1. Plaintiff is the appellant. She filed the suit for specific performance of an oral agreement by the first defendant to sell the plaint schedule property to her. The agreement was on 12-3-1978 for a consideration of Rs. 9000/- of which an amount of Rs. 1000/- was paid as advance though according to the first defendant the consideration was Rs. 10000/-. The plaintiff's case is that she was put in possession of the property, though this is not admitted by the first defendant. The first defendant endorsed in the application made by the plaintiff to the second defendant for loan that she was willing to sell the property to the plaintiff. The plaintiff who belongs to the Scheduled Caste community alleges that the agreement was to complete the sale as and when the loan she had applied for from the second defendant was sanctioned to her. A loan of Rs. 5000/- was sanctioned on 6-10-1979, but the first defendant was attempting to sell the property to strangers when the plaintiff filed the suit O.S No. 28 of 1981 in the Munsiff's Court, Haripad for an injunction restraining the first defendant from selling the property to any one other than the plaintiff. An order of temporary injunction Ext. A1 was passed on 3-7-1961. This was challenged in appeal in the District Court, Mavelikara by the first defendant. The District Court confirmed the order of injunction by the order Ext. B2 dated 30-11-1983. At the same time the Page: 362court held that such an order of injunction could not be issued unconditionally, in view of the fact that the first defendant could not be restrained for ever from alienating the property to anyone other than the plaintiff. Such an indefinite restraint was not proper, and therefore the suit itself was prima facie not entertainable, as one merely for an injunction without a prayer for specific performance. Plaintiff had therefore to amend the plaint suitably. Therefore and while disposing of the appeal the learned District Judge made the injunction subject to the condition that the plaintiff amended the plaint suitably within two months from 16-2-1984 and took follow up action thereafter for prosecuting the suit for the decree that may be passed under the said amendment. Parties were directed to appear in the lower court on 16-2-1984. Plaintiff thereafter instituted the present suit O.S No. 29 of 1985 on 16-1-1984 for a decree of specific performance of the agreement. So far as O.S No. 28 of 1981 was concerned he sought leave to withdraw the said suit by filing application Ext. A3 on 16-2-1984 which was allowed by the order Ext. A4 dated 19-7-1984 without prejudice to the new suit O.S No. 29 of 1984 already instituted by the plaintiff. The first defendant denied the agreement as also the allegation that the plaintiff had been put in possession of the suit property thereunder. She also pointed out that she had as early as on 4-10-1979 withdrawn her expression of willingness to sell the property to the plaintiff vide Ext. B3 and therefore the suit was in any event barred by limitation, as it had not been filed within three years therefrom.

2. Based on these pleadings, the trial court framed issues as to whether the agreement for sale set up by the plaintiff was true, and as to whether the suit was barred by limitation. The trial court did not render a finding on the first point as it held that the suit had to fail on the ground of limitation. The court held that Article 54 of Schedule 1 to the Limitation Act provided for a period of three years for a suit for specific performance of a contract, from the date on which the plaintiff had notice that performance was refused, if no date had been fixed in the agreement for performance. Parties were agreed that no date for performance had been fixed in this case. The plaintiff admittedly knew about the refusal of the first defendant to perform the contract when she received the letter Ext. B3 dated 4-10-1979 and therefore the suit filed beyond three years of that date was barred by limitation Plaintiff's reliance on section 14 of the Limitation Act to exclude the period of time during which the previous suit O.S No. 28 of 1981 was pending was not accepted by the court in as much as that suit had failed, not due to any defect of jurisdiction, or other cause of a like nature. The lower appellate court also did not express any opinion on the existence or otherwise of the Page: 363agreement to sell as that court was also in agreement with the trail court that the suit was barred by limitation, and that section 14 of the Limitation Act was of no avail to the plaintiff. The second appeal is filed therefrom.

3. Two contentions are raised by the plaintiff in this appeal Firstly it is submitted that the plaintiff is entitled to the benefit of exclusion of the period during which the suit O.S No. 28 of 1981 was pending, under section 14(1) of the Limitation Act, and if that period is excluded, the suit is well within time. The alternate contention is based on section 14(3), with the plea that the grant of leave to withdraw the suit O.S No. 28 of 1981 ipso facto saves the subsequent suit from the bar of time.

4. I shall extract sub-sections (1) and (3) of section 14 on which reliance is placed by counsel for the appellant.

“14 Exclusion of time of proceeding done 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.

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(3) Notwitstanding anything contained in Rule 2 of Order 23 of the Code of Civil procedure 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.”

5. From a reading of sub-section (1) it will be seen that the following ingredients have to concur for the sub-section to apply - (a) the plaintiff must have been prosecuting another civil proceeding whether in a court of first instance or of appeal or revision, (b) it must be against the defendant, (c) it must have been prosecuted with due diligence, (d) that proceeding must relate to the same matter in issue, (e) that must have been prosecuted in good faith and (f) the court where the proceeding was Page: 364pending was unable to entertain it for defect of jurisdiction or other cause of a like nature. One thing stands out amongst others, namely, that the court could not entertain the previous suit because of defect of jurisdiction or other cause of a like nature. If this ingredient is not established, section 14(1) is not attracted. The question is therefore whether the plaintiff has succeeded in establishing this ingredient to enable her to get the benefit of section 14(1).

6. The suit O.S No. 28 of 1981 did not admittedly fail for want of jurisdiction. The next question is whether it failed for “other cause of a like nature”. The phrase “other cause of a like nature”, though to be construed liberally has to be read ejusdem generis with “defect of jurisdiction”. The phrase “unable to entertain” occurring in this clause has also been the subject of consideration and it has been held that it signifies inability of the courts to give a trial at all either for defect of jurisdiction or for some other equally valid reason. In Ganapathi Mudaliar v. Krishnamachari AIR 1922 Madras 417 it was held that where the proceeding and the remedy have been wholly misconceived, section 14 has no application because the failure of the plaintiff in the prosecution of his claim cannot be attributed to anything connected with the jurisdiction of the court. In Siddalingana v. Bhimana, AIR 1935 Madras 731 the court held that pendency of a mere suit for possession will not attract section 14 to save a subsequent suit for realisation of the means profits from the bar of limitation despite the belief entertained bona fide by the plaintiffs that they could get all the relief from the first suit itself. The matter was discussed at length in V.C Thani Chettiar v. Dakshinamurthy Mudaliar, AIR 1955 Madras 288 by Rajamannar, C.J and Rajagopala Ayyangar, J. The court held that though a liberal construction should be placed on the words “other cause of a like nature,” they cannot obviously apply to a case where the prior suit failed because it was totally misconceived. That was a case where the suit for possession of particular items of property filed by the alienee from a coparcener of an undivided share in joint Hindu family property was dismissed as not maintainable, the only remedy available to him being by way of suit for general partition. The alienee then filed a suit for general partition claiming the benefit of section 14 to get over the bar of limitation. It was in that context that Rajamannar, C.J speaking for the court observed that where the earlier suit was totally misconceived and it was dismissed not because of any defect of jurisdiction or any ground similar to it, the plaintiff cannot have the benefit of exclusion of time under section 14(1). I may also refer to the decision of the Madhya Pradesh High Court in Kashiram v. Santokhbai AIR 1958 M.P 91 where the court followed the observations of Mukherjee, J. (as he then was) of the Calcutta High Court in Nakul Chandra Ghose v. Shyamapada Ghose, AIR 1945 Cal. 381 that section 14 speaks of the court Page: 365to entertain a suit or proceeding on certain specific grounds, which are of a formal nature, and that the inability to entertain a suit means not inability to grant relief to the plaintiff, but inability to give a trial at all. When the suit is dismissed not because the court had no jurisdiction to entertain it or for any other cause of a like nature, but because it was misconceived or because the proceeding or the suit was not one recognised by law as legal in its initiation, then section 14 is not attracted. In that case, the plaintiff sued for rendition of accounts, against the son of a deceased agent, which was plainly not maintainable, and being thwarted at the threshold, followed it with a suit for recovery of amounts allegedly due. The court held that the first suit was wholly misconceived and the plaintiff could not therefore get the advantage of the pendency of that suit to save the bar of limitation.

7. What is required for the purpose of section 14(1) is a defect of jurisdiction or other similar cause which renders the court unable to entertain the suit and to proceed to trial. A mere inability to grant the relief claimed in a particular suit because it is not grantable, or because a suit of that nature is not maintainable, though the suit is within the jurisdiction of the court is not a case which falls under section 14(1).

8. The suit O.S No. 28 of 1981 was one for an injunction simpliciter restraining the defendant from alineating the property to anyone other than the plaintiff. It is too naive to believe that the plaintiff would have got the relief required by her in that suit, namely specific performance of the contract. That suit was filed at a time when the plaintiff could have sued for specific performance itself in as much as the defendant had by that time, and as early as on 4-10-1979, intimated that she was not prepared to sell the property to the plaintiff. Instead of resorting to the proper remedy of filing a suit for specific performance, the plaintiff rested content with a suit for injunction, which, if at all, could have afforded only temporary relief, without any substantive benefit which could only be by a suit for specific performance. O.S No. 28 of 1981 was thus a misconceived suit which did not fail for want of jurisdiction or for other cause of a like nature. The pendency of that suit cannot therefore save the plaintiff from the bar of limitation for the present suit. The period spent therein could not be excluded in computing the period of limitation for the present suit. Counsel for the appellant contended alternately that under Section 14(3) of the Limitation Act, 1963 when a suit is permitted to be withdrawn under the provisions of rule 1 of Order 23 of the C.P.C, on the ground that the suit must fail by reason of a defect in the jurisdiction of the Page: 366court or other cause of a like nature, the period of pendency of that suit can be excluded in computing the period of limitation for the subsequent suit. But, this does not come to the rescue of the plaintiff, because section 14(3) applies only in cases where a suit is permitted to be withdrawn on the ground of defect of jurisdiction or other cause of a like nature if the suit is withdrawn on other grounds, or because it is misconceived, the sub-section cannot apply. That precisely is the position here where, the previous suit had to fail because the remedy chosen was misconceived and it was so stated by the District Judge in his judgment in the interlocutory appeal. Order 23 rule 2 provides that if any fresh suit is instituted on permission granted under rule 1 of that Order, the plaintiff shall be bound under the law of limitation in the same manner as if the first suit had not been instituted. Section 14(3) of the Limitation Act provides an exception to this rule by which the benefit of exclusion of time is given where the previous suit is permitted to be withdrawn for defect of jurisdiction or other cause of a like nature. In all other cases, the provisions of Order 23 rule 2 will govern. It is true that O.S No. 28 of 1981 was allowed to be withdrawn but that was not for defect of jurisdiction or for other like cause. The provision which applies is Order 23 rule 2 C.P.C and not Section 14(3) of the Limitation Act. The plaintiff cannot therefore, avail the benefit of excluding the time during which O.S No. 28 of 1981 was pending for computing the period of limitation for the present suit.

9. The courts below were therefore justified in holding that the suit was barred by time and in dismissing it accordingly. There is no merit in this second appeal. It is accordingly dismissed, without however any order as to costs.