- (1.)A decree for possession was passed by the Civil Judge, Junior Division, Pune in a suit instituted in 1977, on 13th July 1987. The decree has been affirmed in appeal by the Additional District Judge, Pune on 21st July 1990. This Second Appeal was admitted on 12th September 1990. The substantial question of law which arises for the consideration of the Court is as to whether the suit for possession that was instituted by ,the original plaintiff was barred by limitation.
(2.)THE suit premises consist of Block No. 3 in a house bearing No. 404/400 situated at Rasta Peth Road, Pune. Block No. 3, was in possession of one Lalkhan, the father-in-law of the original defendant. Lalkhan had six brothers and the house has been purchased in February 1919 by the eldest brother Ahmedkhan. Upon the death of Ahmedkhan, the property was transferred in the name of Usman Khan and was purchased by a deed of sale dated 2nd September 1946 by Amir Khan, the father of the original plaintiff. The original defendant married the daughter of Lalkhan and resided in the premises. At the time of the death of the plaintiffs father in 1947, the plaintiff was a minor. After he attained majority, the plaintiff issued a notice to the original defendant terminating his tenancy. On 17th September 1968 the plaintiff instituted a suit in the Court of Small Causes at Pune for possession of the suit premises on the basis that the defendant was a tenant. The suit was decreed by the trial Court on 8th April 1971. The appeal filed by the defendant was allowed by the Appellate Court on 15th July 1972 on the ground that there was no relationship of landlord and tenant as a result of which the suit was not maintainable in the Court of the Small Causes. A petition filed under Article 227 of the Constitution before this Court was dismissed on 11th November 1976. Thereupon, the original plaintiff (predecessor-in-title of the Respondent) instituted Regular Civil Suit No. 1635 of 1977 in the Court of the Civil Judge, Junior Division, Pune claiming possession from the original defendant (predecessor-in-title of the Appellant) on the basis that he was a trespasser. In response to the suit, the defendant set up a plea of adverse possession and claimed, in the alternative, that the suit premises were gifted by Usman Khan to Lalkhan, the father-in-law of the Appellant. Both the plea of adverse possession, and of a gift by Usman Khan in favour of Lalkhan were negatived by the Trial Court. In appeal, these findings have been affirmed. Insofar as the question of limitation is concerned, both the Courts below held that the suit which was instituted against the original defendant was within the period of limitation. The Appellate Court held that the original plaintiff was entitled to the benefit of Section 14 of the Limitation Act, and that the period which was spent in deciding the proceedings in the earlier suit before the Court of Small Causes was liable to be excluded. The Appellate Court held that it was an admitted position that the plaintiff was a minor when his father expired in 1947 and that he was looked after by his uncle Usman Khan. Hence, it was not expected that he would be aware as to how the defendant was in possession, of the suit property. Admittedly, there were three other tenants in the suit property. The Appellate Court held that in these circumstances, it was conceivable that the plaintiff believed that the defendant also is a tenant and it was under that impression that the suit was instituted in the Court of Small Causes. The Court was of the view that earlier suit was filed in good faith on the misapprehension that the defendant was a tenant. The decree passed in the aforesaid suit was reversed by the Appellate Court and the suit which was instituted on 19th September 1977 within a period of 10 months after the dismissal of the Writ Petition by this Court in November 1976.
(3.)LEARNED Counsel appearing on behalf of the Appellant has urged that the Appellate Court has erred in granting to the Respondent-plaintiff the benefit of the provisions of Section 14 of the Limitation Act. Counsel urged that the cause of action for the earlier suit which was instituted in the Court of Small Causes was different from the cause of action for the present suit which has culminated in a decree for eviction. Secondly, it was submitted that there was no plea in the plaint that was instituted in the present suit in regard to the exclusion of the time that was spent before the Court of Small Causes. The submission was that the ground for exemption from the law of limitation ought to have been pleaded in view of the provisions of Order 7 Rule 6 of the Code of Civil Procedure, 1908. These submissions have to be considered. Before dealing with the submissions which have been urged, it would be necessary to advert to a recent judgment of the Supreme Court in Deena v. Bharat Singh, (2002) 6 SCC 336, wherein the Supreme Court held that the main factors which would guide the Court in extending the benefit, of Section 14 of the Limitation Act, 1963 to a litigant is whether the prior proceeding had been prosecuted with due diligence and good faith. That is because the party prosecuting the suit in good faith in the Court having no jurisdiction is entitled to exclusion of that period. The Supreme Court held that the expression 'good faith' as used in Section 14 means "exercise of due care and attention". That expression qualifies the prosecution of the proceedings in the Court which ultimately is found to have no jurisdiction. Most importantly for the present purpose, the Supreme Court held that the finding as to good faith or the absence of it is a finding of fact. Similarly, it is now well settled that the words "or other cause of a like nature" are to be construed ejusdem generis with the words "defect of jurisdiction". The defect in other words 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. This principle has also been laid down in the earlier decision of the Supreme Court in Gurudit Singh v. Munsha Singh, (1977) 1 SCC 791.