Skip to content


Tirumareddi Rajarao and ors. Vs. the State of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 786 of 1959
Judge
Reported inAIR1965AP388
ActsLimitation Act, 1908 - Sections 14
AppellantTirumareddi Rajarao and ors.
RespondentThe State of Andhra Pradesh and ors.
Appellant AdvocateT. Ramachandra Rao, Adv.
Respondent AdvocateGovt. Pleader
Excerpt:
limitation - exclusion of time - section 14 of limitation act, 1908 - whether time taken in disposing of infructuous revision should be excluded in counting limitation period in view of section 14 (1) - section 14 (1) permits exclusion of time taken in disposing of fruitless litigation by reasons contemplated therein. - - section 14 (omitting the unnecessary portions/0 recites :(1) in computing the period of limitation prescribed 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 in a court of appeal, against the defendant, shall be executed, where at action and is prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature, is unable to.....chandra reddy, c.j.1. the question to be answered by the full bench is formulated in these words :'whether the consistent view as held in venkatragayya appa row v. sriramulu 17 ind cas 593 (mad); baiznath lala v. ramadoss, ilr 39 mad 62 : (air 1915 mad 405) and alagappa chettiar, 1937 mad witness 465 (2) that only the pendency of the infructuous revision should be excluded under s. 14(1) of the limitation act, requires re-consideration in view of rule 41-a (2) of the appellate side rules prescribing the period of 90 days for civil revision petitions or for any other reason, so as to exclude the entire period from the date of the adverse order to the date of disposal of the infructuous revision under the said provision of the limitation act.'(2) for an appraisal of the issue that presents.....
Judgment:

Chandra Reddy, C.J.

1. The question to be answered by the Full Bench is formulated in these words :

'Whether the consistent view as held in Venkatragayya Appa Row v. Sriramulu 17 Ind Cas 593 (Mad); Baiznath Lala v. Ramadoss, ILR 39 Mad 62 : (AIR 1915 Mad 405) and Alagappa Chettiar, 1937 Mad WITNESS 465 (2) that only the pendency of the infructuous revision should be excluded under S. 14(1) of the Limitation Act, requires re-consideration in view of Rule 41-A (2) of the Appellate Side Rules prescribing the period of 90 days for civil revision petitions or for any other reason, so as to exclude the entire period from the date of the adverse order to the date of disposal of the infructuous revision under the said provision of the Limitation Act.'

(2) For an appraisal of the issue that presents itself before us, it is necessary to recall a few material facts. The Rajah of Vizianagaram obtained a decree in S. C. S. No. 1098 of 1938 on the file of the District Munsif's Court, Vizakhapatnam, against one Hanumanthu, husband of the second respondent and the father of the third respondent herein. In execution of this decree, he brought the properties, the subject matter of this litigation, to sale and purchased them himself in the beginning of the year 1949. Subsequently, a sale-certificate was issued on 21-7-1949. After the abolition of the estates under the provisions of the Madras Estates (Abolition and Conversions into Ryotwari) Act, 1948, the Government in whom the whole of the estate vested under section 3(b) of the Act obtained delivery of possession of these properties.

(3) The appellants herein filed an application under O. 21, Rules 100 and 101 C. P. C. claiming the properties at their own and seeking to dispossess the Government as representing the decree-holder-auction-purchaser. This application was rejected by the executing Court on 9-7-1953. Instead of having recourse to Order 21, Rule 103 C. P. C. the appellants filed a civil revision petition (C. R. P. No. 1863 of 1953) to the High Court of Judicature at Madras on 23-9-1953. This petition was dismissed on 18-10-1955 by the High Court presumably for the reason that it did not involve any question relating to jurisdiction within the connotation of Section 115, C. P. C.

(4) This led the appellant to lay an action to set aside the adverse order dated 9-7-1953. The plaint was presented on 15-10-1956. Since the suit was instituted more than one year from the date of the impugned order as prescribed by Article 11-A of the Indian Limitation Act, Section 14 of that Act was invoked by the Plaintiffs appellants.

(5) The defendants pleaded that section 14(1) of the Limitation Act enabled the plaintiffs to deduct only the period between the date of the filing of the civil revision petition and the disposal thereof, i. e. from 23-9-1953 to 18-10-1955.

(6) This defence prevailed with the Courts below with the result that although they found that the appellants had established their title to the properties in question the suit was dismissed as it was not brought within one year, (excluding the period of pendency of the Civil revision petition).

(7) The aggrieved plaintiff brought a second appeal to this Court which originally was heard by Manohar Pershad, J., who having regard to the conflict of judicial opinion, referred it to a Division Bench of this Court.

(8) Subsequently, the second appeal came up before Jaganmohan Reddy, J., and one of us (Narasimham J.) who after discussing the case law bearing on the subject referred the question formulated above for the opinion of a Full Bench of this Court.

(9) Since the decision in this appeal turns entirely on section 14 of the Indian Limitation Act, it will be conveniently read here. Section 14 (Omitting the unnecessary portions/0 recites :

'(1) In computing the period of limitation prescribed 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 in a Court of Appeal, against the defendant, shall be executed, where at action 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.'

Explanation I, which governs both the sub.-sections 1. e., (1) and (2) postulated :

'In excluding the time during which a former suit or application was pending the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted.'

(10) Sub-section (1) of section 14 shows that the intendment thereof was that in computing the period of limitation, the time occupied by the litigation which became fruit less by reason of the defects contemplated by that sub-section should be deducted. No doubt the section does not define the period of that should be allowed under that section. The intention of the legislature in this behalf is conveyed by the clause, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or in a court of Appeal, against the defendant. .' It is seen that the legislature had used comprehensive words and it must have done it advisedly so that they may take in the entire period covered by the prosecution of another civil proceedings.

(11) The learned Government Pleader for the first respondent invites us to hold that the prosecution of another civil proceeding is synonymous with prosecution in a Court of law and that the word 'Prosecution' has a definite connotation of pursuing a thing in a court of law so the exclusion of the period should be confined to the pendency of the proceeding in the court. In support of this proposition, he draws our attention to the following meanings of the word 'prosecute' in the Stroud's Judicial Dictionary. It means :

'To 'prosecute' a suit or matter - that is begin to prosecute So to make and prosecute an application for a new trial was satisfied by obtaining a rule nisi, whatever afterwards became of the Rule.'

(12) In this context, we may also notice another passage occurring in the same page and called in aid by the learned Government Pleader.

'To prosecute an action for infringement of a patent 'with Due Diligence' (Proviso to S. 32, Patents , Designs and Trade Marks Act, 1883, 46 and 47 Vict c. 57 ), does not necessarily require that the action should be carried on to trial.'

We are not persuaded that these statements carry us anywhere.

(13) We may now turn to the Chambers Twentieth Century Dictionary for the meanings of the expression 'to prosecute' It means :

'To follow onwards or pursue in order to reach or accomplish; to engage in practise to follow up to pursue chase, : to pursue by law ; to bring before a Court.'

(14) These meanings do not vouch the construction of the section advanced by the learned Government Pleader. In our opinion, the section does not render it essential that the prosecution of the proceedings should be continued exclusively in the Court, i. e. the actual proceeding in the Court. There is justification for the view that it is only the actual period between the presentation of a proceedings and the disposal of that particular proceeding should be allowed under the sub-section. The time during which a party has been taking the indispensable and necessary steps preparatory to initiate the proceedings in a court should also be regarded as the time during which he has been prosecuting the civil proceeding .

It is also to be borne in mind that sub-section (1) makes no reference to the pendency of the suit, appeal or other proceeding in a Court of law. The legislature had used words of general import and of widest amplitude. So, we do not find any justification for reading a restriction into that sub-section and to hold that the time during which a party was engaged in taking steps for invoking the aid of the Court falls outside the contemplation urged on behalf of the respondents, while the pendency of a proceedings in a Court could be deducted in computing the period of limitation, the time occupied in obtaining certified copies of the judgment which is an essential requisite for the filing of an appeal or revision in the higher Court has to be disregarded for purposes of S. 14 . We do not think that the legislature would have contemplated such a situation. It would certainly result in an anomaly to hold that the time covered by taking the steps absolutely necessary for initiating proceedings in a Court should be included in calculating the period of limitation while the time during which a former suit or application was pending in a Court should be excluded. In our considered judgment the section does not make any distinction between the steps which a litigant has to take to initiate proceedings in a Court and the actual pendency of those proceedings in the Court.

(15) In this context, it is worthy of note that it is only a party, who prosecutes a Civil proceedings with due diligence that would get the time envisaged in the section deducted from the period of limitation prescribed by the relevant Article. In other words, the relief of exclusion to the time could be granted only when it is shown that the prosecution was with due diligence. Thus, the right conferred upon a party is not an unqualified one. Want of due diligence would disentitle a person to get exclusion of the time occupied by the prosecution of the Civil proceeding. So, a person who spends unduly long time in taking preparatory steps to initiate proceedings in a Court would not be entitled to claim exclusion of that time since that would be prima facie evidence of want of due diligence. Whether a particular proceedings was prosecuted with due diligence is to be determined with reference to the facts of that case. Therefore, the construction we have placed above would not amount in either unduly enlarging the ambit of that section or stretching the meaning of the relevant expression.

(16) This section has been the subject of judicial scrutiny for nearly a century. Before we proceed to solve the problem posed before us in this reference, it may be stated here that a 'Court of Revision' is within the expression 'a Court of Appeal'. The trend of decisions of most of the High Court at Madras, is that a revision petition falls within the ambit of section 14. So, we will proceed on the footing that an infructuous civil revision petition is also governed by S. 14. We can further assume legitimately that the considerations that pertain to appeals in this regard would also attach to civil revision petitions.

(17) We will now refer to the earliest reported cases interpreting section 14(1) of Act XIV of 1859, which is the predecessor of the present section 14. In Raj Kishto Roy v. Beer Chunder Joobraj, 6 Suth WR 308 a Division Bench of the Calcutta High Court inter alia ruled that a person would be engaged in prosecuting a suit while he was taking steps for taking proceedings in a Court. The dictum laid down by the learned Judges in this regard is contained in the following passage :

'We also think that he is engaged in prosecuting the same suit 'bona fide' and 'with due diligence', whilst he is considering whether or no he shall appeal against the decision of the first Court. The time within which the appeal is required to be brought is fixed by the law, in order to give the unsuccessful party time to take advise and come to a conclusion whether or no he should contest the decision which has been given against him. And it seems to us that, if he appeals at any time within the prescribed period, he ought to be considered as proceeding with due diligence.'

This ruling supports the view adumbrated by us above

(18) This principle is echoed in Luckhi Narain Mitter v. Khettro Pal Singh, 20 Suth WR 380 (PC) though in a different form, while construing the same section of the same Act. One of the questions that called for decisions in that case was whether a person who was engaged in a fruitless litigation could deduct the whole period occupied by such proceedings and it was answered in the affirmative. What happened there was that in order to recover a deposit in a Court made in November 1864 a suit was instituted by the plaintiff in a Court which ultimately turned out to be one not having territorial jurisdiction to entertain it. Though the trial Court overruled the plea as to jurisdiction and a gave a decree, this defence found acceptance with the first and the second appellate Courts. The result was that the plaintiffs had to bring another action for recovery of the deposit in a Court of competent jurisdiction.

When the matter went up in appeal ultimately to the Judicial Committee of the Privy council, their Lordships expressed the opinion that, according to the true constructions of S. 14, Act XIV of 1859, the whole time occupied in that suit, including the time during which the special appeal to the High Court was pending, must be deducted. They added that giving a reasonable construction to that section it would mean that the whole time in which the plaintiff had been fruitlessly engaged in prosecuting a suit bona fide and with due diligence for the same cause of action, in which he failed in consequence of a final determination in the suit, whether upon appeal or otherwise, that the Court in which the suit was brought had no the section which fell to be interpreted there was of Act XIV of 1859. But it will appear from a comparison of the relevant provisions as drafted in the Subsequent enactments including the one with which we are now concerned that the section, in substances, is the same.

(19) Section of the Limitation Act, 1859 read as follows :

'In computing any period of limitation prescribed by this Act, the time during which the claimant, or any person under whom he claims, shall have been engaged in prosecuting a suit upon the same cause of action against the same defendant, or some person whom he represents, bona fide and with due diligence in any Court of Judicature which, from defect of jurisdiction or other cause, shall have been unable to decide upon it, or shall have passed a decision which , on appeal shall have been pending shall be excluded from such computation.'

(20) The 1859 Act was replaced by Act IX of 1871. section 15 of this Act is worded thus :

'In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another suit, whether in a Court of first instance or in a Court of Appeal, against the same defendant or some person whom he represents shall be excluded where the last mentioned suit is founded upon the same right to sue, and is instituted in good faith in a Court which, from defects of jurisdiction, or other cause of a like nature, is unable to try it.

Explanation 1 : In excluding the time during which a former suit was pending, the day on which that suit was instituted, and the day on which the proceedings therein ended, shall both be counted.

Explanation 2 : A plaintiff resisting an appeal presented on the ground of want of jurisdiction , shall be deemed to be prosecuting a suit within the meaning of this section.'

(21) It is manifest this section had not introduced any material change in the object and the purpose of law declared in the section. the concept underlying both the sections is the same, though there were a number of verbal changes. It is also interesting to note what was once a section in Act XIV of 1859 was split up into a section and two Explanations in the 1871 Act. This Act in its turn was repeated in 1887 and the law of limitation was re-enacted as the Indian Limitation Act of 1877 (XV of 1877).

(22) The relevant section, (Sec. 14) recites :

'In computing the period of limitation prescribed 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 in a Court of Appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action, 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.'

(23) It is unnecessary for the present purpose to extract the second paragraph of that section. The third paragraph reads :

'In computing the period of limitation prescribed for any application , the time during which the applicant has been making another application for the same relief, shall be excluded, where the last-mentioned application is made in good faith to a Court which , from defect of jurisdiction , or other cause of a like nature, is unable to grant it.'

(24) Explanation I to that section is practically in the same words as the present one and it is not necessary to read it here.

(25) Lastly we come to the Indian Limitation Act (IX of 1908) the successor of the enactments adverted to above. We have already quoted S. 14 of this Act to the extent it has bearing on the present enquiry.

(26) A comparison of the provisions of the various statutes bearing on this law does not disclose any material difference in regard to the object of that section. All these Acts employ the same language so far as the main idea regarding the exclusion of time is concerned, which ultimately turns out to be infructuous or fruitless for reasons envisaged in the section. Therefore, the doctrine of 6 Suth WR m 308 and of 20 Suth WR 380 (PC) applies with full vigour to the present section 14.

(27) That the principle is the same could be seen from the judgment of the Calcutta High Court in Lakshiram Mandal v. Sonatun Basar, 7 Ind Cas 775 (Cal). The rule stated in this case is in consonance with that of 6 Suth WR 308. It was laid down in the case under citation that a person should be regarded as prosecuting another civil proceeding within the purview of S. 14, sub-section (2) of the Limitation Act during the period when he was taking the indispensable and preparatory steps in a Court for the institution of the appeal which ultimately proved infructuous. This is how the learned Judges stated the principle.

'In our opinion there is not good reason why a person should be deemed as prosecuting a Civil proceeding only after he has instituted the in a Court and during the time that it is actually pending there. The time, during the time that it is actually pending there. the time, during which he has been taking the necessary preliminary and preparatory steps in Court, for the institution of the proceedings may very well be regarded, without any undue stretch of language, as time during which he has been 'prosecuting' the proceeding'.

The learned Judges relied on 20 Suth WR 380 (PC) which affirmed Khettur Paul Singh v. Luckhee Narain Mitter 15 Suth WR 125.

(28) In the same trend of thought is the pronouncement of their Lordships of the Supreme Court in Raghunath Das v. Gokul Chand, : [1959]1SCR811 . It was decided there that the plaintiff who was engaged earlier in infructuous proceedings, was entitled, in computing the limitation, to deduct the period spent in the execution proceedings which included all the appeals arising therefrom. In that case, the respondent, Gokul Chand, applied to the District Court on 31-8-1936 for filling an award and the Court passed the decree on compromise modifying certain terms of the award. But on application for execution of that decree was dismissed by the District Court on 23-12-1942. This was reversed in appeal by the High Court on 5-4-1942. This was reversed in appeal by the High Court on 5-4-1944. Finally, the execution petition was dismissed on a Letters Patent Appeal on 15-3-1945. On 5-6-1946, the appellant before the Supreme court brought a suit claiming a different relief which need not be set out here, in the Subordinate Judge's Court. One of the controversies that arose was whether the entire period occupied by the execution proceedings including the two appeals should be deducted under section 14 of the Limitation Act. Their Lordships agreed with the contention advanced on behalf of the plaintiff - appellant as regards exclusion. The position in this regard was summed up by Das, Chief Justice, who spoke for the Court, in these words :

'In the next place the section excludes the time spent both in a Court of first instance and in a Court of first instance and in a Court of appeal. Therefore, other conditions being satisfied, the entire period mentioned above would be liable to be excluded. The only questions that remain are (i) whether the proceedings were founded upon the same cause of action and (ii) whether he prosecuted the proceedings in good faith in a Court which for defect of jurisdiction was unable to entertain it. The execution proceedings were founded upon his claim to enforce his rights declared under the decree upon the award. The cause of action in the present suit it also for enforcement of the same right, the only difference being that in the former proceedings Raghunath Das was seeking to enforce the same rights in a regular suit.' Lower down his Lordship observed : 'In our opinion, Raghunath Das is entitled to the benefit of Section 14(1) of the Indian Limitation Act and the period herein before mentioned being excluded there can be no doubt that the suit was filed well within the prescribed period of limitation and the judgment of the Division bench cannot be sustained. '

(29) The learned Government Pleader urged that this decision should not be taken as laying that this decision should not be taken as laying down the proposition that S. 14 covers not only the period of pendency of an appeal but also the time occupied for the steps preparatory to institute the infructuous proceedings. It is true that the questions was posed before their Lordships of the Supreme Court in a broad form, namely whether the total period spent in the whole of the execution proceedings embracing the appeals arising therefrom should be taken into consideration and not in the way it is presented to us now. Building, that does not make any different since the present rule is implicit in the principle enunciated by their Lordships. It really their Lordships did not feel that what we may call preparatory period to institute proceedings should be deducted, they would have stated that the pendency of either the original execution petition and each of the appeals alone should be allowed under S. 14 and not that the whole of time taken by the execution proceedings should be excluded. Hence the argument advanced by the learned Government Pleader is inconsistent with the principle embodied in : [1959]1SCR811 .

(30) In Perumal v. Pandaram, AIR 1951 Trav-Co 26 a Division Bench of the Travancore-Cochin High Court held that Section 15 did not limit the period of exclusion to the period of exclusion to the period of actual pendency of infructuous appeals or revisions.

(31) The rulings cited above firmly establish the proposition that Section 14 permits a plaintiff to deduct the whole of the time occupied in pursuing remedies which proved to be fruitless for reasons of defects of jurisdiction or of the like nature in calculating the limitation for the purpose of a suit to annual the order forming the subject-matter of that suit.

(32) We will now turn to the judgment of the Madras High Court in ILR 39 Mad 62. (AIR 1915 Mad 405) which was mainly responsible for this reference. An auction was raised to set aside an order disallowing a petition for rateable distribution under Section 73, clause (2) Civil Procedure Code. Originally, the petition was dismissed on 18-10-1905. The aggrieved petitioner filed a civil revision petition to the High Court of Madras under Section 115 C. P. C. on 21-12-1905. That was dismissed on 12-12-1906. The suit giving rise to the appeal disposed of by the Division Bench of the Madras High Court was instituted on 11-12-1909. The point for determination there was whether the total period of four years occupied in pursuing the infructuous revision petition should be excluded from the period prescribed by Article 62 of the Limitation Act, i. e. , three years. Alying J., and Hannay J., who constituted the division Bench, expressed the opinion that the plaintiff could exclude only the time during which the revision petition was pending. The ratio decidendi is contained in these observations :

'Though the plaintiff had right of suit under section 73 of the Code, he elected to proceed by revision in the High Court and the law does not fix any period within which petitions for revision are required to be brought. In these circumstances, it seems to us that the case cited is not in point and that it cannot be said that the plaintiff was prosecuting a proceeding at all while he was merely making up his mind to apply for revision.'

It was the consideration of uncertainty of time in which the revision petition could be filed that induced the learned Judges to lay down that proposition.

(33) It may be mentioned here that they referred to 6 Suth WR 308 and stated :

'It was a case where the plaintiffs suit was dismissed for want of jurisdiction and the plaintiff then tried unsuccessfully to remedy his failure by appeal. In these circumstances , it was held that as the law allows a fixed time for appeal in order to allow the unsuccessful party to consider whether he will appeal or no, if a party appeals, within the time so fixed, he ought to be considered as proceeding with due diligence between the decision of the suit and the filing of the appeal.'

(34) The passage quoted above brings out the distinction between the pendency of an appeal and the pendency of a revision petition .

(35) In this connection, it should be remembered that the Limitation Act has not prescribed any period for bringing revisions to the High Court under section 115 C. P. C. Accordingly, a litigant could file a revision petition at any time. But, normally the parties were expected to file revision petitions at any time. But, normally the parties were expected to file revision petitions with in 90 days. It is to remove the uncertainty and to fix a time within which revision petitions should be filed in the High Court that sub-rule 41(A) was introduced into the Appellate Side Rules by the Madras High Court. Rule 41-A(2) says :

'No application in civil Revision shall be presented after ninety days from the date of the order complained of, provided that the Court may, on sufficient cause shown, excuse the delay in presentation.'

(36) After the addition of this sub-rule the principle enunciated in ILR 39 Mad 62 : (AIR 1915 Mad 405) will not govern S. 14(1) of the Limitation Act.

(37) In 1937 Mad WN 465 (2) another Bench decision of the Madras High Court , in a way approved the principle enunciated in ILR 39 Mad 62 : (AIR 1915 Mad 405). It may be mentioned here that this case also related to a period when no limitation was prescribed for filing civil revision petitions in the High Court under Appellate Side Rules. It was only on 1931 that Rule 41-A was added to the Appellate Side Rules of the Madras High Court . Therefore, the observations in the subsequent ruling also were explicable on the basis of certainty of the period of limitation in regard of limitation in regard to civil revision petitions. Referring to ILR 39 Mad 62 : (AIR 1915 Mad 405), this is what the Division Bench remarked :

'ILR 39 Mad 62 : (AIR 1915 Mad 405) only decided - and rightly, if I may say so - that Section 14 would be invoked only to exclude the period of the pendency of the revision petition and not nay period anterior to its filing.'

(38) It may be further stated here that the question whether the time anterior to the filing of the revision case should be excluded or not did not arise there. That was also a problem presented under Section 73 C. P. C. A Civil revision petition was filed on 6-3-1914 and it was dismissed on 11-4-1921. To vacate that order the suit which gave rise to the appeal in 1937 Mad W N 465 (2) was filed on 31-3-1922. As already stated, the Article of limitation that was applicable to a case of that nature is Article 62. Consequently, if the period of pendency of the revision was excluded, it was will within time and as such as the learned Judges were not called upon to resolve the controversy that arose in ILR 39 Mad 62 : (AIR 1915 Mad 405). These tow rulings therefore, do not lend support to the contention now urged on behalf of the Government.

(39) Another ruling of the Madras High Court called in aid by the learned counsel for the respondent is Venkataswamy v. Sara Bai, 1943 -2 Mad LJ 41 : (AIR 1943 Mad 633) . Here again, the question we are now called upon to answer did not pose itself before Somayya, J., who decided that case. He had only to deal with the controversy whether the time covered by the pendency of the revision petition in the High Court should be deducted under section 14(1) of the Limitation Act or not. Having regard to the preponderance of opinion that revision petitions also come within the pale of S. 14, he decided the question in favour of the plaintiff .

(40) We will now turn to four decisions of three different High Courts which restricted the exclusion only to the period of pendency of the infructuous Civil proceedings.

(41) Mt. Babi Aziman . v. Mt. Saleha, , : AIR1963Pat62 expressed the opinion that the period anterior to the institution of the revision petition could not be deducted and the plaintiff could only deduct the time that was spent from the date of filing of the revision and the date of its summary dismissal. The learned Judge thought that they could gather support for this opinion from Lal Behari Lall v. Bani Madhava Khatri, 28 Pat 102 : (AIR 1949 Pat 293) (FB). A perusal of the judgment in ILR 28 Pat 102 : (AIR 1949 Pat 293) (FB) reveals that it does not lend any colour to the theory propounded in : AIR1963Pat62 . All that the Full Bench had to decide was whether the plaintiff was entitled to exclude the time during which the revision petition was pending in the High Court. They were not called upon to decide whether the period between the order sought to be assailed and the presentation of the revision petition should be deducted or not. Be that as it may, we are unable to share the view expressed by the Division Bench of the Patna High Court in : AIR1963Pat62 .

(42) We will now advert to Chhuttan Lall v. Dwarka Prasad, AIR 1938 All 78. A single Judge of the Allahabad High Court ruled that the only period that could be deducted under S. 14 of the Limitation Act is the period between the date of presentation to the plaint and its return for presentation of the plaint and its return for presentation to the proper court. It looks to us that the learned Judge based his conclusion largely upon the party having recourse to the revisional jurisdiction of the High Court as a sort of gambling while there was an effective remedy by way of suit. This thought of the learned Judge could be gleaned from the following passage :

'Some of these rulings pointed out that the law requires that when the revision was dismissed by the High Court on 2nd November, 1934, the plaint should have been filed in the Court in Meerut on 3rd November 1934 at the latest. This may seem to be rather a hardship as no interval of time is allowed by the Act, but a plaintiff has the remedy of taking the precaution of filing his plaint in the proper Court during the period when his revision is pending in the High Court. If the plaintiff gambles on the chance of his revision succeeding, he cannot except the law to allow him a further period in which he can take time to take his plant to the proper court. For these reasons, I consider that the suit filed in the Court of Meerut on 19th November 1934 was beyond time as the suit related to a partnership which began on 1st April 1927 and terminated on 31st March 1928 and for which the period of limitation is three years'.

(43) The learned counsel for the appellant in the cited case in addition called in aid Explanation I to Section 14. which has already been extracted. Bennet J., gave effect tot hat argument by saying that the Explanation meant that only the period covered by the pendency of the civil revision petition in the High Court would enter in the computation of limitation. We have already stated that the numerous authorities indicated in the order of reference establish the proposition that an infructuous revision petition is within the comprehension of section 14. As regards the second part of the conclusion reached by the learned Judge based upon the Explanation does not warrant the narrow construction that is placed on section 14. We do not think that the Explanation limits the ambit of the main provisions. The Explanation only deals with the mode of computation of the period of the pendency of the civil revision petition in the Court. It does not cut down the content of the main provision. It is difficult to read the Explanation as governing the total period that is allowed under the sub-section. the Explanation indicates the method of exclusion of time during the pendency of proceedings in the Court for the purpose of computation of limitation. We are satisfied that Explanation I does not given any support to the principle enunciated in AIR 1938 All 78. We, therefore, express our respectful dissent from AIR 1938 all 78 (supra).

(44) To a like effect is the decision of a single Judge of the Nagpur High Court in Laxmandas v. Chunnilal, AIR 1931 Nag 17. The comments made in regard to AIR 1938 All 78 apply equally to this case also.

(45) The ruling of a Full Bench of the Kerala High Curt in Thycattuseri Church v. Sicillyamma, : AIR1963Ker137 is in accord with the abovementioned tow cases. What we have said in dealing with those cases applies with full force to this ruling also. It may be mentioned here that : AIR1963Ker137 does not refer to an earlier decision of a Division Bench of the same High Court . It is also interesting to note, there is no reference either to 6 Suth WR 308 or 20 Suth WR 380 (PC) or to 7 Ind Cas 775 (Cal) in these cases.

(46) What follows on this discussion is that both on authority and on the language of S. 14 there is no scope for limiting the ambit of S. 14 to pendency of infructuous proceedings in a Court of law and to disregard the time taken for taking the indispensable and preparatory steps to institute proceedings which ultimately prove to be fruitless.

(47) In these circumstances , the question is answered accordingly.

(48) The Second Appeal will go back to the division bench which made the reference, for final disposal.

49. Question answered accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //