REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.     943-944              OF 2009 (Arising out of SLP (C) Nos. 28449-28450 of 2008)

J. Kumaradasan Nair & Anr.      … Appellants

Versus

IRIC Sohan & Ors.      … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Interpretation and/or application of Section 14 of the Limitation Act,

1963 (for short, ‘the Act’) is in question in this appeal.  It arises out of a

judgment and order dated 13.11.2008 passed by a learned Single Judge of

the High Court of Judicature at Kerala at Ernakulam in IA No.1895 in CRP

No.593 of 2008(B) dismissing the said application as barred by limitation.

3. The  basic  fact  of  the  matter  is  not  in  dispute.   First  Respondent

obtained a decree in a suit filed in the court of Munsif, Trivandrum being

Original Suit No.150 of 1965, wherein it was directed :

“It is hereby decreed that the plaintiff is entitled for a declaration of title and possession over the plaint schedule property; and it is directed that the wooden  hut  placed  by  the  Defendant  No.1  be removed by him at his expense, failing which the Court  shall  remove  the  same  and  deliver possession  of  the  property  to  the  Plaintiff.   The plaintiff is entitled to mesne profits at the rate of Rs.50/-  from  the  date  of  suit  till  delivery  of possession.”

The description of the property in the said decree was as under :

“8 cents of property with trees, building, well and a bunk (mobile hut) and all appurtenants thereto in Survey  365  described  in  Pandara  Otti  Partition Deed  (marked  Vol-II  Plan)”,  situated  in Chengazhassery Village, Trivandrum.”

The said decree was put in execution  by Fanuval Stephen, the Decree

holder in Original Suit No.150 of 1965 being Execution Petition No.705 of

1977.  Fanuval Stephen died on or about 28.3.1985.  Respondent Nos.1 to 5

herein,  being  his  heirs  and  legal  representatives,  were  impleaded  as

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additional decree holder Nos.2 to 6 therein.  The said execution petition was

dismissed by an order dated 8.7.1996.   

4. The judgment debtor appears to have suffered another decree passed

in Original Suit No.274 of 1982.  Execution Petition No.271 of 1986 was

filed  for  execution  of  the  said  decree.   A  sale  certificate  was  issued  in

respect of the suit  property.  It  is  said to have been charged towards the

satisfaction of the debt sought to be recovered in O.S. No.274 of 1982 by

the State  Bank of  Travancore.   Appellant  purchased the said property in

auction.

5. Respondent Nos.1 to 5, however, filed a Second Execution Petition

on or about 11.9.2001.  Appellants were impleaded as Respondent Nos.16

and 17 therein.  They filed an objection in regard to the maintainability of

the said execution petition, inter alia, contending that the same was barred

by limitation.

6. By an order dated 6.9.2005, the said objection petition was rejected.

An appeal  was  preferred  thereagainst  on  or  about  3.10.2005  which  was

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marked  as  AS  No.301  of  2005.   The  said  appeal  was  held  to  be  not

maintainable  by  the  learned  First  Appellate  Court  by  an  order  dated

5.10.2005.  However, the merit of the matter was also considered therein.   

7. Aggrieved by and dissatisfied with the said order dated 6.9.2005,  the

appellants  preferred  an  Execution  Second Appeal  before  the  High Court

which was marked as Execution Second Appeal No.17 of 2005.  By reason

of a judgment and order dated 13.6.2008, the High Court disposed of the

said second appeal opining that the First Appellate Court was not correct in

entering into the merit of the matter despite holding that the appeal was not

maintainable.  The said appeal was disposed of, directing :

“I  am  convinced  that  the  request  made  by  the learned counsel  for the appellants is necessitated by  reason  of  the  first  appellate  court  wrongly entering  into  merits  of  the  case  and  considering the right  of  the  appellants  after  holding  that  the appeal  is  not  maintainable  and  that  therefore, setting  aside  the  judgment  of  the  first  appellate court, the Execution Second Appeal deserves to be disposed of without prejudice to the rights of the appellants to move for appropriate reliefs by way of revision or otherwise, if so advised.

In the result, I dispose of this appeal setting aside the judgment appealed against to the extent it has gone  to  the  merits  of  the  contentions  of  the appellants after holding that the appeal itself was

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not  maintainable.   With  a  view  to  enable  the appellants  to  seek  for  appropriate  relief,  it  is ordered  that  the  decree  holders  shall  not  take delivery  of  the  decree  schedule  property  for  a period of one month from today.  Inasmuch as the appellants  are  being  referred  to  seek  for  their reliefs  in  appropriate  proceedings,  substantial question  of  law  formulated  as  Sl.  No.4  in  the appeal memorandum on which also the appeal was admitted  is  left  open.   Registry  shall  return  the certified  copies  of  documents  produced  by  the appellants in this Execution Second Appeal to the counsel for the appellants.”

8. Pursuant  to  or  in  furtherance  of  the  said  observations,  a  Revision

Application was filed by the appellant on 30.6.2008 which was marked as

C.R.P. No.593 of 2008(B).  Along with the said application, an application

for condonation of delay in terms of Section 5 of the Act was also filed.

However, later on the said application was withdrawn and an application

under Section 14 thereof was filed.  An affidavit was affirmed in support

thereof, inter alia, stating :

“The impugned order is dated 6.9.2005.  The first appeal was filed on 3.10.2005.  The second appeal was  disposed  of  by  this  Hon’ble  Court  on 28.6.2008.   This  Revision  Petition  is  filed  on 7.7.2008.   Hence in  any view of  the  matter  this Revision Petition is  well  within time.  It  is  also submitted  that  the  time  taken  for  obtaining certified copies also is liable to be excluded.”

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9. By  reason  of  the  impugned  judgment,  the  High  Court,  however,

opined that Section 14 of the Limitation Act is not attracted in the facts and

circumstances of this case, stating :

“The  meaning  of  the  expression  “other  cause  of like  nature”  came up  for  consideration  in  Zafar Khans’s  case.   It  was  held  that  the  expression ‘cause of  like nature’  has to be read as  ejusdem generis with the expression ‘defect of jurisdiction’ and that so construed, the expression ‘other cause of like nature’ must be so interpreted as to convey something  analogous  to  the  preceding  words “from defect of jurisdiction” and that prima facie it appeared  that  there  must  be  some  preliminary objection which if it succeeds the court would be incompetent to entertain the proceeding on merits, such defect could be said to be of the like nature as defect of jurisdiction.  The same view was taken by a Full Bench of the Lahore High Court in Bhai Jai Kishen v. Peoples Bank (AIR (31) 1944 Lah. 36 (FB) where it was held that it is not possible to give  an  exhaustive  list  of  defect  that  the  said expression may be taken to cover, but if they are such as have got to be decided before the merits of the  case  can  be  gone  into  and  if  they  do  not necessitate  an  examination  of  the  merits  of  the case,  they  may fall  within  the  purview of  those words.   Illustrations  of  such  defects  which  are covered  by  the  words  “or  other  cause  of  a  like nature” in Section 14 may be found where a suit had failed because it was brought without proper leave, want of powers of attorney in favour of the person  who  sued  on  behalf  of  the  plaintiff,  or because no notice under Section 80 of  the Code was  given,  etc.   It  was  pointed  out  in  the  said

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decision  that  it  would  indicate  that  although  the court  had jurisdiction to  decide the issue,  it  was unable to entertain it  on account of the technical defect  and  it  was  not  possible  for  the  court  to proceed and consider the case on merit.”

10. Mr. Krishnamurthy, learned senior counsel, in support of the appeal,

inter  alia,  would  contend  that  the  High  Court  committed  a  serious  error

insofar as it failed to take into consideration that the appellant herein was

bona fide  prosecuting  the first  appeal  and second appeal  before a wrong

forum and, thus, Sub-section (2) of Section 14 of the Limitation Act would

be attracted.

11. Mr.  C.N.  Sree  Kumar,  learned  counsel  appearing  on  behalf  of  the

respondents, would, on the other hand, contend that the provision of Sub-

section (2) of Section 14 of the Limitation Act is not applicable as the same

applied  in  a suit.   It  was pointed  out  that  the  appellants  in  fact  filed an

application under Section 5 of the Limitation Act but withdrew the same.

12. The  question  which  arises  for  consideration  is  as  to  whether  only

because a mistake has been committed by or on behalf of the appellants in

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approaching the appropriate forum for ventilating their grievances, the same

would  mean  that  the  provision  of  Sub-section  (2)  of  Section  14  of  the

Limitation  Act,  which  is  otherwise  available,  should  not  be  taken  into

consideration at all.  The answer to the said question must be rendered in the

negative.  The provisions contained in Sections 5 and 14 of the Limitation

Act  are  meant  for  grant  of  relief  where  a  person  has  committed  some

mistake.

The  provisions  of  Sections  5  and  14  of  the  Limitation  Act  alike

should, thus, be applied in a broad-based manner.  When Sub-section (2) of

Section 14 of the Limitation Act per se is not applicable, the same would

not mean that the principles akin thereto would not be applied.  Otherwise,

the provisions of Section 5 of the Limitation Act would apply.  There cannot

be any doubt whatsoever that the same would be applicable to a case of this

nature.

13. There cannot furthermore be any doubt whatsoever that having regard

to the definition of ‘suit’ as contained in Section 2(l) of the Limitation Act,

a revision application will not answer the said description.  But, although

the provisions of Section 14 of the Limitation Act per se are not applicable,

in our opinion, the principles thereof would be applicable for the purpose of

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condonation of delay in filing an appeal or a revision application in terms of

Section 5 thereof.   

14. It  is  also  now a well-settled  principle  of  law that  mentioning of  a

wrong provision or non-mentioning of any provision of law would, by itself,

be not sufficient to take away the jurisdiction of a court if it  is otherwise

vested in it in law. Wile exercising its power, the court will merely consider

whether it has the source to exercise such power or not.  The court will not

apply the beneficient provisions like Sections 5 and 14 of the Limitation Act

in a pedantic manner.  When the provisions are meant to apply and in fact

found  to  be  applicable  to  the  facts  and  circumstances  of  a  case,  in  our

opinion, there is no reason as to why the court will refuse to apply the same

only  because  a  wrong  provision  has  been mentioned.   In  a  case  of  this

nature, Sub-section (2) of Section 14 of the Limitation Act per se may not

be applicable, but, as indicated hereinbefore, the principles thereof would be

applicable for the purpose of condonation of delay in terms of Section 5

thereof.

In  Ramlal and others v.  Rewa Coalfields Ltd. [AIR 1962 SC 361],

this Court held as under:

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“12.  It  is,  however,  necessary  to  emphasise  that even after sufficient cause has been shown a party is  not  entitled  to  the  condonation  of  delay  in question  as  a  matter  of  right.  The  proof  of  a sufficient  cause  is  a  condition  precedent  for  the exercise of the discretionary jurisdiction vested in the court  by Section 5.  If  sufficient  cause is  not proved  nothing  further  has  to  be  done;  the application  for  condoning  delay  has  to  be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its  discretion  it  should  condone  the  delay.  This aspect  of  the  matter  naturally  introduces  the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall  for  consideration;  but  the  scope  of  the enquiry while  exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant. It cannot justify an enquiry as to why the  party  was  sitting  idle  during  all  the  time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the court is dealing with applications made under Section 14 of  the  Limitation  Act.  In  dealing  with  such applications  the  court  is  called  upon to  consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which  have  been  expressly  made  material  and relevant by the provisions of Section 14 cannot to the  same  extent  and  in  the  same  manner  be invoked in dealing with applications which fall to be decided only under Section 5 without reference to Section 14.”

In  Ghasi Ram and Others v.  Chait Ram Saini and Others [(1998) 6

SCC 200], this Court opined:

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“10.  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, the  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 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  cannot  be

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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 CPC. It is also true that at that time, there was no unanimity about remedy of revision amongst  the various  High  Courts.  The  plaintiff-appellant’s revision was entertained for hearing by the High Court  and  that  gave  expectation  to  the  plaintiff- appellant that the 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  should  not  be  accorded  the benefits of Section 14 of the Act. Does the interest of  justice  demand  that  the  plaintiff  should  be refused  the  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.”

In  Consolidated  Engineering  Enterprises v.  Principal  Secretary,

Irrigation Department and Others [(2008) 7 SCC 167], this Court held:

“22.  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

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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 has enacted the said section to exempt  a  certain  period  covered  by a  bona  fide litigious  activity.  Upon  the  words  used  in  the section,  it  is  not  possible  to  sustain  the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his  case  tried  on  merits  but  failing  because  the court is unable to give him such a trial, would not be applicable to an application filed under Section 34  of  the  Act  of  1996.  The  principle  is  clearly applicable  not  only to a case in  which a litigant brings his application in the court, that is, a court having  no  jurisdiction  to  entertain  it  but  also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or  (sic  of)  law  or  defect  of  procedure.  Having regard to the intention of the legislature this Court is  of  the firm opinion that  the equity underlying Section 14 should be applied to its fullest  extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded.”

See  M/s.  Shakti  Tubes Ltd.  Through.  Director v.  State  of Bihar &

Ors. [(2009) 1 SCC 786].  

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15. For the  reasons  aforementioned,  the impugned judgment  cannot  be

sustained which is set aside accordingly.  The appeals are allowed and the

matter  is  remitted to  the  High Court  for consideration thereof  on merits.

However,  we  would  request  the  High  Court  to  dispose  of  the  revision

application filed by the appellants herein as expeditiously as possible and

preferably within a period of three months from the date of communication

of this order.  We are making this unusual request keeping in view the fact

that  the  respondents  have  obtained  a  decree  as  far  back  as  in  1969.

However, in the facts and circumstances of the case, there shall be no order

as to costs.  

………………………….J. [S.B. Sinha]

..…………………………J.     [Dr. Mukundakam Sharma]

New Delhi; February 12, 2009

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