DEENA (DEAD) THROUGH L.RS. versus BHARAT SINGH (DEAD) THROUGH L.RS. AND ORS.

Citation: [2002] SUPP. 1 S.C.R. 289 · Decided: 29-07-2002 · Supreme Court of India · Bench: D.P. MOHAPATRA · Disposal: Appeal(s) allowed

Judgment (excerpt)

DEENA (DEAD) THROUGH L.RS. 
A 
V. 
BHARAT SINGH (DEAD) THROUGH L.RS. AND ORS. 
JULY 29, 2002 
[D.P. MOHAPATRA AND K.G. BALAKRISHNAN, JJ.] 
B 
limitation Act, 1963-Section 14 (/) and (3)-Suit~Withdrawal a/-
Order XXIII-Applicability of-Held, Provision under Section/ 4(3) is in the 
nature of proviso to Order XX/II, Rule 2 and for its application certain C 
stipulated conditions are required to be satisfied-Civil Procedure Code, 
I 908- Order XXIII, Rules I and 2. 
Instituting subsequent suit with permission of Court-Limitation-
Exclusion of time of earlier proceeding-Held, party prosecuting the earlier 
suit in good faith in Court having no jurisdiction is entitled to exclusion of D 
that period. 
Suit-Non impleadment of necessary party-Subsequent withdrawal of 
the suit-Whether such prosecution is in good faith-Held, no, it is a clear 
case of /aches on the part of plaintiff. 
Words and Phrases: 'good faith', 'defects of jurisdiction' and 'or the 
cause of like natun' '-Meaning of in the context of Section 14 of the Limitation 
Act. 
Legal Maxims: 
'ejusdem generis '-Meaning and applicability of 
E 
F 
Appellant-defendant had mortgaged his land in consideration of 
certain amount with possession in favour of predecessor-in-interest of 
respondents. Subsequently, appellant had filed an application for 
redemption of the mortgage. Collector ordered redemption on payment G 
of the mortgage money. Plaintiff-respondents filed a suit for declaring 
them owners of the property and to declare order of the Collector as null 
and void. Trial court decreed the suit. Aggrieved, defendants filed appeal. 
During the pendency of appeal, plaintiffs withdrew the suit with perm"iss\on 
to file fresh suit and subsequently filed a fresh suit on the same cause of H 
289 
290 
SUPREME COURT REPORTS [2002] SUPP. I S.C.R. 
A action. Defendants took the plea that suit was barred by limitation. Trial 
court decided in favour of defendants holding that the plaintiffs did not 
pursue the proceedings in the previous suit with due diligence and good 
faith. Appellate court confirmed the order of the trial court. In second 
appeal, High Court set aside the judgment and decree passed by the lower 
B courts holding that the suit was filed within time and the appellants were 
entitled for the exclusion of time as provided under Section 14 of the 
Limitation Act year. Hence this appeal. 
It was contended for the appellants that High Court was in error in 
upsetting decision of the Courts below in exercise of its jurisdiction under 
C Section 100 of the Civil Procedure Code since prosecuting the previous 
proceedings in good faith is pre-condition for application of Section 14 of 
the Limitation Act; that plaintiffs were prosecuting the previous suit in 
good faith is a question of fact; and that first appellate court as the final 
court of fact had held that the plaintiffs had not been prosecuting the 
previous suit with due diligence and in good faith. 
D 
It was contended for the respondents that the appellate court on 
being satisfied that the suit was likely to fail by reason of formal defect of 
non-joinder of a necessary party had granted leave to plaintiffs to 
withdraw the suits with permission to file fresh suit; therefore, plaintiffs 
were entitled to the exclusion of the period under Section 14 of the 
E Limitation Act. 
Allowing the appeal, the Court 
HELD: 1.1. From the provisions of Section 14 of the Limitation Act, 
1963 it is clear that it is in the nature of a proviso to Order XXIll Rule 2 
F CPC. The non-obstante clause provides that notwithstanding anything 
contained in rule (2) of Order XXIII CPC the provisions of sub-section 
(1) of Section 14 shall apply in relation to a fresh suit instituted on 
permission granted by the Court under rule 1 of Order XXIII. For 
applicability of the provision in sub-section (3) of Section 14 certain 
G conditions are to be satisfied. [296-B, CJ 
1.2. The main factor which would influence the court in extending 
the benefit of Section 14 to a litigant is that the prior proceeding had been 
prosecuted with due diligence and good faith. The party prosecuting the 
suit in good faith in the court having no jurisdiction is entitled to exclusion 
H of that period. The expression 'good faith' as used in Section 14 means 
L 
I 
L 
DEENA v. BHARAT SINGH 
291 
"exercise of due care and attention". In the context of Section 14 expression A 
'good faith' qualifies prosecuting the proceeding in the court which

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