JITENDER KUMAR GUPTA Vs. SUKHBIR SINGH SAINI

JUDGEMENT

(1.) THE appellant assails the order dated 5th July, 2012 passed by the learned Single Judge on his application being I.A. No. 3262/2011 and CS(OS) No. 17/2011. By the impugned order, the learned Single Judge has dismissed the aforesaid application preferred by the appellant/plaintiff under Section 14 of the Limitation Act, 1963 and, consequently the suit has also been dismissed as being barred by limitation.

(2.) IN a nutshell, the case of the appellant/plaintiff is that the appellant/plaintiff and one Shri Bal Kishan Saini were carrying on business jointly. The plaintiff filed a suit against Shri Bal Kishan Saini and their business entity M/s Devred (INdia) Pvt. Ltd. for rendition of accounts on 30th May, 2006. IN that suit, the appellant/plaintiff filed an application under Order 1 Rule 10 CPC read with Order 6 Rule 17 CPC for impleadment of the respondent herein Shri Sukhbir Singh Saini, as a defendant on 3rd November, 2006 which was eventually dismissed on 8 th November, 2010. The respondent herein also filed a suit on 19th August, 2006 against the appellant and Shri Bal Kishan Saini, brother-in-law of the appellant, alleging them to be his tenants in his property and claiming recovery of rent. The respondent filed yet another suit on 29 th September, 2006 for a declaration that he is not the proprietor of M/s Victoria Creations, and instead, the appellant and Shri Bal Kishan Saini are the proprietors of the said firm. This suit was dismissed in default on 22nd January, 2010. Thereafter, the appellant/plaintiff preferred the present suit for recovery of Rs. 65,83,590.00 against the respondent Shri Sukhbir Singh Saini on the basis of the acknowledgement alleged to have been made by the respondent of the dues payable by him to the appellant in the balance sheet of the proprietorship concern M/s Victoria Creations, alleged to be of the respondent. The present suit was filed on 3rd January, 2011. The appellant/plaintiff also filed the aforesaid application under Section 14 of the Limitation Act for exclusion of the time spent in pursuing the application for impleadment, as aforesaid, in his earlier suit preferred against Shri Bal Kishan Saini for rendition of accounts which remained pending during the period 3rd November, 2006 to 8th November, 2010. The appellant also claimed that he was entitled to the exclusion of the period from 29th September, 2006 till 22nd January, 2010, which was the time spent by the appellant in defending the declaratory suit filed by the respondent, as aforesaid, which was eventually dismissed in default.

(3.) THE submission of learned counsel for the appellant before us is that the appellant acted bona fide and the requirement of Section 14 of the Limitation Act is only that the plaintiff should have prosecuted, in good faith, the other proceeding. It is not necessary that the other proceedings should be substantive proceedings like a suit or some other similar proceedings. Even an application filed to seek impleadment of the party, who is the defendant in the suit in question, would qualify as a proceeding for the purpose of Section 14 of the Limitation Act. He submits that in the earlier suit preferred by the appellant against Shri Bal Kishan Saini, wherein the appellant was seeking rendition of accounts from Shri Bal Kishan Saini, upon the disclosure of Shri Bal Kishan Saini in his written statement - that the respondent Shri Sukhbir Singh Saini is liable to make payment of the suit amount, the appellant had sought his imleadment while simultaneously seeking to amend the suit by invoking Order 6 Rule 17 CPC. He submits that when the said application was preferred on 3rd November, 2006, the period of limitation to sue the respondent herein had not expired. He submits that the said application for impleadment and amendment came to be decided and dismissed by the Court only on 8th November, 2010. He submits that, had the said application been rejected in the year 2006 itself or sometime thereafter, he would have filed the suit in question within the period of limitation. He submits that the appellant cannot be made to suffer on account of delay in the disposal of the aforesaid application for impleadment and amendment, as no party can be made to suffer on account of the act of the court.