Uttarakhand High Court
5 May vs Amitabh Kumar & Others on 15 May, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:3938
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition Misc. Single No. 194 of 2025
15 May, 2025
Ashwani Kumar ... Petitioner
Versus
Amitabh Kumar & others ... Respondents
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Presence:-
Mr. Yogesh Pant, learned counsel for the petitioner.
Mr. Piyush Garg, learned counsel for the respondent/caveator.
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Hon'ble Manoj Kumar Tiwari, J
JUDGMENT
1. By means of this petition filed under Article
227 of the Constitution of India, petitioner has sought
the following reliefs:-
(i) To set aside the order dated 30.11.2024 (contained as
Annexure No. 1) passed by the Ld. District Judge,
Rudrapur, District Udham Singh Nagar, in Revision Case
No. 47 of 2022 namely, "Ashwini Kumar Vs. Amitabh
Kumar and Others" along with the order passed by the
Ld. IInd Add. Senior Civil Judge, Rudrapur, District
Udham Singh Nagar, dated 12.09.2022 (contained as
Annexure No. 2) passed in Misc. Civil Application No. 15
whereby, the Misc. Civil Application No. 15 of 2020 filed
for restoration of the Civil Suit No. 43 of 2011 is
dismissed.
(ii) To allow the restoration application (contained as
Annexure No. 7) filed by the petitioner and to restore
the original civil suit in its original number 43 of 2011
namely "Ashwini Kumar Vs Amitabh Kumar & Others"
by setting aside the order dated 08.101.2014
(contained as Annexure No. 3) & 12.11.2014
(contained as Annexure No. 4) passed by the Ld. IInd
Add. Civil Judge (SD), Rudrapur, District Udham Singh
Nagar.
2. Facts of the case, on which there is no
dispute, are as follows:-
(i) Sister of the petitioner (Mrs. Ajanta Sharma)
filed an application on 02.02.2011 for mutating her
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name in revenue record before Tehsildar, Kichha
(Udham Singh Nagar) on the strength of a Will,
alleged to have been executed in her favour by her
father Late Vishnu Dutt, on 11.05.2010. The said
application was numbered as Mutation Case No.
30/352 of 2010-11.
(ii) After coming to know about the Will dated
11.05.2010, petitioner filed a suit for cancellation of
said Will before 2nd Additional Civil Judge (S.D.),
Rudrapur, District Udham Singh Nagar, which was
numbered as Civil Suit No. 43 of 2011. After few
months, petitioner moved an application for
withdrawal of Civil Suit No. 43 of 2011 in order to
pursue the mutation case filed by his sister before
Tehsildar and the said application was allowed and
the suit filed by him was dismissed as withdrawn,
vide order dated 12.11.2014.
(iii) Proceedings of Mutation Case No.
30/352 of 2010-11 were kept in abeyance due to
filing of suit for cancellation of Will by the petitioner,
however, after withdrawal of the suit, proceedings of
mutation case were revived. The mutation case was
decided against the petitioner and WPMS No. 3919 of
2019, filed by the petitioner challenging the orders
passed by revenue authorities, was also dismissed by
coordinate Bench of this Court, vide judgment dated
27.02.2020.
(iv) After dismissal of his writ petition,
petitioner moved an application for recall of the order
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dated 12.11.2014, whereby the suit was dismissed as
withdrawn, and also for restoration of Civil Suit No.
43 of 2011. Since there was delay of 2122 days in
moving the recall/restoration application, therefore,
petitioner claimed benefit of Section 14 of the
Limitation Act, 1963. Learned trial court vide order
dated 12.09.2022 held that benefit of Section 14
cannot be given to him and rejected his prayer for
condonation of delay. Petitioner challenged the order
passed by trial court by filing Civil Revision No. 47 of
2022, which was dismissed by learned District Judge,
Udham Singh Nagar, vide judgment dated
30.11.2024.
3. Petitioner has challenged the order passed by
trial court, as affirmed by revisional court, in this writ
petition.
4. Heard learned counsel for the parties and
perused the record.
5. Both the learned courts below have held that
benefit of the time spent by petitioner, in pursuing the
mutation case before revenue authorities, cannot be
given under Section 14 of the Limitation Act. Learned
revisional court further held that benefit of Section 14
can be given only when the proceeding, which
petitioner was prosecuting before some other forum,
was not entertained due to defect of jurisdiction or
some other cause of like nature. Revisional court
further held that after losing the mutation case and
after dismissal of his writ petition by High Court,
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petitioner cannot be permitted to turn around and seek
restoration of the suit for cancellation of Will by
invoking Section 14 of the Limitation Act. The reasoning
given by learned trial court, as affirmed by learned
revisional court, cannot be faulted.
6. Section 14 of the Limitation Act, 1963 is
extracted below for ready reference:-
"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
2025:UHC:3938
of jurisdiction."
7. Section 14 of the Limitation Act protects a
person honestly doing his best to get his case tried on
merits, but failing, as the court he approaches is unable
to give him such a trial. In order to attract the
provision of Section 14, following conditions must be
satisfied, as held by Hon'ble Supreme Court in the case
of Consolidated Engg. Enterprises v. Principal
Secretary, Irrigation Department & others, reported in
(2008) 7 SCC 169:-
(1) Both the prior and subsequent proceedings are civil
proceedings prosecuted by 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.
8. An element of mistake is inherent in the
invocation of Section 14. The Section is intended to
provide relief against the bar of limitation in cases of
mistaken remedy or selection of a wrong forum.
9. Now coming back to the facts of the present
case. Petitioner earlier approached a civil court, which
was the appropriate forum for the relief claimed by
him, but later he withdrew the suit in order to pursue
the remedy before Tehsildar in mutation case, which
was filed by his sister on the strength of the Will, which
petitioner had challenged in the civil suit.
10. Mutation proceedings are summery in nature
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in which question of title is not decided. Law is well
settled that mutation in revenue records neither
creates nor extinguishes title, as it is done only for
fiscal purpose, i.e. collection of land revenue. After
losing the mutation case, petitioner sought restoration
of the civil suit earlier filed by him for cancellation of
the Will. Thus, the conditions, as set out in the
judgment, rendered in the case of Consolidated Engg.
Enterprises (supra), are not satisfied.
11. It is not a case where a person earlier
approaches a wrong forum or the earlier proceedings
failed due to defect of jurisdiction or other cause of like
nature. Petitioner himself withdrew the civil suit, filed
by him before appropriate forum, for pursuing the
remedy before Tehsildar in mutation proceedings; thus,
he left the proper forum for pursuing remedy before a
forum which was not competent to decide the question
of title or validity of Will, therefore, he cannot get
benefit of Section 14 of the Limitation Act for
restoration of earlier suit.
12. Even otherwise also, one of the conditions for
application of Section 14 is that both, prior and
subsequent proceedings, are civil proceedings, whereas
in the present case, the mutation proceedings before
Tehsildar are not civil proceedings. Hon'ble Supreme
Court in the case of Zafar Khan & others vs. Board of
Revenue, U.P. & others reported in 1984 (Supp) SCC 505
has held as under:-
"13. In order to attract the application of Section 14(1),
the parties seeking its benefit must satisfy the court that :
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(i) that the party as the plaintiff was prosecuting another
civil proceeding with due diligence; (ii) that the earlier
proceeding and the later proceeding relate to the same
matter in issue, and (iii) the former proceeding was being
prosecuted in good faith in a court which, from defect of
jurisdiction or other cause of a like nature, is unable to
entertain it. It may be assumed that the earlier
proceeding under Section 144 of the Code of Civil
Procedure was a civil proceeding for the purpose of
Section 14. It may as well be assumed in favour of the
appellants that they were prosecuting the same with due
diligence and in good faith, as they relentlessly carried the
proceeding upto the High Court invoking its extraordinary
jurisdiction. The first of the aforementioned three
cumulative conditions can be said to have been satisfied.
14. The appellants must further satisfy the court that the
earlier proceeding i.e. the one under Section 144 of the
Code of Civil Procedure related to the same matter in
issue, as in the present suit. There the appellants are not
on sure ground. In a proceeding under Section 144 of the
Code of Civil Procedure, the party applying for restitution
has to satisfy the court of first instance that a decree
under which it was made to part with the property is
varied or reversed or modified in appeal or revision or
other proceeding or is set aside or modified in any suit
instituted for the purpose and therefore, restitution must
be ordered. Section 144 is founded on the equitable
principle that one who has taken advantage of a decree of
a court should not be permitted to retain it, if the decree
is reversed or modified. That is why the marginal note to
Section 144(1) reads "application for restitution" and the
word "restitution" in its etymological sense means
restoring to a party on the modification, variation or
reversal of a decree what has been lost to him in
execution of the decree or in direct consequence of the
decree. In such a proceeding, the party seeking restitution
is not required to satisfy the court about its title or right to
the property save and except showing its deprivation
under a decree and the reversal or variation of the decree.
On the reversal by the Board of Revenue in the appeal
filed by the appellants of the order of the Additional
Commissioner under which the respondents obtained
possession, the appellants merely claimed in their
application under Section 144 that in view of the reversal
of the order by the Board of Revenue the respondents are
not entitled to retain possession and that restitution
should be ordered because the appellants lost possession
under the order of the Additional Commissioner which was
reversed by the Board of Revenue. The cause of action
was the reversal of the order of the Additional
Commissioner. When they failed to obtain restitution, the
appellants filed a substantive suit under Sections 209 and
229-B of the 1950 Act in which they claimed that they
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have become the bhumidhars of the plots in dispute and
that the respondents are not entitled to retain possession
as their possession is not in accordance with the
provisions of 1950 Act. It was a suit on title as
bhumidhars for possession against respondents alleging
unauthorised retention of possession. It had nothing to do
with the order of the Additional Commissioner. In this suit
the appellants were bound to prove that the respondents
were not entitled to retain possession under any of the
provisions of the 1950 Act. Incidentally, the order of the
Additional Commissioner and its reversal would figure as
evidence but it is difficult to accept that the subsequent
proceeding relates to the same matter in issue as was
involved in the earlier proceeding. In the application under
Section 144 Code of Civil Procedure only allegation to be
proved for relief of restitution is that the decree or order
under which respondents obtained possession from
appellants has been reversed, modified or varied. They
need not prove title or right to be in possession. In the
suit, not only title to the land as bhumidhar must be
proved but also the respondents had not a tittle of title to
retain possession. And respondents can allege and prove
that under the very 1950 Act under which appellants
became bhumidhars, the respondents have become
adhivasis entitled to retain possession against the
appellants. This defence was not open to them in the
proceeding under Section 144. It was, however, submitted
that the appellants were seeking, in both the proceedings,
possession of the plots involved in the dispute on the
ground that they are ultimately entitled to the possession
thereof and the possession of the respondents vis-à-vis
the appellants was unauthorised and they were not
entitled to retain possession against the appellants. This is
far from convincing. One can at best say there is a grey
area and that as the provision of Section 14 is required to
be construed liberally, therefore we may not have denied
the benefit if this was the only aspect against the
appellants.
15. The question however is whether the third condition
for attracting Section 14(1) is satisfied. The appellants
must further satisfy the court that the earlier proceeding
failed on account of defect of jurisdiction or other cause of
a like nature. Now at no stage it was contended that the
authority to whom the application was made for
restitution had no Jurisdiction to entertain the application,
nor through the course of the proceedings upto the High
Court anyone, anywhere, questioned the jurisdiction of
the authority to grant restitution. Therefore, it can be
safely said that the previous proceeding did not fail on
account of defect of jurisdiction.
16. The next limb of the submission was that as in the
former proceeding restitution was refused on the ground
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that in the proceeding under the 1953 Act the land in
dispute was allotted to the respondents and the allotment
had become final, it can safely be said that the proceeding
failed on account of a cause of like nature such as defect
of jurisdiction and the appellants would be entitled to
exclude the time spent in that proceeding while computing
the period of limitation in the suit. It is true that where
the expression as a whole reads "from defect of
jurisdiction or other cause of a like nature, is unable to
entertain it", the expression "cause of a like nature" will
have to be read ejusdem generis with the expression
"defect of jurisdiction". So construed the expression "other
cause of a like nature" must be so interpreted as to
convey something analogous to the proceeding words
"from defect of jurisdiction". The defect of jurisdiction
goes to the root of the matter as the court is incompetent
to entertain the proceeding. The proceeding may as well
fail for some other defect. Not all such defects can be said
to be analogous to defect of jurisdiction. Therefore the
expression "other cause of a like nature" on which some
light is shed by the Explanation (c) to Section 14 which
provides "misjoinder of parties or of causes of action shall
be deemed to be a cause of a like nature with defect of
jurisdiction", must take its colour and content from the
just preceding expression, "defect of jurisdiction". Prima
facie it appears that there must be some preliminary
objection which if it succeeds, the court would be
incompetent to entertain the proceeding on merits, such
defect could be said to be "of the like nature" as defect of
jurisdiction. Conversely if the party seeking benefit of the
provision of Section 14 failed to get the relief in earlier
proceeding not with regard to anything connected with the
jurisdiction of the court or some other defect of a like
nature, it would not be entitled to the benefit of Section
14. Where, therefore, the party failed in the ealier
proceeding on merits and not on defect of jurisdiction or
other cause of a like nature, it would not be entitled to the
benefit of Section 14 of the Limitation Act. (See India
Electric Works Ltd. v. James Mantosh [(1971) 1 SCC 24 :
AIR 1971 SC 2313 : (1971) 2 SCR 397].)"
13. In view of the legal position, as discussed
above, any interference with the impugned judgment
and orders would be unwarranted. Thus, the writ
petition fails and is hereby dismissed.
________________________
MANOJ KUMAR TIWARI, J.
15.05.2025
Aswal
NITI RAJ
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF
2.5.4.20=eacc6757ee7881e933ff8934f07477005aa85f9802a3a08b0
SINGH ASWAL
8d1369512ea30f3, postalCode=263001, st=UTTARAKHAND,
serialNumber=44EB54CBF00B7698CB6F10C2CE3D26F5C22DACF4
F4610C1FE58A58531726FBB0, cn=NITI RAJ SINGH ASWAL
Date: 2025.06.05 07:57:02 -07'00'
