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PETITIONER: GHASI RAM AND OTHERS

       Vs.

RESPONDENT: CHAIT RAM SAINI AND OTHERS

DATE OF JUDGMENT:       22/07/1998

BENCH: S.P. BHARUCHA, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T V.N. Khare, J      This civil  appeal raises only one question that is, as to whether  the benefits  of provisions of Section 14 of the Indian Limitation  Act, 1906 (hereinafter referred to as the Act) can  be extended  to a  suit filed  by  the  plaintiff- appellant under  Order 21  of Rule  103 CPC  and is directed against the  judgment of  a  learned  single  judge  of  the Allahabad High Court, whereby the Second Appeal filed by the defendant-respondent was  allowed and  the suit filed by the plaintiff-appellant was  dismissed.      Since the  High Court  had dismissed  the suit  on  the ground of  limitation, the  facts  of  the  case  which  are somewhat complicated,  need not  be set  out in  detail, but reference may  be made  only to such facts which have direct bearing upon the question involved in this case.      The defendant-respondent had filed suit No. 279 of 1950 against one  chhutan for recovery of rent and ejectment from the premises  which was decreed and the execution proceeding No. 331 of 1951 ensued. Since the Amin could not deliver the possession  of  the  property  due  to  obstruction  by  the plaintiff-appellant,  the   defendant-respondent  moved   an application under  Order 21 Rule 97 CPC before the executing court. The  plaintiff-appellant filed  objection to the said application claiming  himself to  be  the  co-owner  and  in possession over  the property.  After hearing the objection, the application  of the  defendant-respondent was allowed by the executing court on 3.2.1956 and the objections raised by the   plaintiff-appellant    were   rejected.   Under   such circumstances, although the plaintiff-appellant had a remedy of filing  a fresh  suit under  order 21  Rule 103  CPC, but instead be  filed  a  revision  before  the  High  court  on 9.2.1956  which  was  dismissed  on  30.10.1957.  After  the revision  petition  was  rejected,  the  plaintiff-appellant brought suit  No. 390  of 1956  on 26.9.1958  under Order 21 Rule 103  CPC. In  the  said  suit  the  plaintiff-appellant prayed for  a declaration  that he  is the  co-sharer and is entitled to  possession on  the land  in dispute.  Since the said suit  was barred by limitation, the plaintiff-appellant claimed the  benefit of  section 14  of the Act. The learned

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Munsif, on  facts, extended  the benefits  of provisions  of section 14  of the  Act and  on merits the suit was decreed. The first  appellate  court  dismissed  the  appeal  of  the defendant-respondent and affirmed the decree. The defendant- respondent. Thereafter  filed Second  Appeal before the High court. In  the second  appeal, the  question that  arose for consideration  was   whether  the   plaintiff-appellant  was entitled to  exclude the time spent in prosecuting the civil revision petition  in the High Court.  The view taken by the High Court  was that the plaintiff’s revision petition filed against the  order passed  by the  court on  an  application filed under  Order passed  by the  Court on  an  application filed under  Order 21 Rule 97 having been entertained by the High Court  and not  dismissed for want of jurisdiction, the plaintiff-appellant was  not  entitled  to  the  benefit  of section 14  of the Act. On the question of "good faith", the view of  the High  Court was  that, since  there being clear provision in  the Code  of Civil  Procedure that  against an order passed on an application filed under order 21 Rule 97, the only  remedy available  to an  objector is  to file suit under  Rule   103,  the   revision  petition  filed  by  the plaintiff-appellant  was  ill-advised  and,  therefore,  the plaintiff-appellant did not prosecute the proceeding in good faith. in  that view  of the  matter, the High Court allowed the second  appeal and  dismissed the  plaintiff-appellant’s suit. Aggrieved,  the plaintiff-appellant  has come  to this Court by special leave.      Before us  learned counsel  for the appellant contended that the  High Court  while exercising  its revisional power had no  jurisdiction to  decide the  matter on  facts and as such, the  High Court suffered from disability to adjudicate the matter  and thus  the case  Fell within  the  expression "other cause  of a  like nature"  appearing in Section 14 of the Act and in that event of the matter, plaintiff-appellant is entitled  to exclude  the period spent in prosecuting the civil revision  before the  High  Court.  The  case  of  the respondent is   that  Section 14 of the Act did not apply in terms to  the present  case. Since the suit was filed in the year 1958, the provisions of the Indian Limitation Act. 1908 would be  applicable although it is repealed and replaced by the Limitation  Act of  1963. Section  14 of  the Act  as it stood then is extracted below:-      "14.   Exclusion    of   time    of      proceeding   bonafide    in   Court      without   jurisdiction    -(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 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.      2............      Explasnation -I.  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

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    which   the   proceedings   therein      ended, shall both be counted.      Explanation -  II. For the purposes      of this  section, a plaintiff or an      applicant.  resisting   an   appeal      shall be deemed to be prosecuting a      proceeding."      A perusal of the aforesaid provision would show that in order to get the benefit of sub-section (1) of section 14 of the Act,  the party  seeking its  benefit  must  fulfil  the following four conditions:-      (1)  The   plaintiff  who   filed  the  suit  had  been      prosecuting   another   civil   proceeding   with   due      diligence.      (2) The  earlier proceeding  resorted by  the plaintiff      was based on the same cause of action.      (3)  The   former  proceeding  was  prosecuted  by  the      plaintiff in good faith in a court.      (4) The  court, due  to the  defect of  jurisdiction or      other cause  of a  like nature, was unable to entertain      such proceeding.      It is  not  disputed  in  the  present  case  that  the plaintiff-appellant satisfied  the court  that he prosecuted the earlier  civil proceeding  with due  diligence  and  the earlier civil  proceeding was  based on  the same  cause  of action. What  is  disputed  is  that  the  court  where  the proceeding was  taken  was  not  one  which  was  unable  to entertain it  (i) from  the defect  of jurisdiction  or (ii) other cause  of a  like nature  and, secondly,  the  earlier proceeding was  not prosecuted  in good  faith. In  order to appreciate whether conditions Nos. 3 and 4 were satisfied in the present  case or  not, it  is worthwhile  to extract the provisions of  Order 21  rules 97,98,99,100 and 103, as they stood prior to Amendment Act, 1976.      "97. (1)  Where  the  holder  of  a      decree  for   the   possession   of      immovable property or the purchaser      of  any   such  property   or   the      purchaser of any such property sold      in  execution   of  a   decree   is      resisted  or   obstructed  by   any      person in  obtaining possession  of      the  property   he  may   make   an      application    to     the     Court      complaining of  such resistance  or      obstruction.           (2) The  Court shall fix a day      for investigating  the  matter  and      shall summon the party against whom      the application  is made  to appear      and answer the same.      98. Where  the court  is  satisfied      that the  resistance or obstruction      was  occasioned  without  any  just      case by  the judgement-debtor or by      some   other    person    at    his      instigation, it  shall direct  that      the   applicant    be   put    into      possession  of  the  property,  and      where  the   applicant   is   still      resisted or obstructed in obtaining      possession, the  court may also, at      the  instance   of  the  applicant,      order the  judgement-debtor, or any      person acting  at his  instigation,

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    to be  detained in the civil prison      for a  term  which  may  extend  to      thirty days.      99. Where  the court  is  satisfied      that the  resistance or obstruction      was occasioned by any person (other      than the  judgment-debtor) claiming      in good  faith to  be in possession      of the  property on his own account      or on  account of some person other      than  the   judgement-debtor,   the      court   shall    make   an    order      dismissing the application.      100. (1)  Where  any  person  other      than   the    judgment-debtor    is      dispossessed of  immovable property      by the  holder of  a decree for the      possession  of  such  property  or,      where such  property has  been sold      in execution  of a  decree, by  the      purchaser thereof,  he may  make an      application    to     the     court      complaining of such dispossession.      (2) The  court shall  fix a day for      investigating the  matter and shall      summon the  party against  whom the      application as  made and answer the      same.      103.  Any   party   not   being   a      judgment-debtor  against   whom  an      order is  made under  rule 98, rule      99 or  rule 101  may institute    a      suit to  establish the  right which      he claims to the present possession      of the  property, but,  subject  to      the result  of such  suit (if any),      the order shall be conclusive."      A perusal  of the  aforesaid provisions would show that the scheme  commencing under  Rule 97 and onwards before the amendment of the Amendment Act, 1976 was that where a decree holder or  the purchaser  at the  court sale of property was obstructed in  obtaining possession  of such property by any person he  was entitled to apply to the court complaining of such resistance  or obstruction. On such an application, the executing court  was required  to make  a summary inquiry in regard to  the question of possession. In such an inquiry it was not  permissible to  the parties  to lead  evidence  and insist upon  an elaborate  hearing. After  inquiry,  if  the court was  satisfied that  the  obstruction  was  occasioned without any  just cause  by the  judgment-debtor or  by  any other person,  the court  was empowered  to put the party in possession over  the property.  But if  the obstruction  was offered by a person other than the judgment-debtor, claiming possession over  the property  in good  faith, the court was entitled to dismiss such application. if an order was passed under Rule  97 C.P.C.,  such an order was conclusive between the parties  except that  a party  other than  the judgment- debtor against  whom the  order was  passed was  entitled to file a  fresh suit  under Rule 103 to establish his right to the possession. It is with reference to these provision that article 11A  of Schedule I of the Act provided the period of one year  to be  computed from  the date of the order passed under order  21 rule  98 C.P.C.  However, the  position  has changed after  amendment of  the Code  of Civil procedure by the Amendment Act of 1976. Now, under the amended provisions

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all questions,  including right,  title,  interests  in  the property arising  between the  parties  to  the  proceedings under Rule 97, have to be adjudicated by the executing court itself and hot left to be decided by way of a fresh suit.      The word  "conclusive" appearing  in Rule 103 indicates that it creates a presumption in favour of facts relating to rights to  property as well as legality of the matter stated in the  order. Such  an order  passed under  Rule 98  is not subject to  any further  enquiry in  any  other  proceeding, except by bringing a fresh suit attached to the order passed by the  executing court  on an  application filed under Rule 97, which  is subject  to result  of a  suit, if  any, filed under rule  103, is not assailable in any other proceedings. In case  no suit  is filed  under rule 103, the order passed under Rule  98 is final between the parties. Accordingly, we are of  the opinion  that the  High  Court  could  not  have entertained the revision since it suffered from "other cause of a  like nature"  which precluded  it  from  deciding  the rights of the parties on facts.      Learned counsel  for  the  respondents  relied  on  the decision of  Patna High  Court reported  in AIR  1994  Patna p.225 for  the proposition that in the case like the present one, limitation  would run  from the  date of  order in  the claim case  and not  from the  date of  High  Court’s  order discharging the  rule, and the plaintiff-appellant would not be entitled  in such  a case  to an  extension of time under Section 14(1)  of the  Act. In  the said  case the plaintiff filed an  appeal before  the High  Court against  the  order passed under  Rule 98  C.P.C. The  High Court  while issuing rule  cautioned   the  plaintiff  that  the  appeal  is  not maintainable,  yet  he  persisted  to  prosecute  the  same, whereas in  the present  case the high Court entertained the revision petition for hearing which gave a reasonable ground to the  plaintiff appellant to think that the original order may   be set  aside in revision. Thus, the decision referred to above  has no  application to  the present  case  and  is distinguishable.      Learned counsel  appearing for  the  respondents  urged that, assuming  the High  Court suffered  from disability to decide the rights of party on facts, the plaintiff appellant did not  prosecute the  revision petition  before  the  High Court in  good faith, therefore, the appellant cannot derive any benefit  of Section 14 of the Act. Before the High Court it  was   not  disputed  that  the  plaintiff-appellant  has prosecuted the  other civil  proceeding with  due diligence. What is disputed is that the plaintiff did not prosecute the civil proceeding  in good  faith. "Good faith" is defined in the Act as under:      "2................      (h) "good faith" - nothing shall be      deemed to  be done  in  good  faith      which is not done with due care and      attention;      ................" The aforesaid  definition shows  that an  act done  with due care and  attention satisfies the test of "good faith". "Due care" means  that  sufficient  care  was  taken  so  far  as circumstances demanded  and there was absence of negligence. In other  words, plaintiff has taken sufficient care which a reasonable man  is expected  to take  in order  to avoid any injury. it  is not  shown here  that the plaintiff-appellant has not  taken sufficient  care in  prosecuting the  remedy. Where a  plaintiff is  illiterate and is not acquainted with the procedural  law, the  only thing  that he  can do  is to consult some  lawyer for advice. It is not disputed that the

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plaintiff-appellant filed the revision before the High Court on the  advice of  his counsel,  although it may be  that he was  ill-advised.   Learned  counsel   for  the  respondents contended that  any act  done in  violation of law cannot be described as  act done with due care. No doubt, when a party proceeds contrary  to a  clearly expressed provision of law, it  cannot  be  regarded  as  prosecuting  the  other  civil proceeding in good faith. It is based on sound principle of law. But the said rule can not be  enforced in rigidity in every case. Each case has to be judged  on its  own  merits.  In  the  present  case  the plaintiff-appellant is not a legally trained person and thus he sought advice of his counsel for future course of action. The counsel  advised him  to file revision in the High Court instead of  bringing a  fresh suit  under Order  21 Rule 103 C.P.C. it  is also  true that  at that  time there  was no * about  remedy  of  revision  amongst  various  High  Courts. plaintiff-appellant’s revision was entertained for haring by the high  Court and  that gave expectation to the plaintiff- appellant that order of the executing court may be set aside and further there was no inordinate delay in filing the suit under Rule 103. If, on examining the facts, it is found that there was  no lack  of due  care, there is no reason why the plaintiff-appellant would  not be  accorded the  benefits of section 14  of the  Act. Does the interest of justice demand that plaintiff  should be  refused benefit  of Section 14 of the Act  on account  of the  negligence on  the part  of his counsel, ill  advising him  to file  a revision  instead  of filing a  fresh suit?  An illiterate litigant cannot be made to suffer  when he  is ill-advised  by his  counsel. On  the facts and  circumstances of this case, we are satisfied that the  plaintiff-appellant   prosecuted  the   earlier   civil proceeding in good faith.      For the aforesaid reasons this civil appeal deserves to be  allowed.  Consequently  the  judgment  and  order  dated 5.9.1985 in  Second Appeal  No. 2062  of 1984  passed by the High Court  is set  aside. Since  the High court has allowed the second appeal only on the point of limitation, this case is sent  back to  the High  Court for  decision on surviving points. The  matter being  quite old,  we request  the  High court to  decide the  second appeal expeditiously preferably within six  months from  the date of production of certified copy of  this order.  The appeal is allowed. However, in the circumstances of  the case,  there shall  be no  order as to costs.