TMI Blog2002 (7) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... s) had mortgaged his land measuring 9 bighas 18 biswas (after consolidation 47 kanals 13 marlas) in Khewat No.39 Khasra No.34 situated in the village Manakwas, Tehsil Jhajjar in the State of Haryana, for ₹ 2,500/- with possession, on 7.2.1947 with plaintiff no.2 and father of plaintiff nos. 15 to 19 and Khubi Ram @ Khushi Ram who is the predecessor in interest of plaintiffs 2 to 14. On 23.6.1978 Deena had filed an application for redemption of the land before Collector, Jhajjar which was accepted on 29.2.1980 and the land was ordered to be redeemed on payment of the mortgage money ₹ 2,500/-. The plaintiffs filed a suit in the Court of the Sub-Judge Jhajjar titled Harkishan vs. Deena seeking a declaration that they had become owners of the property and that the order of the Collector dated 29.2.1980 was null and void. The said suit was decreed by the trial court and the decree was challenged in appeal by the defendant. During pendency of the appeal in the Court of the District Judge, Rohtak the plaintiffs withdrew the suit with permission to file fresh suit. Thereafter the present suit, Civil Suit No.115/82 was filed on 24.2.1982 seeking a declaration that the plaintiffs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly it is held that they are not entitled to take benefit of Section 14(1) and (III) of the Indian Limitation Act. In the second appeal filed by the plaintiffs the High Court set aside the judgment of the first appellate court confirming the decision of the trial court and decreed the suit with the following observations: The order passed by the Collector is dated 29th of February, 1980. The first suit for declaring order of the Collector as void was filed on 23rd of March, 1980 which was decreed by the trial court. The defendant respondent filed an appeal before the District Judge and on 15th February, 1982 the appellants were allowed to withdraw the suit which was decreed in their favour by the trial court with permission to file fresh one on the same cause of action. Fresh suit was filed on 24th February, 1982. After hearing counsel for the parties I hold that the suit filed by the appellants is within time and they are entitled for the exclusion of time from 21st March, 1980 to 15th February, 1982. The findings of the lower courts on issues No.3 and 7 are set aside. In view of the above mentioned discussion the judgment and decree passed by the lower courts are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. Section 14 of the Limitation Act so far as material for the purpose of the present case is quoted hereunder: 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. XXX XXX XXX (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of subsection (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression defect of jurisdiction on a plain reading means the Court must lack jurisdiction to entertain the suit or proceeding. The circumstances in which or the grounds on which, lack of jurisdiction of the Court may be found are not enumerated in the Section. It is to be kept in mind that there is a distinction between granting permission to the plaintiff to withdraw the suit with leave to file a fresh suit for the same relief under Order XXIII Rule 1 and exclusion of the period of pendency of that suit for the purpose of computation of limitation in the subsequent suit under section 14 of the Limitation Act. The words or other cause of a like nature are to be construed ejusdem generis with the words defect of jurisdiction , that is to say, the defect 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. Obviously section 14 will have no application in a case where the suit is dismissed after adjudication on its merits and not because the Court was unable to entertain it. Coming to the case on hand, as noted earlier, the previous suit filed by the respondents was decreed by the trial court; and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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