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TMI Blog2006 (1) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... s was only on issue No. 1. The facts that are necessary and material for deciding issue No. 1 are that the plaintiff which is a Co-operative Housing Society claims that the entire land which is the subject matter of the suit was assigned to the plaintiff/society by registered Deed of Assignment dated 25th March, 1969 by the original lessee of the land. The plaintiff/society is the owner of the building Advent standing on part of the land. On other part of the land, partly constructed building Divya Prabha stands. The dispute in a suit relates to this incomplete building Divya Prabha . The construction of that building was commenced by the first defendant, who is the builder and developer, in the year 1966, The construction of the building remained incomplete. In October, 1994 the plaintiff filed B.C.C. Suit No. 6734 of 1994 in the City Civil Court. According to the plaintiff, the suit was filed in the City Civil Court on the basis of apprehension that the defendant No. 7/Municipal Corporation was considering the proposal for permitting completion of the construction of the structure Divya Prabha . According to the plaintiff, the plaintiff came to know only after filing civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n prosecuting the suit in the City Civil Court under Section 14 of the Limitation Act. Thereafter, the plaintiffs took out Chamber Summons No. 1335 of 2005 seeking amendments in the plaint. The plaintiffs were permitted by the Court to carry out the amendments in the plaint by order dated 8th December, 2005. By the amendments made in the plaint, the plaintiffs now claimed that the suit in the City Civil Court was prosecuted with due diligence and in good faith. The defendants have denied this statement that the suit filed by the plaintiffs in the City Civil Court was prosecuted with due diligence and in good faith by the plaintiffs. The plaintiff have not led any oral evidence nor has the defendant No. 8 led any oral evidence. 6. It is submitted on behalf of the defendants, firstly, that the plaintiffs are not entitled to claim exclusion of time spent in prosecuting the suit in City Civil Court, because the subject-matter of the suit filed in City Civil Court and the subject-matter of the suit filed in this Court is different. It is submitted on behalf of the defendant No. 8 that in this suit the plaintiffs have sought a declaration that the defendants Nos. 1 to 6 and 8 or any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abha. The plaintiffs are challenging the entitlement of the defendants to do so on various grounds. Even the prayer of the plaintiffs for damages which is to be found in the present suit and which was absent in the suit filed in the City Civil Court also flows from the same contentions of the plaintiffs that the defendants have no rights to be on the property. Therefore, in my opinion, the defendant No. 8 is not justified in contending that the matter in issue in the two suits is not the same. 9. The next contention of the defendant No. 8 is that even assuming that the matter in issue in both the suits is the same in order to claim benefits of Section 14 of the Limitation Act, apart from establishing that the matter in issue in the two suits is the same, the plaintiffs have to establish that the plaintiffs were prosecuting in good faith the civil proceedings. In other words, according to the defendant No. 8 in order to be able to successfully claim exclusion of time spent in prosecuting the suit in a City Civil Court, the plaintiffs will have to plead and prove that the suit in the City Civil Court was instituted and prosecuted in good faith and with due diligence. The defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed under a mistaken belief that the same would be maintainable in the City Civil Court, The plaintiffs have not disclosed the name of the advocate who is supposed to have given alleged advice. Relying on the judgment of the Punjab High Court in the case of Bhushan and Ors. v. Madan Mohan Lal it is submitted that a mere broad and general plea that the plaintiff had under legal advice and bona fide belief prosecuted the suit with due diligence is not enough. 10. On behalf of the plaintiffs it is submitted that though the plaintiffs have not led oral evidence to prove that the City Civil Court suit was prosecuted in good faith, they have tendered the documentary evidence to establish that the plaintiffs are entitled to the benefits of Section 14 of the Limitation Act. According to the plaintiff, they have produced before this Court compilation of the pleadings in the City Civil Court. They have produced copies of the important orders passed in the City Civil Court and they have also produced roznama sheets maintained by the City Civil Court of the suit filed in the City Civil Court, as also copies of the Notice of Motion taken out in the City Civil Court by defendant No. 8 pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding in the Court which ultimately is found to have no jurisdiction, which has nothing to do with the institution of the suit. Valuation and Court fees are questions which arise at the institution of the suit. It is submitted that the Supreme Court has specifically held that an error of judgment in valuing and payment of requisite Court fee has nothing to do with the question of good faith. The plaintiffs also rely on the judgment of the Supreme Court in the case of Deena v. Bharat Singh [2002]SUPP1SCR289 . So far as the judgment of the Supreme Court in the case of Madhavrao Patwardhan relied on by the defendants is concerned, it is submitted on behalf of the plaintiffs that the judgment does not apply to the facts of this case and it is distinguishable. It is also submitted that the judgment of the Supreme Court in Madhavrao Patwardhan's case is not an authority for the proposition that prosecuting a suit in good faith includes institution of the suit with due care. It is submitted that in that case the plaintiffs had knowingly instituted the suit in wrong Court and then prosecuted it. 11. There was some debate whether the present suit is a fresh suit or it is continuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e preliminary issue was framed the plaint was amended and along with other paragraphs, paragraph 31(c) was introduced. Paragraph 31(c) reads as under :-- 31C. The plaintiffs filed a suit in the Hon'ble Bombay City Civil Court being Suit No. 6734 of 1994 to challenge the revalidation permission granted to the defendant 1 to 6 and/or 8 by the defendant No. 7 to carry out construction on the shell of the Divya Prabha structure or claim any additional F.S.I, available in respect of the said property. The plaintiffs submit that while the abovementioned Suit was pending for hearing and final disposal the Bombay Municipal Corporation revalidated the Commencement Certificate and IOD of the building Divya Prabha on 28-6-1996 and have thereafter once again revalidated the same on 5-10-1998. It is submitted that each revalidation of the Commencement Certificate and IOD creates a fresh cause of action in favour of the plaintiffs. Without prejudice and in the alternative to what is stated hereinabove, it is submitted that several applications for interim reliefs were made by the plaintiffs in the said Suit No. 6734 of 1994 and the Hon'ble City Civil Court was pleased to grant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the City Civil Court was instituted with due care and attention. The roznama of the suit maintained by the City Civil Court may show that the plaintiffs prosecuted the suit with due diligence. But it will not show that the suit was instituted with due diligence and due care. So far as the contention of the plaintiffs that for the purpose of claiming benefits of Section 14 of the Limitation Act, it is not necessary for the plaintiffs to show that the suit was instituted with due care and attention, is concerned, in my opinion, in view of the judgment of the Supreme Court in the case of Madhavrao Patawardhan referred to above and the provisions of Section 14 of the Limitation Act read with Section 2(h), leaves one in no manner of doubt that the plaintiffs will have to lead evidence to show that the earlier suit was instituted with due care and attention. Perusal of the provisions of Section 14 shows that the plaintiff has to establish that he was prosecuting the earlier civil proceedings in good faith. When one says that I was prosecuting the proceedings in good faith, it implies that he also claims that he instituted the proceedings in that Court in good faith. Therefore for cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are relevant. They read as under :-- 7. The conclusion of the learned trial judge on this part of the case, is in these words :-- The plaintiffs mala fides are therefore not established and the period occupied in prosecuting the former suit must be excluded under Section 14 of the Limitation Act. The observations of the High Court are as follows : We do not see our way to accuse the plaintiff of want of good faith or any mala fides in the matter of the filing of the suit in the Subordinate Judge's Court at Miraj. There is nothing on the record to show that he was really guilty of want of good faith or non-prosecution of the suit with the diligence in the Court of the Subordinate Judge at Miraj. Both the courts below have viewed the controversy under Section 14 of the Limitation Act, as if it was for the defendant to show mala fides on the part of the plaintiff when he instituted the previous suit and was carrying on the proceedings in that Court. In our opinion, both the Courts below have misdirected themselves on this question. Though they do not say so in terms, they appear to have applied the definition of good faith as contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to another Court. The question is not whether the plaintiff did it dishonestly or that his acts or omission in this connection, were mala fide. On the other hand, the question is whether, given due care and attention, the plaintiff could have discovered the omission without having to wait for about 10 years or more. The trial Court examined the plaintiff's allegation that the omission was due to his pleader's mistake. As that Court observed he makes this contention with a view to shield himself behind a wrong legal advice. That Court has answered the plaintiff's contention against him by observing that the plaintiff was not guided by any legal advice in this suit; that the plaint was entirely written by him in both the suits, and that he himself conducted those suits in the trial Court in a manner worthy of a senior counsel. The Court, therefore, rightly came to the conclusion that the plaintiff himself was responsible for drafting the plaint and for presenting it in Court, and that no pleader had any responsibility in the matter. No reason was adduced why, in these circumstances, the value of the subject-matter of the suit, was mentioned in the plaint in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valuing the suit, despite taking due care and paying due attention. In the present case, the plaintiffs have not cared to lead any evidence to show that the City Civil Court suit was instituted with due care and attention. The contention of the plaintiffs relying on the judgment of the Supreme Court in the case of Vijay Kumar Rampal and Ors. v. Diwan Devi and Ors. MANU/SC/0390/1984MANU/SC/0390/1984 : AIR1985SC1669 that an error in judgment in valuing the suit in a Court which is ultimately found to have no jurisdiction, has nothing to do with the question of jurisdiction in prosecuting the suit cannot be accepted. In view of the clear judgment of the Supreme Court in the case of Madhavrao Patwardhan, if an error in valuing the suit is a bona fide error, obviously, institution of the suit would be in good faith. But for that the plaintiffs will have to lead evidence to show that the error in valuing the suit was a bona fide error. In the present case, I find that the conduct of the plaintiffs shows that the plaintiffs do not deserve any leniency from the Court. Though the plaintiffs needed benefit of Section 14 of the Limitation Act to bring his suit within limitation there were no ..... 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