Supreme Court Dismisses Appeal by Plaintiffs in Limitation and Karewa Marriage Forfeiture Case. Withdrawal of Suit Under Order XXIII Rule 1(3) CPC Without Proving Formal Defect Does Not Enable Exclusion of Time Under Section 14 Limitation Act.

Civil dispute over inheritance and possession of ancestral land, involving forfeiture of widow's rights upon remarriage and limitation for filing a fresh suit after withdrawal.

The plaintiffs sought a declaration of ownership and possession of a 2/3 share in the estate of Dalip Singh, and later, in a fresh suit, recovery of possession.

The plaintiffs claimed that the widow of Dalip Singh had forfeited her rights by contracting a Karewa marriage with her brother-in-law, and as reversionaries they were entitled to inherit. The fresh suit was filed after the earlier suit was withdrawn with permission, leading to limitation issues.

The original declaratory suit was dismissed by the trial court, but the first appellate court allowed the appeal. The High Court dismissed the second appeal and granted a certificate to appeal to the Supreme Court on the question of Karewa marriage. A separate suit for possession was withdrawn with permission to file a fresh suit. The Supreme Court earlier dismissed the appeal, holding that the widow had lost her rights. The fresh suit was dismissed by the trial court as barred by limitation and on adverse possession, which was affirmed by the Additional District Judge and the High Court.

Whether the plaintiffs were entitled to exclude the time spent in prosecuting the earlier suit under Section 14 of the Limitation Act, 1963, after withdrawing that suit with permission to file a fresh suit under Order XXIII Rule 1(3) of the Code of Civil Procedure, 1908. Whether the withdrawal of the earlier suit complied with the requirements of Order XXIII Rule 1(3) CPC, i.e., whether there was a formal defect or sufficient grounds for granting permission to withdraw with liberty to file a fresh suit.

The appellants contended that since the plaintiffs had withdrawn their earlier suit with permission to file a fresh suit on the same cause of action in accordance with Order XXIII Rule 1(3) CPC, they were entitled to exclude the time spent in prosecuting that earlier suit under Section 14 of the Limitation Act. The respondent, relying on the concurrent findings of the courts below, argued that the suit was barred by limitation and that the defendant had perfected her title by adverse possession.

Permission to withdraw a suit with liberty to file a fresh suit under Order XXIII Rule 1(3) CPC does not automatically entitle a plaintiff to exclude time under Section 14 of the Limitation Act, 1963. For Section 14 to apply, the plaintiff must prove that the earlier proceedings related to the same matter in issue and were prosecuted in good faith in a court which, from defect of jurisdiction or other cause of like nature, was unable to entertain the suit. A mere order granting permission to withdraw without recording satisfaction of a formal defect or sufficient grounds is not sufficient to invoke Section 14.

The question, therefore, that arises for our consideration is where the plaintiffs appellants were permitted to withdraw the suit in accordance with the provisions contained in clause (3) of Order XXIII, rule 1 of the Code and whether in the facts and circumstance of the present case the plaintiffs appellants are entitled for exclusion of the time under Section 14 of the Act. Clause (3) of Order XXIII rule 1 of the Code conmtemplates that where the Court is satisfied... that a suit must fail by reason of some formal defect, or (b) that there are sufficient ground for allowing the plaintiff to institute a fresh suit for the subject matter of the suit or part of a claim, it may on such terms as it thinks fit, grant the polaintiff permission to withdraw from such suit or such part of claim with liberty to institute a fresh suit. As discussed above the plaintiffs appellants have miserably failed to show as to what was the defect of jurisdiction or any other cause of like nature by reason of which the earlier suit was not entertainable or competent. That being so, the benefit of the provisions of 14 cannot be legitimately extended to the plaintiffs.

The plaintiffs initially filed a declaratory suit seeking declaration of ownership of a 2/3 share in the estate of Dalip Singh. The trial court dismissed that suit, but the first appellate court reversed the decision. The High Court dismissed the second appeal and granted certificate to appeal to the Supreme Court on the question whether a widow forfeits her rights by Karewa marriage. Subsequently, the plaintiffs withdrew another suit for possession with permission to file a fresh suit. The Supreme Court dismissed the appeal, holding that the widow had lost her rights. Thereafter, the plaintiffs filed a fresh suit for possession, which was dismissed by the trial court as barred by limitation and on the ground of adverse possession. The Additional District Judge and the High Court affirmed the dismissal, leading to the present appeal before the Supreme Court.

• Limitation Act, 1963: Section 14
• Code of Civil Procedure, 1908: Order XXIII Rule 1