Calcutta High Court
Md. Akhtar Hossain vs Suresh Singh And Ors. on 11 February, 2003
Equivalent citations: AIR2004CAL99, AIR 2004 (NOC) 99 (CAL), 2005 (4) SCC 634, AIRONLINE 2005 SC 562, (2004) 1 CIVLJ 753, (2004) 2 BANKCAS 101, (2004) CAL WN 446, (2003) 3 CALLT 381, (2003) 2 ICC 63, (2003) 3 CAL HN 19, (2003) 1 CAL LJ 603, (2005) 127 COMCAS 389, (2005) 2 ALLCRIR 1449, (2005) 2 CHANDCRIC 197, (2005) 2 CRIMES 206, (2005) 2 RECCRIR 840, (2005) 30 ALLINDCAS 20, (2005) 31 OCR 478, (2005) 3 EASTCRIC 4, (2005) 3 GUJ LH 432, (2005) 3 JCR 1 (SC), (2005) 3 SUPREME 749, (2005) 4 SCALE 676, (2005) 52 ALLCRIC 497, (2005) 5 COMLJ 400, 2005 SCC (CRI) 1170
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
JUDGMENT Pranab Kumar Chattopadhyay, J.
1. This Second Appeal arises out of the decision of the learned Assistant District Judge; First Court at Howrah in Title Appeal No. 169 of 1990 passed on 23rd Dec. 1993 affirming the order dated 8th May, 1990 passed by the learned Munsif, Second Court at Howrah in Title Suit No. 86 of 1990.
2. The plaintiff brought the aforesaid Title Suit being T.S. No. 86 of 1990 on 4th April, 1990 for a declaration that the decree passed earlier in Title Suit No. 87 of 1968 and Title Appeal No. 209 of 1969 passed on 16-11-1970 are mala fide, fraudulent, inoperative and are not binding upon the plaintiff and also for permanent injunction against the defendants restraining the said defendants from ousting the plaintiff from the suit premises in any way and taking possession thereof by execution in T. Ex. No. 19 of 1970 or by any other execution.
3. Admittedly, prior to the aforesaid Title Suit No. 86 of 1990 the plaintiff instituted another suit being Title Suit No. 373 of 1970 for identical relief.
4. It appears from the records that on 7-12-1970 learned Munsif on perusal of the said plaint in Title Suit No. 373 of 1970 and petition filed in connection with the said Title Suit held that a prima facie case for an order of interim injunction was made out and passed an interim order restraining the defendants from taking possession of the shop room in question by execution in Title Execution Case No. 19 of 1970. The said interim order of injunction passed by the learned Munsif was allowed to continue on the consent of both the parties.
5. In view of coming into effect of the Calcutta Thika Tenancy Acquisition and Regulation Act, the plaintiff subsequently wanted to withdraw the said suit in order to make the State of West Bengal a party to the proceeding and the learned Munsif after a contested hearing by the order dated 27-1-1983 permitted the plaintiff to withdraw the said suit with liberty to sue afresh.
6. Against the said order dated 27th January, 1993 passed by the learned Munsif, a revisional application was filed before this Hon'ble Court which was numbered as C.R. No. 1115 of 1983 for setting aside the said order passed by the learned Munsif permitting the plaintiff to withdraw the said suit. On 27th March, 1990 the said Civil Revision Case was disposed of when Dilip Kr. Basu, J. (as His Lordship then was) was pleased to discharge the rule for non-prosecution.
7. The plaintiff thereafter filed the Title Suit being T.S. No. 86 of 1990 in the Court of the Second Munsiff at Howrah on the 4th of April, 1990 and also filed an application for temporary injunction in connection with the said Title Suit. The defendants further filed an application before the said learned Second Munsif for dismissal of the said Title Suit No. 86 of 1990 on the ground of limitation.
8. The learned Munsif considered the aforesaid application filed on behalf of the defendants and upon hearing the respective parties and considering the objections ultimately passed an order rejecting the plaint in whole as according to the learned Munsif the same was barred by limitation.
9. Being aggrieved by the said order of the learned Munsif, the plaintiff preferred an appeal, which was numbered as Title Appeal No. 169 of 1990. The learned Judge of the lower Appellate Court also dismissed the said appeal preferred by the plaintiff on contest and affirmed the impugned order dated 8th May, 1990 of the learned Munsif passed in Title Suit No. 86 of 1990.
10. Challenging the said order of the lower appellate Court passed in Title Appeal No. 169 of 1990, the plaintiff preferred this second appeal. For the purpose of deciding this second appeal, following substantial questions of law were formulated by this Court:
1) Whether or not the learned Courts below were justified in deciding the question of limitation without framing any specific issue in this regard ?
2) Whether or not the period covered under Section 14 of the Limitation Act in prosecuting the earlier suit between 1970 to 1983 should be excluded in computing the period of limitation involved in the present case ?
3) Whether the Articles 58 and 59 of the Limitation Act were applicable in the present case or not ?
4) Whether the observations by a competent Court regarding bindingness was otherwise of a decree is available in a subsequent suit between the parties ?
11. Mr. S.P. Roychowdhury, learned Senior Counsel of the appellants submits that both the Courts below proceeded from a wrong angle and the decision of the Courts below are based upon a fundamental misconception of law and fact.
12. Mr. Roychowdury referred to Paragraphs 4 and 11 of the plaint and submitted that the suit cannot be barred by limitation on the face of the plaint. Referring to the aforesaid Paragraphs of the plaint, the learned Counsel of the appellant submits that only on the basis of plain reading of the plaint it cannot be held that the suit filed by the plaintiff herein is barred by limitation.
13. According to Mr. Roychowdhury, the Order 7, Rule 11(d) of the C.P.C. is not at all applicable in the facts of the present case in view of the specific statements made by the plaintiff in paragraphs 4 and 11 of the plaint in Title Suit No. 86 of 1990. The learned Counsel of the appellant further submits that on plain reading of the plaint it does not appear that the suit is barred by limitation and undoubtedly the same required further consideration by the learned Court below. The learned Counsel of the appellant also submitted that the ground embodied in Clause (d) of Order 7, Rule 11 must appear on the face of the plaint but in the instant case it cannot be said that on the face of the plaint the Title Suit No. 86 of 1990 is barred by limitation in view of the specific averments made by the plaintiff in Paragraphs 4 and 11 of the plaint. The learned Counsel of the plaintiff also referred to and relied upon a Division Bench judgment of this Hon'ble Court in this regard in (British Airways v. Art Works Export Ltd.) in support of his contention.
14. It has also been submitted on behalf of the appellants that the cause of action still subsists in view of existence of the threat of dispossession by execution of the decree in Title Appeal No. 209 of 1969 by the respondents herein after proceeding with the Title Execution Case No. 19 of 1970 and as such it cannot be said according to the appellant that the suit is barred by limitation.
15. The learned Counsel of the appellant, therefore, submits that the learned Judge of the Courts below erroneously held that the plaint should be rejected in whole under Order 7, Rule 11(d) of the C.P.C.
16. Mr. Haradhan Banerjee, learned Counsel of the respondents submits that the suit was clearly barred by limitation as the plaintiff had the knowledge of the decree passed in Title Appeal No. 209 of 1969 at least in the year 1970 when the plaintiff filed the earlier Title Suit being Title Suit No. 373 of 1970. Mr. Banerjee further submits that the plaintiff herein withdrew the said Title Suit No. 373 of 1970 and the learned Munsif while allowing the prayer of the plaintiff regarding withdrawal of the said suit although granted liberty to sue afresh but the same does not mean that the suit can be filed ignoring the bar of limitation. According to Mr. Banerjee the subsequent filing of the Title Suit must be subject to compliance of the laws of limitation.
17. The subsequent suit namely, the Title Suit No. 86 of 1990 was filed on 4th April, 1990 wherein the plaintiff sought for a declaration that the decree passed in Title Suit No. 87 of 1968 and affirmed in Title Appeal No. 209 of 1969 by the decree dated 16-11-1970 was not valid or binding.
18. According to Mr. Banerjee, the plaintiff brought the earlier suit being Title Suit No. 373 of 1970 against the defendants for an identical relief and the learned Munsif was pleased to allow withdrawal of the said suit on the basis of the application filed by the plaintiff for withdrawal of the said suit. The learned Counsel of the respondents also submits that the learned Munsif was pleased' to allow the plaintiff's application for withdrawal of the earlier Title Suit No. 373 of 1970 on 27-1-83 and the plaintiff filed the subsequent second suit for identical relief on 4th April, 1990 although there was admittedly no restrained order passed by any Court of Law preventing the plaintiff from filing any suit in this regard.
19. Mr. Banerjee further contended that had the plaintiff filed the subsequent suit even on or after 27-1-83 i.e. immediately after withdrawal of the earlier Title Suit No. 373 of 1970 and before disposal of the revisional application being C.R No. 1115 of 1983 by this Court then also subsequent second suit was barred by limitation.
20. The learned Counsel of the respondents urged before this Court that the benefit of Section 14 of the Limitation Act is not at all-Available to the plaintiff herein for filing the subsequent Title Suit No. 86 of 1990.
The learned Counsel of the respondents contended that mere filing of revisional application or pendency of the revisional application before this Court without any order of stay could not preclude the plaintiff from filing the fresh suit. Mr. Banerjee specifically urged that the plaintiff could not wait till 1990 for filing the subsequent Title Suit being Title Suit No. 86 of 1990.
21. Although Mr. Roy Chowdhury, learned counsel of the appellant referred to Paragraph 11 of the plaint and submitted before this Court that the cause of action for the suit arose also on 27th March, 1990 and as such the plaint could not be rejected under Order 7, Rule 11 of the CPC but Mr. Banerjee, learned Counsel of the respondents submitted that mere mentioning of a particular date in a paragraph of the plaint cannot confer cause of action of the suit and/or avoid limitation as the entire pleadings in the plaint should be looked into as a whole including the prayer. According to Mr. Banerjee, Court cannot be persuaded by camouflage and/or clever drafting.
22. Mr. Banerjee specifically contended that the cause of action is an entire bundle of facts pleaded in the plaint and substance of pleading is material not a mere mentioning of a particular date in the plaint. Mr. Banerjee referred to and relied upon the following decisions in support of his arguments :
1) , T. Arivandandam v T. V. Satypal.
2) , ITC Limited v. Debts Recovery Appellate Tribunal.
3) . Samar Singh v. Kedar Nath.
4) , Beni Ram v. Ganga Sah.
5) , Mohanlal Baheti v. Moulvi Tabizuddin Ahmed.
23. The learned Counsel of the respondents submitted that the learned Munsif although allowed withdrawal of the earlier Title Suit No. 373 of 1970 but admittedly no adjudication was made regarding the Jurisdiction of the Court for entertaining the said suit and no defect of jurisdiction was mentioned by the Court while allowing the prayer of the plaintiff for withdrawal of the earlier Title Suit. The learned Munsif had never excluded the period of limitation on the ground of defect regarding jurisdiction or other cause of a like nature. Accordingly, the benefit of Section 14 of the Limitation Act, according to the learned Counsel of the respondents, cannot be made available to the plaintiff for the purpose of filing the subsequent suit. Mr. Banerjee repeatedly urged before this Court that there can be no reasonable explanation for filing the subsequent Title Suit in the year 1990 and as the plaintiff admittedly challenged the decree passed in 1970 in the subsequent Title Suit No. 86 of 1990, the learned Munsiff was Justified in dismissing the same under Order 7, Rule 11 of the CPC as according to Mr. Banerjee from the plain reading of the plaint it appears that the suit is barred by limitation.
24. Mr. Banerjee also contended that although the plaintiff sought to urge that as the Calcuttal Thika Tenancy (Acquisition and Requisition) Act came into effect during the pendency of the suit which prompted the plaintiff to file an application before the learned Munsif for withdrawal of the earlier suit with a liberty to file afresh but as a matter of fact in the subsequent suit filed in the year 1990 admittedly, Thika Controller was not made a party and the plaintiff brought the subsequent Title Suit No. 86 of 1990 against the defendants for the identical relief as was prayed in the earlier Title Suit No. 373 of 1970.
25. Considering the aforesaid submissions made on behalf of the respective parties and also considering the materials on record, I am of the view that the learned Munsif never terminated the earlier litigation by allowing withdrawal on the ground of defect regarding jurisdiction or other causes of a like nature. As a matter of fact, the learned Munsif while allowing withdrawal of the earlier Title Suit No. 373 of 1970 did not adjudicate on the question of Jurisdiction of the Court and did not mention any defect regarding jurisdiction of the Court for entertaining the said earlier Title Suit No. 373 of 1970.
26. From the pleadings of the plaint in respect of the Title Suit No. 86 of 1990 it appears that the suit is clearly barred by limitation as the plaintiff admittedly challenged the decree passed earlier in Title Suit No. 87 of 1968 which was subsequently affirmed in the Title Appeal No. 209 of 1969 as far back as on 16th November, 1970. The application of the plaintiff for withdrawal of the earlier Title Suit No.. 373 of 1970 was allowed by the learned Munsif admittedly on 27th January, 1983 but the subsequent Title Suit No. 86 of 1990 was filed on 4th April, 1990.
27. No convincing ground has been mentioned in the pleadings of the plaint filed in connection with the Title Suit No. 86 of 1990 explaining the reason why the subsequent Title Suit No. 86 of 1990 was filed after a lapse of more than 7 years from the date of withdrawal of the earlier Title Suit when the period of limitation for institution of a suit is three years.
28. From the records also it does not appear that the plaintiff was prevented by any prohibitory order passed by this Court in connection to the revisional application being C.R. No. 1115 of 1983 from instituting the subsequent suit after withdrawal of the earlie Title Suit No. 373 of 1970 on 27-1-1983. As such from the plain reading of the statements made in the plaint filed in connection to the Title Suit No. 86 of 1990 it appears that the suit is clearly barred by limitation and to put an end to the meaningless litigation the learned Munsif had rightly rejected the plaint in whole under Order 7, Rule 11(d) of the C.P.C. and the learned Assistant District Judge of the lower Appellate Court had rightly dismissed the appeal and affirmed the decision of the learned Munsif.
29. The Supreme Court repeatedly held that a meaningless litigation should not be permitted to occupy the time of the Court. Although Mr. Roy Chowdhury, learned Counsel of the appellant/plaintiff herein referred to Paragraph 11 of the plaint of the Title Suit No. 86 of 1990 and submitted that the cause of action for the suit arose also on 27th March, 1990 but after scrutinising the pleadings of the plaint it does not appear to be so and the aforesaid date has been mentioned in the plaint with a view to overcome the difficulties under Order 7, Rule 11 of the CPC. In my view, the plaintiff sought to create confusion in respect of the cause of action by clever drafting which cannot be permitted in law.
30. The Supreme Court in the case of ITC Limited v. Debts Recovery Appellate Tribunal, , observed as hereunder :
"16. The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7, Rule 11, CPC. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint."
31. In another decision, , Azhar Hussain v. Rajiv Gandhi, Hon'ble Supreme Court has clearly held as follows :
"12. .................... In substance, the argument is that the Court must proceed with the trial, record the evidence, and only after the trial............... is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned Counsel, it is an argument which is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court..........."
32. In the case of Mohanlal Baheti v. Moulvi Tabizuddin Ahmed, , a Division Bench of this Court considered the issue where a plaintiff asked for leave to withdraw the suit with liberty to bring a fresh suit on the same cause of action on the ground that the Court had no jurisdiction to try the suit and such leave was granted but there was no decision of the Court on the question of jurisdiction and the Division Bench was pleased to hold that in a subsequent suit, the plaintiff was not entitled to deduct the time taken in prosecuting the previous suit under Section 14 of the Limitation Act.
33. In view of the aforesaid decisions of the Supreme Court and the Division Bench of this Hon'ble Court and also considering the materials on record, I also hold that Section 14 of the Limitation Act is not attracted to the facts of the present case and the Title Suit No. 86 of 1990 filed by the plaintiff/ appellant herein is clearly barred by limitation. Mere mentioning of a particular date in a particular paragraph of the plaint may create confusion in the minds of the Court but by clever drafting the plaintiff cannot avoid the ultimate consequences as already held by the Supreme Court on repeated occasions.
34. Lastly, Mr. Banerjee advanced an alternative argument raising a very crucial point regarding maintainability of the suit and submitted that the suit is liable to be rejected under any circumstances particularly in view of the provision of Order 21, Rule 97. After amendment of the C.P.C. in the year 1976 the plaintiff could not file the Title Suit being a third party to the decree as the suit is barred under the provision of Order 21, Rule 101. Mr. Banerjee submitted that the plaintiff herein is a third party to the decree and as such the plaintiff should intervene in the pending execution case i.e. Title Execution Case No. 19 of 1970 and under no circumstances any suit could be filed in the year 1990 by a third party to the decree i.e. after amendment of the C.P.C. in 1976 in view of the specific bar Imposed by Order 21, Rule 101.
35. Mr. Banerjee referred to and relied upon the decisions of the Supreme Court, , Babulal v. Raj Kumar and Prasanta Banerji v. Pushpa Ashoke Chandani in support of his aforesaid contention.
36. The alternative argument as advanced by Mr. Banerjee on behalf of the respondents regarding maintainability of the suit in view of the provision of Order 21, Rule 101 is also based on a valid objection. In my view, the Title Suit No. 86 of 1990 is liable to be rejected being clearly barred under Order 21, Rule 101. The Title Execution Case is pending wherein the plaintiff can intervene without filing any fresh suit. The Supreme Court has clearly observed this in the case of Babulal v. Raj Kumar, which is quoted hereunder :
"6. The controversy is no longer res integra. This Court in Bhanwar Lal v. Satyanarain considered the controversy and had held that even an application filed under Order 21, Rule 35 (3) or one filed under Section 47 would be treated as an application under Order 21, Rule 97 and an adjudication is required to be conducted under Rule 98. Dispossession of the applicant from the property in execution is not a condition for declining to entertain the application. The reasons are obvious. The specific provisions contained in Order 21 Rules 98, 101, 102 enjoin conduct of a regular ad judication finding recorded thereon would be a decree and bind the parties. In Para 7 thereof it was held thus :
In the above view we have taken, the High Court has committed grievous error of jurisdiction and also patent illegality in treating the application filed by the appellant as barred by limitation and the third one on res judicata. Once the application, dated 25-5-1979 was made, the Court should have treated it to be one filed under Order 21, Rule 97(1) CPC. The question of resjudicata for filing the second and third applications does not arise. Under these circumstances the appellate Court, though for different reasons was justified in directing an enquiry to be conducted for removal of the obstruction or resistance caused by Satyanarain under Order 21 Rules 35 (3) and 97 (2) and Order 21, Rules 101 and 102 of CPC.' It would, therefore, be clear that an adjudication is required to be conducted under Order 21, Rule 98 before removal of the obstruction caused by the objector or the appellant and a finding is required to be recorded in that behalf. The order is treated as a decree under Order 21, Rule 103 and it shall be subject to an appeal. Prior to 1976, the order was subject to suit under 1976 Amendment to CPC that may be pending on the date the commencement of the amended provisions of CPC was secured. Thereafter, under the amended Code, right of suit under Order 21, Rule 63 of old Code has been taken away. The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21, Rule 98 which is an order and is a decree under Order 21, Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as it were a decree. Thus, the procedure prescribed is a complete code in itself. Therefore, |he executing Court is required to determine the question, when the appellants had objected to the execution of the decree as against the appellants who were not parties to the decree for specific performance."
37. The Supreme Court also in a subsequent decision in the case of Prasanta Banerji v. Pushpa Ashoke Chandani, clearly affirmed the aforesaid decision of the Supreme Court and held as hereunder ;
"3. The present appeal is directed against the judgment and order dated 11-2-1999 passed by the High Court of Calcutta. The only point raised in this appeal is whether the suit filed by the Appellant who is not a party to a decree is maintainable, when execution proceeding in respect of the same property has been initiated under Order 21, Rule 97 of the Code of Civil Procedure or his remedy is going in the said execution proceedings. The High Court came to the conclusion that the suit having been filed after initiation of execution proceedings, the same is not maintainable, hence dismissed the second appeal. The High Court further held that the Appellant is entitled to raise all such lawful subtenancy or any of his right in the execution proceedings, under Order 21, Rule 97 of the Code. The question raised in this appeal is squarely covered by the decision of this Court in Shreenath v. Rajesh, , as against the Appellant. Accordingly, the present appeal fails and is accordingly dismissed and the impugned order of the High Court is upheld. Cost on the parties."
38. For the aforementioned reasons, I find no infirmity and/or irregularity in the findings of the Courts below. Furthermore, in my opinion, no substantial question of law is involved in the instant Second Appeal which warrants determination by this Court.
39. Thus, I do not find any merit in this Second Appeal. Accordingly the instant Second Appeal falls and the same is dismissed.
40. There will be, however, no order as to costs.
41. Xerox certified copy of this judgment be handed over to the learned Advocates of the parties, if applied for, on urgent basis.