' This revision petition is directed against the judgment, dated 13tH November, 1981 of the learned Additional District Judge, Lahore, whereby he upheld the judgment, dated 22nd October, 1979 of the trial Court holding the suit to be within time.
2. The question of law involved in this revision petition is as to whether benefit of section 14 of the Limitation Act (No, IX of 1908) (herein after called the Act) was validly granted by the Courts below.
It is an admitted fact that the respondent plaintiff previously instituted a suit mandatory injunction for the removal of the super-structure at the , in dispute, on 27th September, 1961 which was later on withdrawn on 4th October, 1970 with permission to file a fresh one. The fresh suit was statute on 20th July, 1976. The Courts below have treated it within me. It is not disputed that the case is covered by Article 144 of the Act and, therefore, the suit should have been brought within 12 years from e date when the possession of the defendant became adverse to the plaintiff. Learned counsel for the petitioner contended that the provisions section 14 of the Act were not applicable where a suit was withdrawn the plaintiff under Order XXIII, rule 1, Code of Civil Procedure. He submission is that section 14 of the Act can be involved only where e first Court had not entertained a suit or appeal due to defect of reduction or other cause of a like nature. In the instant case, the envious suit did not suffer from lack of jurisdiction but liberty was granted the respondent plaintiff to file a fresh suit subject to the law of limitation. Armed counsel for the respondent submitted that the provisions of section of the Act are fully applicable not only to cases in which a man brings unit in a Court which lacks jurisdiction to entertain it but also where a it is brought before a competent Court but nevertheless the plaintiff is revented from getting trial on merits. The submission is that second it filed by the respondent plaintiff is covered by the expression "other use of a like nature".
3. The rationale behind section 14 of the Act is the protection against the bar of limitation of a party bona fide pursuing his case and eking adjudication on merits but nevertheless prevented from getting trial on merits on account of defect of jurisdiction or other cause of a e nature. Applying the well-established rule in the construction of tutus, the phrase "other cause of a like nature" has a meaning sdem generis with the words, "defect of jurisdiction". Hence it is use analogous to the defect of jurisdiction. Refer Mathura Singh v.I awani Singh (1). The present case is of a different nature. The first it was not withdrawn for defect of jurisdiction or other cause of a like true. Here the respondent plaintiff brought a suit which he late threw with permission of the Court to file a fresh one under Order III, rule 1, Code of Civil Procedure, and therefore, section 14 of that was not applicable in view of the provisions of rule 2 of the said order, which provides that in any fresh suit instituted on permission grant order rule 1, the plaintiff shall be bound by the law of limitation in the manner as if the first suit had not been instituted. Refer Upendra Hath Nag Chowdhury v. Surya Kanta Roy Chowdhury (2), wherein it was d that the fact that the plaintiff brought the previous suit which he t constrained to withdraw did not entitle him to a deduction of the during which that suit remained pending. Also refer Varajlal aishankar Se/at v. Shomeshwar (3), wherein it was held that the proving of section 14 of the Act were not applicable where the suit was thrown by the plaintiff under Order XXIII, rule. 1, Code of Civil overdue, with permission to bring a fresh suit. This decision was
(1) I L R 22 All. 248 (2) 20 I C 205
(3) 1L R, 29 Bom. 219 ' followed in Arunachellam Chettlar v. Lakshmana Ayyar (1). The same view was followed by Allahabad High Court in Rahim Ali v. Yehia Khan (2). Respectfully following the ratio laid down in the aforsaide precedents, I hold that provisions of section 14 of the Act were not applicable in this case as the previous suit was withdrawn by the respondent plaintiff under Order XXIII, rule I, Code of Civil Procedure, with permission to bring a fresh suit and the respondent/plaintiff was, therefore, bound by the law of limitation in the same manner as if the fresh suit had not been instituted.
4. Learned counsel for the respondent, however, took up the plea that even if the period spent in pursuing the first suit was excluded while computing the period of limitation, the suit was within time. The contention has no force. As per averments made in the plaint the Provisional Transfer Order was issued in favour of the respondent/plaintiff on 19th October, 1961. At the time of demarcation of the plot, in dispute, the Deputy Settlement Commissioner observed by order, dated 20th December, 1961 that the petitioner/defendant had wrongfully taken over possession of the plot bearing No, 3512/1 transferred to the respondent/plaintiff instead of plot bearing Khasra No, 3512/2.
Thereafter, the Permanent Transfer Deed was also issued on 30th April, 1963. The period of limitation for instituting a suit for possession would, therefore, commence from 20th December, 1961 when the factum of the alleged wrongful possession of the plot, in dispute, came to the knowledge of respondent/plaintiff and not from 20th December, 1964 when the Settlement Commissioner in pursuance of the report of the Deputy Settlement Commissioner observed, "the parties may guard their own interest and the Settlement Department had nothing to do in the matter".
' In view of the above, the judgments of the Courts below are set aside, the suit is dismissed and the revision petition is accepted with costs throughout.
(1) I L R 39 Mad. 936 (2) Al R 1928 All. 402 (2) revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.