JOHRI MAL Vs. SURJAN SINGH AND OTHERS

JUDGEMENT

(1.) THIS second appeal is directed, against the judgment and decree of Additional District Judge, Rohtak who allowed the appeal of the Defendant Respondent Surjan Singh on February 29, 1968 and dismissed the suit of the Plaintiff. Facts are not in dispute and may be stated in a narrow compass so far as they are necessary for deciding the present appeal. Surjan Singh Respondent in execution of a decree obtained by him against Banarsi Dass judgment debtor Respondent got attached the shop in question which was alleged to belong to the judgment debtor. The Plaintiff Appellant preferred objections under Order 21. Rule 58, Code of Civil Procedure, which were dismissed by the executing Court on 8th January, 1964. The Plaintiff then instituted a suit on 10th February, 1964 under Order 21. Rule 63 Code of Civil Procedure to establish his right to the property in dispute. It was a suit for declaration to the effect that the Plaintiff was the owner in possession of the shop and the same was therefore not liable to attachment and sale in execution of the decree of Defendant - respondent Surjan Singh against the judgment debtor Banarsi Dass Respondent 2 It was pleaded by the Plaintiff that the shop in dispute originally belonged to Banarsi Dass judgment debtor who sold it to Hukam Chand Defendant and that the latter then gifted the same to the Plaintiff as per got(sic) deed dated 16th of July 1962. The allegations further were that the decree in the execution where of the shop was sought to be attached on 24th of January 1963 had been obtained collusively. The decree -holder contested the suit and filed a written statement.

(2.) REFERENCE to Rule 2 of Order XXIII of the Code of Civil Procedure is also necessary to appreciate the true scope of Section 14(3). The said Rule 2 reads as under:

(3.) BEFORE the Act came into force, a Plaintiff who withdrew his suit with the permission of the Court on the ground of some formal defect or on any other ground which the Court thought sufficient, could not in the subsequent suit get the benefit of the time spent by him in prosecuting the earlier suit and by virtue of Rule 2 of order XXIII of the Code of Civil Procedure, he would be bound by the law of limitation in the same manner as it the first suit had never been instituted. In other words in computing the period of limitation the Plaintiff, even if he was prosecuting in good faith and with due diligence another civil proceeding in a Court which from defect of jurisdiction or cause of the like nature was unable to entertain it could not exclude the period spent in such litigation and it made no difference that he had withdrawn the suit with the permission of the Court under order 23, Rule 1. A provision has now been made in the present Act of 1963 for the first time whereby the Plaintiff who withdraws a suit under Order 23 Rule 1. can in computing the period of limitation normally prescribed for the suit exclude the time spent in prosecuting the previous suit provided he prosecuted the same with due diligence and in good faith and suit was withdrawn as it was bound to fail because of defect in Jurisdiction of the Court or other cause of a like nature. The same thing expressed differently means that the formal defect must relate to the jurisdiction of the Court or a cause of the same type and not that for any other formal defect for which suit is withdrawn the Plaintiff gets a right to deduct the period so spent. Sub -Section 3 of Section 14 of the Act is thus more in the nature of a proviso to Rule 2 of Order 23 of the Code of Civil Procedure. The question that will, therefore, arise for determination in each case is whether the previous suit was prosecuted diligently and bona fide and had to be withdrawn because of it being likely that the same would have failed by reason of a defect in the jurisdiction of the Court or other cause of the like nature. The Plaintiff before he takes advantage of Sub -Section 3 of Section 14 must establish all the essential conditions namely due diligence, good faith and that the suit would have failed by reason of the defect in jurisdiction of the Court or other cause of the like nature. The expression other cause of the like nature of howsoever wide amplitude, has to be read ejusdem generis to and along with the earlier part of the same provision which relates to defect of jurisdiction of the Court It is not possible to lay down an exhaustive list of all causes showing defect of jurisdiction and each case will depend on its own facts and circumstances. The legislature in clause of the explanation referred to above has provided that misjoinder of parties or of causes of action shall be deemed to be a cause of the like nature with defect of jurisdiction. The Plaintiff -Appellant in the case before us has made no attempt to lead any evidence to show that the former suit was withdrawn by him because of defect in the jurisdiction of the Court or any other cause ejusdem generis or analogous thereto. He has placed on the record a copy of the order Exhibit P. 9 to which a reference has already been made above. It shows this much only that the parties agreed that the suit be withdrawn on the ground of a formal defect and the Court allowed the same The contents of paras 6 and 7 of the plaint which did not find mention in the previous suit do not show that any question of jurisdiction was involved or that the defect could be said to be one relating to the jurisdiction of the Court. A few facts not mentioned in the earlier suit have been stated in the plaint filed in the present suit. The learned Counsel for the Appellant submits that the plea of res judicata was involved and this was a defect which related to the jurisdiction of the Court. I am afraid there is no merit in this contention. It is true that the words 'other cause of a like nature' must liberally cons. trued but it has to be kept in mind that they have to be given a meaning ejusdem generis with and analogous to the words preceding them They can note that the suit must be one which the Court could not entertain because of those defects. There must thus be a defect which affects the inherent capacity of the Court to entertain the suit and prevents it from trying the same. The mere fact that a plea of res judicata had been taken in the written statement would not have prevented the Court from entertaining the suit and deciding the same. The plea of bar of res judicata is not such a question which can be said to relate to the jurisdiction of the Court or other cause of a like nature within the meaning of Section 14 of the Act. A similar view was taken by a Division Bench of the Patna High Court in Braja Gopal Mukerji v. Tara Chand Marwari : A.I.R 1921 Pat 225, where while interpreting Section 14(2) of the Limitation Act of 1908, the learned Judge held that res judicata does not constitute other cause of a like nature within the meaning of the said provision of law. My attention has been invited by the learned Counsel to a Full Bench judgment of the Lahore High Court in Bhai Jai Kishan Singh v. Peoples Bank of Northern India : A.I.R 1944 Lah. 126, where the words 'other cause of like nature' were interpreted and the scope of this expression as it finds mention in Order 23, Rule 1, Code of Civil Procedure was considered. It was held by the learned Judges that these words denote that the defect must be of such a character as to make it impossible for a Court to entertain the suit or application either in its inception or subsequently or it may be prevented from deciding the case on its merits. The defect at any rate must be such which does not necessitate an examination of the merits of the case. If as in the present case, the Court had to go into the merits before it could dismiss the same whether on ground of res judicata or otherwise it would not fall within the purview of these words. In Munsha Singh Sunder Singh v. Gurdit Singh : A.I.R 1965 P&H. 80. a Division Bench of this Court held that the provisions of Section 14(1) would not be attracted where the trial Court came to the conclusion after trial that the cause of action had not arisen. It must, therefore, be held that the Plaintiff is not entitled to the benefit of Section 14(3) of the Limitation Act and the suit filed by him was rightly dismissed as barred by time.