AI Structured Summary
Not yet generated for this judgment
Judgment
R.S. Verma, J.—The facts giving rise to this revision petition are as follows: As per the plaint averments, one Daulat Ram was the owner of plot No. 143 and half portion of plot No. 144 situated at Bazar No. 4, Bhopalganj Mandi, Bhilwara. He mortagaged the aforesaid plots to Balabux, Kedarmal, Banshi Dhar, Ram Narain and Bhagat Ram, all sons of Shri Ram Agarwal, on 24-3-1943 for a sum of Rs. 2200/-. The mortgaged was registered on 26-3-1943. The possession of the aforesaid plots was transferred to the mortagages. One of the stipulations in the mortgage-deed was that the mortgagees could make such constructions on the said plots as they liked and the plots could be re-deemed only on payment of the mortgage money and the costs of improvement. It is averred that on 24-3-1943 itself mortgagor Daulat Ram executed a separate agreement in favour of the mortgagees and reiterated the stipulations that the mortgagees would be free to raise constructions on the plots as they liked and after completion of the house on the plots the mortgagor shall receive Rs.11/- from the mortgagees and shall execute a sale-deed in respect of the aforesaid property, It is alleged that the mortgagees raised constructions upon the said plot between the years 1943 and 1947.
It was further averred that the mortgagees paid a sum of Rs. 11/- to mortgagor Dault Ram on 17-12-1947 and Daulat Ram made an oral sale, of the disputed property in favour of the mortgagees under the Mewar Laws and the mortgagees became full owners of the suit property and since then they were in possession of the said haveli as its owners.
It was further averred that on 13-11-1987 a partition took place amongst mortgagees and by this partition the suit haveli, fell to the share of Bala bux and Kedar Mai. A declaration was got registered in respect of aforesaid partition on 9-11-1952. It was averred, that Plaintiffs No 1 to 4 were sons of Kedar Mai and Plaintiffs No. 5 to 8 were sons of Bala Bux.
It was further averred that on 2-7-1960 Daulat Ram made a gift of the equity of redemption in respect of the aforesaid mortgagee in favour of Defendant No. 1 Smt. Kanchan Bai even though the aforesaid property was ancestral in the hands of Daulat Ram and Daulat Ram could not have made a gift of the aforesaid property to Smt. Kanchan Bai. Moreover, the Plaintiffs predecessors in interest Bala Bux and Kedar Mai having become full owners of the property, for this reason also Daulat Ram could not have made a valid gift in favour of Kanchan Bai.
It was further averred that on Habib Chhipa obtained a money decree against mortgagor Daulat Ram. In execution of the said decree, namely, execution case No. 4/61, Habib Chhipa got the aforesaid Haveli attached. Against this attachment, the Plaintiffs filed an objection petition under Order XXI, Rule 58, Code of Civil Procedure. This objection petition was allowed on 13-4-1964 by the District Judge, Bhilwara and the Haveli was released from attachment. This Judgment became final between the parties as Daulat Ram did not institute any suit under Order XXI, Rule, 63, Code of Civil Procedure. to challenge the said order. It is averred that in this objection petition mortgagor Daulat Ram had raised an objection that he had not been paid Rs. 11/- in pursuance of agreement dated 24-3-1943 but this contention of Daulat Ram was not accepted. It was averred that the Plaintiffs relying upon the decision of the learned District Judge did not institute any suit for specific performance of the contract of sale entered into between the mortgagor and the mortgagees.
It was further averred that on 12-4-1965, Defendant No. 1 Smt. Kanchan Bai instituted a suit for redemption of the mortgage property. This suit was decreed on 21-9-1981, wherein it was held that the mortgagees had paid a sum of Rs. 11/- to mortgagor Daulat Ram on 17-12-1947. In the very suit it was held that the agreement to sold dated 24-3-1943 was not a clot on equity of redemption. In that very case the High Court held that merely by making a payment of Rs. 11/- to the mortgagor the mortgagees did not become owners of the suit property though a right to a specific performance of the contract of sale dated 24-3-1943 had accrued in their favour. It was further averred that the Plaintiffs challenged these findings before the Hon''ble Supreme Court by way of a SLP but this SLP was dismissed on 3-10-1983. Then the Plaintiffs had to believe that they were misled by the order of the District Judge dated 13-4-1964. Hence they were compelled to institute the suit out of which, the present revision petition arises.
It was pleaded that Smt. Kanchan Bai or her predecessor in interrst Daluat Ram or legal heirs of Daulat Ram never, refused to fulfil the contract of sale dated 24-3-1943 nor did they ever give a notice to the Plaintiffs refusing specific performance of the said contract. It was averred that since the contract of sale did not prescribed any period within which the contract was to be performed, the limitation, did not start running and as such suit was within limitation within Article 54 of the Indian Limitation Act.
It was further pleaded that Plaintiffs and their fathers had been prosecuting in good faith and with due diligence their claim that they had paid Rs. 11/- to Daulat Ram on 24-3-47 and that the agreement was not a clot on equity of redemption, and that they had become full owners of the property, hence they were entitled to claim benefit of Section 14 of the Indian Limitation Act.
It was further pleaded that the Plaintiffs as well as their predecessors in interest were always ready and willing to perform their part of the contract and are even now ready and willing to perform their part of the contract. They were and are also ready and willing to pay stamp duty for the sale deed and registration charges on the same and, therefore, they are entitled to specific performance of contract of sale.
It was further pleaded that the market value of the suit property was around three lacs of rupees and Defendant No. 1 would be getting this Haveli only on payment of Rs. 23499.62 in pursuance of the decree for redemption and it would amount to unjust to Smt. Kanchan Bai which should not be allowed. Upon such pleading the Plaintiffs claimed a decree for specific performance of the contract of sale and also claimed a permanent injunction restraining the contesting Defendant from dis-possessing the Plaintiffs of the suit property.
It may be stated that the learned trial court was of the view that on the plaint averments read with documents filed by the Plaintiffs and the Defendant the suit was barred by limitation. Upon such view of the matter it rejected the plaint under Order VII, Rule 11, CPC by its judgment and order dated 23-11-1985. The Plaintiffs went in appeal to the District Judge, Bhilwara who assigned the same to the Addl. District Judge Bhilwara. The learned Addl. District Judge was of the view that the learned Trial Court, in arriving at the conclusion, took into consideration the documents of the parties, which course he could not have adopted and, therfore the order of the trial court rejecting the plaint was not proper. He, therefore, directed the learned Trial Court to re-consider the question of rejection of plaint afresh on the basis of the plaint averments only. This order of the learned Addl. district Judge was set aside by this Court in S.B. Civil Misc. Appeal No. 90/96 Kanchan Bai v. Khetides and Ors. Decided on 17-1-1989 and the learned Addl. District Judge was directed to decide the appeal afresh against Rejection of the plaint on merits in terms of Order VII, Rule 11, CPC on the basis of the plaint averments. In pursuance of the aforesaid judgment of this Court, the learned Addl. District Judge re-heard the matter. He was of the view that the learned trial court could not have taken into consideration the documents filed by either side and should have based the order only on plaint averments and on such averments the suit was not barred by limitation. He, therefore, allowed the appeal and passed order dated 26-4-1989 setting aside the order of the rejection of the plaint made by the trial court on 23-11-1985. Aggrieved, Smt. Kanchan Bai has come in revision.
The learned Counsel for the revision -petititioner submits that the learned addl. District Judge has taken a perverse view of the entire matter and at least the document filed by the Plaintiff could have been taken into consideration and such consideration would have shown that the suit was barred by limitation. The learned Addl. District Judge on wholly erroneous assumptions held the suit to be within limitation even though it was clearly barred by limitation. It is urged that the learned Addl. District judge has committed a serious illegality in holding the suit within limitation or at any rate has exercised its jurisdiction with material irregularity in doing so. It is urged the Section 14 of the Indian Limitation Act had no application to the facts of the case yet the learned District Judge pressed into service Section 14 of the Limitation Act to hold the suit within limitation. It is, therefore, submitted that the order or the learned Addl. District Judge should be set aside and order of the Trial Court should be restored.
The learned Counsel for the Plaintiff-Respondents oppose the revision petition vehemently and he submit that the revision petition does not lie at all in as much as the learned Addl. District Judge had jurisdiction to decide the appeal and even if the appeal had been decided wrongly or a wrong view of law had been taken by the learned Addl. District Judge; this could not furnish a ground for entertaining the revision petition. In this connection he has placed reliance upon Johri singh v. Sukh Pal Singh and Ors. (1989) 4 SCC 443. On merits, he submits that the learned Addl. District Judge was right in ingnoring the documents filed by the parties and was also right in applying Section 14 of the Indian Limitation Act, to the facts of the case. He, therefore, contended that revision petition should be dismissed.
I have carefully considered the rival contentions and have perused the records of the learned courts-bleow. First of all I may consider the contention that the learned Addl. District Judge was not right in holding that the documents filed with the plain could not be considered along with plaint averment to ascertain if the suit was barred by limitation. The learned Counsel for the Appellant does not contend, and rightly so, that documents filed by the contesting Defendant could not have been used by the learned trial Judge in arriving at a conclusion that the suit was barred by limitation. The learned trial judge was definitely wrong in looking into the documents of the Appellant while considering the question of rejection of the plaint under order VII, Rule 11, Code of Civil Procedure.
Now these are two ruling of our court which deal with the question if the Plaintiff documents could have been so used. In Bhagwan Das Vs. Goswami Brijesh Kumarji and Others, this very points came up for consideration. Hon�ble Mr. Justice D.R. Gupta, as he then was, observed in this regard as follows:
Learned Counsel for the opposite party may be right in urging in that if the plaint is based on a document, then such a document may be considered as forming part of the plaint itself and the document can also be looked into while considering the averments of the plaint, of the purpose of deciding the question that the plaint disclose a cause of action or not. But it has to be remembered that the averments made in the plaint, can be looked into on the face value thereof and the question relating to the validity or invalidity of the documents cannot be considered at the stage of deciding an application under Order VII, Rule 11, Code of Civil Procedure."
(emphasis ours)
The other ruling on this point is Association of Radha Swami Dera Baba Baggar Singhiji v. Pratap Singh and Ors. 1984 WLN (UC) 234. In this Case following observations were made:
It it trite law that Order VII, Rule 11d, CPC authorises the rejection of a plaint where the suit appears, from the statement in the plaint, to be barred by any law. For this purpose, only the allegations and averments made in the plaint would be looked into. The court cannot travel beyond what has been averred and alleged in the plaint. In order to decide whether the suit appears to be barred by any law. The court can also look into the documents filed with the plaint.
(emphasis mine)
The above observations make it abundantly clear that while considering the question of rejection of a plaint, the court is required to consider the averments made in the plaint; it may be further required to look into the documents filed with the plaint itself by the Plaintiffs. But, in no case the documents filed by the Defendants can be looked into for this purpose.
However, in the present case, the learned Addl. District Judge was bound by the order of remand passed by this Court on 17-1-1989 in B.B. Misc. Appeal No. 90/86 Kanchan Devi v. Khetsidas and Ors. In that order it was specifically observed as follows :
Consequently, Misc. appeal No. 90/1986 is allowed and the appeal court is directed to decide the appeal against rejection of the plaint, on merits, in terms of Order VII, Rule 11, CPC on the basis of the plaiut averment.
Now, a subordinate judge could not have gone beyond his mandate and he had to decide the matter within the narrow confines of the order of remand, which is clear and explicit. It was not open for the learned Addl. District Judge to look into the documents annexed with the plaint and he was bound on the basis of plaint averments. To my mind, I am also bound by the said order and will not be entitled to question the validity or legality of the aforesaid order of remand. Hence, I find that the learned Addl. District Judge did not commit any mistake if he confined himself to the plaint averments while considering the question of rejection of the plaint. To this extent, the reasoning of the learned Addl. district Judge is un-exceptionable and no fault could be found on it.
A bare perusal of the plaint averment, goes to show that the plaintifs suit is based on the agreement of sale dated 24-3-1943. No date was fixed for execution of sale deed. In the document itself, however, as per the plaint averment the mortgagees were required to pay Rs. ll/- to the (sic) after completion of constructions on the suit plots. As per plaint averments, these constructions had been made between the year 1943 to 1947 and the mortgagees had paid Rs. 11/- to Daulat Ramon 17-12-1947. The suit was instituted on 12-12-1983. Both the parties are unanimous that the suit is governed by Article 54 of the Indian Limitation Act. However, there is an acute controversy between them on the point as to which of the two parts of the clause in column 3 of this Article shall apply to the case. This article reads as follows:
Article 54
Description of Suit Period of limitation Time from which period begins to run.
For specific per Three years formancc of a contract The date fixed for the performance, or, if no such date is fixed, when the Plaintiff has notice that performance is refused.
A bare perusal of column 3 of this Article goes to show that according to part 1 of this clause the time begins to run from the date fixed for the performance; under part 2 of this clause, the time begins to run when the Plaintiff has notice that the performance is refused. The learned Counsel for the revision Petitioner contends that the case of the Plaintiffs falls within the first part while the learned Counsel for the Plaintiffs Respondent contends that it is the second part which is applicable to the case. In reply, the learned Counsel for the revision Petitioner has submitted that even if part second was to be applied to the suit, the suit is still barred by limitation because the Plaintiffs had notice that performance was refused when Daulat Ram in reply to the objection petition of the Plaintiffs, clearly made an averment that he had not been paid Rs. 11/- as claimed by the Plaintiff-objectors. Not only this when Smt. Kanchan Bai filed a suit for redemption, it impliedly put the Plaintiffs to notice of refusal of the specific performance of the contract.
I have considered the rival contentions. The first question is whether the plaint falls within first part of the aforesaid clause, or it falls within the second part as contended by learned Counsel for the Plaintiff Respondents. The learned Counsel for the Petitioner contended that even though a specific date had not been fixed by the contract of sale, it was clear from the plaint averments that the case of performance was capable of being ascertained. He has invited reference in this regard to the plea taken in para 2 of the plaint wherein it has been stated that as per contract of sale; the mortgagees were entitled to raise constructions upon the plots and after the house had been completed the mortgagor shall sell the suit property to the mortgagees after receiving Rs. 11/-. In this very para it was pleaded that the house (Haveli) was got constructed between the years 1943 and 1947. In para 3 of the plaint, it was specifically averred that Rs. 11/- had been paid by the mortgagees to mortgagor Daulat Ram on 17-12-1947. It is urged that the cause of action accrued in favour of the mortgagees for specific performance of the contract of sale when, according to them, they paid Rs. 11/- to the mortgagor on 17-12-1947. Reliance is placed in this connection upon Munniswami v. Shainanna AIR 1950 Mad. 529.
Muniswmni''s casa (Supra) pertained to a suit under Article 113 of the Indian Limitation Act, 1908, which has been substituted by the present Article 54 of the Indian Limitation Act, 1963. The language of Article 54 in the new Act is identical with the language of Article 113 of the old Act and thus the two provisions are in part material with each other. In this case the words "date fixed" in the first part of column 3 of Article 113 of the old Act came up for consideration. In para 5 of the judgment, following observations were made :
We, therefore, hold that if the date can be ascertained with reference to an event certain to happen is will be a date fixed within the meaning of Article 113 Limitation Act.
Ramzan Vs. Hussaini, specifically deals with interpretation of the expression date fixed for performance used in Article 54 of the Indian Limitation Act. 1963. In that case the contract of sale was in respect of a house. The house was under mortgage. The Defendant seller under the contract had agreed to execute a deed of sale on the day the purchaser redeemed the mortgage. No specific date had been fixed for performance of the contract of sale but the redumption of mortgage took place in 1970 and the suit had been filed after more than 14 years. The suit was claimed to be within limitation on the basis that Plaintiff had served a notice in July 1984 demanding specific performance of the contract and specific performance had not been made. It was contended on behalf of the Defendant-Appellant that since the alleged agreement was executed in June, 1965, the suit was barred by limitation and alternatively, even counting the period of limitation from the alleged redemption in 1970, the suit "was barred by limitation under Article 54 of the Indian Limitation Act. Noticing the previous precedents on the point, Hon''ble Lalit Mohan Sharma and T. Kochu Thommen, JJ. observed as follows:
The requirment of Article 113 is not that the actual day should necessarily be ascertained upon the fact of the deed, but that the basis of the calculation which was to make it certain should be found therein. We, accordingly, hold that under the agreement the date for the Defendant to execute the sale deed was fixed, although not by mentioning a certain date but by a reference to the happening of a certain event, namely, the redemption of the mortgage; and, immediately after the redemption by the Plaintiff, the Defendant became liable to execute the sale-deed which the Plaintiff was entitled to enforce, the period of limitation thus started running on that date. The case is, therefore, covered by the first part of Article 54 (third column) and not the second part.
In my opinion this judgment clinches the issue and in my view in the instant case, the Plaintiffs became entitled to specific performance of the contract of sale on 17-12-47 when they claim to have paid a sum of Rs. 11/- to the mortgagor after completion of the Haveli. The suit was thus clearly barred by limitation.
The learned Counsel for the Plaintiff-Respondents urged with great vehemence that the plaint does not recite as to when the mortgagor was required to execute the saledeed and, therefore, part first of the clause occurring in column third of Article 54 would not be attracted to this case. Assuming for a moment that his contention is right, there is yet another hurdle in the way of the Plaintiff Respondents. Even if it is assumed the part second of the said clause shall apply to the facts, it has to be examined it the date of refusal can be ascertained from plaint averments. True that the plaint a verrs that the mortgagor or his successor in-interest never refused to perform their part of the contract of sale. Yet this averment is merely a pretence on a facade and has to be read with other averments in the plaint. As already stated the case of the Plaintiff is that one Habib got the suit property attached in execution case No. 9/1961 and therein the Plaintiffs tiled an objection-petition, wherein they claimed to the in possession of the suit property as owners and not on behalf, of the mortgagor-judgment-debtor Daulat Ram. They have specifically stated that in that objection petition the judgement-debtor mortgagor Daulat Ram specifically denied that he had been paid the sum of Rs. 11/- in pursuance of the contract of sale made on 24-3-43. Now this averment of mortgagor-objector clearly amounted to a repudiation of the performance of the contract of sale and implicit in such repudiation is a clear refusal on the part of Daulat Ram to carry out his part of the contract.
I may here state that a refusal of performance of a contract of sale need not be in writing or expressed in so many words. Refusal can always be inferred from circumstances of the case. In the instant case, when Daulat Ram specifically denied having received Rs. 11/- in pursuance of the contract of sale during the objection proceedings under Order XXI, Rule 58, Code of Civil Procedure, the Plaintiff-Respondents were put to notice of the refusal of performance of the contract of sale on the part of the mortgagor. ''Could there be a better mode of refusal than repudiation or denial of the contract itself.'' To me, denial of the payment was a very categorical way of refusing performance. If the mortgagees did not take a care from this very unequivocal and overt act of the mortgagor then they have to thank themselves for the same. Admittedly, the objection petition had been decided on 13-4-64. To my mind, the cause of action for specific performance of the contract started running on that day or even earlier when Daulat Ram resisted the objection-petition of the Plaintiff-Respondents by pleading that he had not received a sum of Rs. il/- in pursuance of the contract of sale. I am fortified in my view by the observations in Purshottam sava v. Kunverji Devji and Ors. AIR 1954 Sau 104 wherein it has been held that the refusal to perform the contract may be gathered from the circumstances of the case and the notice thereof need not be actual. In this view of the matter the plea that Plaintiffs were never served with a notice of refusal of the contract is of no avail.
It is significant that part two of the clause occuring in column third of Article 54 of the Indian Limitation Act does not speak of the refused as such but speaks of "when the Plaintiff has notice that performance is refused." The expression "has notice that performance is refused" very clearly goes to show that the refusal need not be in so many words and may be gathered from the circumstances of the case. The word "notice" means intimation announcement, information, warning, cognizance, observance. "Notice" implies knowledge and this knowledge may come from direct perception or form inference reasonably arising out of from several facts and circumstances which are manifest on plaint averments. In the present case, the Plaintiffs themselves speak of the fact that the mortgagor while contesting their objection-petition specifically pleaded that he had not been paid the sum of Rs. 11/-, as alleged by them. This denial must have put them on sufficient guard that the mortgagor was not willing to honour the alleged contract of sale. Yet curiously enough they kept quiet and not institute a suit within the period of limitation which to my mind started running on the date when Daulat Ram filed his reply to the objection petition stating that he had not been paid the contract money.
The matter does not merely rest here. The plaint averment goes to show that Kanchan Bai had instituted a suit against the Plaintiffs for redemption of the suit property on 12-4-1965. In that cases also Kantian Bai had come out with a specific plea, as admitted by the Plaintiff-Respondents in para 8 of their plaint, that Daulat Ram has not been paid Rs. ll- in pursuance of the alleged contract of sale. Setting up of this plea by Kanchan Bai also clearly amounted to repudiation of the contract of sale and the Plaintiff Respondents, if they really wanted to enforce the specific performance of the contract of sale made in their favour should have instituted a suit immediately thereafter. By saying so, I do not mean to say that a fresh cause of action had accrued in favour of the Plaintiffs. I simple mean to say that their claim that they were honestly and deligently pursuing their claim is a mere pretence. It is trite law that once cause of action accrues and time begins running, it does not stop. What I mean to convey is that had a suit been instituted then, it would have been within limitation.
Now the plaint averments go to show that the Plaintiffs claim that they were misled by the judgment of 13-4-1964 passed on the objection of the mortgagees probably in the execution proceeding and they had all through entertained a belief that they had become owners of the suit property. This averment has more than one implication. Firstly, this averment goes to expose their claim that they were always ready and willing to perform their part of the contract. The two plea are mutually exclusive. Readiness and willingness to do an act necessarily implies consciousness and awareness of the obligation to perform the act which one is ready and willing to perform. Where one genuinely believes that he is not required to perform a particular act, can he still say that he was ready and willing to do the same The answer is a categorical and emphatic ''NO'' with capital N and capital O. I do not mean to say that the Plaintiffs could not take mutual exclusive pleas. They could definitely do so but a their own peril. In the present case, the plea of readiness and willingness to perform part of the contract goes ill with the plea contained in'' para 3 of the plaint the under the Mewar Law no registered sale deed was at all required and the mortgagees had became owners of the suit property on payment of Rs. 11/-. The plea that they were in any way misled by the judgment on their objection petition in execution proceedings of Habib and were led to believe that no suit for specific performance was required militates against their plea of readyness and willingness to perform their part of the contract; the plea rather demolishes and destroys the plea of read ness and willingness to perform their part of the contract. To my mind such a plea is only a pretence, a veneer, a facade and a veil and appears to be a figment of forensic imagination and fib, a clever stratagam to cull a searching and enquiring mind into believing the feigned and seemingly hurt innocence of a litigant in plight.
I regret to note that the learned Addl. District Judge did not read the plaint carefully and in between the lines. He did not piece the veil which he could have done by a more critical reading of the plaint. Had he done, so, he would have noticed that the plea of the Plaintiffs was only a forensic device to defeat the claim of Smt. Kanchan Bai which had been established in the redemption suit and whereby the Plaintiffs were obliged to give up the suit property on payment of a sum of Rs. 23499.62 by Smt. Kanchan Bai. It is to be noticed on their own averments that the Plaintiffs had lost sic the redemption suit right upto the apex court and they had the impudence to institute the suit out of which the present revision petition arises, so that Smt. Kanchan Bai may not reap the fruits of the decree passed in her favour.
Now I may examine the contention of the learned Counsel for the revision Petitioner that the provisions of Section 14 of the Indian Limitation act were not at all attracted to the facts of the present case and the learned Addl. District Judge on wholly erroneous assumptions, assumed jurisdiction to set aside the orders of Trial Court, which was otherwise just and porper.
I may now read relevant portion of Section 14 of the Indian Limitation Act. It says:
Section 14. Exclusion of time of proceeding bonafide in court without jurisdicition-(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 defendent shall be excluded, where the proceeding relatest 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.
A bare reading of this provision goes to show that in order to attract application of Section 14(1) of the Indian Limitation Act, 1963, the party seeking benefit must satisfy the court that:
(a) it, as Plaintiff was proceeding another civil proceeding with due diligence;
(b) the earlier proceeding and later proceeding relate to the same matter in issue ; and
(c) the former proceeding was being prosecuted in good faith in a court which from defect of jurisdiction or other cause of like nature, was unable to entertain it.
This provision came to be enterpreted the Apex Court in Gurdit Singh and Others Vs. Munsha Singh and Others, wherein the law on the subject was summed up as follows;
It would be noticed that three important conditions have to be satisfied before the section can be pressed into service. These three conditions are-(1) that the Plaintiff must have prosecuted the earlier civil proceedings with due diligence;
(2) the former proceedings 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 and
(3)the earlier proceeding and the later proceeding must be based on the same cause of action.
Now the words" or other cause of a like nature" which follow the words "defect of jurisdiction" in the above quoted provision are very important. Their scope has to be determined according to the rule of Ejusdem Generis. According to the rule, they take their colour from the preceding words "defect of jurisdiction" which mean that the defect must have been of an analogous charcter barring the court from entertaining the previous suit. A full Bench of the Lahore High Court consisting of Marries C.J. Abdur Rahman, J. and Mahajan J. (as he then was) expressed a similar view in Bhai Jai Kishan Singh v. People Bank of Northern India AIR 1944 Lab. 136 (FB)(supra)
(emphasis mine)
In the present case, the Plaintiffs did prosecute their objections to attachment of the suit property was back between 1961 and 13-4-1964 when their objection petition was sustained and the property was released from attachment but it is difficult to say that provisions of Section 14 of the Indian Limitation Act could at all be made applicable to the aforesaid proceedings. The proceedings had been terminated in a favour of the Plaintiffs and the property had been released from attachment. The claim of specific performance of the contract t f sale could have been hardly the subject matter of the proceeding which was evidently confined to the question whether the claimants or objectors has some interest in, or were possessed, of the attached property on their own account and not on the account of the judgment debtor.
As far as the subsequent litigation pertaining to redemption is concerned, they lost the same all through. But, there is nothing to show in the plaint that the court threw out the defence of the plantiffs because of defect of jurisdiction or other cause of a like nature. Unless it was shown that the plantiffs, defence had been negatived on such grounds, provision of Section 14 could not have been applied to the facts of the present case. It may be mentioned that the subject matter of the redemption suit could not have involved any claim of the plantiffs for specific performance of the contract of sale because they were claiming to have become full owners of the property already on payment of Rs. 11/-. The judgment by which Smt. Kanchan Bai''s suit for redemption of mortgage bad been decreed is reported in Klwtsidas v. Kanchan Bai 1981 WLN (LC) 294. The judgment shows that the plantiffs had based their defence on an oral sale of the suit property under the Mewar State Law. The defence & the present plantiffs was negatived and it was held that even by payment of Rs. 11- under the contract of the sale, the mortgagees did not become the owners of the suit property and the right of redemption was not sold to them by deceased Daulat Ram. It is unfortunate that the learned Addl. District Judge did not carefully analyses the provisions of Section 14 of the Indian Limitation Act and he applied the same on wholly erroneous assumptions and false premises. I find that in this case none of the conditions for application of Section 14 of the Indian Limitation Act had been satisfied. Thus I find that the judgment and order of the learned Addl. District Judge stands vitiated by exercise of jurisdiction with material irregularity in deciding the matter.
The learned Counsel for the Respondent urged that the suit property had a market value of Rs. 3,00,000/- or so and by virtue of redemption decree, Kanchan Bai would be getting this property for a paltry sum of Rs. 23,499.62 and thus, would be unjustly enriching herself at the cost of the plantiffs. The argument doserves to be noticed only for the sake of rejection; and has no relevance in deciding the claim of specific performance of contract 1 of sale. That improvements and at what costs were made by the Plaintiffs on the suit property, stand setteled by the judgment passed in the redemption suit and the plantiffs have been held entiled to the aforesaid amount on these scores. If the market value of the property had escalated during the course of years, the plantiffs cannot claim its benefit merely because they happened to be in possession of the suit property on account of an alleged contract of sale, which they failed to enforce within the period of limitation. Truly speaking, it is the Plaintiffs who are trying to enrich themselves at the cost of Kanchan Bai, because they merely spent Rs. 23,499.62 yet they want to retain the property, which due to escalation has become very valuable.
The learned Counsel for the Respondent relied upon Sawakat Ali v. Supdt of Police AIR 1972 Ass 29, and urged that the plaint should not be rejected but right and they should be allowed to establish their contentions which could be further elucidated during the course of evidence. I have carefully gone through the said ruling. In the case, a notice u/s 80, CPC had not been given and the Plaintiff specifically pleaded waiver of the notice by the Defendant. The plaint was rejected without trying the plea of waiver. In these circumstnces their Lordships stated that "if waiver is pleaded, the court will have to give an opportunity to the Plaintiff to establish it if he fails to establish, the plaint will be rejected only after the issue is decided against the Plaintiff. This ruling has absolutely no application to the facts of the present case, which is in fact a forensic strategem and divice to defeat the claim of Smt. Kanchan Bai to property title to which had passed in her favour and had been upheld at the highest level by the Apex Court. In the present case, the entire matter is crystal clear on the plaint averments and there is no matter which may require further elucidation by evidence.
Shri Bhoot strenously contended that a liberal interpretation should be made of the provision of Section 14 of the Indian Limitation Act and the Plaintiffs should not be non suited at the threshold. He has placed reliance on Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, That was a matter pertaining to condonation of delay u/s 5 of the Indian Limitation Act in filing an appeal and it was observed that ordinarily a litigant does not stand to benefit by lodging an appeallale. The State should not be treated differently from other litigants because on account of an impersonal machinery and inherited bureaucratic methodology delay on its part is less difficult to understand. In the case, the State had given explanation for the delay in filing the appeal and, therefore, the order of the High Court dismissing the appeal was set aside and the delay was condoned. I do not see how this case can help the case of the Plaintiffs at all.
Now I may take up the objection of the learned Counsel for the Respondent that this Court should not interfere in this revision, the revisional jurisdiction being a limited one. Reliance has been placed upon Johri Singh v. Sukh Pal Singh (supra). In that case a decree had been passed in a preemption suit and a period had been fixed for payment of purchase money. Due to bona fide inadvertent arithmetical error, a small fraction of the purchase money could not be deposited. The degree-holder prayed for condonation of the delay and sought permission to deposit the balance of Rs. 100/- because of the aforesaid mistake. The learned subordinate judge condoned the delay and allowed 10 days time to deposit the balance and failing which the suit was to be dismissed. Aggrieved, the Respondent went to the High Court in revision and the revision was allowed and the order of the learned subordinate judge condoning the delay and permitting the Appellant to deposit balance of Rs. 100/-, was set aside. Hence degree-holder went in appeal before Apex Court. The question was whether the High Court could have interfered in exercise of its jurisdiction u/s 115, CPC with the order of the learned subordinate judge. The Apex Court while examining the question observed:
The scope of Section 115, CPC has been the subject matter of catena of decisions of this Court and the law by now is so well settled that we do not find it necessary to make any detailed reference of those cases. We find it sufficient to refer to the leading case on the point in Kesharder Chamria v. Radha Kissen Chamria where it was held that Section 115, CPC applies to matters of jurisdiction alone, the irregular exercise on non-exercise of it or the illegal assumption of it, and if a subordinate court had jurisdiction to make the order it has made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, the High Court has no power to interfere, however, profoundly it may differ from the conclusions of that court on questions off act or law.
Consequently, the High Court had jurisdiction to interfere with the order of the Senior Subordinate Judge only (i) if the said Judge had no jurisdiction to make the order it has made, and (ii) had acted in breach of any provision of law or committed any error of procedure which was material and may have affected the ultimate decision. If neither of these conditions was met the High Court had no power to interfere, however, profoundly it may have differed from the conclusion of the Senior Subordinate Judge on question of fact or law.
In my opinion this ruling has no application to the facts of the present case. As already stated above, the learned Addl. District Judge assumed Jurisdiction to set aside the order of the learned trial court on wholly erroneous assumptions and false permises. He invoked provisions of Section 14 of the Indian Limitation Act even though these provisions were not attracted to the case in hand. He ignored the fact that the cause of action to the Plaintiffs had arisen way back in 1947 when a sum of Rs. 11/- had been paid by the mortgagees to mortgagor Daulat Ram on 17-12-1947. Yet he had failed to execute any sale deed in favour of the Plaintiffs. At any rate there was clear repudiation of the contract of sale when Daulat Ram in his objection petition specifically denied payment of Rs. 11/- to him as claimed by the Plaintiff-mortgagees. This denial clearly amounted to refusal to perform the contract. Thus cause of action had arisen to the Plaintiffs to sue for specific performance of the contract of sale wav back in 1964 and even earlier. The Plaintiffs slept in the manner of Rip was Winkle for a long long period of 19 years. Their suit was hopelessly barred by limitation yet the learned Addl. District Judge wholly ignored the provisions of law and misdirected himself in setting aside the order of rejection of the plaint on considerations which were wholly improper. I, therefore, find that this Court is duty bound to set aside the order of the learned Addl. District Judge and restore the order of the learned trial court.
No other point was urged before me.
In view of what I have stated above, I accept this revision petition and set aside the order of the learned Addl. District Judge dated 26-4-1989 and restore the order of the learned trial court dated 23-11-1985 directing rejection of the plaint. The revision Petitioner shall be entitled to her costs through out.