India Electric Works Ltd. v. James Mantosh & Anr.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeals No. 1646 of 1966. Appeal from the judgment and decree dated April 11, 1963 of the Calcutta High Court in Appeal from Original Decree No. 306 of 1959. G. L. Sanghi and D. N, Mishra, for the appellant. P. K. Chatterjee and P. K. Ghosh, for the respondent. The Judgment of J. c. SHAH and A. N. GROVER JJ. was delivered by GROVER, J. K. S. HEGDE, J. gave a separate Opinion. Grover, J, This is an appeal by certificate .from a judgment of the Calcutta High Court in which the sole question for determination is whether the suit was barred by limitation. The material facts may be stated. The appellant befo1e us was the defendaint in a suit for recovery of damages with interest and costs. The suit was decreed by the trial judge and that decree has been upheld by the High Court. The defendant was a tenant under the predecessor of the plaintiffs in respect of the shed and structures described in schedule A of the plaint.

In or about the year 1939 the predecessor-in-interest of the plainliffs fik:d a title suit in the court of the Subordinate Judge, Alipore for ejectment and damages. A compromise took place between the parties but the defendant did not vacate the premises in terms of the compromise and continued to remain in occupation of the same. The property was requisitioned under Rule 75-A of the Defence of India Rules and Government took its possession on February 2, 1944. It was derequisitioned on November 21, 1945. For the period from February 2, 1944 to November 21, 1945 the plaintiffs recevied monthly compensation from the Government at the rate of Rs. 350/-. For the period of the defendant's alleged wrongful occupation the plaintiffs filed two suits against the defendant. The first was for and recovery of damages upto February 1, 1944 and the second was for damages from November 22, 1945 upto November 21, 1948.

The plaintiffs also claimed future damages till INDIA ELECTRIC wons v • .JAMBS (Grover, J,) of possC11sion although the suit waa not. one for passession. lbe suita were decreed by the learned Subordinate 1ua&e in Deoember 1951 at the rate of Ra. 300/ • per month for tho OD.tire period Of claim. In other worda the claim for lutute me!IDO profits waa also a&lowed. On appeal the High Court disallowed the claim for future D10S11e profits and reduced the rate to Rs. 200/ • per month. The judgment disposing of those appeals along with ccr· taill other appeals which arose out of a suit filed by the dcfendani with which we arc not concerned in the present appeal is reported in India Electric Work.r Ltd. \I, Mrs. B. S, Maitiosh cl Ori,(1) This is what was observed in that judgment with regard to the decree relating to future mcsnc profits at page 1 SS :- "The rest of the decree in Suit No. 28 of 1948 was not according to law and cannot be maintained.

The suit was. a pure money suit and not a suit for recovery of possession of immovable property 8llld for mesnc profits under 0.20, R. 12., Civil P .C. In such a suit a preliminary decree may be passed for possession and for assessment, but in a pure suit for recovery of money, no decree can be passed for recovery of compeinsation after the date of the suit upto the date of the decree or after the date of the decree until recovery of possession. This pan of the decree should, therefore, be set aside." The plaintiffs then filed a suit on November 5, 1956 for .recovery of an am()\lllt of Rs. 28,650/- together with interest thcrooa as damages at the rate of Rs. 300/ • per month from November 22, 1948 to November 5, 1956 i.e. a period of 7 years, 11 months and 15 days. For the period beyond 3 years of the 811it ~n from limitation was plaimed · arily under s.

14 of the J:ndilin Limitation Act 1908, here:J:11 Cllilled the "Act" and on ~rat principles of suspension of limitation owing to the ~y of the earlier suits. The defendant oontested the suit pnncipally an the ground that it was barred by limitation. The rate at which damages were claimed was also disputed. The tdal court was of the opinion that the plaintiffs were entitled to the benelit of s. 14 of the Act and that no pare of the claim was barred by limitation. As re~ards the rate of compensation or damages the trial court fixed 1t at Rs. 250/- per month and decreed the suit accordingly. The defendant appealed to the High Court. The High Court considered the question of the applicability of s. 14 and held thllt the plaintiff could take advantage of it. The rate of damages which had been determined by the trial court was also upbcld. The admitted and proved facts are that tho clalm made in the present suit was included in the previous money suit No. 28 or 1948 and a decree had been! passed by the trial court in-favour of (l)

A.l.R. 1956 Cal. 148, 155. 1•--LJ08 Sup Clf71 SUPREME COUJlT .. )!,EPOllTS (1971] 2 S.Clt the _plaintiffs for ~e .entire'clafui iqclu~g the .claim for !~t.ure damages. The plamti1fs were oilly required to pay additional eourt fee as provided by the' Indian Coun Fee Act for the .. claim relating to future damages and the plaintiffs had in fact paid the required amount of additional court fee.. The High Court, in the judgment mentioned before and in the partion extracted therefrom, had negatived the claim for future dam:ages on the sole ground that no decree could be granted for recovery of compensation after the date of the suit or after the date of the decree in a pure money suit. . In other words it was held that under the Jaw the court was not competent to decree such a suit. Section 14 in so far as it is material for our purpose runs as follows:- S. 14(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 Coun which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. (2) ....... ,, ........... . Explanation I ........... . Expfunation IL ......... . Explanation m.-For the purpose of this section misjoinder of parties or of causes oi action shall be deemed to be a cause of a like nature with defect of jurisdiction". The High Court having found that the present clafui of the plaintiffs was also included in the previous suit the condition that the previowi proceeding should be founded upon the same cause of action must be held to· have been satisfied.

The High Court has further held that the previous suit had been prosecuted in good faith and with due diligence. In order to attract the applicability ofs. 14(1), therefore, an that has to be determined is whether the rourt in which the previous suit was filed was unable to entertain the claim relating to future mesne profits "from defect of jurisdiction" or "other cause of a like ·nature". It is common ground and indeed cannot be ar~ued nor has any attempt been made to urge such a contention before us that the court trying !he previous suit was unable to entertain it from defect of jurisdiction. The only question for determination is whether the court was unable to entertain the previous suit from "other cause ol a like nature". In JNOJ,\ ELECTRIC WORKS v. JAMES (Grover, J.) Jaikishan Singh v. The Peoples Bank of Northern India( 1) it was pointed out that s.

14 of the Act will have no application where failure on the part of the petitioner or the plaintiff to get the reliefs which he asked for was not attributable to anything connected either with the jurisdiction of the court or with some other defect which was like that of jurisdiction. It was observed that the words "or other cause of a like nature", however, liberally construed must be read so as to ceinvey something ejusdem generis or analogous to the preceding words relating to the defect of jurisdiction. If these words were read along with the expression "is unable t<J entertain", they would denote that the defect must' be of such a character as to make it impossible for the court to entertain the suit or application in its inception or at all <:vents as to prevent it from deciding it on the merits.

In other words, if the defects were of such a nature that they had to be decided before the case could be disposed of on merits or if they did not necessitate an examination of the merits oi the case they would be defects of a ''like nature". The cases which were decided on the principle that if a plaintiff or a petitioner failed to establish a cause of action in himself no deduction of time could bt: allowed under s. 14 were noticed and it was accepted that they proceeded on a correct view. Illustration of the facts .which would be covered by the words "or other cause of a like nature" as given in the decided cases were: (i) if a suit had failed because it was brought without proper leave; (il) if it had Jailed because .no notice under s. 80, Civil Procedure Code, had been given; (iii) where it would fail for non-production of the Collector's certificate required by s. 7 of the Pensions Act.

In each one of these cases the court did ll.ot lack jurisdiction in its inception but the suit could not be proceeded with and disposed of until the statutory conditions laid down had be~ satisfied or fulfilled. Mention m'ay be made. of two cases which are apposite out of the numerous decisions relating to the point under consideration. In Shrimati Nrityamoni Das;·i & Others v. Lakhan Chandra Sen(') the plaintiffs were defendants fa a suit brought at a prior stage. In that suit they associated themselves with the plaintiffs and prayed for adjudication of their rights. Henderson J, of the Calcutta High Court who tried the suit decreed the claims of the plaintiffs and made a similar decree in favour of the defendants. The l{igli Court in its appellate jurisdiction, while affirming the findings of Henderson J .. held thdt the decree granted by him in favour cl the defendants could not be maintained.

The decree wa> consequently varied and the defendants in that suit were releg-Jted to a fresh suit for the relief to which they were clearly entitled. In ii) I.LR. [1944] Lah. 451. IF 8.l (2) I.LR. [1916] ~3 Cal. 660· SUPREME COUJ.T IUIPOll.Tl'I. [1971 J 2 S.C.lt. the subsequent suiL the question of the bar of limitation arose. This is what was observed by their Lordships with regard to the claim that the prior period could be deducted for the purpose of limitation : "It was an effec.tive decree made by a competent court and was capable of being enforced until set aside. Admittedly if the period during which the plaintiffs were litigating for their rights is deducted their present suit is in time. Thehl Lordships are of opinion that the plea of limitation was rightly overruled by the High Court". In Sarojendra Kumar Dutt v. Pumachandra Sinha( 1) S. R. Das, J. (as he then was) expressed the view that the principle ors.

14 was applicable not only to cases where the person brought his suit in the wrong court but also applied where he brought his case in the right court although he was prevented from getting a trial on the merits by something which, though not a defect of jurisdiction, was analogous to that defect There an attorney had made· an application under Chapter 38, &ule 48, Origi·nal Side Rules of the Calcutta High Court, for an order against his client for payment of the sum allowed on taxation. As discretion was conferred by the Rule to either make an order for payment or to refer the parties to a suit the matter was referred to a suit in view otl the facts of the case. The learned judge held that the plaintiff's right had not been investigated iin the Chamber Application because it was considered that it was a proper case where the attorney should be relegated to a suit. It was, therefore, by reason of an infirmity or dofect of jurisdiction that the order for payment could not be made.

The defect of jurisdiction was in no way brought about by the plaintiff or by any absence of diligence or good faith on his part. He was found entitled to the benefit of s. 14 of the Act. It is well settled that although all questions of limitation must be· decided by the provisions of the Ac.t and the courts cannot travel" beyond them the words "or other cause of a like nature" must be construed liberally. Some clue is furnished with regard to the intention of the legislature by the Explanation Ill in s. 14(2). Before the enactment of the Act in 1908 there was a. conflict amongst the High Courts on the question whether misjoinder and non-joinder were detects which were covered by the words "or other cause of a like nature". It was to set at rest this Conruct that Explanation Ill .was added. An extended meaning was thu5 given to these words.

Strictly speaking misjoinder or non-joinder of parties could hardly be regarded as a defect of jurisdiction or something similar or analogous to ii. (!) A.IR. (1949] cat 24. INDIA ELECTlllC WOllKS v. JAMES (Grover, J.) .In our judgmi:nt the present case is very similar to the one decided by the Privy Council in Shrinuui N rityamoni Dassi & Ors. v. Lakhan. Chandra Sen ( 1). There an effective decree had been made by Henderson J., of t11e Calcutta High Court which enured to the benefit of the defendants but the appellate court considered that such a decree could not have been legitimately made and set it aside. The period of the previous litigation was held to be deductible apparently under the provisions of s. 14( 1) of the Act. JD the case before us the trial court had passed a decree in the money suit of 194.8 for recovery of future mesne profits.

The High c.ourt on appeal set aside that decree on the g1ound that no suCh decree could have been passed in a pure suit for recovery of money. The benefit of s. 14( 1), therefore, was rightly allowed by the High Court in the judgment under appeal. Even if the test propounded in the Lahore full bench decision in Jai Kisha11 Singh v. The Peoples Bank of Northern India(') is to be applied there can be no manner of doubt that the defect in the suit of 1948 was of a nature which had to be decided before the claim could be 0 disposed of on the merits. The High Court there was called upon to decide whether the claim was at all entertainable on the frame of the suit and it came to the conclusion that the court was oot COlllpetent to pass any decree for recovery of future damages or mesne profits in the suit as laid.

The defect was of a nature which had to be decided before the merits of the claim could be adjudicated upon nor did any occasion or necessity arise of going into or eitamining the merits oi. the aforesaid claim. It could hardly be said that the previous money suit of 1948 was altogether misconceived. As has been pointed out by the High Court, in a later decision of the same court in Makhan Lal Madak v. Giljsh Chandra 1ana(8 ) the view taken was that a claim for mesne profits even Without a suit for recovery of possession might weli be entertainable. The plaintiffs' claim had not been investigated in that suit because the High Court considered that the court was not competent to liccree such a suit. It was by reason of an infirmity or defect of judsdiction that there could neither be adjudication of the claim on the merits nor could it be decreed. The defect of jurisdiction had in no way been brought about by the plaintiffs· ot by any absence of diligenc6 or good faith on their part.

They were thqs fully entitled to the benefit of s. 14(1) of the Act. Another principle which has been enunciated in certain dcci- 11ions of the Privy Council and which is stated to be one of p,eaeral application has been invoked on behalf of the plaintiff-respondenl~. Rangnektr, J ., in delivering the judgment of the Divisi<in Bench in NarayaiJ Jivaji Patil & Another v. Curunsthgowla Khandappa- (I) I.L.R. (19161 43 Cal. 660. (3) 66 C.W.N. 692. (2) I. L. R, [I~ Lah, 4$1 (P.B.) gouda Patil & Another( 1) disc.ussed at length the various pro- Jiolincements of the :Privy Council and deduced the, principle that whe~e a claim was ,satisfied either by agreement of parties or by decree of the court !lilld it the satisfaction or decree was set aside. subsequently in a judicial proceeding a. fresh cause of action would accrue in favour of the claimant.

In the present case it could be said that the cause of action for future mesne profits was satisfied by the decree which had · been granted by the trial court in the !llOney suit of 1948. . The High Court, however, in the «ppeals decided by it by means of the judgment in l/fdia Electric Works Ltd. v .. Mrs. B. S. Mantosh &_ Ors.(2 ) delivered on June 30, 1955 had set aside that decree. A new cause of action accrued in favour oi the plaintiffs from the date of that judgment. It is, however, unnecessary to rest our decision on the principle relied upon by Rangn.ekar J. in the Bombay case because we are .satisfied that the plaintiffs were entitled to deduction of time under s. 14(1) of the Act. The appeal fails and it is dismissed with costs. Hegde, J. Though on the plain language of s.

14(1) of the Limitation Act, I would have had no hesitation in holding that the plaintiff cannot avail himselt of the benefit of that provision, as a misconceived suit, $Uch as the one he filed earlier claiming future mesne profits in a money suit caunot be said to be a claim which the .:ourt was unable to entertain from defect ol jurisdiction or other cause of a like nature yet in view of the decisio·n of the Judicfal Committee in Mst. Ranee Surno Moyee v. Shooshee Mokhee Burmon/a and Ors.("), which decision has been followed in the later decisions of the Judicial Committee as well as in several decisions of High Courts, I am of the opinion that it is not in public interest to disturb a question of law which has held the field fur a long time.

The decision of the Judicial Committee referred to earlier held that a claim which is satisfied, an expression held to include even getting of a decree on a claim, if reopened because of the decree of the appellate court or otherwise, a new cause of action accrues to the plaintiff on the date the earlier satisfaction is taken away. Applying that rule to, the facts of the present case a new cause of action must be deemed to have accrued to the appellant in respect of the mesne profits under dispute once the decree of the trial court was set aside by the High Court. For this reason I agree with the order proposed. V.P.S. (!}I. L. R. [1939] Bom. 173. (3) 12 Moore's I. A. 244. (2) A. I. R. 1956 Cal. 148 Ftp. 155.