Madhya Pradesh High Court
Jagdish Tiwari vs State Of M.P. And Ors. on 22 April, 1999
Equivalent citations: 1999(2)MPLJ332
Author: A.K. Mathur
Bench: A.K. Mathur, Dipak Misra
JUDGMENT A.K. Mathur, C.J.
1. This is the first appeal directed against judgment and decree dated 10-8-1989 passed by the District Judge, Ambikapur, district Sarguja in Civil Suit No. 51-A of 1987 dismissing the suit of the plaintiff Jagdish Tiwari in toto on the grounds of limitation and non-payment of court fee.
2. Brief facts giving rise to this appeal are that in Sarguja Forest Division, an auction notice was issued on 27-8-1983 in respect of 3020 Khair trees. The plaintiff also gave his bid in this auction but he was not informed about the so called acceptance of his bid at any point of time. It is alleged that no communication dated 29-11-1983 was ever received by the plaintiff; therefore, he could not know whether his bid had been accepted or not. Communication dated 8-2-1984 by the defendant No. 2 was said to have been sent to the plaintiff on the wrong address and it was received by the plaintiff in March 1984 on being redirected from the wrong address and then only the plaintiff came to know that his earnest money deposited for participating in the auction proceedings amounting to Rs. 5,000.00 had been forfeited and it was also stated therein that in case any loss is occasioned to the State on account of so called auction of the Khair trees, then the same shall be recoverable from the plaintiff.
3. By Communication dated 25-6-1984, the plaintiff informed the defendant No. 2 that he did not receive any communication regarding acceptance of his bid, hence it was requested that the auction may be cancelled and the Khair trees may be re-auctioned. No reply to this communication dated 25-6-1984 was received by the plaintiff. Thereafter, the defendant No. 3 vide communication dated 11-2-1985 informed the plaintiff that the State has suffered loss in the sum of Rs. 1,36,989.90 p. and therefore, the plaintiff was directed to deposit the same and in the event of his failure to deposit the amount, it would be recovered from the plaintiff as a revenue recovery. This communication was received by the plaintiff on 27-6-1986.
4. The plaintiff filed the present suit praying for declaration that no concluded contract had come into existence between the parties as the plaintiff never received any communication with regard to acceptance of his bid and the defendants be restrained from recovering the amount in question as per the communication dated 11-2-1985 whereby a sum of Rs. 1,36,989.90 p. was demanded by issuing permanent injunction. It was also prayed by the plaintiff that sum of Rs. 5,000.00 deposited by him as earnest money be refunded to the plaintiff with interest at the rate of 18% per annum.
5. The suit was contested by the State on the grounds that the plaintiff participated in the auction proceedings and the contract was knocked down in his favour. It was submitted that an intimation to this effect was sent to the plaintiff on the permanent address given by him to the Conservator of Forest on 29-11-1983. The defendants have produced receipt of post office in support of this. It is alleged that since the plaintiff did not come forward to abide by the bid given by him, therefore, all Khair trees were re-auctioned and the State suffered loss of Rs. 1,36,989.90 p. which is liable to be recovered from the plaintiff. It was alleged that since the plaintiff did not abide by the bid and also did not execute the agreement, earnest money deposited by him was also forfeited. The defendants also raised the plea of limitation and non-payment of sufficient court fees.
6. On the basis of pleadings of the parties, the trial Court framed as many as nine issues and two issues i.e. Issue No. 7 and Issue No. 8 on the question of limitation and payment of court fees were taken up for decision as preliminary issues. The learned trial Court while deciding Issue No. 7 relating to limitation found that the suit was barred by time because by virtue of Article 58 of the Limitation Act, which is applicable in the present case, the period prescribed is three years from the date when the right to sue accrues. The communication dated 8-2-1984 reveals that the bid of the plaintiff was accepted and this letter was received by the plaintiff in March 1984. Learned Trial Court therefore held that the cause of action arose to the plaintiff in March 1984 and the plaintiff filed the suit on 21-10-1987 i.e. beyond the period of three years and the suit became barred by six months. Accordingly, the learned Judge held that the suit of the plaintiff was beyond the period of limitation.
Learned trial Court also held that the plaintiff had sought a declaration and injunction and had also prayed for refund of sum of Rs. 5,000.00 but the court fees paid by him was not sufficient. According to the trial Court, court fees should be ad valorem. The learned trial Court therefore found that the suit was not properly stamped and consequently the issue was answered against the plaintiff.
Against the judgment and decree of the learned trial Court, the present first appeal has been filed by the plaintiff.
7. So far as the first question with regard to the limitation is concerned, the learned trial Judge has held that Article 58 of the Limitation Act is relevant provision. Learned trial Court found that the letter dated 8-2-1984 was received by the plaintiff in March 1984 and the suit was filed on 21-10- 1987; therefore it was barred by limitation. Learned counsel for the appellant has pointed out that after this communication dated 8-2-1984 received by plaintiff in March, 1984, a reminder was sent by the defendants which was received by the plaintiff on 27-6-1986 and if that reminder is taken for giving a fresh cause of action to the plaintiff, then the present suit filed on 21-10- 1987 is within limitation i.e. within three years. In this connection, learned counsel invited our attention to the Full Bench decision of this Court in the case of Mohanlal v. State of M. P., 1979 MPLJ 801 wherein in somewhat identical situation, this Court has observed as under :
"There is no separate Article provided under the Limitation Act for a suit for injunction. So a suit for injunction has to be governed by the residuary Article 113. The cause of action for a suit for injunction to restrain defendant from recovering a sum from plaintiff arises every time there is a threat for recovery by defendant. Every threat of recovery gives a fresh cause of action. Until the recovery is made it cannot be said that a suit for injunction is barred the reason being that if recovery of the amount is not justified under Section 22, Limitation Act does not apply not being a suit for damages. The mere fact that a party does not avail himself of an earlier cause of action will not prevent him from availing the same later on."
Thus, the Full Bench of this Court after examining the matter came to the conclusion that so long as the threat persists, there is continuing cause of action to the plaintiff. In the present case, we find that after communication dated 8-2-1984, another communication by way of reminder was sent to the plaintiff on 11-2-1985. Hence, it was open for the plaintiff to file the suit after receiving the second notice on 11-2-1985. The suit was filed on 21-10-1987 and if the period of limitation is counted from the date of second reminder giving cause of action i.e. 11-2-1985, then the present suit is within limitation. Accordingly we hold that the suit filed by the plaintiff is within limitation as the second reminder dated 11-2-1985 gives a fresh threat to the plaintiff for recovery of the amount. Consequently, the suit filed on 21-10- 1987 is within limitation. Hence, we decide this issue in favour of the plaintiff and against the defendant.
8. Coming to the question of court fee, the plaintiff has prayed that the auction which was held on 27-8-1983 for auctioning 3020 Khair trees may be declared as illegal as no concluded contract had come into existence. Consequently, it is prayed that recovery in pursuance of the so called illegal auction should be injuncted against the State. A perusal of both the prayers would show that though the consequential relief arising out of the first relief has not been specifically made but if both the prayers are read together, then it transpires that the plaintiff had sought a declaration that the auction which had been held on 27-8-1983 wherein his bid was accepted, should be declared illegal and as a result thereof, the recovery raised by the defendants in the sum of Rs. 1,36,989.90 may be injuncted from being made from the plaintiff meaning thereby that the recovery of the said sum should not be effected against the plaintiff. In this connection, learned counsel for the State has invited our attention to a decision in the case of Badrilal Bholaram v. State of M. P. and Anr., 1963 MPLI 717 wherein their Lordships have observed :
"Where the relief sought itself has a real money value which can be objectively ascertained, that value is the value of the relief and any other value ascribed to it will be arbitrary and unreasonable. Where the plaintiff is sought to be made liable either under a decree or a deed for a specified amount and he seeks to avoid that liability, the value of the relief is the extent of the loss, to which but for the suit he would be subjected and from which he wants to be relieved."
In the present case, as mentioned above, the suit is filed by the plaintiff for declaration and injunction. The injunction is a consequential relief. In substance, the plaintiff wants to avoid the liability of recovery of Rs. 1,36,989.90 and therefore the court fees has to be ad valorem and he has to pay the court fees accordingly.
The plaintiff has also sought relief of refund of the earnest money in the sum of Rs, 5,000.00 paid by him and which has been forfeited, and also interest thereon at the rate of 18% per annum. This is quantified sum which the plaintiff wants to recover from the defendants and on this also, he has to pay court fees ad valorem.
9. As a result of above discussion, we hold that the suit is within limitation but the plaintiff who has not paid court fees ad valorem, is directed to pay the court fees ad valorem within the month and on payment of the same, the suit will be restored and it will proceed according to law. Judgment of the trial Court is set aside.
A copy of this judgment along with the record be sent to the trial Court for further proceedings in the case in accordance with law.