A.K. Jeelani and Others vs Akkayamma and Others

B.S. Patil, J.—This revision petition is filed challenging the order dated 13.03.2015 passed by the Senior Civil Judge, Devanahalli, thereby condoning the delay of 1806 days in filing the miscellaneous petition under Order XXIII Rule 3(3) CPC seeking to set aside the compromise decree passed in O.S. No. 596/2001.

Facts stated in nutshell, are that petitioners are claiming to be the owners of property bearing Sy. No. 54 situated at Sathanur village, Bengaluru North Taluk, measuring 2 acres. The said land was allegedly granted to the father of the petitioners during the year 1962. After the death of their father, petitioners succeeded to the property. Petitioners had filed a suit in O.S. No. 596/2001 against the father of respondents 2 to 4 - late Hemanna for permanent injunction. The respondents herein were also subsequently impleaded as defendants in the said suit. A compromise was entered into between the parties to the suit including the respondents herein. Based on the compromise petition filed, a compromise decree was passed on 24.01.2003.

Having kept quiet for more than three years, father of the respondents Hemanna, alone filed another suit in O.S. No. 1163/2006 on 30.01.2006 seeking a declaration that he was the absolute owner in possession of the property and the compromise decree in O.S. No. 596/2001 was not binding on him. During the pendency of the said suit, plaintiff therein Hemanna died and the suit was prosecuted by the present respondents as his legal heirs.

Suit O.S. No. 1163/2006 was based on the allegation of dishonour of cheques amounting to Rs. 4 lakhs allegedly issued by the petitioners herein to the respondent. The defendants -petitioners herein resisted the said suit contending that the suit was not maintainable. They also urged that the suit was barred by limitation.

A full fledged trial was conducted. By a judgment and decree dated 30.11.2011, the suit was dismissed recording a finding that plaintiff failed to prove that he was the absolute owner in possession and enjoyment of the suit property and that the compromise decree passed in O.S. No. 596/2001 was not binding on him. The court below further found that the oral and documentary evidence on record disclosed that the defendants therein - petitioners herein were in possession and enjoyment of the suit schedule property, therefore, plaintiff was not entitled for the decree of injunction.

It is thus clear that issues raised in the suit were adjudicated on merits and decided based on the evidence on record after a full fledged trial. The court, while dismissing the suit has also held that the plaintiff therein had failed to plead that compromise had been arrived at fraudulently or was the result of misrepresentation and hence the compromise could not be challenged. It has also observed that compromise decree could be challenged only in the same proceeding and initiation of fresh suit was barred under the Code of Civil Procedure.

After dismissal of the suit, respondents herein filed a miscellaneous petition in Misc. No. 1/2012 challenging the compromise decree dated 23.01.2003 by contending that the previous suit had been filed and prosecuted before a wrong forum hence, as per Section 14 of the Limitation Act, they were entitled for exclusion of the time taken in prosecuting the suit O.S. No. 1163/2006. Contending that delay of 1806 days in filing the miscellaneous petition under Order XXIII Rule 3(3) of CPC, was on account of plaintiff''s bona fide pursuing their remedy before a wrong forum in O.S. No. 1163/2006, an application was filed seeking condonation of delay. The said application was also resisted taking up several pleas.

The court below has passed the impugned order condoning the delay observing that there was exchange of notices between the parties before filing the suit in O.S. No. 1163/2006, as such, the said circumstances would be sufficient to show that there was no gross negligence or inaction on the part of the petitioner and their father in challenging the compromise decree within the stipulated time; there was no presumption that delay was deliberate; a litigant did not stand to benefit by resorting to delay, in fact he ran a serious risk''. The court below has further held that ''though there was inordinate delay of 1806 days, but before filing the suit in O.S. No. 1163/2006, petitioner and their father were exchanging notices with the respondents.

Hence, there was no gross negligence or inaction on the part of the petitioners in filing the petition belatedly. The court has also held that sufficient cause must be considered liberally and that if delay was not condoned, it would result in a meritorious matter being thrown out at the very threshold defeating the ends of justice. The court below has opined that for the purpose of challenging the compromise decree plaintiffs were required to file a petition in the same suit, hence, the suit was not maintainable, therefore, the finding regarding the merits of the case recorded in the said suit could not be looked into.

It is thus clear from the above, that the court below has condoned the delay in filing the miscellaneous petition by going into the developments that took place after the compromise decree was passed in the year 2003 in the form of exchange of notices, the alleged dishonour of cheques and the justification for the respondents herein to belatedly file the suit O.S. No. 1163/2006. In the opinion of the court below, the non-maintainability of the suit O.S. No. 163/2006 and the conduct of the respondents in allegedly bona fide pursuing the suit before wrong forum has resulted in the delay in approaching the court. and the delay was not on account of any gross negligence or inaction on their part.

I have heard the learned Counsel for the parties and perused the pleadings, evidence on record and the order under challenge apart from the documents produced in the form of the compromise petition, and the judgment and decree in O.S. No. 1163/2006.

The question that falls for consideration is,

"whether the court below has acted illegally or has commuted material irregularity in passing the impugned order and/or whether the court below has exceeded its jurisdiction in passing such an order, so as to warrant interference under Section 115 CPC?"

Facts involved in the case clearly disclose that compromise decree was passed in O.S. No. 596/2001 on 24.01.2003. Respondents 2 to 4 herein and their deceased father were parties to the compromise entered into in O.S. No. 596/2001. The suit O.S. No. 1163/2006 was filed only by Hemanna - father of respondents 2 to 4 and husband of the 1st respondent. Only after his death, respondents herein have come on record as his legal representatives. Therefore, respondents 1 to 4 herein cannot claim the benefit of Section 14 of the Limitation Act, to contend that they were prosecuting their remedy before a wrong forum. In other words, in so far as respondents 2 to 4 herein are concerned, they did not challenge the compromise decree passed in O.S. No. 596/2001. The said decree continues to bind them. They have only prosecuted the suit filed by their father in O.S. No. 1163/2006 as his legal representatives.

Respondents'' late father did not think it fit to challenge the compromise decree by filing a petition under Order XXIII Rule 3(3) alleging fraud, misrepresentation, etc., but chose to seek declaration of his title and for a decree of injunction apart from also contending that the compromise was not binding. Therefore, this is not a case where O.S. No. 1163/2006 was instituted by the respondents herein challenging the compromise decree before a wrong forum. Hence, Section 14 of the Limitation Act is not applicable to the case. Therefore, the respondents are not entitled for exclusion of time taken in prosecuting the suit O.S. No. 1163/2006 for the purpose of computing the period of limitation to file the miscellaneous petition under Order XXIII Rule 3(3) CPC. The court below has wholly and completely misled itself in proceeding on the basis that Section 14 of the Limitation Act had application to the facts of the case.

Section 14 of the Limitation Act provides for exclusion of time in prosecuting proceedings bona fide in court having no jurisdiction. It reads as under:

"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."

It is thus clear from the reading of the whole provision contained in Section 14 that what is provided is, exclusion of time during which a former civil proceeding was pending. In doing so, the day on which the proceeding was instituted and the day on which it ended shall both be counted. In the instant case, as already stated above, the compromise decree is passed on 24.01.2003. Late Hemanna filed O.S. No. 1163/2006 during the year 2006. The suit was dismissed on 30.11.2011. Even if the period from the date of filing of suit O.S. No. 1163/2006 and the date on which the suit came to be dismissed on 30.11.2011 is computed and excluded for the purpose of computing the period of limitation for filing the miscellaneous petition seeking to set aside the compromise decree passed on 24.01.2003, there will be delay of more than three years in filing the miscellaneous petition. The respondents cannot seek for exclusion of this period for the purpose of computing the period of limitation.

In the application filed seeking condonation of delay, the respondents herein have sought for condonation of delay of only 1806 days which had occurred in the process of prosecution of O.S. No. 1163/2006. They have neither sought for condonation of delay of more than three years which had occurred prior to the filing of the suit O.S. No. 1163/2006 from the date the compromise decree was passed on 24.01.2003, nor have they explained it. Indeed, it is for this reason late Hemanna did not seek to initiate proceedings under Order XXIII Rule 3(3) and chose to file a separate suit seeking declaration of his rights over the suit land and for injunction. The court below has therefore acted in excess of its jurisdiction in condoning the delay from 2003 to 2006 for a period of more than three years, in as much as, that was not the scope of the interim application or the provision contained under Section 14 of the Limitation Act.

It is further relevant to notice that neither the compromise petition nor the compromise decree anywhere refer to the obligation of the petitioners to pay any amount. On the other hand, it is very clear from the judgment dated 30.11.2011 passed in O.S. No. 1163/2006 that absolutely there was no averment with regard to the amount to be paid by the defendants therein to the plaintiff towards the compromise. Thus, it is clear that the said suit was adjudicated on merits and the contention of the plaintiff therein regarding the alleged illegality of the compromise decree was repelled.

It is brought to the notice of the court that in the course of evidence in O.S. No. 1163/2006, PW-1 - Dhanegowda S/o Hemanna - respondent No. 2 herein has admitted that himself, his father and brothers were parties to the said proceedings and that they had not stated anything in the plaint or in evidence regarding any pressure or coercion exerted on them for arriving at the compromise, nor any complaint had been filed before the police. He has also admitted that advocates of both parties were present when the compromise was entered into and with the consent of the parties, the compromise decree was passed; that the contents of the compromise petition were true and also that himself, his brothers and his father had agreed to the terms of the compromise. He further admits that all that was required to be stated in the compromise had been stated. This deposition was part of the proceedings before the court below and has been relied upon. This clearly discloses that the respondents herein and their father were not aggrieved by the compromise decree as it was entered into voluntarily in the presence of the learned Advocates of both parties. That is why respondents herein did not challenge the compromise nor did they join their father in instituting the suit belatedly after a lapse of more than three years seeking declaratory relief. Therefore, findings recorded by the court below stating that the conduct of the respondents in prosecuting the suit O.S. No. 1163/2006 did not disclose gross negligence and that they had prosecuted their remedy in good faith before a wrong forum is wholly illegal and opposed to the admitted position on facts by the very respondents.

Learned Counsel appearing for the petitioners has placed reliance on the following judgments viz., Ketan V. Parekh Vs. Special Director, Directorate of Enforcement and Another, AIR 2012 SC 683 : (2012) 108 CLA 1 : (2012) 275 ELT 3 : (2012) 1 RCR(Civil) 234 : (2011) 13 SCALE 240 : (2011) 110 SCL 724 : (2012) 28 STR 195 : (2012) 1 UJ 143 : (2012) AIRSCW 822 : (2011) 8 Supreme 239 ; Surendra Nath Bhuyan Vs. Official Liquidator, Puri Bank Ltd., AIR 1961 Ori 57 : (1962) 32 CompCas 584 . Counsel for the respondents has relied on the judgment in the case of Consolidated Engg. Enterprises Vs. Principal Secy. Irrigation Deptt. and Others, (2008) 2 ARBLR 139 : (2008) 3 CLT 244 : (2009) 3 CompLJ 203 : (2008) 5 CTC 741 : (2008) 6 JT 22 : (2008) 6 SCALE 748 : (2008) 7 SCC 169 , to show what constitutes and tantamounts to bona fide prosecution of a case before a wrong forum. The facts involved in the aforesaid judgments do not have relevance to the facts of the instant case. As already held by me Sec. 14 of the Limitation Act even if applied to the present case, it will not cure the delay of more than 3 years that occurred prior to the filing of the suit and it will only help the plaintiff in the said suit.

For all the reasons stated above, I am of the view that the court below has exceeded its jurisdiction in condoning the delay in filing the miscellaneous petition and has committed serious illegality in passing the impugned order which has resulted in miscarriage of justice. Hence, this civil revision petition is allowed. The impugned order is set aside. The interim application filed by the petitioners for condonation of delay in filing the miscellaneous petition is dismissed. Consequently, the miscellaneous petition also stands dismissed.