1. This Regular Second Appeal under para 32, of the Himachal Pradesh (Courts) Order has been directed against the judgment and decree dated April 16, 1982, of the learned Additional District Judge, Mandi and Shimla Division, Camp at Bilaspur.
2. Plaintiffs are the appellants. Their suit for possession of suit land by way of redemption was decreed by the trial Court, but has been dismissed in appeal on the short ground that the suit is patently time-barred. Thus the sole question involved in the instant case is “whether the suit in question has been filed within time”.
3. The facts leading to the instant appeal, shortly stated, are that S/Sh. Shyama and Jyoti, predecessor-in-interest of the appellants had mortgaged with possession the suit land with S/Shri Jawahar and Kanshi Ram, predecessor-in-interest for a consideration of Rs. 100/- on 10th of Jeth 1977 BK. On 8th February, 1967, the plaintiff preferred an application for redemption of the mortgage in question before the Collector, Bilaspur, which application was contested. For the reason given in his order dated 11-5-1971 Ex. PC the appellants were directed to seek their remedy in a civil Court, consequent whereto the appellants filed the suit, as indicated above. The first appellate Court cause to the conclusion that the appellants were not entitled to the period spent by them in prosecuting their application before the Collector, Bilaspur, because those proceedings could neither be said to be the proceedings before a Court nor that can be nomenclature as ‘civil proceedings’ to which S. 14 of the Limitation Act applies. As a result of this finding the appellants suit was dismissed.
4. The instant suit was filed on 3-8-1971 though under the law of limitation it could have been filed up to 1-1-1971. It is the common case of the parties that the limitation for the filing of the suit for redemption expired on January 1, 1971.
5. According to the plaintiffs, they are entitled to exclude the period under S. 14 of the Limitation Act which was spent in prosecuting the application made by them before the Collector under the Act. It is also the common case of the parties that if that period is allowed then the suit is within time. The said application before the Collector was filed on 8-2-1967/14-3-67 and remained pending till 11-5-1971. Thus the only controversy between the parties is whether the plaintiffs are entitled to exclude the time spent by them in prosecuting the application before the Collector. Section 14 of the Limitation Act runs as under:—
“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 proceedings, 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) and (3) xxxxxxxxx
Thus in order to invoke the said provisions the plaintiffs are required to prove that they had been prosecuting the proceedings with due diligence and secondly that such proceedings were civil proceedings in a Court and thirdly that the said Court was enabled to entertain it on account of some defect of jurisdiction or other causes of like nature.
6. It cannot be disputed that the plaintiffs were prosecuting with due diligence the proceedings initiated under the Redemption of Mortgages (Punjab) Act, 1913, (for short, the Act), which was applicable to the State of Himachal Pradesh at that time. It is also not disputed that application under S. 4 of the aforesaid Act was filed by the plaintiffs before the expiry of the limitation for filing the suit for possession by way of redemption, before the Collector. Now the plaintiffs had two remedies, one was through proceedings under the aforesaid Act and the another by way of filing a civil suit before a civil Court of competent jurisdiction. Under S. 14 of the Limitation Act, reproduced above, the requirement is that earlier proceedings should be in a Court and those proceedings should be civil proceedings. There cannot be any dispute to the proposition that proceedings under S. 4 of the Act are civil proceedings to all intents and purposes and the Collector before whom the application is made will also be deemed to be a Court for that purpose. It is obvious that the Collector would be deciding the rights of the parties pursuant to the controversy arising between them inter se and in case no suit is filed, his decision under S. 10 of the Act becomes final. No doubt such a decision can also be challenged by either party in a civil Court. Thus such remedy sought for leads to no other conclusion except the one that the authority referred to above acts as a Court and the proceedings pending before them are of civil nature. The facts that such an application under S. 4 of the Act requires that the application should be duly verified in the manner prescribed by law for the verification of the plaints and procedure provided for under S. 9 of the Act for being followed by the Collector being that of contentious nature also lends support to the aforesaid conclusion. In these proceedings after the decision arrived at by the Collector, whether the applicants are entitled to redeem the land on payment of loan to be determined by him or not, he has to either reject or accept the application and in case of acceptance, he has to direct the deposit of the mortgage money found due within a specific period, also supports the conclusion so arrived at by this Court. Thus for all intents and purposes, the Collector under the Act will be deemed to be a Court while deciding the dispute as contemplated under the Act. The expression ‘Court’ contemplated under S. 14 of the Limitation Act does not necessarily mean the civil Court under the Code of Civil Procedure. Any Tribunal or authority deciding the civil rights of the parties will be deemed to be a Court for that purpose.
7. Learned counsel for the appellants has placed reliance on the case of Pritam Kaur… v. Sher Singh…., AIR 1983 P & H 363, the facts of which are also on all fours to that of the instant lis under the Act. Thus the first two requirements of S. 14 of the Limitation Act are satisfied in the instant case.
8. The next question is whether there was defect in the jurisdiction in the proceedings before the Collector or was there any cause of like nature to invoke the provision of S. 14 of the Limitation Act. The perusal of order Ex. PC dated 11-5-1971 show that according to the Collector, certain rights of civil nature were required to be decided by a civil Court and on that basis he rejected the application. The Collector had jurisdiction to entertain the said application and ultimately adjudicated thereupon following the procedure prescribed under the Act. Thus it was beyond the control of the plaintiffs to have sought the order from the Collector in respect of possession of the suit land by way of redemption of mortgage in the instant case, which ultimately impelled them to file the civil suit. In other words, the order of the Collector under the peculiar facts and circumstances of the instant case will be covered under “other causes of like nature” though it had the jurisdiction to entertain the petition under S. 4 of the Act, that is to say all the requirements of S. 14 have been fulfilled. The learned first appellate Court has not considered the facts and circumstances of the instant case from this angle. He appears to have been misled by the language of S. 4 that is to say the application under S. 4 of the Act could only be filed before the Collector during the existence of period of limitation for filing a suit and he interpreted it otherwise inasmuch as that once the limitation period expires no such suit can be filed and even the I plaintiffs cannot get the benefit of S. 14 of the Limitation Act. This interpretation is obviously wrong which ultimately crept into erroneous judgment. Accordingly, the same is set aside.
9. In view of the same, the appeal is accepted. The impugned judgment of the first appellate Court is set aside and that of the trial Court is upheld. The appeal stands disposed of in terms of the above. The plaintiffs are held entitled to the costs throughout.
Appeal allowed.
Comments