Mr. M.R. Shah, J.(Oral) - Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned 3rd Additional Senior Civil Judge, Gandhinagar (hereinafter referred to as the "learned trial Court") passed in Special Civil Suit No. 196 of 1995, by which, the learned trial Court has dismissed the said suit relying upon the decision of the Division Bench of this Court in First Appeal No. 413 of 2000 (which was subsequently recalled by the High Court) and also on the ground that the suit was barred by law of limitation, the original plaintiff has preferred the present First Appeal.
2. The facts leading to the present First Appeal in nutshell which are necessary for deciding the present First Appeal are as under:
2.1. That the original plaintiff and State of Gujarat entered into the contract for Karjan Left Bank Canal 7.08 to 15.94 Km for doing earthwork and lining. The work order was issued on 16.11.1981. The work was to be completed within 24 months i.e. upto 15.11.1983. It appears that thereafter, time to complete the work was extend upto 30.06.1988. It appears that final bill was submitted by the original plaintiff contractor on 31.3.1989 and the payments under the final bill was made on 31.3.1989, which the plaintiff accepted under protest. That thereafter, the plaintiff served the statutory notice under Section 80 of the Code of Civil Procedure on 28.03.1992, which was received by the defendant on 30.03.1992 and thereafter after excluding period of vacation, original plaintiff instituted Special Civil Suit No. 196 of 1995 before the learned trial Court on the first day of reopening i.e. 15.6.1992. That thereafter, the learned trial Court relying upon the decision of the Division Bench of this Court in First Appeal No. 423 of 2000 dismissed the suit on the ground that as held by the Division Bench in aforesaid First Appeal, the Civil Court has no jurisdiction to try the suit instituted prior to 1.1.1994. The learned trial Court by impugned judgment and decree has dismissed the suit also on the ground that the suit is barred by law of limitation, more particularly Articles 55 and 113 of the Limitation Act. That the learned trial Court has not thereafter adjudicate the claim on merits and has dismissed the suit on the aforesaid two grounds alone.
2.2. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned trial Court, the original plaintiff has preferred present First Appeal.
3. Shri S.N. Soparkar, learned Senior Advocate has appeared with Shri Amar Bhatt, learned advocate for the original plaintiff and Shri Rakesh Patel, learned Assistant Government Pleader has appeared on behalf of the State.
3.1. Shri S.N. Soparkar, learned Senior Advocate for the appellant has vehemently submitted that the learned trial Court has materially erred in dismissing the suit relying upon the decision of this Court in First Appeal No. 413 of 2000. It is submitted that subsequently the very Division Bench had recalled the judgment and order passed in First Appeal No. 413 of 2000. It is submitted that therefore, when the judgment and order passed in First Appeal No. 413 of 2000 is recalled, the learned trial Court is not justified in relying upon the judgment and order which was already recalled.
3.2. It is further submitted by Shri Soparkar, learned Senior Advocate for the appellant that the learned trial Court has materially erred in dismissing the suit on the ground of limitation. It is further submitted by Shri Soparkar, learned Senior Advocate for the appellant that learned trial Court has erred in holding that the suit is barred by Articles 55 and 113 of the Limitation Act.
3.3. It is further submitted that while holding the suit barred by limitation, the learned trial Court has not properly appreciated fact that final bill was submitted on 31.3.1989 and the same was paid on 31.3.1989, which the plaintiff accepted under protest, as according to the plaintiff certain claims were not included, which were additional claims and which arose after the decision of the Arbitrator. It is submitted that learned trial Court has also not appreciated the fact that before instituting the suit, statutory notice under Section 80 of the Code of Civil Procedure was given on 28.03.1992, which was received by the respondent on 31.03.1992 and that thereafter on completion of statutory period of 60 days and thereafter on the very first day of the reopening of the Court i.e. 15.6.1992, the suit was instituted. It is submitted that therefore, the learned trial Court has materially erred in dismissing the suit on the ground of limitation. Shri Soparkar, learned Senior Advocate for the appellant has heavily relied upon the decision of the Hon''ble Supreme Court in the case of Disha Constructions and others v. State of Goa and Another reported in (2012) 1 SCC 690.
Making above submissions and relying upon the above decision, it is requested to allow the present First Appeal and to quash and set aside the impugned judgment and award passed by the learned trial Court dismissing the suit and to remand the matter to the learned trial Court to decide the suit on merits.
4. Present appeal is vehemently opposed by Shri Rakesh Patel, learned Assistant Government Pleader appearing on behalf of the respondent State. Relying upon the decision of the Hon''ble Supreme Court in the case of State of Gujarat v. M/s. Kothari & Associates in SLP (Civil) Case No. 1770 of 2005 dated 16.10.2015 and more particularly, relying upon para 13 of the said decision and relying upon Article 55 and 113 of the Limitation Act, it is vehemently submitted by Shri Patel, learned AGP that in the facts and circumstances of the case learned trial Court has not committed any error in dismissing the suit on the ground of limitation. However, has fairly conceded that the reliance placed upon the decision of this Court in First Appeal No. 413 of 2000, by the learned trial Court while dismissing the suit cannot be sustained as the decision in First Appeal No. 413 of 2000 was subsequently recalled by the Division Bench and therefore, the same could not have been relied upon by the learned trial Court.
Making above submissions and relying upon the aforesaid decisions of the Hon''ble Supreme Court in the case of M/s. Kothari & Associates (supra) and Articles 55 and 113 of the Limitation Act, it is requested to dismiss the present Appeal.
5. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that by impugned judgment and decree, the learned trial Court has dismissed the suit preferred by the original plaintiff � appellant herein relying upon the decision of this Court in First Appeal No. 413 of 2000 and also on the ground of limitation, more particularly, Articles 55 and 113 of the Limitation Act.
6. Now, so far as the reliance placed upon the decision of the Division Bench of this Court in First Appeal No. 413 of 2000 by the learned trial Court while dismissing the suit on the ground that for the suit instituted prior to 1.1.1994, Civil Court would not have any jurisdiction is concerned, the same cannot be sustained in view of the fact that subsequently the very judgment and order passed in First Appeal No. 413 of 2000 was recalled and therefore, thereafter the same would not be in existence. Under the circumstances, the learned trial Court has committed a gross error in relying upon the decision of this Court in First Appeal No. 413 of 2000 which was subsequently recalled. It appears that the attention of the learned trial Court was not drawn to the fact that subsequently judgment and order passed in First Appeal No. 413 of 2000 was recalled and therefore, the aforesaid mistake seems to have occurred. Be that as it may, the finding recorded by the learned trial Court that Civil Court would not have jurisdiction, relying upon the decision of the Division Bench in First Appeal No. 413 of 2000 cannot be sustained, as the said decision in First Appeal No. 413 of 2000 was subsequently recalled.
7. Now, so far as the finding recorded by the learned trial Court by dismissing the suit on the ground that suit is barred by law of limitation, more particularly, Articles 55 and 113 of the Limitation Act is concerned, it is required to be noted that in the present case the final bill was submitted on 31.3.1989 and the same was paid on 31.3.1989, which the plaintiff was accepted under protest as according to the plaintiff certain claims were not included which were additional claims and the claims which arose after the decision of the Arbitrator. That thereafter, within a period of three years from 31.3.1989, statutory notice under Section 80 of the Code of Civil Procedure was given by the plaintiff on 28.3.1992, which was received by the plaintiff on 30.03.1992. It is submitted that statutory period was over on 30.05.1992, on which, the Court was closed due to vacation. That thereafter, on the very first day of the reopening of the Court i.e. 15.6.1992, the suit has been instituted. Therefore, considering Section 15(2) of the Limitation Act, it cannot be said that the suit was barred by Articles 55 and 113 of the Limitation Act. At this stage, decision of the Hon''ble Supreme Court in the case of Disha Constructions and others (supra) is required to be referred to and considered. In the identical facts and circumstances of the case and considering Section 15 of the Limitation Act, the Hon''ble Supreme Court has held the suit is within the period of limitation. The Hon''ble Supreme Court in the said decision has observed and held in para 15 & 16 as under:
15. Under Section 2(j) of the Act, the "period of limitation" means the period prescribed for any suit, or other proceeding by the Schedule and the "prescribed period" means the period of limitation computed in accordance with the provisions of the Act. If we follow the aforesaid principles, as we must, we find that the erroneous interpretation which has been given by the High Court will have the effect of denying the appellants the benefit of Section 15(2) which is not permissible in the eye of law.
16. In our view, proper interpretation of Section 15(2) of the Act would be that in computing the period of limitation, the period of notice, provided notice is given within the limitation period, would be mandatorily excluded. That would mean a suit, for which period of limitation is three years, would be within limitation even if it is filed within two months after three years, provided notice has been given within the 8 limitation period. In such a case, the period of notice cannot be counted concurrently with the period of limitation. If it is done, then period of notice is not excluded. Any other interpretation would be contrary to the express mandate of Section 15(2) of the Act
8. Now, so far as reliance placed upon the decision of the Hon''ble Supreme Court in the case of Kothari & Associates (supra) is concerned, we are of the opinion that on facts the said decision shall not be applicable to the facts of the case on hand and same shall not be of any assistance to the plaintiff. It is submitted that in the case before the Hon''ble Supreme Court, the Hon''ble Supreme Court on facts found that there were successive breaches and considering Article 55 of the Limitation Act, the Hon''ble Supreme Court has observed that period begins to run when the breach in respect of which the suit is instituted, occurs. Therefore, the said decision shall not be applicable to the facts of the case on hand.
8.1. Even the reliance placed upon para 13 of the said decision by the learned AGP is concerned, on considering para 13 and the facts of the case before the Hon''ble Supreme Court to the said decision and the facts of the case on hand, we are of the opinion that para 13 of the said decision shall not be of any assistance to the respondent State. In the case before the Hon''ble Supreme Court the statutory notice under Section 80 of the Code of Civil Procedure was found to have been issued after the suit became time barred. In the present case, statutory notice under Section 80 of the Code of Civil Procedure was given within the period of limitation to file the suit i.e. within the period of three years from the payment under the final bill which was accepted under protest on 31.3.1989. In view of the aforesaid facts and circumstances of the case and more particularly, Section 15(2) of the Limitation Act and the facts narrated herein above, we are of the opinion that the learned trial Court has committed gross error in dismissing the suit on the ground of limitation. For the reasons stated above, suit is held to be within the period of limitation. Under the circumstances, impugned judgment and award passed by the learned trial Court dismissing the aforesaid suit deserves to be quashed and set aside as the learned trial Court has not adjudicated the claim on merits, the matter is required to be remanded to the learned trial Court to adjudicate the claim on merits.
9. In view of the above and for the reasons stated above, present appeal succeeds. The impugned judgment and decree passed by the learned 3rd Additional Senior Civil Judge, Gandhinagar passed in Special Civil Suit No. 196 of 1995 is hereby quashed and set aside and it is held that the suit was within the period of limitation. Matter is remanded to the learned trial Court how to consider the suit on merits. Now, on remand the learned trial Court to adjudicate the claim on merits. However, it is made clear that on remand, the learned trial Court is not required to reconsider/readjudicate the issues which are already held in favour of the plaintiff as the same has not been challenged by the State Government and it has attained the finality. Considering the fact that original suit is of the year 1992, the learned trial Court is directed to finally decide and dispose of the suit on remand as stated above at the earliest but not later than 12 months from the date of receipt of the writ of the present order. All concerned are directed to cooperate the learned trial Court in early disposal of the suit and within the stipulated time as stated herein above. Present appeal is allowed to the aforesaid extent. No costs. Registry is directed to return the Record and Proceedings of the case, if any, to the learned trial Court forthwith.
