K.S. Radhakrishnan, J.@mdashThis appeal is preferred against the order in Original Petition (Indigent) No.8 of 2001 of Sub Court, Tirur. O.P.8/01 was preferred under Order 33, Rule 2 of the CPC seeking permission to institute the suit as indigent person. Suit was instituted for a decree for realisation of an amount of Rs. 36,65,129/- as damages from the respondent. Court fee payable was Rs. 2,06,560/-. Petitioner stated that he does not have sufficient means to pay the court fee. Consequently permission was sought for to file the suit as an indigent person. Respondent filed counter statement contending that the application is not proper, that the petitioner is not an indigent person and that the suit is barred by the Law of Limitation.
2. Question regarding the maintainability of the application under Order 33, Rule 2 and as to whether the application is barred by Law of Limitation was considered as a preliminary issue. Court below found that petitioner has substantially complied with the provisions contained in Order 33, Rule 2 CPC in making the application. Court below however, took the view that the suit is barred by Law of Limitation holding that the petitioner is not entitled to exclude the time spent for prosecuting the application in the Sub Court, Ernakulam in computing the period of limitation. Against the said finding this appeal has been preferred. In this case we are concerned only with the question as to whether the suit is barred by the Law of Limitation. Counsel on either side addressed their arguments only on that point. Under Order 33, Rule 5(f) while entertaining an application to sue as an indigent person the court can examine whether the suit is barred by Law of Limitation where the allegations made by the applicant in the application would show the same. Application to sue as an indigent person under Order 33, Rule 2 was initially filed before Sub Court, Ernakulam on 12.10.98. By order dated 28.6.2001, Sub Court, Ernakulam found that it had no jurisdiction to entertain the suit and only the Sub Court, Tirur has jurisdiction. Consequently returned the plaint for presentation before Sub Court, Tirur. Thereafter the application was filed by the petitioner before Sub Court, Tirur on 12.7.2001. Under Article 55 of the Limitation Act, the period prescribed for filing a suit for compensation for breach of contract is three years from the date when the contract is broken. Contract was broken on 5.3.1997. Application to sue as indigent persons was filed in Sub Court, Tirur only on 12.7.2001 beyond the period of three years. Consequently under Article 55 of the Limitation Act the suit is barred by Law of Limitation.
3. Counsel appearing for the appellant however took up the stand that since he had filed the suit in Ernakulam Sub Court on 12.10.98, i.e. within three years from 5.3.1997 he is entitled to get the benefit of Section 14 of the Limitation Act by which the period spent before the Sub Court, Ernakulam be excluded in reckoning the period of limitation. If the petitioner''s case falls u/s 14 of the Limitation Act, evidently that time has to be excluded. However, counsel appearing for the respondent Sri. T. Krishnan Unni submitted that petitioner is not entitled to get the benefit of Section 14 of the Limitation Act since he had not prosecuted the case before Sub Court, Ernakulam with due diligence and in good faith. Counsel appearing for the petitioner Sri. R. Mayakrishnan submitted that he was prosecuting the matter before the Sub Court, Ernakulam with due diligence and in good faith. Therefore he is entitled to get the benefit of Section 14 of the Limitation Act. Counsel also submitted though he had filed the suit before the Sub Court, Ernakulam on 12.10.1998 respondent filed preliminary objection only on 2.1.2000 and the court had passed order only on 18.6.2001, by the time the three year period mentioned in Article 55 of the Limitation Act expired. Counsel submitted if the court had passed the order within the period of limitation he could have filed the suit at Sub Court, Tirur within time. Consequently the suit would not have been barred by Law of Limitation. In order to establish his contention counsel referred to several decisions such as
4. The only question to be decided in this case is whether the petitioner is entitled to the benefit of Section 14 of the Limitation Act, 1963. The said provision is extracted below for easy reference:
14. Exclusion of time of proceeding bonafide 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.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding 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.
(3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of Sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under Rule 1 of that order, such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.
Explanation:- For the purpose of this section, -
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
In order to attract the above mentioned provision the petitioner has to satisfy three conditions: (1) the petitioner has been prosecuting the other civil proceeding with due diligence, (2) the earlier proceeding and the subsequent proceeding must relate to the same matter in issue and (3) earlier proceeding must have been prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature was unable to entertain it. In other words, identity of the matter in issue, due diligence and good faith of the petitioner and the absence of jurisdiction or other cause of a like nature, in the court which entertained the prior litigation are essential requisites for an application u/s 14(1). If the above mentioned essential requisites are present and the conduct of the person is bonafide, i.e. he has established his good faith, and he has been prosecuting with due diligence another civil proceeding, he is entitled to the benefit of this section or else he cannot take advantage of it. Further in order to attract the application of the section, the subsequent suit must be against the defendant in the previous case and in the two proceedings there should be the same subject-matter, and the court in which the earlier suit was being prosecuted should be unable to entertain it from defect of jurisdiction or other cause of a like nature. The section applies in terms to suits as well as applications like Order 33, Rule 2 in the instant case. If we hold that petitioner was prosecuting the proceeding before the Sub Court, Ernakulam with due diligence and in good faith as we have already indicated he is entitled to get the benefit of Section 14. The cardinal policy of the provisions of Section 14 is to furnish protection against the bar of limitation to a person who honestly and diligently solicits a trial on merits in a forum having no jurisdiction and which forum cannot afford him such a trial. Petitioner cannot be said to have prosecuted the suit with due diligence within the meaning of Section 14 when owing to his own negligence or default, the suit is so framed that the court cannot try it on the merits.
5. That being the legal position we may examine the facts of this case. We have already indicated that the agreement was entered into between the parties on 9.11.1995. Clause 22 of the agreement is relevant for the purpose which is extracted below:
22. The courts having jurisdiction over Kottakkal alone will have jurisdiction to decide all disputes arising out of this contract.
Courts having jurisdiction over Kottakkal is Parappanangadi Munsiff Court, Tirur Sub Court and Manjeri District Court. Since the valuation of the suit is more than one lakh the court having jurisdiction to decide the suit is Sub Court, Tirur. This fact is conceded by the petitioner. Consequently he had to file the indigent application before Sub Court, Tirur. He was aware of Clause 22 of the agreement dated 9.11.95. If the petitioner and counsel were vigilant they would not have filed the suit before Sub Court, Ernakulam but only before Sub Court, Tirur. Before instituting the suit at Ernakulam on 12.10.1995 the petitioner had sent a lawyer notice to the respondent on 30.3.1998 to which respondent replied by registered letter dated 21.4.98. In paragraph 6 of the reply notice issued it has been specifically stated as follows:
"Having regard to the peculiar facts and circumstances, Arya Vaidya Sala is not prepared for any Arbitration as suggested in your notice. There is no question of trade dispute in this matter. You are also advised to inform your client that if the claim made by Arya Vaidya Sala towards damages is not met within a period of 30 days, they have no alternative except to file a suit for damages before Sub Court. Tirur the court which alone has got jurisdiction to try any suit under the terms of the Agreement".
Respondent has also filed a counter affidavit on 26.9.99 in I.A.4190/98. In paragraph 5 of the counter affidavit it has been specifically stated as follows:
"It is submitted that in the agreement itself it has been specifically stated that the courts having jurisdiction over Kottakkal alone will have jurisdiction to decide all disputes arising out of the contract. Hence even if the petitioner has any claim or dispute, he has to approach the courts having jurisdiction over Kottakkal. The agreement was entered into at Kottakkal and it had to be performed at Kottakkal. As per the agreement the machinery had to be delivered, erected and commissioned at Kottakkal. The place of business, Factory, residence of this respondent etc. are also at Kottakkal. Hence only the Subordinate Court, Tirur alone will have jurisdiction to adjudicate any dispute arising out of the contract, and this Hon''ble Court has no jurisdiction to adjudicate the dispute arising out of the contract entered into between the petitioner and this respondent and on that ground itself the suit and the application for permission to sue as an indigent person is liable to be dismissed."
Later respondent also filed a preliminary objection on 2.1.2000, wherein it is stated as follows:
"It is submitted that in the agreement entered into between the petitioner and this respondent itself it has been specifically stated that the courts having jurisdiction over Kottakkal alone will have jurisdiction to decide all disputes arising out of the contract. Hence even if the petitioner has any claim or dispute, he has to approach the courts having jurisdiction over Kottakkal................ Hence only the Subordinate Court, Tirur alone will have jurisdiction to adjudicate any dispute arising out of the contract, and this Hon''ble Court has no jurisdiction to adjudicate the dispute arising out of the contract entered into between the petitioner and this respondent and on that ground itself the suit and the application for permission to sue as an indigent person is liable to be dismissed".
It is evident from the above mentioned facts that the respondent all along had alerted the petitioner that the Sub Court, Ernakulam had no jurisdiction and only the Sub Court, Tirur had got jurisdiction. Lawyer notice, counter affidavit to I.A.4190/98 and the preliminary objection were filed within the period of limitation and therefore within the period of limitation itself petitioner could have got the petition withdrawn and file it before Sub Court, Tirur. Petitioner prosecuted the suit without due diligence, any care and attention in spite of the fact that he was alerted about the wrong filing of the suit before the Sub Court, Ernakulam. In connection we may refer to the Division Bench decision of the Delhi High Court which examined the scope of Section 14 of the Limitation Act in ILR 1970 (2) DEL 60. Delhi High Court took the view that a wrong legal advice is not a ground to exclude the period of limitation. Appellant submitted he was advised to institute the suit at Ernakulam Sub Court. We are of the view even if there is a wrong advice and party has acted by that advice that itself is not a ground to get the benefit of Section 14 of the Limitation Act.
6. Expression "good faith" has been defined u/s 2(h) of the Limitation Act which reads as follows:
(h) ''good faith'' nothing shall be deemed to be done in good faith which is not done with due care and attention.
Legislature has advisedly used the words "due diligence" in Section 14(1), so also the expression "good faith". This is a case where the respondent''s lawyer has alerted the petitioner and his lawyer as early as on 21.4.1998 that as per the agreement only the Sub Court, Tirur has got jurisdiction. The petitioner and his lawyer preferred to contest the preliminary objection raised by the respondent with regard to the jurisdiction of the Sub Court, Ernakulam and got an adverse order after the period of limitation. We are of the view petitioner was not prosecuting the matter with due diligence or in good faith before the Sub Court, Ernakuam. Under such circumstance we are of the view petitioner is not entitled to get the benefit of Section 14(1) of the Limitation Act. Consequently the court below is justified in dismissing the application holding that the petitioner is not entitled to exclude the time spent for prosecuting the application in the Sub Court, Ernakulam in computing the period of limitation. Court below has rightly dismissed the application under Clause (f) of Rule 5 of Order 33 C.P.C. CMA would stand dismissed. No costs.
