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TMI Blog2010 (4) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.1993 passed in an earlier suit instituted by the respondent No.1/plaintiff, registered as Suit No.160/82. Relief of mandatory and permanent injunction was also sought by the respondent No.1/plaintiff against the petitioner and the respondent No.2 to 4 for restoration of the intervening wall and for restraining them from interfering in the peaceful use and enjoyment of the suit premises by him. 3. The aforesaid suit was instituted by the respondent No.1/plaintiff in the trial court on 12.08.1996. Summons were issued to the defendants in the suit. As none appeared on behalf of the respondents No.2 and 3 (defendants No. 2 and 3 in the suit), they were proceeded against ex-parte on 09.01.1998. A written statement was filed by the petitioner/defendant No.1. In his written statement, the petitioner/defendant No.1 raised a number of preliminary objections as to the maintainability of the suit instituted by the respondent No.1/plaintiff. Vide order dated 27.07.1999, two preliminary issues were framed by the trial court with regard to the maintainability of the suit in the following manner:- 1. Whether the suit is barred by the period of limitation? 2. Whether the suit has been properly v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the respondents No. 2-4 were also parties. He therefore stated that the suit instituted by the respondent No.1/plaintiff on 12.8.1996 is hopelessly barred by limitation and ought to have been dismissed. 8. Lastly, it was urged by the counsel for the petitioner that respondent No.1 having failed to file an application so as to invoke the provisions of Section 14 of the Limitation Act for seeking exclusion of time, for the period when he was prosecuting another civil proceeding, on its own, the trial court could not have given the benefit of the said provision to him for the purposes of computing the period of limitation and holding that the suit was filed within the period of limitation. 9. I have heard the learned counsel for the petitioner. It is relevant to note that none has appeared on behalf of the respondents despite the fact that the present case has remained on the regular board since 07.12.2009. 10. For deciding the issue of limitation, certain relevant dates need to be focused on. As per the averments contained in para 17 of the plaint, pertaining to the cause of action, it was stated that the cause of action arose in favour of respondent No.1/plaintiff on 20.02.1992, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the respondent No.1/plaintiff, the Execution Court dismissed the application as satisfied, vide order dated 17.10.1997. 13. Dealing with the first contention raised on behalf of the petitioner that the suit filed by respondent no.1/plaintiff was barred by limitation, it may be observed that suits relating to the relief of declaration are governed by Articles 56 to 58 in the Schedule to the Limitation Act. The present suit is undoubtedly governed by Article 58 in so far as the relief of declaration is concerned and hence, the period of limitation for instituting a suit for the said relief is to be reckoned as three years from the date when the right to sue accrued in favour of respondent No.1/plaintiff. As per the respondent No.1/plaintiff himself, the cause of action arose on 20.2.1992, when the defendants allegedly demolished the intervening wall of his house. As there is no manner of doubt that the cause of action to institute the suit accrued on 20.2.1992, the period of three years has to be reckoned from 20.02.1992. Insofar as the relief of permanent and mandatory injunction is concerned, Article 113 is the residuary Article and mandates that where no period of limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court extend such a benefit to him. Rather, the provision is worded in such a manner as to indicate that while computing the period of limitation in any suit, the court shall exclude the time spent by the plaintiff in prosecuting with due diligence another civil proceeding against the defendant, where such 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. In other words, the Court is empowered by a substantive provision in the Limitation Act to condone the delay in instituting a suit, if sufficient cause is shown to it, in terms of Section 14. 16. If the plaintiff is able to explain the delay in instituting a suit by stating that he had been diligently prosecuting civil proceedings on the same issue before another forum, the same can be an explanation which ought to be taken into consideration by the concerned court for the purpose of exercising its discretion in condoning the delay in instituting a subsequent suit, as long as the remaining conditions imposed by the provision are satisfied. For the said purpose, the pleadings contained in the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed into service: (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and; (5) Both the proceedings are in a court. The policy of the Section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No.1/plaintiff instituted the present suit on 12.08.1996. Pertinently, by then the prescribed period of limitation had long since expired. Thereafter, on 17.10.1997, he filed another application before the executing court, seeking withdrawal of the pending application dated 29.03.1995, which was dismissed on recoding the statement of the respondent No.1/plaintiff that the decree stood satisfied as he had filed the present suit. 22. In the opinion of this Court, the benefit of Section 14 of the Limitation Act could not have been granted to the respondent No.1/plaintiff for the reason that he failed to establish that he had been prosecuting with due diligence and in good faith, another civil proceeding against the defendants (petitioner and respondents No. 2 to 4 herein) in respect of the same matter in issue. The writ petition filed by the respondent No.1 on the criminal side could not have been treated as a civil proceeding by the learned Civil Judge, for applying Section 14 of the Limitation Act. Further, while the cause of action accrued in favour of the respondent No.1 on 20.02.1992, even the criminal writ petition came to be filed by him in the High Court after one year of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No.1/plaintiff on 12.8.1996, after almost a period of one and half years. No steps were taken by him till the year 1993, when he filed the criminal writ petition. The benefit of filing of the criminal writ petition cannot be granted to him as Section 14 of the Act specifies that the time sought to be excluded for the purposes of computing the period of limitation pertains to another civil proceeding . Even if the filing of said criminal writ petition is taken into consideration, valuable time was lost by the respondent No.1/plaintiff in taking further legal recourse, despite order dated 14.2.1994 passed in the aforesaid writ petition by the Division Bench of this Court. The only other civil proceeding initiated by the respondent No.1/plaintiff in the present case was the application filed by him after over one year, on 29.03.1995 in the Execution Case No.39/85. The said application was filed by him one month after expiry of the prescribed period of limitation, and after a period of one year from the date of passing of the order dated 14.02.1994, dismissing his writ petition. No explanation has been offered by the respondent No.1/plaintiff, much less plausible explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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