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TMI Blog1977 (8) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... (hereinafter referred to as the said premises) for development purposes. The predecessor in interest of the defendants the then owners of the said premises, made an application for retention of a portion of the said premises as not being required for the said development purposes under Section 375(2) of the Calcutta Municipal Act, 1899, then in force. After several proceedings it. appears the owners as directed, elected to pay an annual fee of Rupees 1,641/- and the then Corporation of Calcutta refrained from acquiring the surplus land. It is alleged that the owners failed to pay the said exemption fee from March 24, 1951 till March 23, 1959 and the plaintiff as the successor in interest of the Corporation constituted under the 1899 Act be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the earlier proceedings. 6. Mr. J. Mitra. learned counsel for the defendants conceded that the defendants were liable to pay the stipulated exemption fee from March 24, 1957 till March, 1959 aggregating Rs. 4,923/- and the said claim was not barred by limitation. 7. The only issue raised and settled at the trial was :-- Is the claim of the plaintiff for the period between March 24, 1951 and March 23, 1957 barred by limitation ? No oral or documentary evidence was adduced by the parties who contended that the answer to the issue would depend upon the construction of Section 14 (1) of the Lim. Act, 1908. The material part of the said section reads as follows :-- 14. Exclusion of time of proceeding bona fide in Court without jurisdiction--(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se other cause of a like nature in the section must be construed liberally. Explanation III to the section contemplated cases of misjoinder and non-joinder though strictly speaking, such cases could hardly be regarded as a defect of jurisdiction. Mr. Roy submitted that in the instant case, although there was no prima facie defect of jurisdiction, the fact that in the earlier proceedings a mortgage decree was wrongly passed on the basis of an erroneous finding of a charge, which was ultimately reversed by the Appeal Court which passed only a money decree, made the earlier proceedings defective in a manner as to bring it within the purview of the said section and he contended that the said period between the date of institution of the said su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period during which the matter was pending in second appeal and in respect of the period during which they were prosecuting diligently earlier proceedings by way of a claim for restitution, and the Court held the mere fact that the plaintiffs might have honestly believed that they could get all that they are entitled to by way of proceeding in restitution will not suffice to give them the benefit of Section 14. 13. Moreover in the instant case, both the Trial Court and the Appeal Court decided the earlier suit on merits, the only finding of the Appeal Court was that Section 357 of the Calcutta Municipal Act, 1899 did not create any charge in favour of the plaintiff and the plaintiff was not entitled to claim a charge. As such, neither Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bapayya v. Basvayya AIR 1942 Mad 713 where the plaintiff having failed in his petition for insolvency, filed a suit on the same cause of action. The Court held that Section 14 of the Lim. Act, 1908 was not attracted as the Insolvency Court had in fact entertained the earlier application on merits. Mr. Mitra contended that the case of India Electric Works Ltd. (Supra) cited on behalf of the plaintiff was in the defendant's favour. Mr. Mitra lastly cited Jai Kishen Singh v. Peoples Bank of Northern India AIR 1944 Lah 136 (FB) which was noted in the case of India Electric Works Ltd. It was held in that case that in Section 14 of the Lim- Act, the words or other cause of a like nature however liberally construed, must be read so as to conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. For the reason above, I hold that the plaintiff's claim for arrears of fees from March. 1951 till March, 1957 is barred by limitation and the plaintiff is not entitled to exclude the period spent in the earlier proceedings in Suit No. 815 of 1952 and the appeal from the decree therefrom for computing the period of limitation under Section 14 of the Indian Limitation Act. 1908. I answer the only issue accordingly, in the negative and in favour of the defendant. 18. There will however be a decree in favour of the plaintiff for the undisputed sum of Rs. 4,923/- being arrear fees from March 1957 to March, 1959, interim interest and interest on Judgment thereon at the rate of 6% per annum and costs. The only issue raised having been answe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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