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2016 (1) TMI 1390
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....wo grievances qua the impugned judgment and decree. First, that a bare perusal of the pleadings filed in the matter would demonstrate that the period of limitation qua the suit lodged before the trial court could have been computed only after the suit had been put to trial. In other words, in this case, having regard to the pleadings filed, limitation was clearly a mixed question of fact and law. 1.3 Second, the trial court misconstrued the scope and ambit of the provisions of Section 14 of the 1963 Act by holding that only if, the prior proceedings had been permitted to be withdrawn for want of jurisdiction and/ or defect in jurisdiction, could the time spent in prosecuting the said proceedings, have been excluded, in the calculation of limitation qua the suit. 2. Having regard to the fact that the appeal lies in a narrow compass, I would be briefly, touching upon the facts relevant for deciding the issue at hand. 2.1 The appellant, as it appears, entered into a contract with respondent no.1 for laying out an underground cable network; albeit in the defined area. The contract was, in effect, executed for the benefit of respondent no.3. The contract in this behalf was executed b....
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....on to the effect that the appellant herein had converted the "writ jurisdiction" of the court into a "suit jurisdiction". It was further contended that the work orders, which were appended as Annexures P-4 to P-50, pertained to execution of work in various areas in the territory of Delhi, and that, annexure P-29 to P-34, which related to the Chanakyapuri area were subject matter of a dispute pending in the District Court. The respondents, specifically, averred that since, complicated questions of fact arose for consideration, they could not be agitated by the appellant herein, in a writ action. 2.6 It appears that having regard to the objections preferred by the respondents, the appellant sought liberty of the writ court to withdraw the petition and, consequently, urge all grounds in the pending civil proceedings. 2.7 The writ court vide order dated 29.01.2009, acceded to the request of the appellant, with liberty as sought for. Consequently, the court, proceeded to dismiss the writ petition, as withdrawn. 2.8 Since, the appellant, required a clarification qua the order dated 29.01.2009, an application was moved in that behalf. This application appears to have been moved as the ....
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....in issue in the writ petition and the suit filed by the appellant, were not the same. It was contended that in the suit, the appellant had made a prayer for striking down clause 63(b) of the contract whereas, in the suit, a prayer had been made, not only, for passing of a decree for the sum claimed, but also, for a decree of mandatory injunction qua respondent no.1 and 2. (i)(a) According to the learned counsel, this prayer, in effect, required issuance of a direction to respondent no.1 and 2, to submit the bills in issue to respondent no.3 and, for a further direction, to respondent no.3, to release the money directly to the appellant. (i)(b) For this purpose, my attention was drawn to the prayer clause of the writ petition, and that, which stood incorporated in the plaint. In other words, it was contended that the relief sought for in the two actions was not the same. (ii). Second, as held by the trial court, the writ petition was not dismissed as withdrawn on account of defect in jurisdiction. The appellant himself, chose to withdraw the writ petition, and therefore, as held by the trial court, he could not avail of the benefit of the provisions of Section 14 of the 1963 A....
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....in the form of advance towards stores, watch and ward charges and cost of excess material used. The sum total of the two components of which recovery is sought is, therefore, an amount equivalent to Rs. 10,48,516/-. Assertions with respect to these aspects are made in paragraph 4, 5 and 6 of the plaint. In response to these assertions, respondent no.1 and 2, in their written statement, qua the second component, have made the following assertions in paragraph 7 under the heading, „preliminary submissions / objections : "..It is stated that as per calculation of defendant no.1, plaintiff is liable to pay Rs. 6,23,000/- (Rupees Six Lacs Twenty Three Thousand) on account of stores/ materials to defendant no.1 and further an amount of Rs. 1,15,000/- (Rupees One Lac Fifteen Thousand) on account of Road Restoration charges (= RR Charges). It is stated that the stores / materials and unserviceable Store were not properly utilized and deposited to defendant no.3 (MTNL), for this reason, defendant no.3 is liable for imposition of liquidated damages. In this respect, defendant no.1 (TCIL) will pay the unrealized amounts/ pending bills to the plaintiff as soon as same is released / p....
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.... be made in respect of claims raised, by respondent no.3, against them. When this plea is examined in the light of the assertion made in the plaint, in paragraph 18, in which, averments have been made generally as to when cause of action arose in favour of the appellant for instituting the suit, it is clear that on the point of limitation, the matter ought to have gone to trial. For the sake of convenience, the relevant extract from paragraph 18 of the plaint is set forth below :- "...The cause of action also accrued on the respective dates of the requests and issue of the letters and notice dated 13/02/2009. The cause of action accrued on the refusal of the defendants to pay the suit amount, though, it is submitted that the cause of action is still continuing, as the defendants inter-se having claimed to have not yet released to the due payments.." (emphasis is mine) 9.3 The trial court as noted above, in the impugned judgment, has not discussed this aspect of the matter at all. Therefore, the impugned judgment is flawed, in my view, on this count. 10. Which brings to the second issue. Section 14 of the 1963 Act permits exclusion of time which the plaintiff has spent in pros....
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....rence in the language which governs the provisions of sub-section (1) and (2) of Section 14 of the 1963 Act. 10.7 Sub-section (1) of Section 14 makes a provision for exclusion of time, based, on the ingredients given therein, when one computes the period of limitation for a suit. 10.8 Sub-section (2) of Section 14, on the other hand, applies to exclusion of time in computing the period of limitation qua an application. The expression, "same relief" finds mentions in sub-section (2) whereas, sub- section (1) of section 14 alludes to the expression, "same matter in issue". Therefore, in so far as sub-section (1) of Section 14 is concerned, the complete identity of relief is not a relevant factor. 10.9 What is relevant though, is, the fact that the matters in issue in the two actions should be same. While on this point, I must also advert to the fact that Section 14(1) which obtained in the Limitation Act of 1908 used the expression, "founded on the same cause of action" as against the expression, "relates to the same matter in issue", which finds mention in the 1963 Act. The former expression was found to be too narrow and hence, was replaced by the latter expression. [See paragra....
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....simplicitor, for recovery of money, would not, perhaps, lie. On the other hand, in the suit, a more direct approach was adopted though, there was a reference to the fact that since there was an inter se dispute amongst the respondents with regard to release of money, dues had not been paid to the appellant. To my mind, at the heart of both actions, was a claim for recovery of dues against work, purportedly, executed by the appellant qua the work orders in issue. In my opinion, if any, other approach is adopted, in gathering, what the two actions were all about, it would amount to missing wood from the trees. 12. That brings me to the other issue, which is, whether Section 14 would be applicable in a case such as this where, apparently, the appellant was allowed to withdraw the writ with liberty to initiate a civil proceeding ostensibly, albeit, on a ground other than the ground of "defect of jurisdiction". In this context, as indicated hereinabove, the expression, "defect of jurisdiction" obtaining in sub-section (1) of Section 14 is followed by the expression, "or other cause of a like nature". Counsel for respondent no.1 and 2 had relied upon the judgment of the Supreme Court in....
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.... of sub-section (1) of Section 14 would apply only when the court which grants liberty to withdraw the earlier suit under Rule 1 of Order 23, grants such permission on the ground that the action (i.e. the suit) would "fail" by reason of defect in jurisdiction or other cause of a like nature. 12.8 In a case where sub-section (3) of Section 14 is not applicable, the requirement is that the concerned court should be unable to entertain the civil proceeding on account of "defect of jurisdiction" or "other cause of a like nature". To my mind, there is a subtle but a clear distinction in the two provisions. Where sub-section (3) of Section 14 is triggered, the court must come to the conclusion that the suit would "fail" on account of defect of jurisdiction or other cause of a like nature. The expression, that the suit must fail by reason of some formal defect, finds a mention in Order 23 Rule 1(3) clause (a) of the CPC, as well. In my opinion, the setting, in which, the expression, defect in jurisdiction of the court or other cause of a like nature, appears in sub-section (3) of Section 14 is, perhaps, not the same as that which pertains to a somewhat similar expression, i.e. defect of ....