Civil Suit No. 43 of 2011 · High Court of Uttarakhand · 2025

Judgment

1. By m eans of t his pet it ion filed under Art icle 227 of t he Const it ut ion of I ndia, pet it ioner has sought t he following reliefs: - ( i) To set aside t he order dat ed 30.11.2024 ( cont ained as Annexure No. 1) passed by t he Ld. Dist r ict Judge, Rudrapur, Dist rict Udham Singh Nagar, in Revision Case No. 47 of 2022 nam ely, “Ashwini Kum ar Vs. Am it abh Kum ar and Ot hers” along w it h t he order passed by t he Ld. I I nd Add. Senior Civil Judge, Rudrapur, Dist rict Udham Singh Nagar, dat ed 12.09.2022 ( cont ained as Annexure No. 2) passed in Misc. Civil Applicat ion No. 15 whereby, t he Misc. Civil Applicat ion No. 15 of 2020 filed for rest orat ion of t he Civil Suit No. 43 of 2011 is dism issed. ( ii) To allow t he rest orat ion applicat ion ( cont ained as Annexure No. 7) filed by t he pet it ioner and t o rest ore t he original civil suit in it s original num ber 43 of 2011 nam ely “Ashwini Kum ar Vs Am it abh Kum ar & Ot hers” t he order dat ed 08.101.2014 by set t ing aside ( cont ained as Annexure No. 3) & 12.11.2014 ( cont ained as Annexure No. 4) passed by t he Ld. I I nd Add. Civil Judge ( SD) , Rudrapur, Dist rict Udham Singh Nagar.

2. Fact s of t he case, on which t here is no disput e, are as follows: - ( i) Sist er of t he pet it ioner ( Mrs. Aj ant a Sharm a) filed an applicat ion on 02.02.2011 for m ut at ing her 1 nam e in revenue record before Tehsildar, Kichha ( Udham Singh Nagar) on t he st rengt h of a Will, alleged t o have been execut ed in her favour by her fat her Lat e Vishnu Dut t , on 11.05.2010. The said applicat ion was num bered as Mut at ion Case No. 30/ 352 of 2010- 11. ( ii) Aft er com ing t o know about t he Will dat ed

11.05.2010, pet it ioner filed a suit for cancellat ion of said Will before 2 nd Addit ional Civil Judge ( S.D.) , Rudrapur, Dist rict Udham Singh Nagar, which was num bered as Civil Suit No. 43 of 2011. Aft er few m ont hs, pet it ioner m oved an applicat ion wit hdrawal of Civil Suit No. 43 of 2011 in order t o pursue t he m ut at ion case filed by his sist er before Tehsildar and t he said applicat ion was allowed and t he suit filed by him was dism issed as wit hdrawn, vide order dat ed 12.11.2014. ( iii) Proceedings of Mut at ion Case No. 30/ 352 of 2010- 11 were kept in abeyance due t o filing of suit for cancellat ion of Will by t he pet it ioner, however, aft er wit hdrawal of t he suit , proceedings of m ut at ion case were revived. The m ut at ion case was decided against t he pet it ioner and WPMS No. 3919 of 2019, filed by t he pet it ioner challenging t he orders passed by revenue aut horit ies, was also dism issed by coordinat e Bench of t his Court , vide j udgm ent dat ed

27.02.2020. ( iv) Aft er dism issal of his writ pet it ion, pet it ioner m oved an applicat ion for recall of t he order 2 dat ed 12.11.2014, whereby t he suit was dism issed as wit hdrawn, and also for rest orat ion of Civil Suit No. 43 of 2011. Since t here was delay of 2122 days in m oving t he recall/ rest orat ion applicat ion, t herefore, pet it ioner claim ed benefit of Sect ion 14 of t he Lim it at ion Act , 1963. Learned t rial court vide order dat ed 12.09.2022 held t hat benefit of Sect ion 14 cannot be given t o him and rej ect ed his prayer for

condonat ion of delay. Pet it ioner challenged t he order passed by t rial court by filing Civil Revision No. 47 of 2022, which was dism issed by learned Dist rict Judge, Udham Singh Nagar, j udgm ent dat ed

30.11.2024.

3. Pet it ioner has challenged t he order passed by t rial court , as affirm ed by revisional court , in t his writ pet it ion.

4. Heard learned counsel for t he part ies and perused t he record.

5. Bot h t he learned court s below have held t hat benefit of t he t im e spent by pet it ioner, in pursuing t he m ut at ion case before revenue aut horit ies, cannot be given under Sect ion 14 of t he Lim it at ion Act . Learned revisional court furt her held t hat benefit of Sect ion 14 can be given only when t he proceeding, which pet it ioner was prosecut ing before som e ot her forum , was not ent ert ained due t o defect of j urisdict ion or som e ot her cause of like nat ure. Revisional court furt her held t hat aft er losing t he m ut at ion case and aft er dism issal of his writ pet it ion by High Court , 3 pet it ioner cannot be perm it t ed t o t urn around and seek rest orat ion of t he suit for cancellat ion of Will by invoking Sect ion 14 of t he Lim it at ion Act . The reasoning given by learned t rial court , as affirm ed by learned revisional court , cannot be fault ed.

6. Sect ion 14 of t he Lim it at ion Act , 1963 is ext ract ed below for ready reference: - “ 1 4 . Ex cl u s i o n o f t i m e o f p r o ce e d i n g b o n a f i d e i n co u r t w i t h o u t j u r i sd i ct i o n .— ( 1) I n com put ing t he period of lim it at ion for any suit t he t im e dur ing w hich t he plaint iff has been prosecut ing wit h due diligence anot her civil proceeding, whet her in a court of first inst ance or of appeal or revision, against t he defendant shall be excluded, where t he proceeding relat es t o t he sam e m at t er in issue and is prosecut ed in good fait h in a court which, from defect of j urisdict ion or ot her cause of a like nat ure, is unable t o ent ert ain it . ( 2) I n com put ing lim it at ion t he period of for any applicat ion, t he t im e during which t he applicant has been prosecut ing wit h due diligence anot her civil proceeding, whet her in a court of first inst ance or of appeal or revision, against t he sam e part y for t he sam e relief shall be excluded, where such proceeding is prosecut ed in good fait h in a court which, from defect of j urisdict ion or ot her cause of a like nat ure, is unable t o ent ert ain it . ( 3) Not wit hst anding anyt hing cont ained in rule 2 of Order XXI I I of t he Code of Civil Procedure, 1908 ( 5 of 1908) , t he prov isions of sub- sect ion ( 1) shall apply in relat ion t o a fresh suit inst it ut ed on perm ission grant ed by t he court under rule 1 of t hat Order, where such perm ission is grant ed on t he ground t hat t he first suit m ust fail by reason of a defect in t he j urisdict ion of t he court or ot her cause of a like nat ure. Explanat ion.—For t he purposes of t his sect ion,— ( a) in excluding t he t im e during which a form er civil proceeding was pending, t he day on which t hat proceeding was inst it ut ed and t he day on which it ended shall bot h be count ed; ( b) a plaint iff or an applicant resist ing an appeal shall be deem ed t o be prosecut ing a proceeding; ( c) m isj oinder of part ies or of causes of act ion shall be deem ed t o be a cause of a like nat ure wit h defect 4 of j urisdict ion.”

7. Sect ion 14 of t he Lim it at ion Act prot ect s a person honest ly doing his best t o get his case t ried on m erit s, but failing, as t he court he approaches is unable t o give him such a t rial. I n order t o at t ract t he provision of Sect ion 14, following condit ions m ust be sat isfied, as held by Hon’ble Suprem e Court in t he case of Consolidat ed Engg. Ent erprises v. Principal Secret ary, I rrigat ion Depart m ent & ot hers, report ed in ( 2008) 7 SCC 169: - ( 1) Bot h t he prior and subsequent proceedings are civil proceedings prosecut ed by sam e part y; ( 2) The prior proceeding had been prosecut ed wit h due diligence and in good fait h; ( 3) The failure of t he prior proceeding was due t o defect of j urisdict ion or ot her cause of like nat ure; ( 4) The earlier proceeding and t he lat t er proceeding m ust relat e t o t he sam e m at t er in issue; and ( 5) Bot h t he proceedings are in a court .

8. An elem ent of m ist ake is inherent in t he invocat ion of Sect ion 14. The Sect ion is int ended t o provide relief against t he bar of lim it at ion in cases of m ist aken rem edy or select ion of a wrong forum .

9. Now com ing back t o t he fact s of t he present case. Pet it ioner earlier approached a civil court , which was t he appropriat e forum for t he relief claim ed by him , but lat er he wit hdrew t he suit in order t o pursue t he rem edy before Tehsildar in m ut at ion case, which was filed by his sist er on t he st rengt h of t he Will, which pet it ioner had challenged in t he civil suit .

10. Mut at ion proceedings are sum m ery in nat ure 5 in which quest ion of t it le is not decided. Law is well set t led t hat m ut at ion revenue records neit her creat es nor ext inguishes t it le, as it is done only for fiscal purpose, i.e. collect ion of land revenue. Aft er losing t he m ut at ion case, pet it ioner sought rest orat ion of t he civil suit earlier filed by him for cancellat ion of t he Will. Thus, t he condit ions, as set out in t he j udgm ent , rendered in t he case of Consolidat ed Engg. Ent erprises ( supra) , are not sat isfied.

11. I t is not a case where a person earlier approaches a wrong forum or t he earlier proceedings failed due t o defect of j urisdict ion or ot her cause of like nat ure. Pet it ioner him self wit hdrew t he civil suit , filed by him before appropriat e forum , for pursuing t he rem edy before Tehsildar in m ut at ion proceedings; t hus, he left t he proper forum for pursuing rem edy before a forum which was not com pet ent t o decide t he quest ion of t it le or validit y of Will, t herefore, he cannot get benefit of Sect ion 14 of t he Lim it at ion Act rest orat ion of earlier suit .

12. Even ot herwise also, one of t he condit ions for applicat ion of Sect ion 14 t hat bot h, prior and subsequent proceedings, are civil proceedings, whereas in t he present case, t he m ut at ion proceedings before Tehsildar are not civil proceedings. Hon’ble Suprem e Court in t he case of Zafar Khan & ot hers vs. Board of Revenue, U.P. & ot hers report ed in 1984 ( Supp) SCC 505 has held as under: - “ 1 3 . I n order t o at t ract t he applicat ion of Sect ion 14( 1) , t he part ies seek ing it s benefit m ust sat isfy t he court t hat : 6 ( i) t hat t he part y as t he plaint iff was prosecut ing anot her civil proceeding wit h due diligence; ( ii) t hat t he earlier proceeding and t he lat er proceeding relat e t o t he sam e m at t er in issue, and ( iii) t he form er proceeding was being prosecut ed in good fait h in a court which, from defect of j urisdict ion or ot her cause of a like nat ure, is unable t o ent ert ain t he earlier t he Code of Civil proceeding under Sect ion 144 of Procedure w as a civil proceeding t he purpose of Sect ion 14. I t m ay as well be assum ed in favour of t he appellant s t hat t hey were prosecut ing t he sam e w it h due diligence and in good fait h, as t hey relent lessly carried t he proceeding upt o t he High Court invoking it s ext raordinary t hree j urisdict ion. The cum ulat ive condit ions can be said t o have been sat isfied. I t m ay be assum ed t he aforem ent ioned first of t hat it . “ rest it ut ion” 1 4 . The appellant s m ust furt her sat isfy t he court t hat t he earlier proceeding i.e. t he one under Sect ion 144 of t he Code of Civil Procedure relat ed t o t he sam e m at t er in issue, as in t he present suit . There t he appellant s are not on sure ground. I n a proceeding under Sect ion 144 of t he Code of Civil Procedure, t he part y applying for rest it ut ion has t o sat isfy t he court of first inst ance t hat a decree under which it w as m ade t o part wit h t he propert y is varied or reversed or m odified in appeal or revision or ot her proceeding or is set aside or m odified in any suit inst it ut ed for t he purpose and t herefore, rest it ut ion m ust be ordered. Sect ion 144 is founded on t he equit able principle t hat one who has t aken advant age of a decree of a court should not be perm it t ed t o ret ain it , if t he decree is reversed or m odified. That is why t he m arginal not e t o Sect ion 144( 1) reads “ applicat ion for rest it ut ion” and t he it s et ym ological sense m eans rest oring t o a part y on t he m odificat ion, variat ion or reversal of a decree what has been execut ion of t he decree or in direct consequence of t he decree. I n such a proceeding, t he part y seeking rest it ut ion is not required t o sat isfy t he court about it s t it le or right t o t he propert y save and except showing it s deprivat ion under a decree and t he reversal or variat ion of t he decree. On t he reversal by t he Board of Revenue in t he appeal filed by t he appellant s of t he order of t he Addit ional Com m issioner under which t he respondent s obt ained t heir possession, applicat ion under Sect ion 144 t hat in view of t he reversal of t he order by t he Board of Revenue t he respondent s are t hat rest it ut ion not ent it led should be ordered because t he appellant s lost possession under t he order of t he Addit ional Com m issioner which w as reversed by t he Board of Revenue. The cause of act ion t he Addit ional Com m issioner. When t hey failed t o obt ain rest it ut ion, t he appellant s filed a subst ant ive suit under Sect ions 209 and 229- B of t he 1950 Act in which t hey claim ed t hat t hey t he appellant s m erely claim ed t o ret ain possession and t he order of reversal of t o him t he 7 is not I t was a suit on in accordance wit h respondent s obt ained possession have becom e t he bhum idhars of t he plot s in disput e and t hat t he respondent s are not ent it led t o ret ain possession t he t heir possession t it le as provisions of 1950 Act . bhum idhars for possession against respondent s alleging unaut horised ret ent ion of possession. I t had not hing t o do wit h t he order of t he Addit ional Com m issioner. I n t his suit t he appellant s were bound t o prove t hat t he respondent s were not ent it led t o ret ain possession under any of t he provisions of t he 1950 Act . I ncident ally, t he order of t he Addit ional Com m issioner and it s rev ersal would figure as evidence but it is difficult t o accept t hat t he subsequent proceeding relat es t o t he sam e m at t er in issue as w as involved in t he earlier proceeding. I n t he applicat ion under Sect ion 144 Code of Civil Procedure only allegat ion t o be proved for relief of rest it ut ion is t hat t he decree or order under which appellant s has been reversed, m odified or varied. They need not prove t it le or right t o be in possession. I n t he suit , not only t it le t o t he land as bhum idhar m ust be proved but also t he respondent s had not a t it t le of t it le t o ret ain possession. And respondent s can allege and prove t hat under t he v ery 1950 Act under which appellant s respondent s have becom e becam e bhum idhars, adhivasis ent it led t he t o appellant s. This defence was not open t o t hem in t he proceeding under Sect ion 144. I t w as, however, subm it t ed t hat t he appellant s were seeking, in bot h t he proceedings, possession of t he plot s involved in t he disput e on t he ground t hat t hey are ult im at ely ent it led t o t he possession t hereof and t he possession of t he respondent s vis- à- vis t he appellant s w as unaut horised and t hey were not ent it led t o ret ain possession against t he appellant s. This is far from convincing. One can at best say t here is a grey area and t hat as t he provision of Sect ion 14 is required t o be const rued liberally, t herefore we m ay not have denied t he t he benefit appellant s. t he ret ain possession against t he only aspect against t his was 1 5 . The quest ion however is whet her t he t hird condit ion for at t ract ing Sect ion 14( 1) is sat isfied. The appellant s m ust furt her sat isfy t he court t hat t he earlier proceeding failed on account of defect of j urisdict ion or ot her cause of a like nat ure. Now at no st age it w as cont ended t hat t he aut horit y rest it ut ion had no Jurisdict ion t o ent ert ain t he applicat ion, nor t hrough t he course of t he proceedings upt o t he High Court anyone, anywhere, quest ioned t he j urisdict ion of t he aut horit y t o grant rest it ut ion. Therefore, it can be safely said t hat t he previous proceeding did not fail on account of defect of j urisdict ion. t he applicat ion was m ade t o whom 1 6 . The next lim b of t he subm ission was t hat as in t he form er proceeding rest it ut ion w as refused on t he ground 8 t hat in t he proceeding under t he 1953 Act t he land in disput e w as allot t ed t o t he respondent s and t he allot m ent had becom e final, it can safely be said t hat t he proceeding failed on account of a cause of like nat ure such as defect of j urisdict ion and t he appellant s w ould be ent it led t o exclude t he t im e spent in t hat proceeding while com put ing t he period of lim it at ion in t he suit . I t is t rue t hat where “ from defect of t he expression as a whole j urisdict ion or ot her cause of a like nat ure, is unable t o ent ert ain it ” , t he expression “ cause of a like nat ure” w ill have t o be read ej usdem generis wit h t he expression “ defect of j urisdict ion” . So const rued t he expression “ ot her cause of a like nat ure” m ust be so int erpret ed as t o convey som et hing analogous t o t he proceeding words “ from defect of j urisdict ion” . The defect of j urisdict ion goes t o t he root of t he m at t er as t he court is incom pet ent t o ent ert ain t he proceeding. The proceeding m ay as w ell fail for som e ot her defect . Not all such defect s can be said t o be analogous t o defect of j urisdict ion. Therefore t he expression “ ot her cause of a like nat ure” on which som e light is shed by t he Explanat ion ( c) t o Sect ion 14 which provides “ m isj oinder of part ies or of causes of act ion shall be deem ed t o be a cause of a like nat ure wit h defect of j urisdict ion” , m ust t ake it s colour and cont ent from t he j ust preceding expression, “ defect of j urisdict ion” . Prim a facie it appears t hat t here m ust be som e prelim inary t he court would be obj ect ion which incom pet ent t o ent ert ain t he proceeding on m erit s, such defect could be said t o be “ of t he like nat ure” as defect of j urisdict ion. Conversely if t he part y seeking benefit of t he provision of Sect ion 14 failed t o get t he relief in earlier proceeding not wit h regard t o anyt hing connect ed wit h t he j urisdict ion of t he court or som e ot her defect of a like nat ure, it would not be ent it led t o t he benefit of Sect ion 14. Where, t he ealier proceeding on m erit s and not on defect of j urisdict ion or ot her cause of a lik e nat ure, it would not be ent it led t o t he benefit of Sect ion 14 of t he Lim it at ion Act . ( See I ndia Elect ric Works Lt d. v. Jam es Mant osh [ ( 1971) 1 SCC 24 : AI R 1971 SC 2313 : ( 1971) 2 SCR 397] .) ” it succeeds, t he part y t herefore, failed

13. I n view of t he legal posit ion, as discussed above, any int erference wit h t he im pugned j udgm ent and orders would be unwarrant ed. Thus, t he writ pet it ion fails and is hereby dism issed. ________________________ M A N OJ K UM A R TI W A RI , J.

15.05.2025 Aswal NITI RAJ SINGH ASWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=eacc6757ee7881e933ff8934f07477005aa85f9802a3a08b0 8d1369512ea30f3, postalCode=263001, st=UTTARAKHAND, serialNumber=44EB54CBF00B7698CB6F10C2CE3D26F5C22DACF4 F4610C1FE58A58531726FBB0, cn=NITI RAJ SINGH ASWAL 9