Shri Deshpande, the learned advocate for the petitioner has submitted
that the earlier civil suit was dismissed on merits and not on any technical
grounds and, therefore, the benefit of Section 14 of the Limitation Act cannot be
given to the respondent. Moreover, the learned District Judge could not have
granted the benefit of Section 14 of the Limitation Act to the respondent without
there being any application and without there being any pleadings in that
regards. The grant of benefit of Section 14 of the Limitation Act cannot be said
to be a mechanical act of the Court but whether the plaintiff was prosecuting the
earlier proceedings with “due diligence” and in good faith is required to be
adjudicated and it can be done only after giving an opportunity to the defendant
to point out that the plaintiff is entitled for the benefit of Section 14 of the
Limitation Act. The learned District Judge has committed an error in granting
benefit of Section 14 of the Limitation Act to the respondent without there being
any application or pleadings on the record to substantiate that the respondent
was prosecuting the earlier proceedings with due diligence and in good faith.
In view of the above, the judgment and decree passed by the District
Court is unsustainable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.6454/2005
Rajendra Antharam Tijoriwala and Gujrathi,
V
Takhatmal Shrivallabh Charitable Trust,
CORAM
: Z.A. HAQ, J.
DATE : 20.12.2014
Citation;2015(2) MHLJ179
1. Heard Shri P.Y. Deshpande, the learned advocate for the petitioner and
Shri J.J. Chandurkar, the learned advocate for the respondent no.1. None
appears for the other respondents though served.
2. The petition is by the tenant challenging the judgment passed by the
District Court granting decree for possession and ancillary reliefs in favour of the
respondents.
3. Though it is debatable as to whether the impugned judgment and decree
can be challenged in revision or in writ petition, as the writ petition is admitted
and is pending for final hearing since 2005, I have taken up the petition for final
hearing without delving into the issue.
4. Shri Ramratan Shrivallabh Chandak the
owner of the suit property had
filed proceedings under clause 13(3)(vii) of the C.P. and Berar Letting of
Premises and Rent Control Order, 1949 (for short “Rent Control order 1949”)
seeking permission of the Rent Controller to issue notice terminating the tenancy
of the petitioner tenant.
The Rent Controller granted permission to Shri
Ramratan to terminate the tenancy of the petitioner tenant
under clause
13(3)(vii) of the Rent Control Order, 1949. The permission granted by the Rent
Controller was confirmed in the appeal and it became final. Shri Ramratan
issued the notice dated 19th June, 1974 terminating the tenancy of the
petitioner tenant
from 31st July, 1974. The petitioner having not complied with
the requirements of the notice and having not vacated the suit premises, Shri
Ramratan filed the Regular Civil Suit No.666/1974 in October, 1974. During
the pendency of the civil suit, the suit property was transfered to Takhatmal
Shrivallabh Charitable Trust by the registered settlement deed dated 24th
September, 1976.
5. In the civil suit the petitioner tenant
raised the defence that Shri
Ramratan/plaintiff in the civil suit had transfered the ownership of the suit house
to Takhatmal Shrivallabh Charitable Trust and, therefore, the cause of action did
not subsist in favour of Shri Ramratan. The learned trial Judge framed the issue
“1(b) whether the plaintiff has subsisting cause of action against the
defendant ?”
The learned trial Judge by the judgment dated 8th May, 1981 dismissed
the civil suit on the ground that the plaintiff did not have cause of action in his
favour.
6. Shri Ramratan challenged the judgment and decree passed by the trial
Court by filing the appeal. In the appeal an application was filed for impleading
Takhatmal Shrivallabh Charitable Trust as the appellant which came to be
allowed. The petitioner tenant
had raised the objection that Takhatmal
Shrivallabh Charitable Trust being a public trust, all the trustees are necessary
parties. Takhatmal Shrivallabh Charitable Trust filed an application (Exh.31)
seeking permission to withdraw the civil suit with liberty to file fresh civil suit.
The learned District Judge by the order dated 30th July, 1985 allowed the
application and granted permission to Takhatmal Shrivallabh Charitable Trust to
withdraw the civil suit and granted liberty to file fresh suit, however, the
permission was granted subject to payment of the costs to the petitioner tenant.
7. Takhatmal Shrivallabh Charitable Trust filed the Small Cause Suit
No.86/1987 praying for the decree for possession and other reliefs. This small
cause suit was filed with averment that the cause of action had arisen on 31st
July, 1974 when the tenancy of the petitioner – tenant stood terminated. The
petitioner tenant
opposed the claim of the plaintiff Takhatmal
Shrivallabh
Charitable Trust.
8. The learned trial Judge by the judgment dated 30th September, 1992
concluded that the small cause civil suit was barred by limitation and the notice
terminating the tenancy of the petitioner tenant
was not legal. The learned
trial Judge dismissed the civil suit.
9. Takhatmal Shrivallabh Charitable Trust being aggrieved by the judgment
and decree passed by the trial Court had filed the appeal before the District
Court. The learned District Judge by the impugned judgment has held that the
notice terminating the tenancy of the petitioner tenant
is legal, that the small
cause civil suit is filed within limitation and that the respondent landlord
is
entitled for possession. The learned District Judge granted the decree
accordingly.
10. The petitioner tenant
being aggrieved by the judgment and decree
passed by the District Court has filed this writ petition.
11. Shri P.Y. Deshpande, the learned advocate for the petitioner tenant
has
challenged the judgment and decree passed by the District Court on following
four grounds :(
i) That the notice terminating the tenancy of the petitioner
was issued by Shri Ramratan Shrivallabh Chandak and not by
the present respondent and, therefore, it was not legal and
could not have the effect of terminating the tenancy of the
petitioner tenant.
It is further submitted that the copy of the
termination notice was not filed before the trial Court in the
small cause civil suit and it was filed before the District Court
and therefore, the decree could not have been granted on the
basis of the termination notice which was neither produced nor
proved before the trial Court.
(ii) That the permission to withdraw the civil suit with liberty
to file the fresh suit was granted by the District Court in the
earlier round of proceedings subject to payment of costs by the
respondent landlord
to the petitioner, however, the respondent
has not paid the costs and, therefore, the liberty granted could
not have been availed by the respondent.
(iii) The permission under clause 13(3)(vii) of the Rent
Control Order, 1949 was granted in favour of Ramratan and the
respondent landlord
could not have availed it to evict the
petitioner tenant
inasmuch as the permission granted under
clause 13(3)(vii) of the Rent Control Order, 1949 is on the basis
of the desire of the landlord to effect the repairs. It is submitted
that in the absence of any material on the record to show that
the respondent desired to effect the repairs to the suit property,
the civil suit could not have been filed by the respondent on the
basis of the permission granted under clause 13(3)(vii) of the
Rent Control Order, 1949 in favour of landlord Shri Ramratan.
(iv) The small cause civil suit is filed in 1987 on the basis of
cause of action which according to the respondent had arisen
on 31st July, 1974. It is submitted that the small cause civil suit
is admittedly, filed after more than 12 years of arising of the
cause of action and, therefore, the suit was barred by limitation
as provided by Article 67 of the Limitation Act. It is submitted
that the respondent tried to avail the benefit of Section 14 of the
Limitation Act at the time of arguments, however, the
respondent has neither filed any application nor there are
pleadings in the plaint to explain that the respondent is entitled
for the exclusion of the period for which the earlier civil suit and
appeal were prosecuted.
12. In support of his submissions Shri Deshpande, the learned advocate has
relied on the following judgments :(
i) Judgment given by the Hon'ble Supreme Court in the
case of Ketan V. Parekh V/s. Special Director, Directorate of
Enforcement and Anr. reported at AIR 2012 SC 683 and
(ii) Judgment given by the Hon'ble Supreme Court in the
case of Deena (dead) through L.Rs. V/s. Bharat Singh (dead)
through L.Rs. and others reported at AIR 2002 SC 2768.
13. Shri Chandurkar, the learned advocate for the respondent has submitted
that the learned District Judge by the order dated 30th July, 1985 had granted
liberty to the respondent to file fresh suit and accordingly the small cause civil
suit is filed in 1987 i.e. within 1 and ½ years of the grant of permission to file the
civil suit and, therefore, it cannot be said that the small cause civil suit was
barred by limitation. The learned advocate has submitted that the earlier civil
suit filed by Shri Ramratan was not dismissed on the ground that the Court had
no jurisdiction to entertain and decide the civil suit. The learned advocate has
submitted that the defence of the petitioner was that Shri Ramratan had no
cause of action in his favour and the suit was dismissed by the trial Court on that
ground and therefore, after seeking the permission to withdraw the civil suit with
liberty to file fresh suit, when the small cause suit was filed by the respondent,
the period consumed in prosecuting the earlier civil suit and the appeal was
required to be exempted and the learned District Judge has rightly granted that
benefit. It is submitted that the judgment and decree passed by the District
Court is based on proper appreciation of the facts and the law and it does not
require any interference.
14. After considering the submissions made by the learned advocates for the
respective parties, though several challenges are raised by the petitioner, in my
view, the petition is required to be allowed on the ground that the small cause
civil suit filed by the respondent was barred by limitation and the benefit of
Section 14 of the Limitation Act could not have been extended to the respondent.
Article 67 of the Limitation Act prescribes limitation of 12 years for filing
the civil suit to recover the possession from the date of termination of the
tenancy. It is undisputed that the small cause civil suit was filed by the
respondent after the period of 12 years of arising of the cause of action. It is
undisputed that the respondent has not filed any application praying for exclusion
of the time consumed by it in prosecuting the Regular Civil Suit No.666/1974 and
the Regular Civil Appeal No.142/1981. The learned advocate for the respondent
has not been able to point out any pleadings from the plaint or from any
document on the record to show that the respondent has justified the delay in
filing the small cause civil suit and explaining that the respondent was
prosecuting the Regular Civil Suit No.666/1974 and the Regular Civil Appeal
No.142/1981 diligently. In fact, the respondent was not plaintiff in the Regular
Civil Suit No.666/1974 and it got itself impleaded as the appellant in Regular Civil
Appeal No.142/1981. In the absence of any pleadings of the respondent showing
that he was prosecuting the earlier proceedings with due diligence, the
respondent could not have been given the benefit of Section 14 of the Limitation
Act.
The Hon'ble Supreme Court in the judgment given in the case of Deena
(dead) through L.Rs. V/s. Bharat Singh (dead) through L.Rs. and others reported
at AIR 2002 SC 2768 in paragraph no.16 has laid down as follows :“
16. The other expressions relevant to be construed in this
regard are 'defect of jurisdiction' and "or other cause of a like
nature'. The expression "defect of jurisdiction' on a plain
reading means the Court must lack jurisdiction to entertain the
suit or proceeding. The circumstances in which or the grounds
on which, lack of jurisdiction of the Court may be found are not
enumerated in the Section. It is to be kept in mind that there is
a distinction between granting permission to the plaintiff to
withdraw the suit with leave to file a fresh suit for the same
relief under O. 23, R. 1 and exclusion of the period of
pendency of that suit for the purpose of computation of
limitation in the subsequent suit under section 14 of the
Limitation Act. The words "or other cause of a like nature" are
to be construed ejusdem generis with the words 'defect of
jurisdiction', that is to say, the defect must be of such a
character as to make it impossible for the Court to entertain the
suit or application and to decide it on merits. Obviously S.14
will have no application in a case where the suit is dismissed
after adjudication on its merits and not because the Court was
unable to entertain it.”
15. Shri Deshpande, the learned advocate for the petitioner has submitted
that the earlier civil suit was dismissed on merits and not on any technical
grounds and, therefore, the benefit of Section 14 of the Limitation Act cannot be
given to the respondent. Moreover, the learned District Judge could not have
granted the benefit of Section 14 of the Limitation Act to the respondent without
there being any application and without there being any pleadings in that
regards. The grant of benefit of Section 14 of the Limitation Act cannot be said
to be a mechanical act of the Court but whether the plaintiff was prosecuting the
earlier proceedings with “due diligence” and in good faith is required to be
adjudicated and it can be done only after giving an opportunity to the defendant
to point out that the plaintiff is entitled for the benefit of Section 14 of the
Limitation Act. The learned District Judge has committed an error in granting
benefit of Section 14 of the Limitation Act to the respondent without there being
any application or pleadings on the record to substantiate that the respondent
was prosecuting the earlier proceedings with due diligence and in good faith.
16. In view of the above, the judgment and decree passed by the District
Court is unsustainable. The judgment and decree passed in Regular Civil
Appeal No.244/1992 on 26th September, 2005 is set aside and the Small Cause
Civil Suit No.86/19987 filed by the respondent is dismissed. In the
circumstances, the parties to bear their own costs. As the writ petition is allowed
on the point of limitation, I have not dealt with other challenges raised in the
petition.
JUDGE
that the earlier civil suit was dismissed on merits and not on any technical
grounds and, therefore, the benefit of Section 14 of the Limitation Act cannot be
given to the respondent. Moreover, the learned District Judge could not have
granted the benefit of Section 14 of the Limitation Act to the respondent without
there being any application and without there being any pleadings in that
regards. The grant of benefit of Section 14 of the Limitation Act cannot be said
to be a mechanical act of the Court but whether the plaintiff was prosecuting the
earlier proceedings with “due diligence” and in good faith is required to be
adjudicated and it can be done only after giving an opportunity to the defendant
to point out that the plaintiff is entitled for the benefit of Section 14 of the
Limitation Act. The learned District Judge has committed an error in granting
benefit of Section 14 of the Limitation Act to the respondent without there being
any application or pleadings on the record to substantiate that the respondent
was prosecuting the earlier proceedings with due diligence and in good faith.
In view of the above, the judgment and decree passed by the District
Court is unsustainable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.6454/2005
Rajendra Antharam Tijoriwala and Gujrathi,
V
Takhatmal Shrivallabh Charitable Trust,
CORAM
: Z.A. HAQ, J.
DATE : 20.12.2014
Citation;2015(2) MHLJ179
1. Heard Shri P.Y. Deshpande, the learned advocate for the petitioner and
Shri J.J. Chandurkar, the learned advocate for the respondent no.1. None
appears for the other respondents though served.
2. The petition is by the tenant challenging the judgment passed by the
District Court granting decree for possession and ancillary reliefs in favour of the
respondents.
3. Though it is debatable as to whether the impugned judgment and decree
can be challenged in revision or in writ petition, as the writ petition is admitted
and is pending for final hearing since 2005, I have taken up the petition for final
hearing without delving into the issue.
4. Shri Ramratan Shrivallabh Chandak the
owner of the suit property had
filed proceedings under clause 13(3)(vii) of the C.P. and Berar Letting of
Premises and Rent Control Order, 1949 (for short “Rent Control order 1949”)
seeking permission of the Rent Controller to issue notice terminating the tenancy
of the petitioner tenant.
The Rent Controller granted permission to Shri
Ramratan to terminate the tenancy of the petitioner tenant
under clause
13(3)(vii) of the Rent Control Order, 1949. The permission granted by the Rent
Controller was confirmed in the appeal and it became final. Shri Ramratan
issued the notice dated 19th June, 1974 terminating the tenancy of the
petitioner tenant
from 31st July, 1974. The petitioner having not complied with
the requirements of the notice and having not vacated the suit premises, Shri
Ramratan filed the Regular Civil Suit No.666/1974 in October, 1974. During
the pendency of the civil suit, the suit property was transfered to Takhatmal
Shrivallabh Charitable Trust by the registered settlement deed dated 24th
September, 1976.
5. In the civil suit the petitioner tenant
raised the defence that Shri
Ramratan/plaintiff in the civil suit had transfered the ownership of the suit house
to Takhatmal Shrivallabh Charitable Trust and, therefore, the cause of action did
not subsist in favour of Shri Ramratan. The learned trial Judge framed the issue
“1(b) whether the plaintiff has subsisting cause of action against the
defendant ?”
The learned trial Judge by the judgment dated 8th May, 1981 dismissed
the civil suit on the ground that the plaintiff did not have cause of action in his
favour.
6. Shri Ramratan challenged the judgment and decree passed by the trial
Court by filing the appeal. In the appeal an application was filed for impleading
Takhatmal Shrivallabh Charitable Trust as the appellant which came to be
allowed. The petitioner tenant
had raised the objection that Takhatmal
Shrivallabh Charitable Trust being a public trust, all the trustees are necessary
parties. Takhatmal Shrivallabh Charitable Trust filed an application (Exh.31)
seeking permission to withdraw the civil suit with liberty to file fresh civil suit.
The learned District Judge by the order dated 30th July, 1985 allowed the
application and granted permission to Takhatmal Shrivallabh Charitable Trust to
withdraw the civil suit and granted liberty to file fresh suit, however, the
permission was granted subject to payment of the costs to the petitioner tenant.
7. Takhatmal Shrivallabh Charitable Trust filed the Small Cause Suit
No.86/1987 praying for the decree for possession and other reliefs. This small
cause suit was filed with averment that the cause of action had arisen on 31st
July, 1974 when the tenancy of the petitioner – tenant stood terminated. The
petitioner tenant
opposed the claim of the plaintiff Takhatmal
Shrivallabh
Charitable Trust.
8. The learned trial Judge by the judgment dated 30th September, 1992
concluded that the small cause civil suit was barred by limitation and the notice
terminating the tenancy of the petitioner tenant
was not legal. The learned
trial Judge dismissed the civil suit.
9. Takhatmal Shrivallabh Charitable Trust being aggrieved by the judgment
and decree passed by the trial Court had filed the appeal before the District
Court. The learned District Judge by the impugned judgment has held that the
notice terminating the tenancy of the petitioner tenant
is legal, that the small
cause civil suit is filed within limitation and that the respondent landlord
is
entitled for possession. The learned District Judge granted the decree
accordingly.
10. The petitioner tenant
being aggrieved by the judgment and decree
passed by the District Court has filed this writ petition.
11. Shri P.Y. Deshpande, the learned advocate for the petitioner tenant
has
challenged the judgment and decree passed by the District Court on following
four grounds :(
i) That the notice terminating the tenancy of the petitioner
was issued by Shri Ramratan Shrivallabh Chandak and not by
the present respondent and, therefore, it was not legal and
could not have the effect of terminating the tenancy of the
petitioner tenant.
It is further submitted that the copy of the
termination notice was not filed before the trial Court in the
small cause civil suit and it was filed before the District Court
and therefore, the decree could not have been granted on the
basis of the termination notice which was neither produced nor
proved before the trial Court.
(ii) That the permission to withdraw the civil suit with liberty
to file the fresh suit was granted by the District Court in the
earlier round of proceedings subject to payment of costs by the
respondent landlord
to the petitioner, however, the respondent
has not paid the costs and, therefore, the liberty granted could
not have been availed by the respondent.
(iii) The permission under clause 13(3)(vii) of the Rent
Control Order, 1949 was granted in favour of Ramratan and the
respondent landlord
could not have availed it to evict the
petitioner tenant
inasmuch as the permission granted under
clause 13(3)(vii) of the Rent Control Order, 1949 is on the basis
of the desire of the landlord to effect the repairs. It is submitted
that in the absence of any material on the record to show that
the respondent desired to effect the repairs to the suit property,
the civil suit could not have been filed by the respondent on the
basis of the permission granted under clause 13(3)(vii) of the
Rent Control Order, 1949 in favour of landlord Shri Ramratan.
(iv) The small cause civil suit is filed in 1987 on the basis of
cause of action which according to the respondent had arisen
on 31st July, 1974. It is submitted that the small cause civil suit
is admittedly, filed after more than 12 years of arising of the
cause of action and, therefore, the suit was barred by limitation
as provided by Article 67 of the Limitation Act. It is submitted
that the respondent tried to avail the benefit of Section 14 of the
Limitation Act at the time of arguments, however, the
respondent has neither filed any application nor there are
pleadings in the plaint to explain that the respondent is entitled
for the exclusion of the period for which the earlier civil suit and
appeal were prosecuted.
12. In support of his submissions Shri Deshpande, the learned advocate has
relied on the following judgments :(
i) Judgment given by the Hon'ble Supreme Court in the
case of Ketan V. Parekh V/s. Special Director, Directorate of
Enforcement and Anr. reported at AIR 2012 SC 683 and
(ii) Judgment given by the Hon'ble Supreme Court in the
case of Deena (dead) through L.Rs. V/s. Bharat Singh (dead)
through L.Rs. and others reported at AIR 2002 SC 2768.
13. Shri Chandurkar, the learned advocate for the respondent has submitted
that the learned District Judge by the order dated 30th July, 1985 had granted
liberty to the respondent to file fresh suit and accordingly the small cause civil
suit is filed in 1987 i.e. within 1 and ½ years of the grant of permission to file the
civil suit and, therefore, it cannot be said that the small cause civil suit was
barred by limitation. The learned advocate has submitted that the earlier civil
suit filed by Shri Ramratan was not dismissed on the ground that the Court had
no jurisdiction to entertain and decide the civil suit. The learned advocate has
submitted that the defence of the petitioner was that Shri Ramratan had no
cause of action in his favour and the suit was dismissed by the trial Court on that
ground and therefore, after seeking the permission to withdraw the civil suit with
liberty to file fresh suit, when the small cause suit was filed by the respondent,
the period consumed in prosecuting the earlier civil suit and the appeal was
required to be exempted and the learned District Judge has rightly granted that
benefit. It is submitted that the judgment and decree passed by the District
Court is based on proper appreciation of the facts and the law and it does not
require any interference.
14. After considering the submissions made by the learned advocates for the
respective parties, though several challenges are raised by the petitioner, in my
view, the petition is required to be allowed on the ground that the small cause
civil suit filed by the respondent was barred by limitation and the benefit of
Section 14 of the Limitation Act could not have been extended to the respondent.
Article 67 of the Limitation Act prescribes limitation of 12 years for filing
the civil suit to recover the possession from the date of termination of the
tenancy. It is undisputed that the small cause civil suit was filed by the
respondent after the period of 12 years of arising of the cause of action. It is
undisputed that the respondent has not filed any application praying for exclusion
of the time consumed by it in prosecuting the Regular Civil Suit No.666/1974 and
the Regular Civil Appeal No.142/1981. The learned advocate for the respondent
has not been able to point out any pleadings from the plaint or from any
document on the record to show that the respondent has justified the delay in
filing the small cause civil suit and explaining that the respondent was
prosecuting the Regular Civil Suit No.666/1974 and the Regular Civil Appeal
No.142/1981 diligently. In fact, the respondent was not plaintiff in the Regular
Civil Suit No.666/1974 and it got itself impleaded as the appellant in Regular Civil
Appeal No.142/1981. In the absence of any pleadings of the respondent showing
that he was prosecuting the earlier proceedings with due diligence, the
respondent could not have been given the benefit of Section 14 of the Limitation
Act.
The Hon'ble Supreme Court in the judgment given in the case of Deena
(dead) through L.Rs. V/s. Bharat Singh (dead) through L.Rs. and others reported
at AIR 2002 SC 2768 in paragraph no.16 has laid down as follows :“
16. The other expressions relevant to be construed in this
regard are 'defect of jurisdiction' and "or other cause of a like
nature'. The expression "defect of jurisdiction' on a plain
reading means the Court must lack jurisdiction to entertain the
suit or proceeding. The circumstances in which or the grounds
on which, lack of jurisdiction of the Court may be found are not
enumerated in the Section. It is to be kept in mind that there is
a distinction between granting permission to the plaintiff to
withdraw the suit with leave to file a fresh suit for the same
relief under O. 23, R. 1 and exclusion of the period of
pendency of that suit for the purpose of computation of
limitation in the subsequent suit under section 14 of the
Limitation Act. The words "or other cause of a like nature" are
to be construed ejusdem generis with the words 'defect of
jurisdiction', that is to say, the defect must be of such a
character as to make it impossible for the Court to entertain the
suit or application and to decide it on merits. Obviously S.14
will have no application in a case where the suit is dismissed
after adjudication on its merits and not because the Court was
unable to entertain it.”
15. Shri Deshpande, the learned advocate for the petitioner has submitted
that the earlier civil suit was dismissed on merits and not on any technical
grounds and, therefore, the benefit of Section 14 of the Limitation Act cannot be
given to the respondent. Moreover, the learned District Judge could not have
granted the benefit of Section 14 of the Limitation Act to the respondent without
there being any application and without there being any pleadings in that
regards. The grant of benefit of Section 14 of the Limitation Act cannot be said
to be a mechanical act of the Court but whether the plaintiff was prosecuting the
earlier proceedings with “due diligence” and in good faith is required to be
adjudicated and it can be done only after giving an opportunity to the defendant
to point out that the plaintiff is entitled for the benefit of Section 14 of the
Limitation Act. The learned District Judge has committed an error in granting
benefit of Section 14 of the Limitation Act to the respondent without there being
any application or pleadings on the record to substantiate that the respondent
was prosecuting the earlier proceedings with due diligence and in good faith.
16. In view of the above, the judgment and decree passed by the District
Court is unsustainable. The judgment and decree passed in Regular Civil
Appeal No.244/1992 on 26th September, 2005 is set aside and the Small Cause
Civil Suit No.86/19987 filed by the respondent is dismissed. In the
circumstances, the parties to bear their own costs. As the writ petition is allowed
on the point of limitation, I have not dealt with other challenges raised in the
petition.
JUDGE
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