Sitaro Devi vs Mohammed Saleem and Others

Vineet Kothari, J.

This present first appeal is arising out of the judgment and decree dated 13.07.2004 passed by the learned Additional District Judge (Fast Track) No. 2, Bhilwara in Civil Original Suit No. 302/2003 "Sitaro Devi vs. Mohammed Saleem and Ors." who dismissed the suit filed by the present appellant-plaintiff seeking 20 cancellation of agreement, declaration and injunction. The appellant-plaintiff Smt. Sitaro Devi wife of late Shri Raghunandan Prasad Jain has filed the present first appeal under Section 96 of the Code of Civil Procedure against the respondents-defendants Mohammed Saleem son of Shri Kamruddin Mqmin being aggrieved by the judgment of the learned Trial Court of 25 Additional District Judge (Fast Track) No. 2, Bhilwara dismissing the Civil Original Suit No. 302/2003 "Sitaro Devi vs. Mohammed Saleem and Ors." on 13.07.2004, as the plaintiff failed to lead any evidence in her favour. The suit aforesaid was filed for declaration and specific performance of the contract allegedly in favour of her father Amanat Rai and injunction against the respondents-defendants. The suit was 30 dismissed by the learned Trial Court by passing a short-order which is quoted herein below for ready reference:-

The present first appeal was filed in this Court by the plaintiff-appellant Smt. Sitaro Devi on 03.01.2005 and was lying on the defect side for a considerable period and in the last date, on 26.05.2011, this Court granted four week''s time to the learned counsel for the appellant to remove all the defects. Thereafter, on 09.07.2012, this 5 Court, issued fresh notices in relation to the unserved respondents to be given ''Dasti'' and direct service was also permitted. After service of the notices on the respondents, the learned counsel Mr. Ravi Bhansali, has put in appearance for the respondents-defendants and after hearing both the learned counsels for the parties, on 05.01.2015, this Court this Court passed the following order, which is quoted 10 herein below for ready reference:--

"Learned counsel for the appellant/plaintiff may inform the Court on the next date as to whether against the order passed in SBCWP No. 7572/2007, Smt. Sitaro Devi vs. Mohd. Saleem and Ors. dismissing the writ petition on 29.11.2007, by a coordinate bench of this Court, has become final or not, and whether the appellant has challenged the said order before another higher court or not.

The suit in the present case has been dismissed by the court below essentially on the ground that the appellant/plaintiff has not produced any evidence despite opportunity given by the court on 13.07.2004. Even though the present first appeal is now being argued at the admission stage after ten years of the impugned judgment and decree still the learned counsel for the appellant does not have the up-to date instructions with him about the date of order dated 29.11.2007 passed against the appellant, in which the learned Single Judge clearly held that she being one of the legal representatives of late Sh. Amanat Rai, was bound by the decree against her and her brother, namely, Sukhmal Chandra S/o. Sh. Amanat Rai, in which he challenged the redemption of mortgage by the respondent, who has already sold the property in question after redemption to the respondents and, therefore, lis had come to an end.

No useful purpose will be served in entertaining this first appeal of the appellant/plaintiff in a suit for declaration filed by her claiming declaration of her rights and share in the suit property if she has not challenged the order dated 29.11.2007 dismissing her writ petition, referred above and if that has become final.

Counsel may take instructions in this regard and inform the Court about the same on the next date. Put up on 12.01.2015."

The learned counsel Mr. Raj Singh Chahar on behalf of Mr. Sajjan Singh appearing for the appellant-plaintiff without apprising the Court about last date''s instructions submitted on merits today that the case was set down before the learned Trial Court on 13.07.2004 on the application filed by the defendants under Order 14 Rule 2 of the Code of Civil Procedure for deciding the preliminary issues arising in the matter first though on the previous date i.e. 01.06.2004, time for producing the evidence was sought by the learned counsel for the appellant-plaintiff and it was directed by the learned Trial Court, while granting last opportunity, that on the next date, evidence may be produced by the plaintiff. It is urged by the learned counsel Mr. Raj Singh Chahar that the appellant-plaintiff was under the impression that the matter would be first heard for deciding the preliminary issues though no evidence on behalf of the plaintiff was produced before the learned Trial Court on 13.07.2004. The learned counsel further submits that the learned Trial Court on 13.07.2004 without first deciding the application under Order 14 Rule 2 CPC of the defendants and without deciding the preliminary issues had dismissed the suit of the plaintiff for not leading the evidence in support of the issues framed and which were required to be proved by the plaintiff. He, therefore, submits that the present first appeal filed by the appellant-plaintiff deserves to be allowed and the matter deserves to be remanded sent to the learned Trial Court for fresh trial.

On the other hand, the learned counsel Mr. Ravi Bhansali appearing for the respondents-defendants submitted that the litigation between the parties has a long chequered history and starts from the year 1945 till date and the matter has traveled upto this court also on earlier occasions and the plaintiff/her family members, who are Legal Representatives of late Shri Amanat Rai, have lost the legal battle with respect to this very suit property in similar suits and a brief synopsis of the long chequered history of the litigation between the parties as per the list of dates given by Mr. Ravi Bhansali, which is not disputed by other side is reproduced herein below for ready reference:--

The learned counsel Mr. Ravi Bhansali appearing for the respondents-defendants, therefore, contended that the appellant-plaintiff Smt. Sitaro Devi now cannot be permitted to agitate the matter in the present suit for declaration of sale deed 08.03.1961 to be void and seek specific performance in her favour for same suit property and since with the right of redemption of mortgage, the property was already transferred in favour of the respondents-defendants Kamruddin etc. by registered sale dated 08.03.1961 and, therefore, at this stage, the present suit for declaration and specific performance of the agreement cannot be permitted. The learned counsel Mr. Ravi Bhansali strongly opposed the prayer made by the learned counsel for the appellant-plaintiff for remand of the case to the learned Trial Court for de novo trial which in any case would be an exercise in futility. He also urged that the challenge to redemption of mortgage against Amanat Rai, father of the present plaintiff-appellant, has failed upto this court with dismissal of S.B. Civil Second Appeal No. 264/2006 "Sukhmal Chandra (brother of the present plaintiff-appellant) vs. LRs of Kamrudin and Anr., on 18.08.2006 and even the subsequently final decree of redemption passed by the Civil Judge (Junior Division) (East), Bhilwara on 06.10.2006 was also challenged by the same brother of plaintiff Sitaro Devi, Mr. Sukhmal by filing appeal bearing No. 56/2006 which too was dismissed by the First Appellate Court on 16.02.2008 and against which the Civil Second Appeal No. 82/2008 "Sukhmal vs. LRs of Kamrudin and Ors." was also dismissed by this Court on 09.04.2008.

Thereafter, another sister of the present plaintiff, namely, Sukh Devi filed a Civil Suit bearing number 301/2003 which was also rejected by the learned Court of Additional District Judge (Fast Track) No. 2, Bhilwara on 13.07.2004 and in the execution proceedings, the present plaintiff-appellant Smt. Sitaro Devi also filed objections under Order 21 Rule 97 and 107 CPC which were also rejected by the Executing Court on 03.08.2007. Upon which, a further challenge by way of Misc. Appeal No. 46/2007 was also dismissed on 29.10.2007. Still not being satisfied too, the present plaintiff-appellant Smt. Sitaro Devi took the matter before this Court by way of filing a writ petition bearing number 7572/2007 "Smt. Sitaro Devi Vs. Mohd. Salim and Ors" which came to be dismissed on 29.11.2007 against which, D.B. Civil Second Appeal No. 3/2008 "Smt. Sitara Devi vs. Mohd. Salim and Ors." was also dismissed by the Division Bench of this Court on 10.01.2008.

Thereafter only, the present suit seeking declaration of very old sale deed dated 08.03.1961 to be void and specific performance was filed by he present appellant-plaintiff on 29.09.1997 which was dismissed by the learned Trial Court on 13.07.2004 in the aforesaid circumstances and against which, the present first appeal has been filed by the plaintiff-appellant.

In the aforesaid background and long chequered history of litigation between the parties, the learned counsel Mr. Ravi Bhansali appearing for the defendants-respondents submitted that at this stage, the plaintiff-appellant Smt. Sitaro Devi is not entitled to any relief in the present first appeal and the same is liable to be dismissed.

On the last date of hearing, on 05.01.2015, by the order, quoted hereinabove, the learned counsel for the appellant was asked to specifically apprise the Court, whether the plaintiff Smt. Sitaro Devi had challenged the order dated 29.11.2007 dismissing her own writ petition bearing number 7572/2007 before the Division Bench or not but, even today, the learned counsel Mr. Raj Singh Chahar appearing for the appellant-plaintiff was unable to make any categoric statement of any further challenge and it is only the learned counsel Mr. Ravi Bhansali appearing for the respondents-defendants who pointed out that the challenge was made by the appellant-plaintiff herself before the Division Bench by way of D.B. Civil Special Appeal (Writ) No. 3/2008 which was dismissed by this Court on 10.01,2008, as aforesaid.

The observations as made by the learned Single Judge, while dismissing her Writ Petition No. 7572/2007 on 29.11.2007 and the order passed by the Division Bench of this Court on 10.01.2008 while dismissing her intra-court appeal are also quoted herein below for ready reference, which, in the considered opinion of this Court would bind the appellant and estop her from contending the plaintiffs'' right over the property in question and still seek the specific performance of the contract in favour of her father Amanat Rai and seek any injunction against the respondents-defendants in the present suit. The order dated 29.11.2007 passed by the learned Single Judge of this Court while dismissing the writ petition filed by the present appellant-plaintiff reads as under:�

"S.B. Civil Writ Petition No. 7572/2007 Smt. Sitara Devi VS. Mohd. Salim and Ors.

Date of order : 29.11.2007

HON''BLE Mr. PRAKASH TATIA, J.

Mr. Suresh Shrimali, for the petitioner.

Mr. Ravi Bhansali, for the respondent.

Heard learned counsel for the parties.

The writ petition has been filed by the petitioner-objector who submitted objection petition under Order 21 Rule 9 CPC against the execution of the decree passed in Civil Original Suit No. 195/75 dated 13th Nov. 1997 and ultimately, upheld by this Court in S.B. Civil Second Appeal No. 264/2006 by judgment dated 18th August, 2006.

The objector-petitioner''s contention is that she is legal heir of the original defendant Amanat Rai and Amanat Rai died during the pendency of the suit but she was not impleaded as party in the suit, therefore, the decree under challenge is not binding upon her.

It is not in dispute that one of the legal representatives of Amanat Rai was also party in the litigation and when an objection was raised before the this Court in second appeal for not impleading other legal representatives of Amanat Rai that objection was rejected on the ground that it has not been shown that Amanat Rai had any other legal representatives. Be that as it may be, the decree was passed in a suit where Amanat Rai was party and his one of the legal representatives was on record and suit or appeal were not dismissed as abated by the courts in earlier round of litigation then that decree is binding against Amanat Rai and his successors. Otherwise also, on merits, the objector-petitioner could not prove any case.

Learned counsel for the respondent pointed out that same petitioner filed one suit in the trial court and that was dismissed for want of evidence. However, learned counsel for the petitioner submitted that as per his information, the appeal is pending against the said dismissal of the suit, (the present appeal)

Be that as it may be, I do not find any illegality in the impugned orders passed by the courts below and no ground is made out for interference by this Court in writ jurisdiction under Article 227 of the Constitution of India.

Hence, the writ petition of the petitioner is dismissed having no merit."

The order dated 10.01.2008 passed by the Division Bench of this Court, while dismissing the Special Appeal against the order dated 29.11.2007, filed by the present appellant-plaintiff reads as under:�

"IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR SPL. APPL. WRIT No. 3 of 2008 SMT. SITARA DEVI V/S MOHD SALIM AND ORS

Mr. DEELIP KAWADIA, for the appellant/petitioner

Date of Order : 10.1.2008

HON''BLE SHRI N.P. GUPTA, J. HON''BLE SHRI MOHAMMED RAFIQ, J. ORDER

"Heard learned counsel for the appellant, and perused the impugned order and sequence of events.

In our view, no sufficient ground is made out for any interference in the impugned order of the learned Single Judge.

The present appeal is therefore, dismissed."

In view of this, once the legal representatives of Amanat Rai, including the present appellant-plaintiff Smt. Sitaro Devi, were held bound by the decree of redemption of mortgage and sale of same suit property, the objections having been raised at earlier point of time in the suit having already failed, the present suit filed by the appellant-plaintiff Smt. Sitaro Devi seeking declaration of sale deed being void and for seeking specific performance of contract in her favour and further injunction against the defendants, was wholly misconceived and could not have been decreed granting such declaration or specific performance which undoubtedly is a discretionary relief to be given by the Court. Therefore, even though the dismissal of the suit in the present case has taken place for want of plaintiffs leading any evidence for which also no cogent reason has been given by the plaintiff-appellant Smt. Sitaro Devi, as to why evidence was not produced by her on the given date of hearing before the learned Trial Court, i.e. 13.07.2004 and merely suggesting that the counsel was under the impression that the application for deciding the preliminary issues was to be heard and argued first, cannot be said to be a valid reason for not producing the evidence for which also, admittedly, the date of 13.07.2004 was fixed by the learned Trial Court. Even otherwise, this Court is of the considered opinion that the present plaintiff Sitaro Devi is equally bound by earlier dismissal of the litigation by her father, brother and sister''s side for the same cause and her own objections under Order 21 Rule 97 CPC having been dismissed, she has already lost any right to keep such an old lis alive some how or the other. Such cantankerous litigation has to be put down firmly. The present suit by plaintiff Sitaro Devi is nothing but an abuse and misuse of legal process and the litigation by her on already losing ground which has been dragged on for long years.

It is also rather quite unwholesome that the learned counsel Mr. Raj Singh Chahar had failed to even update his instructions and information about the long luster of this litigation and could not apprise the Court about the later status of case after the Second Appeal No. 159/1976 "Kamrudin vs. Amanat Rai" was dismissed by the learned Single Judge on 10.03.1987 as having abated but the same appeal was later on dismissed on merits by the subsequent order passed by another learned Single Judge of this Court on 28.10.1992 in the following terms:�

"IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT

Kamruddin

Versus

Amanat Rai

S.B. Civil Second Appeal No. 159 of 1976 against the decree and judgment dated April 6, 1976, passed by the learned Additional District Judge, Bhilwara, by in Civil Appeal No. 38 of 1989.

Date of Judgment: October 28, 1992

PRESENT Hon''ble Mr. Justice B.R. Arora

Mr. D.R. Bhandari, for the Appellant.

BY THE COURT:

"Nobody appeared for the respondent.

I have considered the submissions made by the learned counsel for the appellant and perused the record of the case. Though number of contentions have been raised by the learned counsel for the appellant, but the present appeal can be decided only on the point of limitation. The document Ex. 1 - the agreement was executed on 3-6-1945, by Noor Ali and the suit was filed by the plaintiff in the Court of Civil Judge, Bhilwara, on 14-2-1964. According to the plaintiff, the cause of action accrued to him on 21-4-1961 when he came to know regarding the sale of the disputed property made by Noor Ah in favour of the defendants No. 5 and 6 vide registered sale-deed dated 8-4-1961, for a consideration of Rs. 6000/-. According to the defendant, the document was executed on 3-6-1945, and the suit has been filed by the plaintiff on 14-2-64 which is clearly barred by time. Article 54 of the Indian Limitation Act deals with the suits for specific performance of the contract. According to Article 54, the limitation provided for filing the suit is three years from the date fixed for the performance of the agreement or if no such date is fixed in the document, then three years from the date when the plaintiff had the notice that the performance is refused. In the present case, no date has been fixed in Ex. 1 and, therefore, the time will start to run from the date when the plaintiff had notice that his right was denied. As there is no actual notice in the present case, therefore, the refusal has to be gathered from the facts and circumstances of the case. The plaintiff, in his statement recorded before the trial Court, has stated that on 9-11-1960, he had gone to Bhilwara where Noor Ali met him and at that time Sirajuddin and Kamruddin were also with him. In their presence, a talk regarding the sale of Taliya also took place. Noor Ali made an offer to the plaintiff that he should pay some amount over and above the mortgage amount and may get the sale-deed registered in his favour, but he refused to accept that offer and, thereafter, he went away. He has further stated that as the sale had already been made in his favour and, therefore, he refused to make any payment over and above the mortgage-amount. The statement of this witness (plaintiff) clearly shows that a clear-cut offer was made by Noor Ali to the plaintiff for the performance of the contract but the plaintiff declined to accept that offer. The limitation, therefore, starts from 9-11-1960 the date on which the offer was made by Noor Ah to the plaintiff and which was declined by the plaintiff. The time will start to run, thus, from 9-10-60 and the period of three years provided under Article 54 of the Limitation Act expires on 9-11-1963 but the suit was filed on 14-2-1964, and as such it is clearly barred by time. In this view of the matter, the suit, filed by the plaintiff, was clearly barred by time and was rightly dismissed by the learned Civil Judge, Bhilwara, as being barred by time. The learned lower appellate court was not justified in reversing the finding and decree of the learned trial Court.

In the result, the appeal filed by the defendant-appellant is allowed. The decree and the judgment dated April 6, 1976 passed by the learned Additional District Judge, Bhilwara is set aside and the decree and judgment passed by the learned Civil Judge, Bhilwara on March 28, 1969 are restored and the suit filed of the plaintiff-respondent is, therefore, dismissed.

sd/- (B.R. ARORA), J."

Thus, this Court is of the opinion that the first appeal filed by the appellant-plaintiff Smt. Sitaro Devi has no force on merits and the appellant-plaintiff cannot be given the decree of specific performance of contract, declaration of sale deed dated 08.03.1961 being illegal and any injunction against the defendants-respondents and no useful purpose would be served by remanding back the matter to the learned Trial Court for trial afresh. The long chequered history of litigation between the parties starting from the year 1945 must be given a quietus now and, therefore, the present appeal filed by the appellant-plaintiff Smt. Sitaro Devi is liable to be dismissed and the same is hereby dismissed with costs of Rs. 10,000/- (Rupees Ten Thousand) to be paid by plaintiff-appellant to the respondents-Kamruddin and his Legal Representatives. A copy of this order be sent to the parties and the learned Trial Court concerned forthwith.