1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Writ Petition No.591 of 2006 1. Rukhmabai wd/o Pandurang Totewar, aged about 62 years, occupation – Household. 2. Ashok s/o Pandurang Totewar, aged about 42 years, occupation – Business. 3. Mukesh s/o Pandurang Totewar, aged about 40 years, occupation – Business. All residenhts of Rukhmini Niwas, Near Hanuman Mandir, Ganeshpeth, Nagpur. ... Petitioners Versus 1. Ramesh s/o Jyotiram Lokhande, aged about 41 years, occupation – Business. 2. Smt. Sarubai wd/o Jyotiram Lokhande, aged about 78 years, occupation – Household. 3. Shyam s/o Jyotiram Lokhande, aged about 53 years, occupation – Business. 4. Baldev s/o Jyotiram Lokhande, aged about 48 years, occupation – Business. 5. Ramesh s/o Jyotiram Lokhande, aged about 46 years, occupation – Business. 6. Raju s/o Jyotiram Lokhande, aged about 41 years, 2 occupation – Business. All residents of Ghat Road, In front of Arun Automobiles, Nagpur. ... Respondents Shri A.V. Bhide, Advocate for Petitioners. CORAM : R.C. Chavan, J. DATE : 27th August, 2009 Oral Order : 1. This petition is directed against the concurrent findings of the learned Judge of the Court of Small Causes and the learned District Judge holding the petitioners disentitled to a decree for recovery of arrears of rent. 2. Facts, which are relevant for deciding this petition, are as under : The petitioners filed Civil Suit No.23 of 1986 against the tenants for ejectment, arrears of rent and also for recovery of area under encroachment. The defendants applied for amendment of written statement, which was allowed by the Small Causes Court on 5-3-1987. The plaintiffs applied for return of plaint for presentation to proper Court under Order 7, Rule 10 of the Code of Civil Procedure. This application was rejected on 17-3-1987. Aggrieved by this order, the petitioners approached this Court by filing Civil Revision Application No.401 of 1987. This revision was decided by judgment dated 16-1-1989. 3 The relevant paragraphs 2 and 3 of the said judgment may be usefully reproduced as under : “2. At the stage of hearing Mr. Daga, the learned advocate for the petitioners, requested that he be allowed to withdraw the suit with liberty to bring the fresh suit on the same cause of action as there is a technical defect which might perhaps conflict with the jurisdiction of the Small Court and the Ordinary Court. He states that perhaps he will have to advise his clients to file two separate suits, one for eviction on determining the tenancy and the other for possession against the trespassers. There is thus a technical defect which might result in the failure. The plaintiffs-petitioners are, therefore, allowed to withdraw the suit with liberty to file a fresh suit on the same cause of action. 3. As far as the amendment of written statement is concerned, Mrs. Naik for the respondents, states that she wants to withdraw that application. The application is therefore allowed to be withdrawn. The amendment which has been allowed in pursuance of this application shall also stand withdrawn. Rule accordingly. There shall be no order as to costs of this revision. However, the plaintiffs shall be liable to the costs of the defendants in case of withdrawal of the 4 original suit.” 3. Thereafter the petitioners filed a Civil Suit for possession, recovery of rent and mesne profits before the Court of Small Causes. The petitioners claimed arrears of rent for the period from 1-1-1983 to 31-12-1985, amounting to Rs.9,000/-. The suit was filed on 28-4-1989. By judgment dated 12-3-1998, the learned Judge of the Small Causes Court dismissed the suit. As regards claim of arrears of rent, the learned Judge observed that the plaintiffs had claimed arrears of rent for the period from 1-1-1983 to 31-12-1985 by suit filed on 28-4-1989 and, therefore, the suit was barred by limitation. On appeal, by the impugned judgment, the learned District Judge held that the petitioners’ claim for decree of arrears of rent was barred by limitation. He observed that under Order 23, Rule 2 of the Code of Civil Procedure, a fresh suit instituted on permission granted under Order 23, Rule 1 of the Code is governed by the Law of Limitation in the same manner as if the first suit had not been instituted. Therefore, according to him, leave to withdraw the suit granted by this Court in Civil Revision Application No.401 of 1987 did not result in relaxing or extending the period of limitation. Aggrieved thereby the petitioners are before this Court. 4. The petitioners have not challenged the judgment refusing other reliefs claimed by them in the suit. The petition is restricted to the dismissal of suit so far as it pertains to claim of arrears of rent. 5 5. I have heard the learned counsel for the petitioners. 6. The learned counsel for the petitioners submitted that in the judgment in Civil Revision Application No.401 of 1987 delivered on 16-1-1989, liberty had been sought to bring fresh suit on the same cause of action and such liberty had been granted by this Court and, therefore, it would amount to permitting the plaintiffs to file a fresh suit, without such suit being defeated by the plea of bar of limitation. Relying on a judgment of the Supreme Court in Rameshwarlal v. Municipal Council, Tonk and others, reported at (1996) 6 SCC 100, the learned counsel for the petitioners submitted that the time spent in proceedings in the High Court could have been excluded in view of the provisions of Section 14 of the Limitation Act. Section 14 of the Limitation Act provides for exclusion of time spent in proceeding bona fide in a Court without jurisdiction. Such is not the present case. Here, it was not the petitioners’ case that they were claiming recovery of arrears of rent in a wrong Court. The Court of Small Causes had the jurisdiction to entertain a suit for recovery of arrears of rent and in fact the suit, from which the present proceedings arise, was filed in the same Court. Therefore, Section 14 of the Limitation Act has obviously no application to the petitioners’ case. Consequently, the judgment of the Supreme Court in Rameshwarlal v. Municipal Council, Tonk and others is inapplicable. 6 7. It may be seen that what the petitioners had sought before this Court in Civil Revision Application No.401 of 1987 was leave to withdraw the suit with liberty to bring fresh suit on the same cause of action, which was squarely covered by the provision of Order 23, Rule 1 of the Code of Civil Procedure. Though the provision is not referred to in the judgment of this Court, the question of permitting a party to withdraw the suit with liberty to file a fresh suit on the same cause of action could not have been dealt with under any other provisions of the Code of Civil Procedure. Clause (3) of Rule 1 of Order 23 of the Code of Civil Procedure, which is applicable to the facts of the present case, may be usefully reproduced as under : “(3) Where the Court is satisfied,-- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject- matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.” (Emphasis is supplied) 7 It may be seen that the petitioners could have continued with claim of recovery of arrears of rent and could have withdrawn only the suit in so far as it pertained to recovery of possession. It may be seen that the learned counsel for the petitioners in the Civil Revision Application had categorically stated that there was a technical defect, which might conflict with the jurisdiction of the Court of Small Causes and, therefore, he wanted leave to withdraw the suit. 8. Rule 2 of Order 23 of the Code of Civil Procedure reads as under : “2. Limitation law not affected by first suit.-- In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.” It is clear from this provision that when a fresh suit is instituted on permission granted under Rule 1 of Order 23 of the Code of Civil Procedure, the plaintiff is bound by the Law of Limitation as if the first suit had not been instituted. Thus, though the leave is granted, the first suit is taken to have been not instituted and, therefore, the limitation for the second suit will start from the date when the cause of action accrued and it would have to be shown that on the date when the second suit was filed, the claim was within 8 limitation. Even this Court in exercise of revisional jurisdiction in Civil Revision Application No.401 of 1987 could not have overridden this requirement of Rule 2 of Order 23 of the Code of Civil Procedure. Therefore, the claim for arrears of rent beyond the period of three years preceding the filing of Civil Suit No.494 of 1989 was obviously barred by limitation and was rightly held to be so by both the learned Judge of the Small Causes Court and the learned District Judge. 9. It seems that when this petition was first came up on 8-2-2006, this Court was possibly cognizant of this position and, therefore, the order dated 8-2-2006 recounts an argument of the learned counsel of for the petitioners that the suit contained a prayer for grant of mesne profits and, therefore, when the latter suit was filed, the said prayer could have been looked into and the bar of limitation could not have been used to deny the rent for that period. Thus it seems that the learned counsel for the petitioners too was aware that the claim for arrears of rent could not have been pressed, but the claim could have been restricted to recovery of mesne profits, which obviously was not admissible to the petitioners at that stage. 10. About these observations in the order dated 8-2-2006, the learned counsel for the petitioners, relying on a judgment of the Supreme Court in Santosh Hazari v. Purushottam Tiwari (Deceased) By LRs., reported at 9 (2001) 3 SCC 179, submitted that even if a wrong substantial question of law is framed or if some other question of law crops up in course of hearing of a second appeal, the High Court could hear the appeal on such other question, so long as it is satisfied that the case involves such question and record reasons for its satisfaction. The case arose out of a suit in Damoh District of Madhya Pradesh. When the plaintiff preferred a Second Appeal, the High Court dismissed it in limine holding that the case had been concluded by findings of fact and that no substantial question of arose for determination. It may be seen from the observations in the erudite judgment of Hon’ble Shri Justice R.C. Lahoti (later the Chief Justice of India) in para 16 that the appellant in that case had not at all framed a question of law in the memorandum of appeal. The Supreme Court observed that the High Court, having noticed failure on the part of the appellant in not discharging the statutory duty cast upon him, should have ordinarily afforded an opportunity to him to frame such substantial question of law, which was not done by the High Court. The Supreme Court then framed a substantial question of law and directed the High Court to decide the appeal on that question. This judgment does not at all help the petitioners, since the petition is not being finally decided on what was observed in the order dated 8-2-2006 passed in the present case. 11. Since the claim for arrears of rent was barred by limitation on the date the second suit was filed and the 10 limitation did not stand extended because of the order passed in Civil Revision Application No.401 of 1987, the judgments of the Courts below would have to be upheld. 12. In view of the foregoing, the petition is dismissed. Judge. Pdl.