Section 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.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding 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.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.
Explanation: For the purposes of this section-
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
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 related 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. Sub-Sec. (2) similarly provides for an application.
It is also provided that notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil Procedure 1908, the provisions of sub-sec. (1) Shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of the Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in jurisdiction of the court or other cause of a like nature [Sec. 14(3)].
[If a suit/application is withdrawn under Order XXIII on grounds similar to those specified in Sec. 14, the time spent in prosecuting such proceeding shall be excluded, as it is felt that there is not jurisdiction for denying a litigant this right when the grounds of withdrawal are those contemplated by this Section and to this extent order XXIII, rule 2 requires to be superseded. Sec. 14(3) is in the nature of a proviso to Order XXIII].
Explanation- For the purposes of this section,
(a) In excluding the time during which a formal civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) A plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) Misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
The principle of Sec. 14 is the protection against the bar of limitation to a person honestly doing his best to get his case tried on the merits, but failing through the court being unable to give him such a trial. The expression “is unable to entertain” means “is unable to go into the merits of the case”.
The effect of Sec. 14 is not to render the suit after re-filing in the proper court a continuation of the original suit, and consequently the limitation period has to be determined as if it was a new suit, and the period during which the suit was being prosecuted bona fide in a wrong court. For example: If the order returning the plaint is passed on the 4th May and the plaintiff is given time till the 30th June for presentation in the proper court, the period between 4th May and 29th June is to be excluded under Sec. 14.
A plaintiff can claim the benefit of this section only where the previous proceeding has been brought by himself or by some person through whom he derives title to sue. The defendant must be the same in both the proceedings. Where there are several defendants in the second suit, and the former suit was instituted against only one of them, no exclusion of time will be allowed.
It is not necessary that plaintiff must have been prosecuting the previous proceeding as a plaintiff. He is entitled to a deduction of the period of pendency of a former suit in which he as defendant was urging the same claim as he afterwards prefers as plaintiff. All that is required of a plaintiff to prove is that he prosecuted the previous civil proceedings in good faith.
Sec. 14 will not be attracted when the plaint is filed in a wrong court out of time i.e. not within the limitation period. This section applies to suits and applications only, and not to appeals. The section does not give discretion to the court, but the litigant is entitled as a matter of right to exclude the period spends in infructuous proceedings provided the following requisite conditions are satisfied by the plaintiff:
(i) That he had been prosecuting the previous suit with due diligence and in good faith,
(ii) That the matter in issue in the previous suit and the new suit are the same, and
(iii) That the court was unable to entertain that suit on account of defect of jurisdiction or other cause of a like nature.
If there is a lack of due care and attention on the part of the plaintiff then the plaintiff cannot be said to be acting in good faith. So, a plaintiff who was careless will not get the time before a wrong court excluded in computing the limitation period.
A person who has resisted to the objection regarding non-joinder of parties at the initial stage and also at the revisional stage and run the risk of proceeding with the suit without impleading the necessary parties, cannot be said to act in good faith because he cannot be said to have acted with due care and attention. Consequently, such person will not be entitled to benefit of Sec. 14 for excluding the time spent by him in that proceeding in a fresh suit.
Ignorance of law by the plaintiff, which led to his filing the previous suit in a wrong court is not an excuse and would disentitle the plaintiff to the protection under Sec. 14. A distinction is made between bona fide mistake of law and ignorance of law. In the first case, indulgence is given under this Section.
In Ghasi Ram v. Chait Ram Saini (AIR 1998 SC 2476), The Apex Court observed: Does the interest of justice demand that plaintiff should be refused the benefit of Sec. 14 on account of the negligence on the part of his counsel, ill-advising him to file a revision instead of filing a fresh suit? An illiterate litigant cannot be made to suffer when he is ill-advised by his counsel.
It has been held by the Supreme Court in Ravindranath Samuel Dawson v. Sivakami (AIR 1979 SC 730) that proceedings contrary to a clearly expressed provision of law cannot be regarded as proceedings in good faith. It has also been held that when the party had no right to prosecute another proceeding, the prosecution of such proceeding cannot be said to be in good faith.
Even where plaint itself shows that the court at which it was filed had no jurisdiction, Sec. 14 can be invoked if goods faith is proved.
Sec. 14 applies to Civil Proceedings Only[1]
Sec. 14 applies to civil and not criminal proceedings. This section makes no distinction between a Civil and Revenue Court/Collector’s Court. As the insolvency proceeding before an Official Assignee is a civil proceeding this section applies.
Matter in Issue should be same-
When the matter in issue (in the previous and new suit) is not the same, Sec. 14 is not attracted. In Ajab Enterprises v. Jayant Vogoiles & Chemicals (AIR 1991 Bom. 35), the plaintiff filed a winding up petition before the company court. The time taken to prosecute such proceeding cannot be excluded in computing the period of limitation for a suit against a company for recovery of debt because the matter in issue in the suit and the winding up proceedings is not the same.
In Jai Prakash v. Sat Narain Singh (1994) 1 Supp. SCC 153, the court observed that U.P. land Revenue Act indicates that its scope and application are confined to proceedings in respect of land revenue and the jurisdiction of the Revenue Officers in this connection, and do not embrace any dispute relating to title or possession of specific plots of land. The subject-matter of proceeding under the U.P. Land Revenue Act in the present case which remained pending from 1931 to 1952 was entirely different from the dispute in suit relating to the suit land.
The exclusion of time under Sec. 14 is available only where the earlier proceedings related to the same matter that is in issue in the suit and not otherwise.
Defect of Jurisdiction—
The court in which the previous proceeding was prosecuted must have been unable to entertain it by reason of “defect of jurisdiction or other cause of a like nature”. As seen above, it is expressly clarified that misjoinder of parties or causes of action is to be considered to be a ‘cause of a like nature’ with ‘defect of jurisdiction’. Misjoinder would include non-joinder.
The words “other cause of a like nature” with defect of jurisdiction means something incidental to the court itself, and not connected with the default, negligence or laches of the plaintiff. And therefore, where the previous suit was dismissed on the merits, or on the ground of limitation or res judicata, or because the plaint did not disclose a cause of action, or was badly framed, Sec. 14 cannot be availed of. Similarly, Sec. 14 does not cover such mistakes as the presentation and prosecution of an appeal which did not lie in any court.
The expression “other cause of like nature” must be so interpreted as to convey something analogous to the preceding words “from defect of jurisdiction”). Where the respondents were found to have in good faith pursued their claim before the Court of Civil Judge, Allahabad, which was found to have no jurisdiction to entertain the suit by reason of a clause in the contract of carriage which conferred exclusive jurisdiction on the Court in the city of Jaipur, it was held that the period during which they prosecuted their suit before the Court of the Civil Judge, Allahabad would be liable to be excluded in computing the period of limitation for filing the suit in the appropriate Court in Jaipur [Globe Transport Corporation v. Triveni Engineering Works (1984)].
Sec. 14 does not apply where the previous suit or application was voluntarily abandoned or withdrawn by the plaintiff or applicant. It is only when the suit was withdrawn with the leave of court, Sec. 14 would apply.
When the suit was rightly filed in the Munsif’s Court but subsequently there was change of forum resulting in the plaint being returned for presentation to District Court then no question of invocation of Sec. 14 arises and the suit should be deemed to be continuing from its first presentation.
Comparison with Sec. 5- Sec. 14 confers a right on the applicant, while Sec. 5 confers discretion on the court. The considerations of good faith and due diligence are more rigidly applicable under Sec. 14 than Sec. 5.
The reason why Sec. 14 is limited to courts of original jurisdiction is merely, because the earlier section (Sec. 5) gives a large and more unfettered power in the same behalf to Appellate Courts. The reasonable principle of this section, therefore, may be applied to appeals.
Difference between Sec. 4, 12 and 14 –
Sec. 4 provides that despite the fact that limitation has expired on a day when the court was closed, the suit, appeal, etc. may be instituted on the day on which the court re-opens. Sec. 4 does not extend or enlarge the period of limitation. The language of Sec 12 & 14 however, clearly provides for the extension of the limitation period and, therefore, if after the addition of period contemplated by Secs. 12 & 14 limitation expires on a day when the court is closed, the suit may be filed on the re-opening day.
Where a plaint presented within time in a wrong court was returned to the plaintiff on a date after limitation had expired, and the next three days being holidays, it was presented before the proper court on the fourth day, it was held that in the circumstances the suit was not barred by limitation, as the plaintiff could not present the plaint to the proper court before the date on which he did, owing to the holidays of that court.
STATE BANK OF HYDERABAD VS. JOINT FAMILY OF MUKUNDAS RAJA BHAGWAN DAS [(1995) SUPP. (2) SCC 544)]— In this case, the respondent- Jagirdar executed a promissory note (dated 20-5-1953) and paid some amount up to 3-9-1959. He later filed an application in March 1960, under the A.P. Jagirdar Settlement Act, 1952, for scaling down the debt. Under the A.P. Act, the Board (authority under the Act), on 25-10-1967, held that it has no jurisdiction to entertain the claim for scaling down the debt. The appellant-creditor bank, filed the suit on 10-2- 1970 in the city civil court to recover the debt. The court dismissed it on the ground of being barred by limitation. Similarly, High Court held in appeal. Now, SLP before this court, on the question of limitation.
The Apex Court observed that A.P. Act, 1952 is a complete code for determination of liability of debt due by a Jagirdar to the creditors. It is true that the benefit of Sec. 14 of Limitation Act would be extended only to the plaintiff who has instituted the suit in a wrong forum and had prosecuted the proceeding in good faith in that court which ultimately found to have defect of jurisdiction or other cause of like nature. The period during which such proceedings were prosecuted would be excluded in computing limitation.
The court held: The scheme of the A.P. Act would indicate that all claims relating to debt involving Jagirdars are to be considered and adjudicated upon by the authorities including the Board constituted under the Act. However, for purpose of Sec. 14, Limitation Act, the position of creditor would, notwithstanding that the proceedings were initiated under the A.P. Act on an application made by the Jagirdar, would be that of a plaintiff in a civil suit. The creditor had no right to file suit (civil) until the proceedings are determined under the A.P. Act (Sec. 25), and this bar removed only after declaration of non-maintainability of application by the Board on 25-10-1967. So, the suit was clearly within limitation when it was laid on 10-2-1970.
DEENA (DEAD) THROUGH LRS VS. BHARAT SINGH (DEAD) THROUGH LRS. (AIR 2002 SC 2768) – In this case, a suit decreed by the trial court was challenged in appeal by the defendant. During pendency of the suit, the plaintiff withdrew the suit with permission to file fresh suit. Thereafter the present suit was filed on 24-2-1982 seeking declaration that they were owners of suit property and that order passed by the Collector was void and inoperative. In written statement, the defendant took the plea that the suit was bared by limitation. The trial court answered in favour of the defendant holding that the plaintiff did not pursue the proceeding of the previous suit with due diligence and good faith. The first appellate court similarly held.
The Supreme Court observed: In Order 23, Rule 2, CPC, it is provided that any fresh suit instituted on permission granted under Rule 1, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. Sec. 14(3) is in the nature of a proviso to order 23, Rule 2. The non-obstante clause provides that notwithstanding anything contained in Order 23, Rule 2, the provisions of Sec. 14(1) shall apply in relation to a fresh suit instituted on permission granted by the court under Order 23, Rule 1.
For applicability of the provision in sub-sec. (3) of Sec. 14, certain conditions are to be satisfied. Before Sec. 14 can be pressed into service the conditions to be satisfied are:
(i) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party,
(ii) The prior proceeding had been prosecuted with due diligence and good faith,
(iii) The failure of the prior proceedings was due to defect of jurisdiction or other cause of like nature.
(iv) The earlier proceeding and the later proceeding must relate to the same matter in issue, and
(v) Both the proceedings are in a court.
In the present case, the previous suit filed by the respondents was decreed by trial court, and the defendant had filed appeal against the judgment and decree of the trial court. It does not appear from the discussions in the impugned judgment that there was any finding of the court in the previous suit holding the suit to be not entertainable on any ground. The ground on which withdrawal of the suit was sought was that one of the mortgagors, had not been impleaded in the suit, it is not the case of plaintiffs that the court had found the suit to be not maintainable on that ground. Non-impleadment of a necessary party in the suit was a clear case of laches on the part of the plaintiffs. In such circumstances it could not be said that the plaintiffs were prosecuting the previous suit in good faith.
In the present case, the objection regarding non-impleadment of necessary party was taken in Written Statement. Despite such objection, the plaintiffs chose to prosecute the suit. They succeeded in trial court and the matter was pending before the first appellate court when the petition u/O. 23 seeking withdrawal of the suit with permission to file a fresh suit for the same relief was filed by them. Therefore, the trial court and the first appellate court were right in holding that the plaintiffs were not entitled to exclusion of the time u/S. 14 of the Act as claimed and that the suit was barred by limitation.
