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Case Number

Civil Revn. No. 801 of 1953

Attorney(S)

Harnandan Prasad and Yashoda Nandan
B.N. Sapru
G.P. Bhargava and N.D. Ojha

Judges

Brij Mohan Lall, J.

Acts

Article 3 of the Schedule to the Limitation Act
SECTION 14 LIMITATION ACT
SECTION 9 SPECIFIC RELIEF ACT

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Smart Summary

Summary of the Opinion

Factual and Procedural Background

This is a revision application filed by a defendant against whom a suit for possession under Section 9 of the Specific Relief Act was decreed by the learned Munsif of Gyanpur, district Banaras. The Munsif found that the plaintiffs (opposite parties 1 and 2) were in peaceful possession of the disputed land and were dispossessed on 12-7-1949 by the applicant and others (opposite parties 3 to 6). The suit was instituted in the Munsif's Court on 21-12-1949. On 3-4-1950 the plaint was ordered to be returned for presentation to the "proper Court" (meaning the revenue Court) and was actually returned on 4-4-1950 and presented to the revenue Court the same day. On 6-6-1951 the revenue Court held the suit cognizable by the civil Court and ordered the plaint to be returned for re-presentation. The plaint was actually returned on 4-7-1951 and re-presented to the Munsif, who entertained it and ultimately decreed the suit. The only legal question before the revisional court was whether the suit was time-barred, having been presented to the Munsif after the six-month period prescribed by Article 3 of the Schedule to the Limitation Act.

Legal Issues Presented

Whether the suit for possession under Section 9 of the Specific Relief Act was barred by limitation (i.e., whether the plaintiffs' suit was instituted within the six months prescribed by Article 3 of the Limitation Act from the date of dispossession).
Whether the plaintiffs could exclude from limitation the period during which the plaint remained pending in the revenue Court by invoking Section 14 of the Limitation Act (which permits exclusion where a plaintiff has been prosecuting with due diligence another civil proceeding in a Court unable to entertain it for defect of jurisdiction or similar cause).
Whether the exclusion for the pendency of the prior proceeding runs up to the date of the order for return of plaint or up to the date of the actual return of the plaint.
Whether the time during which the plaint remained in the Munsif's Court on the first presentation should be excluded.

Arguments of the Parties

Applicant / Defendant's Arguments

The applicant maintained that the suit was time-barred because the presentation before the Munsif on 4-7-1951 was beyond six months from the date of dispossession (12-7-1949) as measured by Article 3 of the Limitation Act.
The applicant's counsel objected to a petition read from by the plaintiffs' counsel that purportedly admitted lack of jurisdiction in the Munsif's Court and contended that such documents were not on record and should not be considered.
The applicant relied on the decision in Sadayatan Pande v. Ram Chandra (AIR 1934 All 688 (FB)) to argue that Section 14 of the Limitation Act could not be invoked in the present circumstances (the court treated this authority as distinguishable in the opinion).

Plaintiffs / Respondents' Arguments

The plaintiffs contended that the suit was instituted within time when the period spent prosecuting the plaint in the revenue Court is excluded under Section 14 of the Limitation Act, because they had been prosecuting with due diligence another civil proceeding (presentation before the revenue Court) in good faith in a Court which, by defect of jurisdiction or cause of a like nature, was unable to entertain it.
They relied on the fact that the Munsif had originally directed presentation to the revenue Court, and that the then-prevailing judicial view (following a decision in Beni Madho Singh) made it reasonable and bona fide for them to present the plaint to the revenue Court.
The plaintiffs asserted they acted in good faith and that any delay between the order for return and the actual return of the plaint was not attributable to them; the plaint was actually returned within a month of the order for return.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Beni Madho Singh v. Prag, AIR 1949 All 510	Had contributed to the then-prevailing view that suits involving agricultural holdings would be entertained by the revenue Court (single-Judge decision that influenced practice in 1949).	Used to explain why the plaintiffs, acting in good faith, presented the plaint to the revenue Court after being directed to do so; justified treating their conduct as bona fide reliance on existing authoritative view.
Jagdish Singh v. Mehi Lal Mullah, 1950 All LJ 645	Part of subsequent authorities which took a different view from Beni Madho Singh regarding the forum competent to entertain such suits.	Held to have influenced the revenue Court's decision (on 6-6-1951) to return the plaint for re-presentation to the civil Court because civil courts could entertain Section 9 Specific Relief suits.
Ganga Din v. Gokul Prasad, AIR 1950 All 407	Also part of the later decisions indicating civil courts could entertain such suits.	Also treated as influencing the revenue Court to return the plaint for re-presentation to the civil Court.
Jafar Uddin v. Debt Prasad, AIR 1939 All 590	Interpreted Explanation I to Section 14 of the Limitation Act to mean that the period to be excluded may extend up to the day of the actual return of the plaint (i.e., the day on which the proceedings in the former suit ended).	The court noted this interpretation and agreed that in a majority of cases exclusion should run up to the date of actual return, but declined to treat that as an inflexible rule; instead the court adopted a case-by-case approach and excluded up to the actual return in the present case because delay was not attributable to the plaintiffs.
Sadayatan Pande v. Ram Chandra, AIR 1934 All 688 (FB)	Held that where a plaintiff withdraws a suit under Order 23, Rule 1 (with permission to institute again), Section 14 could not be availed of on re-presentation; fresh suit is to be governed by limitation as if the first suit had not been instituted.	The court distinguished this authority from the present facts: there was no withdrawal under Order 23, Rule 1 in the present case, so the principle in Sadayatan Pande did not apply.

Court's Reasoning and Analysis

The court accepted the Munsif's factual findings that the plaintiffs were dispossessed on 12-7-1949 and that the plaintiffs had been in peaceful possession before dispossession. Article 3 of the Schedule to the Limitation Act prescribes six months from the date of dispossession for instituting a Section 9 Specific Relief Act suit; the plaint was presented again before the Munsif on 4-7-1951, which was beyond six months from dispossession.

The plaintiffs invoked Section 14 of the Limitation Act to exclude the time during which they were prosecuting another civil proceeding (the presentation before the revenue Court). Section 14 permits exclusion where the plaintiff has been prosecuting "with due diligence another civil proceeding" founded on the same cause of action and "prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it."

The court examined (a) whether the revenue Court was a Court unable to entertain the suit and (b) whether the plaintiffs acted in good faith and with due diligence. The court concluded that law was settled that a dispossession suit under Section 9 of the Specific Relief Act can be maintained in civil courts even if the property is agricultural land; therefore the revenue Court lacked jurisdiction to entertain the suit. However, the plaintiffs had acted bona fide: they were directed by the Munsif to present the plaint to the revenue Court and, given the then-prevailing judicial view (following Beni Madho Singh), it was reasonable for them to believe the revenue Court was competent. On these facts, Section 14 applied and the time spent in the revenue Court could be excluded.

The court then considered whether the exclusion should run up to the date of the order for return of the plaint (6-6-1951) or up to the date of actual return (4-7-1951). Relying on Explanation I to Section 14 and the authority in Jafar Uddin v. Debt Prasad, it acknowledged that the phrase "the day on which the proceedings therein ended" has been construed to mean the day of actual return, but held that this is not an absolute rule. The court adopted a fact-driven approach: if delay in actual return is due to office formalities and is reasonable, exclusion may extend to actual return; if delay is due to the plaintiff's refusal or other plaintiff-caused delay, exclusion should stop when the plaint was tendered back to the plaintiff. In the present case the actual return occurred within a month of the order for return, and there was nothing to indicate plaintiffs caused or resisted the return; therefore the court excluded the period up to the date of actual return (4-7-1951).

The court also considered whether the time during which the plaint initially remained in the Munsif's Court should be excluded. It found the Munsif's Court was not a Court lacking jurisdiction — despite a contemporaneous belief to the contrary — and that even if a petition (not on record) showed plaintiffs admitted lack of jurisdiction, that admission did not establish mala fides. Moreover, Section 14 may be attracted not only by defect of jurisdiction but also by "any cause of a like nature," and since parties and the court believed there was lack of jurisdiction, that belief constituted a cause of a like nature for the purpose of Section 14. Thus the court accepted the Munsif's approach of extending benefit under Section 14.

Finally, the court distinguished Sadayatan Pande v. Ram Chandra, noting that the facts there involved withdrawal under Order 23, Rule 1 — a procedural situation covered by a special provision which makes limitation run as if the first suit had not been instituted — whereas in the present case there was no withdrawal under that provision. Accordingly, Sadayatan Pande was inapplicable.

Holding and Implications

Holding: The revisional court affirmed the learned Munsif's decision. The court held that the plaintiffs were entitled to the benefit of Section 14 of the Limitation Act and that the period during which the plaint remained pending in the revenue Court (up to the date of actual return, 4-7-1951) was to be excluded for computing limitation. Consequently, the learned Munsif had rightly treated the suit as having been filed within time. The revision is therefore DISMISSED and dismissed with costs.

Implications: The direct consequence is that the decree for possession made by the Munsif stands and the revision fails. The court applied established principles concerning:

the applicability of Section 14 of the Limitation Act where a plaintiff has prosecuted another civil proceeding in good faith before a court unable to entertain it (or where there is a cause of a like nature),
the interpretation of Explanation I to Section 14 regarding whether exclusion extends to the date of actual return of the plaint, and
the inapplicability of Sadayatan Pande where the prior suit was not withdrawn under Order 23, Rule 1 CPC.

The opinion did not purport to lay down a newly formulated general rule beyond the case-by-case approach it applied to the duration of exclusion under Explanation I; it primarily affirmed the Munsif's application of existing statutory provisions and authorities to the facts before it.

End of summary — based exclusively on the provided opinion text.

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Ram Lakhan v. Tulsha

1. This is an application in revision by a defendant against whom a suit for possession instituted under Section 9 of the Specific Relief Act has been decreed by the learned Munsif of Gyanpur, district Banaras. The plaint allegations, which have been found to be correct by the learned Munsif, are that the plaintiffs (opposite parties 1 and 2) were in peaceful possession of the land in dispute but they were, without their consent and otherwise than in due course of law, dispossessed therefrom by the applicant and other persons who were Impleaded in the Court below as co-defendants and who are arrayed in this revision as opposite parties 3 to 6. These findings of fact have to be accepted as correct in these proceedings.

2. The only question of law that arises for decision is whether the suit was time-barred. In order to appreciate this question, it is necessary to mention certain facts. The plaintiff's dispossession took place on 12-7-1949. The suit was instituted in the Munsif's Court on 21-12-1949. On 3-4-1950 the plaint was ordered to be returned for presentation to “proper Court” by which term was meant the revenue Court. The plaint was actually returned on the next day, i.e on 4-4-1950. It was presented in the revenue Court the same day. On 6-6-1951 the revenue Court held that the suit was cognizable by the civil Court. It ordered the plaint to be returned for re-presentation to the said Court.

3. The plaint was actually returned on 4-7-1951 on which date it was again presented before the learned Munsif who entertained it. This presentation was certainly made beyond the period of six months from the date of actual dispossession. Article 3 of the Schedule to the Limitation Act prescribes a period of six months calculated from the date of dispossession for instituting a suit under Section 9 of the Specific Relief Act.

4. The plaintiffs sought to invoke to their aid the provisions of Section 14 of the Limitation Act. Under this section a plaintiff can exclude from computation the period during which he

“has been prosecuting with, due diligence another civil proceeding, whether in a court of first instance or in a Court of appeal, against the defendant”

5. Where the proceeding

“is founded upon the same cause of action 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”.

6. The learned Munsif has held that the plaintiffs were entitled to the benefit of this section. He has also pointed out the reason why the plaintiffs were driven from pillar to post. It appears that in 1949 the view prevalent in Courts was that a suit like the present, where the property in dispute was agricultural holdings, would be entertained by the revenue Court. This belief was brought about by a decision of a single Judge of this Court reported in — ‘Beni Madho Singh…Plaintiff Applicant; v. Prag…Defendant Opposite Party.’, AIR 1949 All 510 (A). This view appears to have been in force when the order dated 3-4-1950 directing the return of the plaint for presentation to revenue Court was passed.

7. Subsequent decision took a different view. These decisions are reported in — ‘Jagdish Singh v. Mehi Lal Mullah’, 1950 All LJ 645 (B) and — ‘Ganga Din v. Gokul Prasad’, AIR 1950 All 407 (C). These decisions apparently influenced the decision of the revenue Court which, Obviously acting on these authorities, returned the plaint for re-presentation to the civil Court.

8. The law is now well settled that, if a plaintiff claims to be in possession and makes a grievance of the fact that he was dispossessed by the defendant without his consent and otherwise than in due course of law, he can maintain the suit in the civil Court under Section 9 of the Specific Relief Act, notwithstanding the fact that the property in dispute may be agricultural land. Therefore, there can be no doubt that the revenue Court was a Court which could not entertain the suit on account of want of jurisdiction. At the same time, there can be no doubt that the plaintiffs had acted ‘bona fide’ in presenting the plaint to the revenue Court. They had been directed by the Munsif to present the plaint there and, according to the state of law as then understood, the suit was believed to be entertainable by the revenue Court only. Therefore, the plaintiffs are entitled to claim exclusion of the period spent in the revenue Court.

9. The next question that arises for decision is as to whether the period of the pendency of the suit in the revenue Court is to be calculated, up to 6-6-1951, on which date the order for the return of plaint was passed, or up to 4-7-1951, on which date the plaint was actually returned. Explanation I to Section 14 of the Limitation Act throws, light on this question. It runs as follows:

“In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted.”

10. According to this Explanation, the period up to “the day on which the proceedings therein ended” is to be excluded. This phrase was interpreted in the case of — ‘Jafar Uddin v. Debt Prasad’, AIR 1939 All 590 (D) to mean that the period up to the day of the actual return of the plaint was to be excluded. While agreeing that, in majority of cases the period right up to the date of the actual return of the plaint should be excluded, I am not prepared to hold as a hard and fast rule, applicable to all cases, that exclusion should extend up to the date of the actual return of the plaint. The period shall vary according to the circumstances of each case. After an order for the return of plaint is passed, office has to go through certain formalities before the plaint is actually returned. An endorsement has to be made on the back of the plaint under O. 7, R. 10(2) of the CPC. Entries have to be made in certain registers and it is only then that the plaint can be returned. Office may take several days for going through all these formalities. The actual period required for observing all these formalities will depend upon the state of work in each office.

11. But it is conceivable to think of cases where the delay may take place not on account of the office but on account of the plaintiff himself. The plaintiff may feel dissatisfied with the order directing the return of the plaint, may be contemplating an appeal and may even refuse to take back the plaint when offered to him by the office. His refusal may continue for months together. In such cases it will not be proper to hold that the period right up to the date of the actual return of the plaint is to be excluded. In such cases, the date on which the plaint was tendered to the plaintiff by the office will be “the day on which the proceedings therein ended”.

12. In the present case, however, the actual return was made within a month of the date of order of return. There is nothing to indicate that the plaintiffs had refused to take back the plaint when tendered to them by the office or that they were, in any way, responsible for the delay in the actual return of the plaint. The return was not made with unreasonaole delay after the date of the order of return. In the circumstances, I am prepared to hold that the period right up to the date of actual return should be excluded from computation.

13. Another question that arises for decision is whether the period during which the suit remained pending in the Munsif's Court on the first occasion is to be excluded from consideration. The Munsif's Court was not a Court which lacked jurisdiction to try the suit, although everyone seemed to believe at that time that the Munsif had no jurisdiction. The learned counsel for the applicant read out to me a petition which the plaintiffs had presented in that suit. According to this document, the plaintiffs had themselves admitted that the Munsif's Court had no jurisdiction and had expressed a desire that the plaint might be returned. This petition is not on the record and the learned counsel for the opposite parties had serious objection to this document being taken into consideration.

14. But I am of the opinion that, even if this document is read in evidence, it would not alter the situation. It does not disclose lack of ‘bona fldes’ on the part of the plaintiffs. On the contrary, it proves their good faith inasmuch as they, having regard to the state of law as it was then understood, conceded a certain legal position. But still it was the Court which passed the order and they were bound by it because that, although the element of good faith might be there, the other ingredient, viz. the lack of jurisdiction in the Court, did not exist because the Court did really possess the jurisdiction.

15. In this connection, it may be pointed out that the defect of jurisdiction is not the only ground to attract the provisions of Section 14 of the Limitation Act. If there is “any cause of a like nature” the plaintiffs can still take advantage of S. 14. In the present case, both parties and the court believed that there was lack of jurisdiction in the Court. There was, therefore, other “cause of a like nature” within the meaning of the phrase as used in S. 14 so as to attract the applicability of that section.

16. The learned counsel for the applicant relied on the case of — ‘Sadayatan Pande v. Ram Chandra’, AIR 1934 All 688 (FB) (E). That case is clearly distinguishable. In that case the plaintiff had sought permission to withdraw the suit under O. 23, R. 1, with permission to institute it again on the same cause of action. It was held that, when representing the plaint, he could not avail of Section 14 of the Limitation Act. In the present case, however, there was no withdrawal of suit by the plaintiffs. Moreover, O. 23, R. 2 of the CPC clearly indicates that when a suit is withdrawn under O. 23, R. 1, the fresh suit shall be governed by the law of limitation “in the same manner as if the first suit had not been instituted”.

17. This special provision which governs suits instituted after withdrawing the first suit with permission of the Court under O. 23, R. 1, can, by no stretch of reasoning, be made applicable to the present circumstances. I am, therefore, of the opinion that the authority cited by the learned counsel for the applicant does not help him. In my opinion, the learned Munsif has acted rightly in extending the benefit of Section 14 of the Limitation Act to the plaintiffs and in treating the suit as having been filed within time. The revision, therefore, fails. It is hereby dismissed with costs.

B/V.R.B

18. Revision dismissed.

Ram Lakhan v. Tulsha

Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant / Defendant's Arguments

Plaintiffs / Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ram Lakhan v. Tulsha

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