Sunday 18 August 2013

Whether a party can claim exemption U/S 14 of limitation Act if he was defending any proceeding?

I   have   considered   the   submissions   advanced   on   behalf   of   the
Plaintiff and the Defendants. Admittedly, the Defendant No.1 herein filed a suit
against the Plaintiff herein before the Small Causes Court, Mumbai being T.E. &
R. Suit No. 119/177 of 2008   seeking a decree against the Plaintiff herein for
eviction on the ground that the Plaintiff was not entitled to any protection under
Section  3  (1)  (b) of  the Maharashtra Rent Control Act,  1999.   The Plaintiff
herein, being the Defendant in the suit before the Small Causes Court, has not
filed any counter claim therein.  In that suit, the Plaintiff herein has only made a
mention that there was a proposal for the sale of the suit property to the Plaintiff
herein by the predecessor in title of the Plaintiff in the Small Causes Court (i.e.
Defendant Nos. 2, 3 and 4 herein) and hence according to it, the sale of the suit
property to the Defendant No.1 herein by its predecessors to title itself is illegal
and no title passes to it pertaining to the suit building. It also relied on an offer
made  by Defendant No.1  herein  dated    12th  December,    2007.
21) Section 14 of Limitation Act reads thus:
“14. Exclusion of time of proceeding bona fide in Court
without   jurisdiction.­   (1)    In   computing   the   period   of
limitation 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 of appeal or revision,
against the defendant shall be  excluded, where the proceeding
relates to the same matter in issue 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.”
The   Hon'ble   Supreme   Court   in   the   case   of  Madhavrao   Narayanrao
Patwardhan(supra) has in paragraph 6 of its Judgment after quoting clause (1)
of Section 14 of the Act, interpreted the said clause of Section 14 as follows:
“  In order to bring his case within the section quoted above,
the Plaintiff has to show affirmatively:
that he had been prosecuting with due diligence the previous
suit in the court of the Munsif at Miraj,
(1) that the previous suit was founded upon the same cause of

action,
             (2) that it had been prosecuted in good faith in that court, and,
(3) that   the   court   was   unable   to   entertain   that   suit   on
account of defect of jurisdiction or other cause of a like nature.”

23)          In  the case of  Somshikharswami Shidlingswami vs. Shivappa Mallappa Hosmani  AIR 1924 Bom 39
this Court inter alia held that in the facts of that case,  Section 14 of
the Indian Limitation Act did not apply since the Plaintiff was not prosecuting
any civil proceeding but was merely defending  the  suit brought against him.
Furthermore,   this   Court   in  Narayan   Jivaji   Patel   and   Anr.   V   Gurunathgouda
Khandappagouda   Patil   and  Anr.  ILR (1939) Bom 173
following  the   decision  in  Somshikharswami
Shidlingswami   (supra)  held   that   since   the   appellant   in   the   matter   was   a defendant in the other suit, he was not prosecuting a suit or a civil proceeding at
the time. Merely defending a suit is not and cannot amount to prosecution of a
suit.   The   terms   “plaintiff”   and   “defendant”   have   a   well   known   technical
meaning. The legislature must be deemed to be aware of that meaning when
they chose to allow the benefit of the time occupied by an earlier proceeding
only to the plaintiff as against the defendant.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION 
CHAMBER SUMMONS NO. 1234 OF 2012
IN
SUIT NO. 1939 OF 2012  

In the matter between:
Bharat Petroleum Corporation Ltd.   vs.  M/s. Hill Top Consultants Pvt. Ltd. and others   
            
CORAM:  S.J. KATHAWALLA, J.
DATE: MAY 10, 2013



1) By this Chamber Summons, the Plaintiff seeks amendment to the
Plaint in terms of Schedule­A annexed to the Chamber Summons. 
2) The   Plaintiff   has   only   pressed   for   allowing   the   Plaint   to   be
amended in terms of clause (ii) of Schedule­A to the Chamber Summons. The
amendment sought to be introduced by the Plaintiff is therefore  to  the effect

that in computing the period of limitation, the period during which the suit filed
by the Defendant No.1 in the Small Causes Court at Bombay, being T.E. & R.
Suit No. 119/177 of 2008,  was prosecuted i.e. from 1st  October 2008 to 30th
September 2010 and the period during which the Appeal was prosecuted from
24th December 2010 to 22nd February 2012, ought to be excluded. 
3) Briefly set out the facts in the matter are as under:
4) The Plaintiff – Bharat Petroleum Corporation Limited is a Public
Sector Corporation owned by the Government of India.   Defendant No. 1 – M/s.
Hill Top Consultants Pvt. Ltd.  has acquired/purchased the suit property from
Defendant Nos. 2 to 4. Defendant Nos. 2 to 4 were the original landlords of the
Plaintiff and were the Trustees of Popatlal Vora Inheritance Trust. 
5) In the year 2000, the Plaintiff was admittedly occupying 8 flats
(6765 sq.ft. Carpet area)  as tenants  in a two storey building known as Vora
Building situated on Plot No. 32, 3rd Road, Khar, Mumbai (“the suit property”).
At  that  time, in  the  suit property  there were in all   10    flats, and 13 shops
situated on the ground floor.  By letters dated  20th  June 2000 and 26th February
2001 addressed  to  the Plaintiff, Defendant Nos. 2  to 4   (the  then landlords)
expressed  their intention  to  sell  the entire building  along with  the  flats  and
shops to the Plaintiff.  In the meeting held on  11th January, 2002  between the
Plaintiff and Defendant Nos. 2 to 4, it was agreed as follows:

(i) The then landlords, Defendants Nos. 2­4 (Voras), shall sell and the
Plaintiff (BPCL) shall purchase all the 10 flats  at a total price of Rs. 1.82 crores ;
(ii) BPCL shall also bear the Registration / Stamp Duty charges for the
said purchase, in addition to the purchase price;
(iii) Full payment of the purchase price will be made upon the execution
and registration of the sale deed, in a form drafted by BPCL;
(iv) The  said  purchase    would  be  subject  to  (a)  a  Clear  Title  being
provided by  the Voras  to  the satisfaction of BPCL and (b)  approval of BPCL
Management for the said proposal. 
(v) The Voras  have  also    offered  to  sell  the entire  suit  property i.e.
including the shops on an 'as is where is' basis if the purchase price is increased
to Rs. 1.95 crores;
(vi) Thus BPCL can exercise the choice of either purchasing all the 10
flats  minus the shops at Rs. 1.82 crores or the entire suit property (including the
13 shops) at Rs. 1.95 crores. 
6) The Voras and BPCL had one more meeting on 6th February 2003
and in the said meeting the Voras and BPCL agreed as follows:
(i) The Voras shall sell and BPCL shall purchase all the  10 flats, the 13
shops and all the rights in the suit property at a total price of Rs. 1.95 crores;
(ii) BPCL shall also bear the Registration / Stamp Duty charges for the
said purchase, in addition to the purchase price;

(iii) Full payment of the purchase price will be made upon the execution
and registration of sale deed, in a form drafted by BPCL;
(iv) The   said   purchase     would   be   subject   to   (a)   a   Clear   title   being
provided by  the Voras  to  the satisfaction of BPCL and (b)  approval of BPCL
Management for the said proposal.
(v) The offer   from the Voras was valid for a period of   four months
from the date of the meeting i.e.  6th February 2003. 
7) The Voras by an Indenture of Conveyance  dated 29th September,
2006, sold and conveyed the entire suit property to the Defendant No. 1. The
Plaintiff admittedly started paying rent to the new landlords i.e. Defendant No. 1
in respect of the 8 flats in its possession. 
8) By a letter dated   12th  December 2007 addressed   by  the new
landlords   (Defendant No.1)   to BPCL, Defendant No.1 recorded that BPCL is
occupying  8  flats  on  tenancy  basis in  the  said Vora  Building  at  Khar.    The
condition of  the building has deteriorated and  therefore Defendant No.1 has
decided  to  approach  the  tenants    for  their cooperation  to  redevelop  the  suit
property.  By the said letter, Defendant No.1 made an offer to BPCL to provide
80 per cent of the carpet area occupied by them on ownership  basis without any
charge in the proposed new building and to further provide  20 per cent of the
usable  area   in  the  form  of  flower  bed  and  dry  area,    along with  ‘A’  class

amenities  as per  Annexure­A thereto.   It was also provided in the said letter
that to make the project viable, Defendant No.1 will look for contribution of Rs.
800/­ per sq.ft. of built up area from the tenants, towards construction cost  and
the said construction would be  completed within 30 to 36 months after getting
permission from BMC and other authorities and all the tenants giving  vacant
possession   of   their   premises.     It   was   further   clarified   that   no   temporary
alternative accommodation would be provided by  the Defendant No.1  to  the
tenants during the period of re­development.  By the said letter, BPCL was called
upon to consider the proposal of the Defendant No.1 and inform their views to
the Defendant No.1. 
9) The Advocates for Defendant No.1 ( landlords of Vora Building),
addressed a letter dated 28th August 2008 to BPCL, inter alia recording therein
that as per the provisions of Section 3 (1) (b) of the Maharashtra Rent Control
Act, 1999, BPCL were  no longer  protected tenants and terminated the monthly
tenancy of BPCL and further called upon BPCL to quit, vacate and hand over
peaceful and vacant possession of the flats occupied by  BPCL,  upon the expiry
of the month  following the month in which the notice was received by BPCL. 
10) BPCL by its letter dated  30th September 2008, responded to the
notice received from the Advocates for the Defendant No.1.  In its reply letter,
BPCL contended that Defendant Nos. 2, 3 and 4 had sold the flats in favour of

Defendant No.1  vide registered conveyance dated 29th September 2006 without
giving   BPCL,   as   tenant   having   first   right,   an   opportunity   to   purchase   the
property. Hence  the sale of  the suit property in  favour of Defendant No.1 is
infructuous, null and void and cannot stand the test of law.  In the said letter
BPCL has categorically admitted that in the past   Defendant Nos. 2 to 4 had
offered BPCL a proposal to redevelop the said Vora Building and the Defendant
No.  1  vide its letter  dated  12th  December  2007  had  offered    a  proposal  to
redevelop the said Vora building on  terms and conditions mentioned in the said
letter and that the proposal of Defendant No.1  was under  active consideration
of   BPCL.     BPCL   alleged   that   hence   Defendant   No.1   could   not   shirk   its
contractual obligation  unilaterally and seek eviction  of BPCL from the said Vora
Building without any valid grounds whatsoever. 
11) The   Defendant   No.1   by     their   Advocate's   letter   dated   28th
November 2008 denied and disputed  the contents of BPCL's letter dated 30th
September 2008 and inter alia clarified that the offer made by Defendant No.1
by their letter dated  12th December 2007 was without prejudice to the rights
and contentions of the parties and the same stood  revoked/withdrawn.   By the
said letter Defendant No. 1 stated that they were proceeding further to enforce
their rights against BPCL. 
12) Defendant No.1  thereafter  filed T.E. & R. Suit No. 119/177 of

2008  before  the  Small Causes Court  at Bandra, Mumbai  seeking eviction  of
BPCL on  the ground  that as per Section 3 (1) (b) of  the   Maharashtra Rent
Control Act, 1999, BPCL was not entitled to any protection  under the Act and
that   their   tenancy   had   been   terminated   by   the   Defendant   No.1   vide   their
Advocate’s letter dated  28th November, 2008. The suit was decreed in favour of
Defendant No.1  and against the Plaintiff on  30th  September 2010. The Plaintiff
preferred an Appeal against the judgment dated 30th  September 2010 on 24th
December 2010 which was dismissed on 22nd February, 2012.
13) The  Plaintiff  thereafter  filed Civil Revision   Application  before
this Court which has been dismissed by  this Court.   However,  the Plaintiff is
given time to vacate the 8 flats occupied by it upto 30th May 2013.  
14) In the meantime, on 10th June 2012, the Plaintiff filed the present
suit against the  Defendants for a declaration that the Deed of Conveyance dated
29th  June 2006 executed by Defendant Nos. 2,3 and 4 in favour of Defendant
No.1 is illegal, invalid, null and void and be cancelled/determined/quashed and
set  aside  and  that Defendant  Nos.  1  and  2  to  4  be  directed  to  specifically
perform the Agreement in terms of the Minutes dated 11th  January 2002 and 6th
February 2003 or in the alternative, Defendant No.1 be directed to specifically
perform the contract in terms of the letter dated 12th December 2007.

15) In the Plaint filed by the Plaintiff on 10th June 2012, it is stated
by  the  Plaintiff  that  the  suit  filed is within limitation  and is  not  barred  by
limitation.  Paragraphs  31  and  32  of  the  Plaint  are  relevant  and  reproduced
hereunder:
“31.   The Plaintiffs say and submit that the Suit is filed within
limitation and is not barred by limitation. The Plaintiffs came to
occupy the suit premises since 1952 and thereafter from time to
time the parties executed the Indenture of Leas subsequently. The
Defendant   Nos.   2   to   4   as   a   Trustee   of   the   Popatlal   Vora
Inheritance   Trust   by   their   letter   dated   20.6.2000,   inter   alia
referred to the discussions regarding outright sale of the entire
building to the Plaintiffs. This was followed by a meeting held on
11.1.2002   wherein   the   issue   regarding   purchase   of   the   suit
property was discussed and certain Agreement (s) were arrived
at   between   the   parties.   The   meeting   dated   11.1.2002     was
preceded forwarded  by  the letter dated  26.2.2001  of  the  said
Popatlal Vora  Inheritance  Trust  to  the  Plaintiffs wherein it is
clearly recorded that it was proposed that the entire property be
sold   to   the   Plaintiffs   rather   than   any   short   term   lease
proposition.   Subsequent thereto, a further meeting was held on
6.2.2003   wherein  there  were  further   discussions   between  the
parties as regards   issue  of purchase  of  suit  property and  the
Agreement   arrived   at   therein   was   recorded   in   the   minutes.
Pursuant to that Agreement, the sale of the suit property was to
be completed in favour of the Plaintiffs, however, the Sellers did
not take necessary steps to comply with their obligations, which
had   to   be   met   before   completion   of   the   sale.  The   purported
conveyance of the property by the trustees of the said Popatlal

Vora  Inheritance Trust in favour  of  the Defendant No. 1 was
with full knowledge of the aforesaid Agreement arrived at with
the  Plaintiffs.  The Defendants No.1  being  aware  of  the  above
position, in fact by their letter dated 12.12.2007  made an offer
to carry out redevelopment of the property and provide “80 % of
the   carpet   area   presently   occupied   by   you   (Plaintiffs)   on
ownership   basis   without   any   change   in   the   proposed   new
building” We Defendant No.1 will additionally provide you “20%
of the usable area in the flower bed and dry area.....”
32. Thereafter, in the proceedings filed by the Defendant No.1
in   the   Small   Causes   Court,   at   Bombay,   for   eviction   of   the
Plaintiffs allegedly as    tenants/lessees  the Defendant No.1 has
lead evidence of  the Defendant No. 3   as well as one Apoorva
Pravinkumar  Desai,   being  a   Director   of   the   Defendant   No.1.
During   his cross examination on 3.2.2010,  the  said Apoorva
Pravinkumar Desai, while admitting to have been made an offer
to   the   Plaintiffs   for   providing   permanent   alternative
accommodation  on  the  ownership  basis in  the    new  building
proposed to be developed by them for the first time claimed that
the Defendant No.1 had withdrawn the said offer.   Pertinently
there is no letter/correspondence prior trust  whereby Defendant
No.1   had   withdrawn   the   said   proposal.     During   the   said
evidence,  the  said witness  of  the Defendant No.1 also feigned
ignorance   as   to   the   Agreement   with   the   said   Popatlal   Vora
Inheritance   Trust   to   sell   the   suit   property   to   the   Plaintiffs.
Shortly thereafter, i.e. during the course of the evidence in the
said Suit on 28.3.2010,  the Defendant No.3 (a  trustee of  the
said Popatlal Vora  Inheritance Trust) in his cross examination
admitted the meetings as also the discussions for purchase of the

suit property.  He also admitted that “ I have not written any
letter to the Defendants specifically about cancellation of offer”.
It is thus clear that proper to the evidence/statement made by
the said Apoorva Pravinkumar Desai on 3.2.2010, on behalf of
the Defendant No.1,  there  was  no  withdrawal/refusal  by  the
Defendants  of   the  Agreement  to  sell   the  suit   property  to  the
Plaintiffs.    In their background, the Plaintiffs are compelled to
file the present suit to seek specific performance of the agreement
in   terms   of   the   minutes   of   meeting   held   on   11.1.2002   and
6.2.2003. The suit is therefore filed within limitation.
16) In the above suit the Defendant No. 1 on 27th  July 2012 took out
Notice of Motion No. 370 of 2013 praying for dismissal of the suit under Order
VII Rule 11 of the Code of Civil Procedure, 1908, on the ground that the Suit is
barred by the law of limitation.  The Plaintiff thereafter in September 2012 took
out the present Chamber Summons. 
17) By the  present Chamber Summons, the Plaintiff wants to carry out
the amendment to the Plaint and submit that the time taken for prosecuting the
suit before the Small Causes Court at Mumbai and thereafter prosecuting the
Appeal from the order of the Trial Court be excluded under Section 14 of the
Limitation Act, 1964 (“the Act”).   Mr. Pradeep Sancheti,  the  Learned Senior
Advocate   appearing   for   the   Plaintiff   in   support   of   the   Chamber   Summons,
submits that Defendant No.1 had filed a suit against the Plaintiff  in the Small
Causes Court, Mumbai, being T.E. & R. Suit No. 119/177 of 2008   where a
decree of  eviction was sought against the Plaintiff. The Plaintiff had appointed

Mr. K.A. Mankad, Advocate and has been prosecuting the suit with due diligence
against the Defendant No.1 herein (Plaintiff therein).  In the said proceedings,
the Plaintiff has also filed a written statement  annexing the relevant documents
and contended that  it had occupied the premises under an Agreement  for Sale
as recorded in the minutes of meeting dated 11th  January 2002 and 10th April
2003,  as a prospective owner and not as monthly tenant and in the alternative
was also willing to accept the proposal for re­development  made by Defendant
No. 1 hereto, which entitled the Plaintiff to become the owner  of part of the suit
property.  In the course of oral evidence the Plaintiff has also cross­examined the
Defendants and/or their witnesses on the above aspects. However, the Learned
Judge of the Small Causes Court decreed the suit and dismissed the case of the
Plaintiff, with the observation that the Plaintiff had not filed a suit for specific
performance.  The said decree came to be passed on 30th September 2010.  The
said  decree was  challenged  before  the Appellate Bench  of  the  Small Causes
Court by Appeal No. 6 of 2011  filed on 24th December 2010. In the said Appeal,
the Plaintiff herein referred to the writing (s) executed between the parties and
reiterated   its   right   to   acquire   the   property   under   those   documents,   which
according   to  it   amounted   to  an   Agreement  for   Sale.    The   Appellate   Bench
dismissed the Appeal vide order dated 22nd February 2012 and observed that the
Plaintiff herein not having filed a suit for specific performance cannot take such
a stand.  Mr. Sancheti therefore submitted that the Plaintiff was acting bona fide
under legal advice and was prosecuting the earlier civil proceedings with due

diligence on the same subject matter.  In the earlier  proceedings, the Plaintiff's
plea was not entertained by reason   of defect of jurisdiction, or cause of like
nature, and therefore  in computing the period of limitation, the said period i.e.
from 1st October 2008 to 30th  September 2010 during the pendency of the suit
and from 24th December 2010 to 22nd February 2012  during the pendency of the
Appeal, ought to be excluded.
18) Relying on the decision in Madhavdas Parmanand vs. Jan Mahomed Ghulam Hyder  AIR (29) 1942 Sind 37 
, Mr.  Sancheti  submitted  that  Section  14  of  the Act  does not
require that the earlier proceedings must have been a suit, nor does it require
that it must have been initiated by  the Plaintiff who is subsequently seeking
advantage from  this Section.   Mr. Sancheti also relied on  the decision of  the
Hon'ble Supreme Court  in  Rajesh Kumar Aggarwal and others vs. K.K. Modi and others  AIR 2006 SC 1647 
,  wherein it is  held  that while  considering whether  an  application  for
amendment should or should not be allowed,  the Court should not go into the
correctness or  falsity of  the case in  the amendment.   Likewise, it should not
record   a   finding   on   the   merits   of   the   amendment   and   the   merits   of   the
amendment sought to be incorporated by way of an amendment are not to be
adjudged  at the stage of allowing the prayer for amendment.  Mr. Sancheti also
relied on  Order VII Rule 6 to submit that the proviso  in Rule 6 provides that the
Court may permit the Plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the
grounds set out in the plaint.  Mr. Sancheti therefore  submits that the Chamber
Summons be allowed as prayed. 
19) Mr. D.H. Mehta, learned Advocate  appearing  for  the Defendants,
submitted that the Plaintiff was not prosecuting the suit as  Plaintiff before the
Small Causes Court in T.E. & R. Suit No. 119/177 of 2008   but was only as a
Defendant therein. He submitted that therefore the question of Section 14 of the
Act being applicable to the Plaintiff in the present suit does not arise.  In support
of  his submission, Mr. Mehta relied on the decisions of the Hon'ble Supreme
Court in  Madhavrao Narayanrao Patwardhan vs. Ram Krishna Govind Bhanu and
others1
,  and  in Zafar Khan and others vs. Board of Revenue, U.P. and others2
 . Mr.
Mehta also  relied on the decision in the case of Ganesh Rai and another vs. First
Additional   District   Judge,   Ghazipur   and   others3
  wherein   it   is   held   that   it   is
incumbent upon the Court to see that amendment besides being necessary for
the   purpose   of   determining  the   real  matter in   controversy,  must   not  cause
injustice to the other side.   Mr. Mehta submitted that apart from the fact that
the application seeking an amendment of the suit is not maintainable on the face
of it, seeking   the present amendment is only an afterthought. The Plaintiff has
lost the matter before the trial Court as well as the Appellate Bench in the Small
Causes Court and has also lost the Civil Revision Application before this Court
1 AIR 1958 SC 767
2 AIR 1985 SC 39
3 AIR 1992 Allahabad 25

and has given an undertaking to this Court in the Civil Revision Application that
it shall vacate the premises on or before 30th May 2013, subject to the orders
being passed in  this  suit.   Mr. Mehta  submitted  that  therefore only  to delay
giving up  possession of  the  flats  occupied by it,  the Plaintiff  has moved  the
present   application   which   will   cause   grave   injustice   and   prejudice   to   the
Defendants, if allowed.
20) I   have   considered   the   submissions   advanced   on   behalf   of   the
Plaintiff and the Defendants. Admittedly, the Defendant No.1 herein filed a suit
against the Plaintiff herein before the Small Causes Court, Mumbai being T.E. &
R. Suit No. 119/177 of 2008   seeking a decree against the Plaintiff herein for
eviction on the ground that the Plaintiff was not entitled to any protection under
Section  3  (1)  (b) of  the Maharashtra Rent Control Act,  1999.   The Plaintiff
herein, being the Defendant in the suit before the Small Causes Court, has not
filed any counter claim therein.  In that suit, the Plaintiff herein has only made a
mention that there was a proposal for the sale of the suit property to the Plaintiff
herein by the predecessor in title of the Plaintiff in the Small Causes Court (i.e.
Defendant Nos. 2, 3 and 4 herein) and hence according to it, the sale of the suit
property to the Defendant No.1 herein by its predecessors to title itself is illegal
and no title passes to it pertaining to the suit building. It also relied on an offer
made  by Defendant No.1  herein  dated    12th  December,    2007. The  Plaintiff
herein also relied on the minutes of the meeting held on  11th January 2002. In this context, the Appellate Bench of the Small Causes Court has, in its order,
observed that the Plaintiff has not filed any suit for specific performance against
the  predecessor  to  title  of  the Defendant No.1  and  therefore in  the  suit  for
eviction filed by the Defendant No.1 herein it cannot take such stand. The stand
taken by the Plaintiff herein pertaining to the purported proposals/agreements
qua the sale of the suit property to the Plaintiff herein  cannot be allowed. 
21) Section 14 of the Act reads thus:
“14. Exclusion of time of proceeding bona fide in Court
without   jurisdiction.­   (1)    In   computing   the   period   of
limitation 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 of appeal or revision,
against the defendant shall be  excluded, where the proceeding
relates to the same matter in issue 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.”
The   Hon'ble   Supreme   Court   in   the   case   of  Madhavrao   Narayanrao
Patwardhan(supra) has in paragraph 6 of its Judgment after quoting clause (1)
of Section 14 of the Act, interpreted the said clause of Section 14 as follows:
“  In order to bring his case within the section quoted above,
the Plaintiff has to show affirmatively:
that he had been prosecuting with due diligence the previous
suit in the court of the Munsif at Miraj,
(1) that the previous suit was founded upon the same cause of

action,
             (2) that it had been prosecuted in good faith in that court, and,
(3) that   the   court   was   unable   to   entertain   that   suit   on
account of defect of jurisdiction or other cause of a like nature.”
22)        Again, the Hon'ble Supreme Court in Zafar Khan and others (supra) has,
after reproducing Section 14 (1) of the Act, interpreted the same  in paragraph
11 of the judgment as under:
“In order to attract the application of Sec. 14 (1), the parties
seeking its benefit must satisfy  the Court that : (i) that the
party as the Plaintiff  was prosecuting another civil proceeding
with due diligence; (ii)  that  the earlier  proceeding and  the
later proceeding relate to the same matter in issue and (iii)
the former proceeding was being prosecuted in good faith in a
Court which, from defect of jurisdiction or other cause of a like
nature, is unable to entertain it”.
23)          In  the case of  Somshikharswami Shidlingswami vs. Shivappa Mallappa
Hosmani1
this Court inter alia held that in the facts of that case,  Section 14 of
the Indian Limitation Act did not apply since the Plaintiff was not prosecuting
any civil proceeding but was merely defending  the  suit brought against him.
Furthermore,   this   Court   in  Narayan   Jivaji   Patel   and   Anr.   V   Gurunathgouda
Khandappagouda   Patil   and  Anr.2
following  the   decision  in  Somshikharswami
Shidlingswami   (supra)  held   that   since   the   appellant   in   the   matter   was   a
1 AIR 1924 Bom 39
2 ILR (1939) Bom 173

defendant in the other suit, he was not prosecuting a suit or a civil proceeding at
the time. Merely defending a suit is not and cannot amount to prosecution of a
suit.   The   terms   “plaintiff”   and   “defendant”   have   a   well   known   technical
meaning. The legislature must be deemed to be aware of that meaning when
they chose to allow the benefit of the time occupied by an earlier proceeding
only to the plaintiff as against the defendant.
24)           In the instant case, admittedly the Plaintiff herein was not prosecuting
the suit before the Small Causes Court, Mumbai i.e. T.E. & R. Suit No. 119/177
of 2008 as the Plaintiff therein but was only a Defendant in that suit. The suit
filed  before  the  Small  Causes  Court  by  the Defendant  No.1  herein  was  for
eviction of the Plaintiff herein on the ground that the Plaintiff was no longer
protected under  the provisions of Section 3 (1) (b) of  the Maharashtra Rent
Control Act, 1999.  In the present suit, the Plaintiff has sought a declaration that
the Deed  of  Conveyance  dated    29th    June  2006  executed  by  and  between
Defendant Nos. 2, 3 and 4 and Defendant No.1 is null and void and be set aside
and   a   decree   of   specific   performance   of   the   Agreement/writing   dated   11th
January 2002 and 6th February, 2003 be granted in favour of the Plaintiff and
against the Defendants. Therefore, by no stretch of imagination can it be said
that the earlier proceedings and the latter proceedings relate to the same matter
in issue.  The Small Causes Court has entertained  T.E. & R. Suit No. 119/177 of
2008  filed by the Defendant No.1 against the Plaintiff herein and has disposed

it   of   finally   by   passing   a   decree   in   favour   of   Defendant   No.1   herein.   The
Appellate Court has confirmed the decree passed by the trial Court. This Court
has dismissed the Civil Revision application filed therefrom. Therefore, it cannot
be accepted that the earlier suit suffers from defect of jurisdiction or other cause
of a like nature and the Court in which the earlier suit was filed was unable to
entertain it.  In view thereof, not a single  ingredient/requirement of Section 14
(1) of the Act as interpreted by the Hon'ble Supreme Court is applicable to the
present case.
25. I am therefore satisfied that the amendment sought by the Plaintiff herein,
on the face of it, is untenable. Immediately upon filing of the present suit by the
Plaintiff, the Defendant No. 1 took out a Notice of Motion seeking  dismissal of
suit under Order VII Rule 11 of the Code of Civil Procedure, 1908, on the ground
that  the suit is barred by  the law of limitation.    In view  thereof  the Plaintiff
herein thereafter took out the present Chamber  Summons seeking to amend the
plaint and contend  that  the Plaintiff who was admittedly a Defendant in  the
eviction   suit   before   the   Small   Causes   Court   at   Bombay,   is   entitled   to   seek
exclusion of the period during which he prosecuted  the suit (as a defendant)
and also the period during which he was prosecuting the Appeal.  It is true that
the Court should not go into the merits of the amendments sought.  However it
cannot be that even if the amendment sought is unstatable  and on the face of it
untenable and is nothing but an abuse  of the process of the Court, sought with

the intention  of delaying  Court proceedings causing injustice to the other side,
as in  the  present  case,  the  same  should  be  allowed.    Such  an interpretation
would invite  absurd  consequences.  As  submitted  by Mr. Mehta,  the learned
Advocate appearing for the Defendants, the present amendment is sought only as
an after­thought to delay the process of handing over the possession of the suit
flats by the Plaintiff to Defendant No. 1, and apart from the fact that the present
Chamber Summons is on the face of it untenable, if the same is  allowed will
cause grave injustice to the Defendants.  In view thereof, the case law cited by
Mr. Sancheti and the submissions made by him based on the said decisions do
not   render   any   assistance   to   the   Plaintiff,   and   the   Chamber   Summons   is
dismissed.  Chamber Summons is accordingly disposed of. 
         (S.J. KATHAWALLA, J.)

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