Case: Rabindra Nath Samuel Dawson Vs. Sivakami &amp; Others

dates of next revenue sales nonetheless, was not barred because the plaintiff would be entitled to exclude under Section 14 the time spent in prosecuting the earlier suit in computing the period of limitation and after this period was excluded the suit would be in time. Some of the other issues were also decided in favour of the plaintiff. Consequently the Subordinate Judge decreed the suit with past and future mesne profits. In appeal the High Court of Madras, as stated earlier, came to a different conclusion on the question of limitation. It held, agreeing with the findings of the Subordinate Judge, that the auction purchasers in revenue sales never took possession nor were their alienees or plaintiff ever in possession of the suit properties. After this finding the High Court proceeded to consider whether the appellant was entitled to exclude the time taken in the prosecution of the previous suit under Section 14 of the Limitation Act. It was contended before that court that the plaintiff was bona filed in filing his suit and prosecuting it and the appeal, and therefore, he was entitled to exclude that period under Section 14 of the Limitation Act. This contention was negatived with these observations :"From what we have stated above, it will be plain that the appellant took objection to the non-impleading of the Government as a party at earliest possible opportunity. The respondents would not take note of that objection. They persisted in their attitude till ultimately the High Court of Travancore-Cochin held that the suit will have to fail for the non-impleading of the necessary party. A request was made to the High Court to permit the respondents herein to remedy the defect. The learned Judges held that they could not accede to that request and that the suit has to be dismissed as in spite of timely objection raised by the defendant on the ground of non-joinder of parties the plaintiff persisted in proceeding with the suit undertaking to bear the risk of not impleading the sircar. This attitude on the part of the respondents is sufficient to dispose of the question of bona fides against them. Mr. V. V. Raghavan argues that the fact that two Subordinate Courts in the previous litigation had held that there was no need to implead the Government as a party to the suit would itself show that the respondents were acting under bona fide mistake. As we have pointed out earlier the defendants took objection to the non-impleading of the necessary party even at the earliest stage. The matter went up to the Travancore High Court. The respondents did not want the High Court to decided the question as to whether the Government was a necessary party or not on the ground that they were prepared to take the risk of their omission to implead the Sircar and on that ground got a dismissal of the revision petition filed by the appellants. Under these circumstances we cannot accept the contention now urged on behalf of the respondents herein that they bona fide instituted the previous suit."The reasons given by the High Court are in our view cogent. Section 14 of the repealed Limitation Act which is applicable to this case gives benefit to a party who has been prosecuting with due diligence another civil proceeding whether in a court of first instance or in a court of first appeal against the defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which from the defect of jurisdiction and is prosecuted in good faith in a court which from the defect of jurisdiction or other cause of like nature is unable to entertain it. The appellants advocate points out that under Section 2(7) nothing shall be deemed to be done in good faith which is not done with due care and attention and that in this case the appellant was bona fide in purchasing the suit properties from an auction purchaser who also purchased them in revenue sales bona fide and that without notice to either of them the sale has been set aside which is totally without jurisdiction and injuriously affects the appellant. That the appellant was caught in this predicament may be unfortunate but insofar as the question whether he bona fide prosecuted the earlier suit and appeal there could be no two opinions on the undisputed facts which have been clearly and forcefully stated by the High Court. It is clear that no suit for declaration and possession could have been filed against the defendants in respect of the revenue sales which was set aside without impleading the Government. The objection as to the maintainability of the suit was taken at the very initial stage but that was resisted and the appellant invited a decision by the District Munsif. Even at the stage of revision against that order in the High Court he took the risk of proceeding with the suit. This was, therefore, not a case of prosecuting the previous proceedings bona fide. But on the other hand, he deliberately did so may be for obvious reason that if he had to withdraw the suit he would have to give notice under Section 80, C.P.C. to the Government, wait for the expiry of the period of notice of two months and thereafter file a fresh suit. To avoid this he though he would taken a chance but that chance boomeranged against him. It is not a case where he prosecuted due to ignorance of law or bona fide mistake nor can it be said that he had misconceived the suit. None of the cases cited by the learned advocate can assist the appellant because in all of them it was either a case of mistake of law on a doubtful point such as in the case of Bishambhur Haldar v. Bonomali Haldar and Others, (ILR (1899) 26 Cal 414 : 3 CWN 233) or ignorance of law.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]the High Court proceeded to consider whether the appellant was entitled to exclude the time taken in the prosecution of the previous suit under Section 14 of the Limitation Act. It was contended before that court that the plaintiff was bona filed in filing his suit and prosecuting it and the appeal, and therefore, he was entitled to exclude that period under Section 14 of the Limitation Act. This contention was negatived with these observations :"From what we have stated above, it will be plain that the appellant took objection to theg of the Government as a party at earliest possible opportunity. The respondents would not take note of that objection. They persisted in their attitude till ultimately the High Court ofn held that the suit will have to fail for theg of the necessary party. A request was made to the High Court to permit the respondents herein to remedy the defect. The learned Judges held that they could not accede to that request and that the suit has to be dismissed as in spite of timely objection raised by the defendant on the ground ofr of parties the plaintiff persisted in proceeding with the suit undertaking to bear the risk of not impleading the sircar.This attitude on the part of the respondents is sufficient to dispose of the question of bona fides against them.Mr. V. V. Raghavan argues that the fact that two Subordinate Courts in the previous litigation had held that there was no need to implead the Government as a party to the suit would itself show that the respondents were acting under bona fide mistake.As we have pointed out earlier the defendants took objection to theg of the necessary party even at the earliest stage. The matter went up to the Travancore High Court. The respondents did not want the High Court to decided the question as to whether the Government was a necessary party or not on the ground that they were prepared to take the risk of their omission to implead the Sircar and on that ground got a dismissal of the revision petition filed by the appellants. Under these circumstances we cannot accept the contention now urged on behalf of the respondents herein that they bona fide instituted the previous suit."The reasons given by the High Court are in our view cogent. Section 14 of the repealed Limitation Act which is applicable to this case gives benefit to a party who has been prosecuting with due diligence another civil proceeding whether in a court of first instance or in a court of first appeal against the defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which from the defect of jurisdiction and is prosecuted in good faith in a court which from the defect of jurisdiction or other cause of like nature is unable to entertain it.The appellants advocate points out that under Section 2(7) nothing shall be deemed to be done in good faith which is not done with due care and attention and that in this case the appellant was bona fide in purchasing the suit properties from an auction purchaser who also purchased them in revenue sales bona fide and that without notice to either of them the sale has been set aside which is totally without jurisdiction and injuriously affects the appellant.That the appellant was caught in this predicament may be unfortunate but insofar as the question whether he bona fide prosecuted the earlier suit and appeal there could be no two opinions on the undisputed facts which have been clearly and forcefully stated by the High Court. It is clear that no suit for declaration and possession could have been filed against the defendants in respect of the revenue sales which was set aside without impleading the Government. The objection as to the maintainability of the suit was taken at the very initial stage but that was resisted and the appellant invited a decision by the District Munsif. Even at the stage of revision against that order in the High Court he took the risk of proceeding with the suit. This was, therefore, not a case of prosecuting the previous proceedings bona fide. But on the other hand, he deliberately did so may be for obvious reason that if he had to withdraw the suit he would have to give notice under Section 80, C.P.C. to the Government, wait for the expiry of the period of notice of two months and thereafter file a fresh suit. To avoid this he though he would taken a chance but that chance boomeranged against him. It is not a case where he prosecuted due to ignorance of law or bona fide mistake nor can it be said that he had misconceived the suit. None of the cases cited by the learned advocate can assist the appellant because in all of them it was either a case of mistake of law on a doubtful point such as in the case of Bishambhur Haldar v. Bonomali Haldar and Others, (ILR (1899) 26 Cal 414 : 3 CWN 233) or ignorance of law.