reason for condonation of

the delay. Hence, he prayed that the present application be

dismissed.

6. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

7. The record shows that the complaint was dismissed on

01.07.2022, and the present petition was filed on 24.05.2024. A Cr.

MMO No. 890 of 2023 was filed, which was withdrawn on

25.09.2023. It was submitted that the Cr.MMO was withdrawn

because of a lack of jurisdiction, and the time spent in pursuing

the CrMMO should be excluded while computing the limitation

for filing the appeal. This submission cannot be accepted. There is

nothing in the order to show that the Court had no jurisdiction to

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hear and entertain the Cr.MMO filed by the

applicant/complainant. Thus, the necessary condition under

Section 14 of the Limitation Act that the Court is unable to hear

the matter because of a lack of jurisdiction is not satisfied, and

the time spent in pursuing the application cannot be condoned. It

was laid down by the Punjab and Haryana High Court in

of Bakhtawar Singh v. Sada Kaur, 1986 SCC OnLine P&H 507, that

where the matter was withdrawn but there was no finding that rt the Court was unable to hear and entertain the matter due to

defect in the jurisdiction, the benefit of Section 14 of the

Limitation Act cannot be provided to the person. It was observed:

"It is quite evident that if the said suit was allowed to be withdrawn on account of a formal defect in the jurisdiction

of the Court or other cause of a like nature, only then the plaintiffs were entitled to claim the benefit of the above-

said provision, or in view of clause (c) to the Explanation thereto, they could prove that the suit was allowed to be

withdrawn due to the defect of misjoinder of parties or causes of action because that shall be deemed to be the cause of a like nature with defect of jurisdiction. As observed earlier, no effort was made by the plaintiffs to prove the formal defect on the basis of which the former suit was allowed to be withdrawn. The only ground given in the order Exhibit P. 11, in this behalf, is that there were formal defects in the frame of the suit. Apart from that, there is no other evidence to come to the conclusion as to whether the earlier suit was bound to fail by reason of the defect in the jurisdiction of the Court or because of some other cause of a like nature. That being so, the authorities

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relied upon by the learned counsel for the appellants have absolutely no applicability to the facts of the present case. Moreover, the present suit is not being contested on the

.

ground that it wasnot maintainable because the earlier

order was defective or was not passed by a competent Court. The plaintiffs were not being non-suited on the ground that the suit was not maintainable. Rather, their

suit was dismissed as barred by limitation. Moreover, rule 2 of Order XXIII of the Code of the Civil Procedure provides that in any fresh suit instituted on permission granted

of under rule 1 of this Order, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. Thus, it is quite clear that the plaintiffs could not claim extension of limitation because rt the earlier suit was allowed to be withdrawn with permission to file a fresh suit on the same cause of action.

Extension of time could be claimed under subsection (3) of section 14 of the Act, only which the plaintiffs, in the present case, have failed to prove by leading any evidence, much less cogent. It cannot he disputed that the time spent

in prosecuting the earlier suit could be excluded if the permission to withdraw the suit was granted on the ground that the suit was bound to fail by reason of the defect in the

jurisdiction of the Court or other cause of a like nature such as misjoinder of parties or the causes of action as provided

in clause (c) to the Explanation to section 14 of the Act.

8. While dealing with sub section (3) of section 14 of the

Act, it was held by this Court in Johri Mal v. Surjan Singh, 1970 Punjab Law Reporter 385, that the plaintiff before taking advantage of sub section (3) of section 14 must establish all the essential conditions namely due diligence, good faith and that the suit would have failed by reason of the defect in jurisdiction of the Court or other cause of the like nature. The expression other cause of like nature" of howsoever wide amplitude has to be read ejusdem generis, and along with the earlier part of the same provision, which relates to the defect of jurisdiction of the Court. It was further held therein that it was not possible to lay down an exhaustive list of all causes showing a defect of

2026:HHC:3561

jurisdiction, and each case will depend on its own facts and circumstances. The Legislature in clause (c) of the Explanation to section 14 of the Act has provided that

.

misjoinder of parties or of causes of action shall be deemed

to be a cause of the like nature with a defect of jurisdiction. In the said case, it was contended on behalf of the plaintiff-appellant in this Court that the plea of res

judicata was also involved, and that was a defect which related to the jurisdiction of the Court. In this regard, it was observed by the learned Single Judge as follows:

of "I am afraid there is no merit in this contention. It is true that the words, 'other cause of a like nature' must be liberally construed, but it has to rt be kept in mind that they have to be given a meaning ejusdem generis with and analogous to the words preceding them. They connote that the

suit must be one which the Court could not entertain because of those defects. There must be a defect that affects the inherent capacity of the Court to entertain the suit and prevent it from

trying the same. The mere fact that a plea of res judicata had been taken in the written statement would not have prevented the Court from

entertaining the suit and deciding the same. The plea of the bar of res judicata is not such a question

which can be said to relate to the jurisdiction of the Court or other cause of like nature within the

meaning of section 14 of the Limitation Act.

9. In Gurdit Singh's case and Zafar Khan's case (supra), it was sub-section (1) of section 14 of the Act which came up for consideration before the Supreme Court. While interpreting the same words "or other cause of a like nature" therein, in Gurdit Singh's case (supra), it was observed--

"Now the words 'or other cause of a like nature' which follow the words 'defect of jurisdiction' in the above-quoted provision are very important. Their scope has to be determined according to the

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rule of Ejusdem Generis. According to that rule, they take their colour from the preceding words 'defect of jurisdiction', which means that the

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defect must have been of an analogous character,

barring the Court from entertaining the previous suit."

In this view of the matter. I do not find any infirmity or

illegality in the findings of the Courts below as to be interfered with in the second appeal. The suit has been rightly held to be barred by time, as in this case, the

of plaintiffs were not entitled to claim extension of time under sub-section (3) of section 14 of the Act.

8. A similar view was taken in Md. Akhtar Hossaln v.

rt Suresh Singh, 2003 SCC OnLine Cal 41: AIR 2004 Cal 99, wherein it

was observed at page 103

25. Considering the aforesaid submissions made on behalf

of the respective parties and also considering the materials on record, I am of the view that the learned Munsif never terminated the earlier litigation by allowing withdrawal on

the ground of defect regarding jurisdiction or other causes of a like nature. As a matter of fact, the learned Munsif,

while allowing withdrawal of the earlier Title Suit No. 373 of 1970, did not adjudicate on the question of jurisdiction of the Court and did not mention any defect regarding the

jurisdiction of the Court for entertaining the said earlier Title Suit No. 373 of 1970.

9. Similar considerations will apply to the present case.

10. It was submitted that the applicant was diagnosed

with cancer, and he could not pursue the matter due to his

ailment. This submission is also not acceptable. The applicant has

relied upon the report of PET and CT, in which post-surgical

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changes were noticed. This report is dated 19.9.2018, and the

complaint was dismissed on 01.07.2022. There is no material on

record to show that the applicant was suffering from any illness

in the year 2022 and was prevented from approaching the Court

due to his ailment. Thus, the plea that the applicant had a