TMI Blog2016 (1) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... setting, in which, the expression, defect in jurisdiction of the court or other cause of a like nature, appears in sub-section (3) of Section 14 is, perhaps, not the same as that which pertains to a somewhat similar expression, i.e. defect of jurisdiction or other cause of a like nature, which, stand incorporated in sub-section (1) of Section 14. The expression, "or other cause of a like nature" need not necessarily have the same connotation as that which one may give to the very same expression appearing in sub-section (3) of Section 14. It is not the likeness of the expression but the setting in which the expression is found incorporated, which is of greater relevance. Therefore, if the time spent by the appellant in prosecuting the writ remedy (i.e. between the date of institution of the writ and its withdrawal) is excluded, which must be so, then, the suit could not have been dismissed on the ground of limitation. Appeal allowed. - RFA No.487/2012 - - - Dated:- 6-1-2016 - Mr Rajiv Shakdher, J. For the Appellant: Mr. Asheesh Jain and Mr. Ankur Bhasin. For the Respondents: Mr. J.C. Chaudhary and Mr. N.Krishnan, Mr. Rajeev Sharma. Mr Rajiv Shakdher, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of the work executed by him. The amendment was incorporated in clause 63 (b) which, for the sake of convenience is extracted herein after : ...Clause 63(b): Payment Terms for MTNL Cable Rehabilitation Work. Payments under clause 63 of form of proposal shall be made on Back-to-Back basis i.e. payment of work done by the contractor will be released on receipt of same payment from MTNL and fractional receipts from MTNL will be payable to contractor on pro rata basis of bill raised... 2.2 Apparently, several work orders were issued in favour of the appellant. The appellant claims that he executed the work in terms of the work orders released in his favour. As per the stand of the appellant, he had raised bills worth ₹ 7,79,101/-. This amount though, did not include as per the stand of the appellant a sum of ₹ 2,69,415/- which, evidently, has been withheld by the respondents with respect to claims on account of stores, watch and ward charges and cost of excess material used in the execution of the work orders. The appellant, it appears, has also raised separate bills with respect to the material used. 2.3 Be that as it may, the appellant‟s stand has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icatory order was passed by the writ court, on 29.04.2009. 2.9 It may be relevant to note that in the interregnum the appellant had served upon the respondents, a legal notice dated 13.02.2009. By virtue of this notice, the appellant sought recovery of an aggregate sum of ₹ 18,05,992/- which included the principal amount, equivalent to ₹ 7,57,476/- alongwith interest, factored-in, at the rate of 18% p.a. Besides this, via the said notice, information was also sought as to whether payments had been released by respondent no.3 in favour of respondent no.1 3. It appears, only respondent no.1 responded to the aforementioned notice. A reply dated 16.03.2009 was dispatched by respondent no.1, in which, the stand taken was that the claim of the appellant was barred by time. 4. Since, the respondents failed to satisfy the demand made vide legal notice dated 13.02.2009, a suit for recovery was instituted by the appellant, on 23.05.2009. In response thereto, respondent no.1 and 2 filed a joint written statement, while respondent no.3 filed a separate written statement. The appellant, in rebuttal, filed his replication to the written statements. 4.1 As indicated above, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawn by the appellant. In this regard, learned counsel sought to place reliance upon the judgment of the Supreme Court in Deena Vs. Bharat Singh, (2002) 6 SCC 336. (iii). Third, the money claim made by the appellant pertained to the period spanning 2002-2004 and therefore, ex facie, the suit, filed in 2009, was barred by limitation qua which, no evidence was required to be led. 7. Mr. Sharma, who appeared on behalf of respondent no.3, supported the submissions by Mr. Chaudhary made on behalf of respondent no.1 and 2. In addition to the submissions made by Mr Choudhary, Mr. Sharma argued that the application of the appellant under Section 14 of the 1963 Act had been rightly rejected as the cause of action for filing the writ petition was different from that which obtained for instituting the suit. Learned counsel contended that the writ petition involved a challenge to clause 63(b) of the contract which, required respondent no.3 to route the payment to be made to the appellant via respondent no.1. On the other hand, according to the learned counsel, the suit filed by the appellant was a pure action for recovery of money based on the quantum of work done qua work orders relea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and omissions of the plaintiff... (Emphasis is mine) (iii). On the other hand, respondent no.3 has, in paragraph 3 of its written statement, under the heading preliminary submissions / objections, taken the plea that no payment is due to the appellant as no work order was issued by it. Furthermore, it is averred that since respondent no.1 and 2 executed the work, respondent no.3 has already settled the account and made full and final payment to them. (iv). This apart, in the counter affidavit filed by the respondents in WP(C) 13669/2005, clearly, a defence had been taken that since, it involved disputed questions of facts, the writ remedy was not available to the appellant. (v). A perusal of the prayer clause in the writ petition would show that apart from the prayer made therein for striking out amended clause 63(b), there was, in addition, a mandamus sought qua the respondents for immediate release of a sum of ₹ 10,75,936/- along with interest at the rate of 18% p.a. (vi). The plaint was filed in an around 24.08.2005. 9. In the background of the aforementioned facts, two issues arise for consideration. First, as to whether the trial court was right i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of like nature . 10.1 Therefore, quite clearly, for a plaintiff (i.e. the appellant herein) to succeed in a Section 14 application, he would have to demonstrate to the court adjudicating such an application that the following pre-requisites exist for exercising the power conferred by the said provision upon it :- (i). The earlier proceedings are civil proceedings. (ii). The said proceedings should be in a court of first instance or in the nature of an appeal or revision against the defendant in the suit. (iii). The proceedings relate to the same matter in issue , as that, which obtains in the suit. (iv). The said proceedings were prosecuted in good faith. (v). The court, in which, the proceedings were prosecuted was unable to entertain it on account of defect of jurisdiction or other cause of like nature. 10.2 There is no dispute raised before me and, to my mind, none could have been raised that the proceedings in the writ court are civil proceedings. It is to be borne in mind that the expression obtaining in Section 14 is, civil proceedings as against civil suit . The former expression, to my mind, is much wider in scope. 10.3 It is also clearly evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition which, clearly finds no support either in the language of sub- section (1) of Section 14 or, in the legislative history of the said provision. 11.1 On the other hand, the expression, matters in issue finds a place in Section 10 as also in Section 11 of the CPC, albeit, in the company of the words, directly or substantially in issue . In my opinion, therefore, the expression, matters in issue should be construed, broadly, as against the expression, cause of action . Cause of action as, generally understood, is, every fact which necessarily the plaintiff would have to prove, if traversed, in order to secure a judgment in his favour. It necessarily, does not comprise of every piece of evidence which is required to prove, each fact, 41. The Rankin Committee suggested that, following the language of sec. 11 of the C.P. Code, in sec. 14, for the words cause of action the words matter in issue may be substituted. The words cause of action have the effect of making the relief too narrow and adequate relief would be available if, as suggested by the Civil Justice Committee, the words matter in issue are substituted for the words cause of action . We are also of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be of such a character that it should make it impossible for the court to entertain the action and decide the same on merits. 12.1 Before I proceed further, I may indicate in Deena Vs. Bharat Singh, the Supreme Court was faced with the following broad facts: The respondent / plaintiff, in the first instance, had, inter alia, filed a suit to seek a declaration that he had become the owner of the suit property. A further relief was claimed, which was, that the order of the Collector be held to be null and void. 12.2 This suit was decreed. While the appeal of the appellant / defendant was pending in the court of the District Judge, the respondent / plaintiff withdrew the suit, with permission to file a fresh suit. Consequently, the earlier suit was withdrawn as according to the respondent / plaintiff, there was a defect of non-joinder of a necessary party. 12.3 In the second suit filed by the respondent / plaintiff, more or less, the same reliefs were sought. 12.4 In the written statement, the appellant/ defendant took the plea that the fresh suit was barred by limitation. 12.5 It is, in this context, that the Supreme Court noted the provisions of not only Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the nature of the issues involved, a civil proceeding, other than a writ petition, would be a more appropriate action. Therefore, in my opinion, the expression, or other cause of a like nature need not necessarily have the same connotation as that which one may give to the very same expression appearing in sub-section (3) of Section 14. It is not the likeness of the expression but the setting in which the expression is found incorporated, which is of greater relevance. 12.9 Having said so, this is not the only reason, based on which, I am of the view that the judgment of the Supreme Court in Deena Vs. Bharat Singh would not apply to the facts of the case. The reason for the same is, that the Supreme Court appears to have taken the view in several cases that Section 14 of the 1963 Act is wide enough to cover defects which are ..not merely jurisdictional strictly so called but others which are more or less neighbours to such deficiencies . See Roshan Lal Kuthalia Vs. R.B. Mohan Singh Oberoi, (1975) 4 SCC 628 at page 639 / paragraph 27. This was a judgment delivered by a bench of three judges. This view was followed in Union of India vs. West Coast Paper Mills Ltd., (2004) 3 S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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