IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWELFTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.529 of 1994 BETWEEN Syed Hyder Saheb. …APPELLANT AND The District Collector, Kurnool and two others. …RESPONDENTS Counsel for the appellant: Mr. C. Subba Rao. Counsel for the Respondents: GP For Arbitration The Court made the following: - JUDGMENT: This appeal is by the plaintiff against the dismissal of the suit O.S.No.67 of 1990 under the impugned judgment of the lower appellate Court in A.S.No.19 of 1992 dated 09.09.1993. 2. The parties are referred to as they are arrayed in the suit. The facts, in brief, are as follows. 3. The plaintiff had obtained the licence for collecting Tooki leaves (Beedi leaves) from the defendants for the period 1987-1999 under an auction conducted by the defendants on 26.11.1986. Under the said auction conducted by the defendants the licence to cut, collect and remove tooki leaves from the reserved and unreserved forest in Kurnool range was awarded to the plaintiff, who was found to be the highest bidder offering Rs.5,00,000/-. The plaintiff had paid Rs.10,000/- at the time of auction towards earnest money and the balance amount was payable in 9 instalments, which the plaintiff had paid and having satisfied the terms and conditions of the auction, the said licence was awarded to him. While the Kurnool forest range covers an area of about 150 villages, the tooki leaves are found critically in about 32 villages as specified in the plaint schedule and that is the prime area for collecting the leaves. The plaintiff claimed that as per practice the Divisional Forest Officer – third defendant grants permission to the licencee to establish the collection depots, which are called Kallas at each of the villages and accordingly, the plaintiff was permitted to open such depots by proceedings of the second defendant dated 26.01.1987 in the 32 villages shown in the schedule for the aforesaid period 1987-89. However, the forest officers did not permit opening of depots at 4 villages viz. Mandlem, Paramanchala, Moorvakonda and Alaganur in Atmakur division whereupon the plaintiff made a representation complaining of the said illegal action. However, the second defendant issued an order being Rc.No.14335/86-M4 dated 02.04.1987 informing the plaintiff that he cannot open the depots in the said 4 villages, as the said villages do not fall in the jurisdiction of Kurnool range, as per G.O.Ms.No.94 F & RD (FOR.III) dated 22.02.1983. Further, based upon the said communication of the second defendant, the third defendant also issued a communication dated 07.04.1987 prohibiting opening of Kallas/depots in the said 4 villages. 4. The plaintiff, therefore, claimed that out of the 32 villages, in which he was entitled to operate as per the licence granted, 4 villages were excluded and thereby he suffered loss to the extent of 15% of the income. Questioning the said proceedings of the second and the third defendants, the plaintiff filed a writ petition being WP.No.6623 of 1987. However, when the said writ petition came up for hearing on 04.12.1989, the licence period was practically over and therefore, the said writ petition was withdrawn with a liberty to institute an appropriate suit for recovery of damages against the defendants. The plaintiff, thereupon, issued suit notice dated 16.04.1990 under Section 80 of the Code of Civil Procedure, 1908 and as there was no reply from the defendants, filed the present suit for recovery of damages, which were quantified at Rs.75,000/- being 15% of the auction amount i.e. Rs.5,00,000/-, which was paid by the plaintiff towards securing the licence, but restricted the claim to Rs.50,000/-. 5. The said suit was resisted by the defendants by filing a written statement, inter alia, claiming that the notifications for auction were only with regard to Kurnool range and the said 4 villages being not part of the Kurnool range, the contention of the plaintiff that he was granted licence with regard to all 32 villages is not correct. It was also claimed that the plaintiff has participated in the auction knowing that the same is with regard to Kurnool range and as per the GO aforesaid, the said 4 villages fall within Atmakur division outside the Kurnool range and as such, the plaintiff is not entitled to any damages. The defendants, therefore, justified the orders of excluding the 4 villages from the plaintiff’s area of operation and contended that the writ petition of the plaintiff having been dismissed as withdrawn, he is not entitled to any relief. The quantum of damages claimed was also denied apart from the fact that the maintainability of the suit on the ground of limitation bar was also raised. 6. The trial Court farmed the following issues: 1. Whether the Kurnool range covers the plaint schedule village including Mandlem, Paramanchala, Moorvakonda and Alaganur and constitute one unit? 2. Whether they were also included in the auction of collection of tooki leaves held on 26.04.1986? 3. Whether the plaintiff and other participants are made to believe and the forest department also understood that the plaint schedule villages constituted to be part of Kurnool range? 4. Whether the 2nd defendant is estopped from excluding the above villages subsequently from the area of operation of the plaintiff? 5. Whether the plaintiff suffered loss due to exclusion of above villages from his area of operation? 6. Whether the plaintiff is entitled to damages as prayed for? 7. To what relief? 7. After considering the oral and documentary evidence, the trial Court decreed the suit, primarily, on the ground that even for the previous three years i.e. 1984-1986 identical auction was conducted by the defendants and all the 32 villages including the 4 villages, which are now excluded, formed part of the area of operation of the earlier licencee. The trial Court found that though G.O.Ms.No.94 dated 22.02.1983 is relied upon by the defendants to exclude the villages, even the earlier licencee was allowed to operate in these 4 villages as part of the Kurnool range and therefore, the plaintiff is justified in making his grievance. So far as the limitation aspect is concerned, the trial Court found that the plaintiff had immediately approached this Court through the writ petition referred to above questioning the impugned proceedings and in view of the fact that the lease agreement was entered into on 17.01.1987, the plaintiff had in the meanwhile approached this Court by way of writ petition immediately and as such the time spent in prosecuting the writ petition is excludable and therefore, there is no impediment to entertain the suit and is not barred by time. 8. Questioning the said decree, the defendants had preferred an appeal before the III Additional District Judge, Kurnool, which has been allowed under the impugned judgment and decree. 9. In this appeal, Mr. C. Subba Rao, learned counsel for the appellant has very elaborately submitted that the finding of the lower appellate Court holding that the suit is barred by limitation is totally unsustainable. He also contended that initially the plaintiff also was granted permission to operate in all the 32 villages vide permission dated 26.01.1987 granted by the Divisional Forest Officer (FRO). Learned counsel, therefore, contends that the defendants have made plaintiff to believe that the licence is granted for all the 150 villages of Kurnool range inclusive of the 32 villages and as such, exclusion of 4 villages after commencement of lease is clearly unjustified and the plaintiff has suffered evident losses on account thereof. He also submitted that the lower appellate Court ought to have considered the benefit of Section 14 of the Limitation Act in view of the fact that after the orders of the Conservator of Forests dated 02.04.1987 prohibiting the area of operation in the 4 villages, the District Forest Officer also stopped the operation by issuing proceedings dated 07.04.1987, the plaintiff had approached this Court by way of a writ petition immediately thereafter on 23.04.1987 and the said writ petition came up for hearing and was dismissed as withdrawn only on 04.12.1989 in view of the fact that the licence in favour of the plaintiff was expiring on 31.12.1989. Learned counsel, therefore, relied upon the decision of the Supreme Court in GURDIT SINGH v. MUNSHA SINGH[1] and contended that the lower appellate Court has failed to appreciate the essential ingredients of applying Section 14 of the Limitation Act viz. to the former proceedings instituted in good faith and former Court was unable to entertain it, as licence itself was about to expire. 10. During the hearing of the second appeal at an earlier instance before another learned single Judge of this Court, the learned counsel for the appellant had raised additional substantial questions of law based upon the pleading and contention that the defendants are estopped from denying the right of the plaintiff to operate in all the 32 villages inclusive of 4 villages in question by virtue of the lease deed Ex.A1 and for that purpose relied upon Exs.B12 and B13 produced as additional documentary evidence before the lower appellate Court. The learned counsel, therefore, contended that the auction notice for the previous years or for the present years in question as well as for the subsequent years are all similar and admittedly for the previous years the licencee has operated in all the 32 villages and based upon that the plaintiff had bid at the auction for licence for the subsequent years. 11. Learned Government Pleader appearing for the defendants has placed strong reliance on the various findings of the lower appellate Court under the impugned judgment and contended that the plaintiff has withdrawn the writ petition and as such, he is not entitled to the benefit of Section 14 of the Limitation Act. He submits that the writ petition field by plaintiff cannot be said to be instituted in a wrong Court and even otherwise after the dismissal of the writ petition on 04.12.1989, the present suit came to be filed only on 04.06.1990. Thus, six more months were taken by the plaintiff for filing the present suit. The limitation of three years would commence from 07.04.987 under Ex.A5 when the Divisional Forest Officer restricted the operation of the licence to 28 villages out of 32 villages; by excluding 4 villages form the area of operation. He, therefore, submits that the suit could have been filed within three years thereafter and the present suit filed on 04.06.1990 is clearly barred by time and the finding of the lower appellate Court in that regard is justified. He also submitted that there is no question of estoppel arising in this matter inasmuch as auction proceedins including the notifications and the schedule shown attached the auction notice clearly stated that what is being auctioned is the right to cut and collect the tooki leaves from the Kurnool range and neither the number of villages were specified nor there is any other indication to show that the licence with respect to the 4 villages was offered or granted to the plaintiff. 12. The substantial question of law on which this appeal was admitted was recorded on 13.06.1996 as follows: “The question whether the appellant bonafide pursued the matter in the Court of law by way of writ petition is an important question to be considered for the purpose of deciding whether the relief as prayed for originally could be granted. Hence, the appeal is admitted.” 13. As mentioned above, the appellant has also framed additional substantial question of law as follows: “Whether the lease of 32 villages is conclusive and the proceedings of the respondents under the lease deed dated 18.01.1987 (Ex.A1) and the proceedings under Ex.A5 dated 07.04.1987 operates as an estoppel against the respondents and are they barred from restricting the operation to 28 villages?” 14. Section 14 of the Limitation Act has been interpreted by the Honourable Supreme Court in several decisions. The decision in GURDIT SINGH’S case (1 supra) was cited before the lower appellate Court. The Supreme Court in the following passage, as extracted under, has held as follows: “16. It would be noticed that three important conditions have to be satisfied before the section can be pressed into service. These three conditions are- (1) that the plaintiff must have prosecuted the earlier civil proceeding with due diligence; (2) the former proceeding must have been prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature was unable to entertain it and (3) the earlier proceeding and the later proceeding must be based on the same cause of action.” 15. The aforesaid view is reiterated by the Supreme Court in SHAKTI CABLES LIMITED v. STATE OF BIHAR[2]. Paras 19 to 23 thereof are extracted hereunder: “19. It is not in dispute that the writ remedy was resorted to by the plaintiff. A part of the writ petition was admitted. The writ petition was not entertained in respect of the escalated price by the High Court for the reasons stated by the High Court in its order dated 14.09.1995. It has not been held that the writ petition was not maintainable. It was not dismissed at the threshold. In view of the fact that a part of the writ petition was admitted for hearing, there cannot be any doubt whatsoever that the same was maintainable. Appellant was, therefore, pursuing the said remedy bona fide and in good faith. 20. Section 14 of the Limitation Act speaks of prosecution of the proceedings in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. What would be the true purport of the words "other cause of a like nature"? The same must relate to the subject matter of the issue. A Three-Judge Bench of this Court had an occasion to consider the same in Rameshwarlal v. Municipal Council, Tonk [(1996) 6 SCC 100] wherein it was held: “3. Normally for application of Section 14, the court dealing with the matter in the first instance, which is the subject of the issue in the later case, must be found to have lack of jurisdiction or other cause of like nature to entertain the matter. However, since the High Court expressly declined to grant relief relegating the petitioner to a suit in the civil court, the petitioner cannot be left remediless. Accordingly, the time taken in prosecuting the proceedings before the High Court and this Court, obviously pursued diligently and bona fide, needs to be excluded.” (emphasis in original) 21. The question again came up for consideration before this Court in Union of India v. West Coast Paper Mills Ltd. [2004 (166) ELT 290 (SC)] wherein Lahoti, J. (as the learned Chief Justice then was), held as under: “14. … In the submission of the learned Senior Counsel, filing of civil writ petition claiming money relief cannot be said to be a proceeding instituted in good faith and secondly, dismissal of writ petition on the ground that it was not an appropriate remedy for seeking money relief cannot be said to be "defect of jurisdiction or other cause of a like nature" within the meaning of Section 14 of the Limitation Act. It is true that the writ petition was not dismissed by the High Court on the ground of defect of jurisdiction. However, Section 14 of the Limitation Act is wide in its application, inasmuch as it is not confined in its applicability only to cases of defect of jurisdiction but it is applicable also to cases where the prior proceedings have failed on account of other causes of like nature. The expression "other cause of like nature" came up for the consideration of this Court in Roshanlal Kuthalia v. R.B. Mohan Singh Oberoi ([1975] 2 SCR 491) and it was held that Section 14 of the Limitation Act is wide enough to cover such cases where the defects are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstance, legal or factual, which inhibits entertainment or consideration by the court of the dispute on the merits comes within the scope of the section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right.” (emphasis supplied) 22. We may also notice that in India Electric Works Ltd. v. James Mantosh ([1971] 2 SCR 397), this Court held: “7. It is well settled that although all questions of limitation must be decided by the provisions of the Act and the courts cannot travel beyond them the words "or other cause of a like nature" must be construed liberally. Some clue is furnished with regard to the intention of the Legislature by the Explanation III in Section 14(2). Before the enactment of the Act in 1908, there was a conflict amongst the High Courts on the question whether mis-joinder and non-joinder were defects which were covered by the words "or other cause of a like nature". It was to set at rest this conflict that Explanation III was added. An extended meaning was thus given to these words. Strictly speaking mis-joinder or non-joinder of parties could hardly be regarded as a defect of jurisdiction or something similar or analogous to it.” 23. Provisions of Section 14 of the Limitation Act have been held to be applicable even in a proceeding arising under Section 34 of the Arbitration and Conciliation Act, 1996. (See Gulbarga University v. Mallikarjun S. Kodagali [2008 (11) SCALE 79]) 16. The aforesaid decision shows that the expression other cause of like nature employed under Section 14 clearly covers such other defects, which are not merely jurisdictional but which more or less interprets such deficiencies. In the present case, though the writ petition was filed by the plaintiff, by the time it came up for hearing the licence period was about to expire and this Court would not have issued a futile writ, as the consequential direction to operate in 4 villages in favour of the plaintiff would be rendered unworkable on account of the expiry of the lease. The plaintiff, therefore, has rightly withdrawn the writ petition with a liberty to move the competent civil Court for action as to damages. The plaintiff, thereafter, had given notice under Section 80 CPC under Ex.A7 dated 16.04.1990, which was acknowledged by the defendants under Exs.A8 to A10 and thereafter, filed the present suit. The finding of the lower appellate Court, therefore, that Section 14 of the Limitation Act is not available to the plaintiff is clearly unsustainable and in view of the fact that the present case would fall in condition II as enumerated by the Supreme Court in GURDIT SINGH’S case (1 supra). The plaintiff, therefore, established that in the former proceedings the Court was unable to grant the relief was a circumstance sufficient enough to warrant the application of Section 14 of the Limitation Act. That apart the Supreme Court also held in SHAKTI CABLES LIMITED’s case (2 supra) that any circumstance (legal or factual), which inhibits entertainment or consideration by the Court of the dispute on the merits of the case within the scope of this Section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right. The finding of the lower appellate Court in Para 13 of the impugned judgment is, therefore, liable to be reversed. The substantial question as framed is answered in favour of the appellant/plaintiff. 17. So far as the second question with respect to estoppel is concerned, though the second appeal was not admitted on the second question, proviso to Section 100 CPC enables this Court to frame any other substantial question of law, not earlier formulated, to formulate and hear the appeal on that question. The question of estoppel raised as additional substantial question of law was, therefore, allowed to be urged. It is not denied and it is evident from Exs.B12 and B13, marked as additional evidence before the lower appellate Court, that even for the previous three years similar auction was held and the licencee was allowed to operate in all the 32 villages inclusive of 4 villages in question. The defence of the defendants based upon G.O.Ms.No.94 dated 22.02.1983 was even applicable for the previous years as well but, however, the licencee of the previous years continued to operate in all the 32 villages. It is, therefore, but logical and consequential that the plaintiff was also made to believe that similar area of operation would be available to him as well and has bid at the auction accordingly. The prohibition imposed by the defendants restricting the area of operation by excluding 4 villages after the agreement was entered into by the plaintiff, therefore, clearly amounts to prejudicing the plaintiff. The conduct of the defendants both during the previous years as well for the present years in question show that even for these years the plaintiff was allowed to open the depots in all the 32 villages inclusive of 4 villages and it only later that the restriction was imposed. However, it is not necessary to pronounce on the said aspect in view of the fact that the substantial question of law on which the appeal was admitted is already answered in favour of the appellant. The said contention is, therefore, kept open. 18. However, even in spite of answering the substantial question of law in favour of the plaintiff, I am unable to sustain the decree for damages as granted by the trial Court. The principal reason therefore being the trial Court has neither assessed nor has given any finding as to why it is granting the decree as prayed for to the plaintiff without there being any evidence of assessment of loss suffered by the plaintiff. In para 9 of the judgment of the trial Court, it has come to the conclusion that the plaintiff has suffered loss due to exclusion of 4 disputed villages form the area of operation and that he is entitled to damages. However, while quantifying the damages the trial Court proceeds on the footing that the same is not disputed by the defendants. The quantum of damages, undoubtedly, depends upon the evidence produced and therefore the plaintiff alone has to discharge the said burden. The trial Court presumed the quantum of damages as having suffered by the plaintiff without going into the question as to whether the plaintiff has established the extent of damages as claimed. The decree for damages as granted by the trial Court, therefore, is not based on any assessment of evidence in that respect. The lower appellate Court had decided and allowed the appeal on the issue of limitation by answering it against the plaintiff and one does not find any discussion on the quantum of damages in the judgment of the lower appellate Court. A Division Bench of this Court in Y.C. RATTAYYA v. D. VENKATARAMAYYA[3] has considered this facet in Para 78 of the judgment, which is extracted hereunder: “78. It was next urged for the appellant that the plaintiff had not called in evidence to show what profits he would have made during the un- expired period of the lease or what expenses he would have incurred and there being no data, a court cannot fix any damages and consequently only nominal damages could be awarded to the plaintiff. We do not think we can subscribe to the theory propounded by the learned Advocate-General. It is true that the plaintiff in this case had not given the best evidence either on the quantity of timber he would have felled or the amount to be expended for cutting the trees and transporting them to the market. Even with regard to the expenses for the prior period, he had furnished only, some shadowy evidence. Consequently, there is some difficulty in arriving at