B.J Shethna, J.:— The appellant - Jamnagar Municipal Corporation has challenged in this appeal, the judgment and decree dated 22nd March 1993 passed by the learned Second Joint Civil Judge (S.D), Jamnagar in Special Civil Suit No. 163 of 1986 whereby the learned Judge decreed the suit of the res pondent - plaintiff with costs and directed the appellant to pay Rs. 42,240/- with interest at the rate of 12% per annum from the date of filing of, the suit till realisation.
2. Mr. Nanavati, learned Counsel appearing for the appellant, has raised only one point of limitation. He submitted that the suit of the respondent-plaintiff was admittedly time barred as it was filed beyond the period of limitation and, therefore, the suit ought to have been dismissed by the learned Trial Judge as time barred. As against that, Mr. Kakkad, learned Advocate for the respondent submitted that though the suit was time ??? the learned Judge condoned the delay in Application No. 100/85 in filing the suit by an order dated 30-11-1986 and, therefore, it was not open to the appellant to contend again in the suit that it was time barred and, therefore, it should be dismissed. He, therefore, submitted that the learned Trial Judge has rightly held that when the delay is condoned, the suit cannot be said to be untenable and he has also rightly held that the suit was in time and not barred by law of limitation.
3. He further submitted that the plea whether the suit was time barred or not ought not to have been taken by the appellant-Corporation which is a public body. He further submitted that it was not open to the Corporation to take up such a plea and defeat the just claim of the respondent-plaintiff on this technical ground. In support of his submission. Mr. Kakkad has relied upon the decision of the Supreme Court in the case of The Madras Port Trust v. Hymanshu International (1979) 4 SCC 176 : AIR 1979 SC 1144, which has been relied upon by a Division Bench of this Court in an unreported decision delivered on December 23, 1991 in First Appeal No. 978 of 1980.
4. It is, true that the Supreme Court in Madras Port Trust's case (supra) has observed:
“…The plea of limitation based on this section is one which the Court always looks upon with disfavor and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fail and just to the citizens….”
5. The Supreme Court has further observed:
“Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable….”
6. The aforesaid observation made by the Supreme Court have been reiterated by the Division Bench of this Court in its unreported judgment dated 23rd December 1991 in First Appeal No. 978 of 1980. Of course, in the unreported decision before the Division Bench of this Court, the question was whether the suit was filed within the period of limitation or not. But in that case, after considering the evidence on record, the trial Court came to the conclusion that the suit was within the period of limitation. In appeal, the Government tried to take up the plea of limitation, and it was submitted that the suit filed before the Trial Court was not within the period of limitation. The Division Bench of this Court, on appreciation of evidence, found that suit was within time, and dismissed the appeal. In para II of that judgment, the Division Bench reiterated the aforesaid observations made by the Supreme Court in Madras Port Trust's case (supra).
7. Section 3 of the Limitation Act, 1963 clearly provides that subject to the provisions contained in Sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence, in the case the last and final bill was made on 22-1-81 by the plaintiff-contractor and admittedly the suit was filed on 14-11-86. It was a money suit and, therefore, the period of limitation was three years and admittedly the day on which the suit was filed, the period of limitation had expired long back. Thus, the suit was admittedly filed beyond the period of limitation. It is surprising to note that in this case Application No. 100 of 1985 (Ex. 20) was submitted on behalf of the contractor after filing of the suit for condoning the delay in filing the suit, which was granted by the learned Trial Judge on 30-11-86 by an order Ex. 25. Relying upon this fact. Mr. Kakkad vehemently submitted that though the appellant Corporation was given notice before condoning the delay in filing the suit, the Corporation did not object to it and allowed that application to be granted against it. Not only that the Corporation accepted that order of condoning the delay in filing the suit as it was not challenged before this Court or any other higher forum. He, therefore, submitted that now it is not open to the Corporation to urge in this appeal that the suit of the plaintiff was time barred and therefore it should have been dismissed by the Trial Court. There is no substance in this submission. If, the suit was time barred, it remained time barred. There is no provision at all in the Limitation Act for condoning delay in filing the suit. Under Section 3 of the Limitation Act, any suit which is filed after the period of limitation has to be dismissed irrespective of the fact whether the plea of limitation is taken as a defence or not. If the suit was time barred then there is no question of condoning any delay. No Court would have jurisdiction to entertain such a suit on merits and decree the same. If such a suit is decreed, then the judgment and decree passed by the Court is required to be set aside. The trial Court has therefore committed a grave error in holding that, “… Now looking to the record of the case, the plaintiff had filed application for condonation of delay bearing No. 100/85 which was granted on 30-11-86 as per the deposition of its witness at Ex. 20. The plaintiff has produced the said order at Ex. 25. Under the circumstances, when the delay is condoned, the suit cannot be said to be untenable. Hence, the suit is in time and it is not barred by law of limitation….”
8. In view of the above discussion, this appeal is allowed. The impugned judgment and decree passed by the Trial Court decreeing the suit of the respondent - plaintiff is set aside and the suit filed by the respondent-plaintiff is dismissed. However, there shall be no order as to costs on the facts and in the circumstances of this case.
9. Appeal dismissed.