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PETITIONER: INDIA ELECTRIC WORKS LTD.

       Vs.

RESPONDENT: JAMES MANTOSH & ANR.

DATE OF JUDGMENT: 15/09/1970

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. HEGDE, K.S.

CITATION:  1971 AIR 2313            1971 SCR  (2) 397

ACT: Indian  Limitation Act (9 of 1908), s. 14 ’Other cause of  a like nature,’ scope of.

HEADNOTE: The plaintiff filed a money suit claiming rent in respect of certain structures, for the period upto the date of suit and for  future  rent as damages.  It was decreed by  the  trial court  in  its entirety, but the High  Court  negatived  the claim  for future damages on the sole ground that in a  pure money  suit,  no  decree could be granted  for  recovery  of compensation  after  the date of suit or after the  date  of decree The plaintiffs then filed a suit claiming damages for the  period  upto the        date of the second  suit  which included  the period for which the claim was  disallowed  in the first suit.  As the total period was more than 3  years, protection from limitation for the period beyond 3 years was claimed  under  s.  14  of  the  Limitation  Act,  1908,  by deducting  the  time  during  which  the  earlier  suit  was prosecuted,  and also on general principles.  The  cause  of action for the two suits was the same and it was found  that the previous suit had been prosecuted in good faith and with due diligence. HELD : The plaintiff was entitled to deduct the time  during which the earlier suit was pending. (Per  Shah  and  Grover,  JJ.)  :  The  condition  for   the applicability  of s. 14(1) to, the present case is that  the court in which the previous suit was filed should have  been unable  to  entertain  the claim relating  to  future  mesne profits,  ’from defect of jurisdiction or ’other cause of  a like nature’.  The words ’other cause of a like nature’ must be  construed  liberally  and two  constructions  have  been placed  upon  the words. (a) In Nrityamoni Dassi  v.  Lakhan Chandra, I.L.R. [1916] 43 Cal. 660 (P..C.) it was held  that if  there  was  an effective decree  by  a  competent  court capable of being enforced until it was set aside, the period of litigation of that suit was deductible from the period of limitation  ’for a second suit filed for that  same  relief; and  (b) in Jaikishan Singh v. Peoples Bank,  I.L.R.  [1944] Lah.  451 (F.B.) it was held that the defect must have  been of  such a character as to make it impossible for the  court

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to entertain the suit or application in its inception, or at any  rate,  prevent it from deciding the matter  on  merits, [400 G-H; 401 C; 402 B, F-G] In  the  present case, either of the  tests  is  applicable, because,  (a) In the earlier money suit the trial court  had passed a decree for recovery of future mesne profits,  which was effective till the High Court set it aside; or (b)  It  could not be said that the previous money suit  was altogether misconceived, and therefore, the defect in it was of such a nature that it had to be decided before the  claim could be disposed of on merits. [403 E] Makhan  Lal Madak v. Girish Chandra 66 C.W.N. 692.  referred to. The  general  principle deduced in Narayan Jivaji  Patil  v. Khandappagauda  Patil, I.L.R. [1939] Bom. 173, from  various pronouncements of the Privy Council that where a claim-  was satisfied either by 398 agreement  of  parties or by a decree of court, and  if  the satisfaction  or the decree was set aside subsequently in  a judicial proceeding a fresh cause of action would accrue  in favour  of  the claimant, was not relied  upon  because,  s. 14(1) was applicable to the present case. [404 A-B, C] (Per Hegde, J.) : Section 14(1) in terms does not apply, but in Mst.  Ranee Surno Moyee v. Shooshee Mukhee, 12 M.I.A. 244 it was held by the Judicial Committee that a claim which  is satisfied,  an  expression held to include  even  getting  a decree on a claim, if reopened because of the decree of  the appellate court or otherwise, a new cause of action  accrues to  the  plaintiff on the date the earlier  satisfaction  is taken  away.  This view has field the field for a long  time and  it is not in public interest to disturb  it.   Applying the rule to the facts of the present case, a new cause  of action  must be deemed to have accrued to the  plaintiff  in respect  of the mesne profits under dispute on the date  the decree  of the trial court was set aside by the High  Court. [404 D-G]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeals No.  1646  of 1966. Appeal from the judgment and decree dated April 11, 1963  of the  Calcutta High Court in Appeal from Original Decree  No. 306, of, 1959. G.   L. Sanghi and D. N. Mishra, for the appellant. P. K. Chatterjee and P.     K. Ghosh, for the respondent. The  Judgment  of  J.  C. SHAH and  A.  N.  GROVER  JJ.  was delivered  by  GROVER,  J. K. S. HEGDE J.  gave  a  separate Opinion. Grover, J. This is an appeal by certificate from a  judgment of  the Calcutta High Court in which the sole  question  for determination is whether the suit was barred by limitation. The  material facts may be stated.  The appellant before  us was  the  defendant in a suit for recovery of  damages  with interest and costs.  The suit was decreed by the trial judge and  that  decree has been upheld by the  High  Court.   The defendant  was  a  tenant  under  the  predecessor  of   the plaintiffs  in respect of the shed and structures  described in schedule A of the plaint.  In or about the year 1939  the predecessor-in-interest of the plaintiffs filed a title suit in,  the  court  of  the  Subordinate  Judge,  Alipore   for ejectment and damages.  A compromise took place between  the

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patties  but  the defendant did not vacate the  premises  in terms   of  the  compromise  and  continued  to  remain   in occupation  of  the same.  The  property  was  requisitioned under  Rule  75-A  of  the  Defence  of  India  Rules and Government took its possession on February 2, 1944.  It  was derequisitioned  on November 21, 1945.  For the period  from February  2,  1944  to  November  21,  1945  the  plaintiffs received  monthly  compensation from the Government  at  the rate  of  Rs.  350/-.  For the  period  of  the  defendant’s alleged wrongful occupation the plaintiffs filed two  suits against  the defendant.  The first was for and  recovery  of damages upto February 1, 1944 and the second was for damages from  November  22,  1945  upto  November  21,  1948.    The plaintiffs also claimed future damages till 399 recovery  of  possession although the suit was not  one  for possession The suits were decreed by the learned Subordinate Judge  in December 1951 at the rate of Rs. 300/-  per  month for  the entire period of claim.  In other words  the  claim for  future mesne profits was also a]-lowed.  On appeal  the High Court disallowed the claim for future mesne profits and reduced  the  rate  to Rs. 200/- per  month.   The  judgment disposing of those appeals along with certain other  appeals which arose out of a suit filed by the defendant with  which we  are not concerned in the present appeal is  reported  in India  Electric Works Ltd. v. Mrs. B. S. Mantosh  &  Ors.(1) This  is what was observed in that judgment with  regard  to the decree relating to future mesne profits at page 155 :-               "The rest of the decree in Suit No. 28 of 1948               was  not  according  to  law  and  cannot   be               maintained.   The suit was a pure  money  suit               and  not a suit for recovery of possession  of               immovable property and for mesne profits under               0.20,  R.  12., Civil P.C. In such  a  suit  a               preliminary   decree   may   be   passed   for               possession  and for assessment, but in a  pure               suit  for recovery of money, no decree can  be               passed for recovery of compensation after the,               date  of the suit upto the date of the  decree               or after the date of the decree until-recovery               of  possession.   This  part  of  the   decree               should, therefore, be set aside." The  plaintiffs  then filed a suit on November 5,  1956  for recovery of an amount of Rs. 28,650/- together with interest thereon  as damages at the rate of Rs. 300/- per month  from November  22,  1948 to November 5, 1956 i.e. a period  of  7 years, II months and 15 days.  For the period beyond 3 years of the suit protection from limitation was claimed primarily under  s. 14 of the Indian Limitation Act 1908,  hereinafter called the "Act" and on general principles of suspension  of limitation owing to the pendency of the earlier suits.   The defendant contested the suit principally on the ground  that it was barred by limitation.  The rate at which damages were claimed  was  also  disputed.  The trial court  was  of  the opinion that the plaintiffs were entitled to the benefit  of S. 14 of the Act and that no part of the claim was barred by limitation.  As regards the rate of compensation or  damages the trial court fixed it at Rs. 250/- per month and  decreed the suit accordingly. The  defendant appealed to the High Court.  The  High  Court considered  the question of the applicability of s.  14  and held  that  the plaintiff could take advantage of  it.   The rate of damages which had been determined by the trial court was also upheld.  The  admitted and proved facts are that the claim  made  in

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the present suit was included in the previous money suit No. 28 of 1948 and a decree had been passed by !he trial  court in favour of (1) A.I.R. 1956 Cal. 148,  155. 400 the plaintiffs for the entire claim including the claim  for future  damages.  The plaintiffs were only required  to  pay additional court fee as provided by the Indian Court Fee Act for the claim relating to future damages and the  plaintiffs had  in  fact paid the required amount of  additional  court fee.   The High Court, in the judgment mentioned before  and in the portion extracted therefrom, had negatived the  claim for  future damages on the sole ground that no decree  could be  granted for recovery of compensation after the  date  of the  suit  or after the date of the decree in a  pure  money suit.   In  other words it was held that under the  law  the court was not competent to decree such a suit. Section 14 in so far as it is material for our purpose  runs as follows:-               S.    14(1)   "In  computing  the  period   of               limitation  prescribed 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 in a Court of Appeal, against  the               defendant   shall  be  excluded,   where   the               proceeding  is founded upon the same cause  of               action  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.               (2)               Explanation I               Explanation II               Explanation  III.-For  the  purpose  of   this               section misjoinder of parties or of causes  of               action shall be deemed to be a cause of a like               nature with defect of jurisdiction". The  High Court having found that the present claim  of  the plaintiffs  was  also  included in  the  previous  suit  the condition  that  the previous proceeding should  be  founded upon  the  same cause of action must be held  to  have  been satisfied.   The  High  Court  has  further  held  that  the previous suit had been prosecuted in good faith and with due diligence.   In  order to attract the  applicability  of  S. 14(1),  therefore, all that has to be determined is  whether the court in which the previous suit was filed was unable to entertain  the claim relating to future mesne profits  "from defect  of jurisdiction" or "other cause of a like  nature". It is common ground and indeed cannot be argued nor has  any attempt  been made to urge such a contention before us  that the court trying the previous suit was unable to  entertain it  from  defect  of jurisdiction.  The  only  question  for determination  is whether the court was unable to  entertain the previous suit from "other cause of a like nature".  In 401 Jaikishan Singh v. The Peoples Bank of Northern India(1)  it was  pointed  out  that  S.  14 of  the  Act  will  have  no application  where failure on the part of the petitioner  or the plaintiff to get the reliefs which he asked for was  not attributable   to   anything  connected  either   with   the jurisdiction  of the court or with some other  defect  which was  like  that of jurisdiction.  It was observed  that  the words "or other cause of a like nature", however,  liberally construed  must  be read so as to convey  something  ejusdem

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generis or analogous to the preceding words relating to  the defect of jurisdiction.  If these words were read along with the  expression "is unable to entertain", they would  denote that  the defect must be of such a character as to  make  it impossible   for  the  court  to  entertain  the   suit   or application in its inception or at all events as to  prevent it  from deciding it on the merits.  In other words, if  the defects  were of such a nature that they had to  be  decided before  the case could be disposed of on merits or  it  they did not necessitate an examination of the merits of the case they  would be defects of a "like nature".  The cases  which were  decided  on the principle that if ’a  plaintiff  or  a petitioner failed to establish a cause of action in  himself no  deduction  of  time could be allowed under  s.  14  were noticed and it was accepted that they proceeded on a correct view.   Illustration of the facts which would be covered  by the words "or other cause of a like nature" as given in the decided cases were : (i) if a suit had failed because it was brought  without  proper  leave;  (ii)  if  it  had  failed because  no  notice under s. 80, Civil Procedure  Code,  had been given; (iii) where it would fail for non-production  of the Collector’s certificate required by S. 7 of the Pensions Act.   In  each one of these cases the court  did  not  lack jurisdiction  in  its inception but the suit  could  not  be proceeded   with  and  disposed  of  until   the   statutory conditions laid down had been satisfied or fulfilled. Mention  may be made of two cases which are apposite out  of the,  numerous  decisions  relating  to,  the  point   under consideration.  In  Shrimati Nrityamoni Dassi  &  Others  v. Lakhan  Chandra Sen(2) the plaintiffs were defendants  in  a suit brought at a prior stage.  In that suit they associated themselves  with the plaintiffs and prayed for  adjudication of  their rights.  Henderson J. of the Calcutta  High  Court who tried the suit decreed the claims of the plaintiffs  and made a similar decree in favour of the defendants.  The High Court  in  its appellate jurisdiction, while  affirming  the findings  of Henderson J., held that the decree  granted  by him  in  favour of the defendants could not  be  maintained. The  decree  was consequently varied and the  defendants  in that  suit were relegated to a fresh suit for the relief  to which they were clearly entitled. In (1) I.L.R. [1944] Lah. 451. (F B.) (2) I.L.R. [1916] 43 Cal. 660. 402 the  subsequent suit the question of the bar  of  limitation arose.   This is what was observed by their’ Lordships  with regard to the claim that the prior period could be  deducted for the purpose of limitation :               "It   was  an  effective  decree  made  by   a               competent  court  and  was  capable  of  being               enforced  until set aside.  Admittedly if  the               period   during  which  the  plaintiffs   were               litigating for their rights is deducted  their               present suit is in time.  Their Lordships               are of opinion that the plea of limitation was               rightly overruled by the High Court". In Sarojendra Kumar Ditt v. Pumachandra Sinha (1) S. R. Das, J. (as he then was) expressed the view that the principle of s.  14  was applicable not only to cases  where  the  person brought  his suit in the wrong court but also applied  where he  brought  his case in’ the right court  although  he  was prevented  from getting a trial on the merits  by  something which, though not a defect of jurisdiction, was analogous to that  defect.   There an attorney had  made  an  application under  Chapter  38,  Rule 48, Original  Side  Rules  of  the

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Calcutta  High  Court, for an order against his  client  for payment  of the-sum allowed on taxation.  As discretion  was conferred by the Rule to either make an order for payment or to refer the parties to a suit the matter was referred to  a suit  in view of the facts of the case.  The  learned  judge held that the plaintiff’s right had not been investigated in the  Chamber Application because it was considered  that  it was a proper case where the attorney should be relegated to. a  suit.   It was, therefore. by reason of an  infirmity  or defect of jurisdiction that the order for payment could  not be  made.  The defect of jurisdiction was in no way  brought about  by  the plaintiff or by any absence of  diligence  or good  faith  on  his part.  He was  found  entitled  to  the benefit of s. 14 of the Act. It is welt 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 s. 14(2).  Before the  enactment  of the Act in 1908 there was a conflict amongst the High Courts on  the  question whether misjoinder  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 misjoinder or  non- joinder  of parties could hardly be regarded as a defect  of jurisdiction or something similar or analogous to it. (1)  A.I.R. [1949] Cal. 24. 403 In our judgment the present case is very similar to the  one decided by the Privy Council in Shrimati Nrityamoni Dassi  & Ors.  v. Lakhan Chandra Sen(1).  There an  effective  decree had  been made by Henderson J., of the Calcutta  High  Court which  enured  to  the benefit of  the  defendants  but  the appellate court considered that such a decree could not have been  legitimately  made and set it aside.  The  period  of the,   previous  litigation  was  held  to   be   deductible apparently under the provisions of s. 14(1) of the Act.   In the  case before us the trial court had passed a  decree  in the money suit of 1948 for recovery of future mesne profits. The High Court on appeal set aside that decree on the ground that  no such decree could have been passed in a  pure  suit for recovery of money.  The benefit of s. 14(1),  therefore, was rightly allowed by the High Court in the judgment  under appeal.   Even  if the test propounded in  the  Lahore  full bench  decision in Jai Kishan Singh v. The Peoples  Bank  of Northern India(1) is to be applied there can be no manner of doubt  that the defect in the suit of 1948 was of  a  nature which  had to be decided before the claim could be  disposed of  on the merits.  The High Court there was called upon  to decide  whether  the claim was at all entertainable  on  the frame  of  the suit and it came to the conclusion  that  the court  was not competent to pass any decree for  recovery  a future  damages or mesne profits in the suit as  laid.   The defect  was of a nature which had to be decided  before  the merits  of the claim could be adjudicated upon nor did any occasion  or necessity arise of going into or examining  the merits of the aforesaid claim.  It could hardly be said that the  previous’  money  suit  of  1948  was  altogether  mis- conceived.  As has been pointed out by the High Court, in  a later  decision  of the same court in Makhan  Lal  Madak  v. Girish Chandra Jana (3 ) the view taken was that a claim for mesne profits even without a suit for recovery of possession might well be entertainable.  The plaintiffs’ claim had  not

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been  investigated  in  that suit  because  the  High  Court considered that the court was not competent to decree such a suit.   It  was  by  reason of an  infirmity  or  defect  of jurisdiction that there could neither be adjudication of the claim on the merits nor could it be decreed.  The defect  of jurisdiction  had  in  no  way been  brought  about  by  the plaintiffs  or by any absence of diligence or good faith  on their part.  They were thus fully entitled to the benefit of s. 14 (1) of the Act. Another principle which has been enunciated in certain deci- sions of the Privy Council and which is stated to be one  of general  application  has  been invoked  on  behalf  of  the plaintiff-respondents.   Rangnekar,  J., in  delivering  the judgment  of  the Division Bench in Narayan Jivaji  Patil  & Another v. Curunsthgouda Khandappa- (1)  I.L.R. (1916] 43 Cal. 660. (2) I. L. R. [1944] Lah. 451 (F.B.) (3)  66 C.W.N. 692. 404 gouda  Patil  & Another(1) discussed at length  the  various pronouncements   of  the  Privy  Council  and  deduced   the principle  that  where  a  claim  was  satisfied  either  by agreement  of parties or by decree of the court and  it  the satisfaction  or  decree  was set aside  subsequently  in  a judicial proceeding. a fresh cause of action would accrue in favour  of  the claimant.  In the present case it  could  be said  that the cause of action for future mesne profits  was satisfied by the decree which had been granted by the  trial court  in the money suit of 1948.  The High Court,  however, in  the  appeals decided by it by means of the  judgment  in India  Electric, Works Ltd. v. Mrs. B. S. Mantosh &  Ors.(2) delivered on June 30, 1955 had set aside that decree.  A new cause of action accrued in favour of the plaintiffs from the date of that judgment.  It is, however, unnecessary to  rest our decision on the principle relied upon by Rangnekar J. in the Bombay case because we are satisfied that the plaintiffs were  entitled  to deduction of time under s. 14(1)  of  the Act. The appeal fails and it is dismissed with costs. Hegde,  J. Though on the plain language of s. 14(1)  of  the Limitation  Act, I would have had no hesitation  in  holding that  the plaintiff cannot avail himself of the  benefit  of that  provision, as a misconceived suit, such as the one  he filed  earlier claiming future in mesne profits in  a  money suit cannot be said to be a claim which the court was unable to entertain from defect of jurisdiction or other cause of a like  nature  yet in view of the decision  of  the  Judicial Committee  in  Mst.  Ranee Surno Moyee  v.  Shooshee  Mokhee Burmonla  and Ors.(3), which decision has been  followed  in the later decisions of the Judicial Committee as well as  in several  decisions of High Courts, I am of the opinion  that it  is not in public interest to disturb a question  of  law which  has held the field for a long time.  The decision  of the Judicial Committee referred to earlier held that a claim which  is  satisfied,  an expression held  to  include  even getting  of a decree on a claim, if reopened because of  the decree  of the appellate court or otherwise, a new cause  of action  accrues  to the plaintiff on the  date  the  earlier satisfaction is taken away.  Applying that rule to the facts of the present case a new cause of action must be deemed  to have  accrued  to  the appellant in  respect  of  the  mesne profits under dispute once the decree of the trial court was set  aside by the High Court.  For this reason I agree  with the order proposed. V.P.S.

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(1) I. L. R. [1939] Bom. 173. (2) A. I. R. 1956 Cal. 148 at p. 155. (3)  12 Moore’s I. A. 244. 405