Syed Ahmed vs Qadir Unnissa Begum

Jaganmohan Reddy, J.—The only question in this second appeal is whether the first appellate Court is right in holding that the suit of the Appellant was barred by limitation. The circumstances in which the suit was filed were that the Appellant, a claim-Petitioner under Order 21, Rule 58 was unsuccessful, his objection petition being rejected by the executing Court on 15th Ardebehist 1353F. Thereafter the Appellant filed a civil revision petition in the High. Court but it was rejected on 6th ''Ardebehist 1353F. After this revision petition was dismissed, he filed a suit on 9th Khurdad 1355 F. This suit was dismissed by the trial Court which inter alia held that it was time barred and the benefit of Section 14, Limitation Act could not be given to the Petitioner inasmuch as the remedy pursued by him was not in the court of first instance or in a Court of trial. On appeal the learned District Judge of the State of Salar Jung upheld the decision on the question of limitation and did not give any finding on the other issues.

The question for determination in this appeal is whether the word "Court of appeal" is wide enough to include a revisional court and whether prosecuting a revision in the High Court against an adverse order in a claim petition could be said to be prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it. The learned advocate for the Appellant has cited before us the case of-- Lal Bihar Lall and Another Vs. Bani Madhava Khati and Others, at P. 295 (FB) (A) and Koppolu Venkataswami Vs. Uttarkar Sara Bai and Others, (B), in support of his contention that the time spent in pursuing the remedy by way of revision before the High Court ought to be allowed in computing the period of limitation for a suit filed under Order 21, Rule 63.

In the case of--Ramdutt Ramkissen Dass v. E.D. Sassoon and Co. AIR 1929 PC 103 (C), their Lordships of the Privy Council observed that:

In Indian litigation it is consistent with the experience of their Lordships that the time necessary for the decision in a suit may be of much longer duration than one is accustomed to in the Courts of Great Britain. Hence the necessity for some provision to protect a bona fide Plaintiff from the consequences of some mistake which had been made by his advisers in prosecuting his claim.

In that case their Lordships allowed time spent before arbitrators u/s 14, Limitation Act. In the Full Bench judgment in- Lal Bihar Lall and Another Vs. Bani Madhava Khati and Others, (A)'', after an exhaustive review of the case law it was observed:

The principle is that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing through the Court being unable to give him such a trial. The principle is clearly applicable not only to cases in which a man brings his suit in the Wrong Court, that is, a Court having no jurisdiction to entertain it, but also where he brings the suit in the wrong Court in consequence of a bona fide mistake of law or defect-'' of procedure. It is moreover established by the authorities that given good faith and due diligence, a cause is not prevented from being of a like nature to defect of jurisdiction merely because it was in the Plaintiff''s own power to avoid or resulted from his own act or from a bona fide mistake of law or procedure which prevented the Court in limine from entertaining the suit.

In that case also the suit was filed under Order 21 Rule 63 after a revision petition against an order under Order 21, Rule 58 CPC had been rejected. It was held that the period spent by the Plaintiff in preventing his abortive civil revision petition should be allowed u/s 14, Limitation Act in computing limitation. The principle that time spent by the litigant to pursuing a remedy which is open to him should be allowed in computing the period of limitation is implicit in Section 14, Limitation Act which ought to be construed liberally.

This is the trend of decisions in the other Indian High Courts where it'' has been observed that a cause of like nature need not be always one which the Plaintiff could have avoided, because it is equally in the Plaintiff''s own power to avoid suing in a Court without jurisdiction. Merely because it was in the Plaintiff''s own power to avoid, or the dismissal resulted from his own act or from a bona ride mistake of law or procedure, it cannot be said that the cause is not prevented from being of a like nature to defect of jurisdiction, provided there is good faith and due diligence.

This is evident from the observations of several pronouncements of their Lordships of the Privy Council to which reference has been made in the Pull Bench judgment of the Patna High Court referred to above. We do not, therefore, propose to deal with all these cases as it would merely be a repetition. It will, however, be sufficient to serve that an examination of the case law shows that the words "other cause of like nature" occurring in Section 14 has been treated as being wide enough to cover the case where a litigant is bona fide litigating rights but has been unsuccessful in obtaining them.

In--Hurro Chunder Roy v. Shoorodhonee Debia 9 WR 402 (D), Peacock, C.J. was of opinion that there was no difference between not having power by law to decide upon a question and being unable for want of jurisdiction to decide upon it and that at all events not having power or authority by law was a cause of a like nature with defect of jurisdiction.

A Full Bench of the Lahore High Court consisting of Harries C.J., Abdur Rahman and Mahajan JJ. in--Jai Kishen v. Peoples Bank of Northern India AIR 1944 Lah 136 (E), held that if the words "or other cause of like nature" are read along with the expression "is unable to entertain" they would 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 at all events as to prevent it from deciding it on merits. It cannot be denied that a Court of revision is precluded from deciding any question on merits and at any rate it is only limited to the scope of Section 115, Code of Civil Procedure.

Somayya, J., in--- Koppolu Venkataswami Vs. Uttarkar Sara Bai and Others, (B)'', dealing with a similar question namely, whether the time spent in prosecuting the proceedings in revision against an adverse order under Order 21, Rule 58 observed:

As it was the practice of the Madras High Court to admit revisions against claim orders passed under Order 21, Rule 58, CPC it could not be said that the decree-holder had not acted bona fide and in good faith in filing the revision petition against the claim order especially when the revision was admitted by the High Court. Section 14(1), Limitation Act, therefore, applied and the time taken in prosecuting the revision petition, i.e., the time between the date of its filing and the date of its dismissal should be deducted in computing the period of limitation for the suit.

We have been able to trace two cases of pre-constitution High Court of this State, namely--Seshadri v. Balmukund 10 DLR 564 (F), and Manohar v. Jhumarlal 36 DLR 842 (G), which appear to lay down a contrary view. In''10 DLR 564 (F)'', a Division Bench of this Court has held that proceedings on a revision petition before the High Court could not be computed u/s 15, Hyderabad Limitation Act No. IV of 1310 F. which was similar to Section 14 of the later Limitation Act on the ground that the High Court could not be said to be unable to entertain the petition for want of jurisdiction.

After the case of Keshardeo Chamria Vs. Radha Kissen Chamria and Others, (H), it is difficult to hold that the powers of the High Courts u/s 115, CPC are unlimited. In that case the Supreme Court held the order of remand in execution proceedings to be beyond jurisdiction conferred by Section 115. Therefore, the basis of the Division Bench authority after the Supreme Court decision is no longer valid. There is no other authority of this Court on Section 14, Limitation-Act, though there are some decisions holding that the word "appeal" should not be construed as covering "revision". In our view there is nothing in these judgments to preclude us from interpreting the proceedings in a Court of appeal as not to include proceedings in revision. On this basis the case in ''36 DLR 842 (G)'' car be distinguished, as that was a case relating to the interpretation of Article 160, corresponding to Article 182, Indian Limitation Act. The trend of the other High Courts is however that, these* words include revision proceedings also.

We are fortified in this view by a number of decisions of the High Courts in India. In--Venkatragayya Appa Row v. Murala Sriramulu 17 Ind Cas 593 (Mad)(I), their Lordships of the Madras High Court dealing with the question whether ''the proceeding on account of appeal include revision observed:

The language of the Legislature is not that the time occupied in prosecuting an ''appeal'' may be deducted, but the time occupied in prosecuting any ''civil proceeding in a Court of Appeal''. We see no reason why a revision petition in the High Court should not be regarded as a ''Civil proceeding in a Court of appeal''. We think that the expression ''Court of appeal should Ire taken as being used in the broad sense of any Court which has the power to bring under review the decision of an inferior Court, ''Whatever may be the extent of jurisdiction that the superior Court may possess in reviewing the decision of the Inferior Court.

We have already adverted to the Full Bench judgment of the Patna High Court in-- Lal Bihar Lall and Another Vs. Bani Madhava Khati and Others, (A)'', where a similar view as that taken in the aforesaid Madras case has been adopted. In the case of--''Perumal Pillai Pandaram'', AIR 1951 TC 26 (J), it was also held at page 31, following another case of the same High Court in '' 28 TLR 1214 (K) that a Court of appeal includes a Court of revision. In the case of--Mul Chand v. Samir Mal 1882 All WN 59 (1) and B. Chhuttan Lall Vs. B. Dwarka Prasad (M), it was held that the time during which revision proceedings were going on must be excluded. There are other cases also to which we need not advert, but they hold that proceedings in revision are not excluded from the purview of the Section. In the result our view is that the time spent by a person who has gone in revision against an adverse order under Order 21, Rule 58, CPC for purposes of limitation should (sic--(not?)) be computed in a suit under Order 21, Rule 63.

In this view of the matter the appeal will be allowed. We may here observe that the District Judge ought to have given his findings on all points raised before him and not merely decide the case on the legal issue. The defective procedure followed by him has now forced us to remand the appeal for disposal on merits. In the result the appeal is allowed and the case remanded to the appellate Court for rehearing and disposal on merits. The costs will abide the result.