Patna High Court
Dilip Gupta & Anr vs Debashish Palit & Ors on 11 September, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.33 of 2007
Against the judgment and decree dated 13.11.2006 passed by the
learned Additional District Judge - 7th Patna in Title Appeal No. 60
of 2006 dismissing the appeal and confirming the judgment and
decree dated 3.5.2006 passed by Sub Judge-3rd, Patna in Title Suit
No. 69 of 2006.
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Dilip Gupta & Anr.
.... .... Plaintiffs-Appellants-Appellants
Versus
Debashish Palit & Ors.
.... .... Defendants-Defendants-Respondents
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Appearance :
For the Appellants : Mr. J.S. Arora, Advocate.
Mr. Bhuwaneshwar Prasad, Advocate.
For respondent No.1. : Mr. Ganpati Trivedi, Advocate.
Mr. Madan Mohan, Advocate.
Mr. R. K. Sinha No.2, Advocate.
Mr. Manoj Kumar Pandey, Advocate.
For respondent Nos. 10, 11 & 12 : Mr. Siddheshwari Prasad Sinha, Sr. Advocate.
Mr. Srinandan Prasad Singh, Advocate.
Mr. Krishan Kumar Sinha, Advocate with him.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
CAV JUDGMENT
Date: 11-09-2012
Mungeshwar 1. The plaintiffs appellants appellants have filed this second
Sahoo, J.
appeal against the appellate court judgment and decree dated
13.11.2006passed by Additional District Judge-7th, Patna in Title Appeal No. 60 of 2006 whereby the lower appellate court dismissed the title appeal and confirmed the judgment and decree of the trial court dated 3.5.2006 passed by Sub Judge-3rd, Patna in Title Suit No. Patna High Court SA No.33 of 2007 dt.11-09-2012 2 69 of 2006 whereby the appellants plaint was rejected under Order 7 Rule 11 (a and d) of the Code of Civil Procedure.
2. The plaintiffs filed the aforesaid Title Suit No. 69 of 2006 praying for a decree for specific performance of the contract for absolute conveyance of the land measuring 3 kattha 3 dhur described in schedule 2 of the plaint with full and absolute ownership as contained and envisaged in the compromise petition ending in decree dated 18.3.1980 in Title Eviction suit No. 70 of 1967 by the court of execution Munsif, Patna be passed in favour of plaintiffs and against the defendants - 1st party who be directed to execute and register deed of conveyance in favour of the plaintiffs and defendants - 2nd set within a reasonable time and the possession of the plaintiffs over the land in suit be confirmed and permanent injunction be granted restraining the defendants - 1st party from dispossessing the plaintiffs in any manner who are in possession of the suit property in part performance of the contract aforesaid and if the plaintiffs are dispossessed during the pendency of the suit, decree for recovery of possession with mesne profit in their favour. The plaintiffs also prayed that the defendants - 1st set be restrained by an order of temporary injunction from dispossessing the plaintiffs by executing the decree of Title Suit No. 61 of 1986 in any other manner till the disposal of the suit.
Patna High Court SA No.33 of 2007 dt.11-09-2012 3
3. The trial court after perusal of the facts stated in the plaint and the documents filed with the plaint by deemed decree dated 3.5.2006 rejected the plaint holding that no cause of action is disclosed and the suit is barred by law of limitation. The plaintiffs then filed title appeal before the lower appellate court. The lower appellate court also by the impugned judgment confirmed the finding of the trial court and dismissed the appeal. Against these judgments of both the courts below, the present second appeal has been filed.
4. For better appreciation of the case the facts alleged in the plaint may be stated briefly that the lands described in schedule 1 of the plaint measuring 15 kattha 8 dhurs more or less being 100 feet long east to west, 210 feet long north to south in ward No. 10 Patna Municipal Corporation belonged to late Sri Tripurari Charan Palit, the grand father of the defendant No.1. The father of the plaintiffs namely Sri Surya Narayan Gupta took lease of vacant land on 25.8.1946 for a period of 29 years with an option of automatic renewal of said lease for further period of 10 years on a rental increase of 25% over the initial monthly rent of Rs.205/- by registered lease deed effective from 1.1.1947. The lessee was given right for making construction and as a matter of fact he constructed a triple storied pucca building on the western side with three shops and number of rooms, shades etc. for letting out to tenants and spent about over Rs.1,00,000/-. Sri Tripurari Patna High Court SA No.33 of 2007 dt.11-09-2012 4 Charan Palit wrongly filed Title Suit No. 17 of 1967 before termination of lease for declaration of the termination of the lease and for possession of the premises. Written statement was filed by Surya Narayan Gupta. However, the parties compromised and a compromise petition was filed incorporating the terms and conditions which was accepted by the court and the suit was decreed in terms of the compromise by which the compromise application formed part of the decree dated 18.3.1980. In the plaint the terms and conditions of the compromise decree has been quoted which is being reproduced hereinbelow:
"(i) That the defendant Surya Narain Gupta Surrender possession of an area of 12 kathas 5 dhurs of land and a pucca double storied building and other constructions over the eastern side of the entrance gate besides a common passage of width. 12ft. into the said area out of the leasehold land along with tenants inducted by the defendants on the premises to the plaintiffs and declare that the plaintiffs are entitled to take possession of the premises or to continue to keep the tenants on the said premises and to collect rent from them and let them continue in possession as their own month to month tenants or on such terms as the plaintiffs may consider fit or settle with them.
(ii) That the defendant (S.N. Gupta) has after the said surrender put the plaintiffs in possession of the surrendered premises and ceased to have any concern Patna High Court SA No.33 of 2007 dt.11-09-2012 5 with the same or have any claim with the plaintiffs.
(iii) That in consideration of the defendant having surrendered 12 kathas 5 dhurs of land with the double storied building on the surrendered portion along with the month to month tenants, inducted by the lessee and having peacefully delivered possession, the plaintiffs have been pleased to allow the defendants continue to hold and possess the remaining area of 3 kathas 3 dhurs on the western side of the entrance gate and the common passage 12 ft. wide (east to west) by 98 ft. long (north to south) permanently absolutely as his own and free of any rent and the defendants became the full owner of the said land containing residential buildings, shop premises etc. with which the plaintiffs shall have no claim or objection of any kind hereafter. The defendant shall be entitled to get his name mutated with respect to the same land and the building etc. standing thereon in the office of the State of Bihar and the Patna Municipal Corporation and shall separately pay ground rent to the State of Bihar and taxes to the Patna Municipal Corporation on his own right and account. (This portion and building described in Schedule II of the plaint).
(iv) That the plaintiffs shall have no claim of rent whatsoever under the lease, claimed in the suit and thereafter up to date i.e. Feb. 1980. The defendant shall be entitled to possess aforesaid 3 kathas 3 dhurs of land along with all buildings and structures thereon and the plaintiffs shall have no manner of claim or right, title and interest over the same hereafter.
Patna High Court SA No.33 of 2007 dt.11-09-2012 6
(v) That the parties to the suit will bear their own costs of the suit and no party shall have any claim on the other with respect to the leasehold except under the terms of this compromise.
(vi) That the cost of the registration of this compromise decree if and when deemed necessary will be born by the defendant but both the parties shall be bound to sign applications and papers for taking out official permission and to do all acts and expenditures necessary for securing an early registration thereof, on their failure to do so the plaintiff shall be liable to damages and compensation."
5. Although there was clause for registration of the compromise decree, the parties of the suit being assured and satisfied that the registration was not compulsory did not move to take any steps for registration of the decree. That compromise decree was acted upon and the defendants came in possession on 12 kattha 5 dhur with construction thereon and the plaintiffs continued in possession of 3 kattha 3 dhur of land fully described in schedule 2 of the land as owner of the land and not as lessees. By way of abundant caution the plaintiffs requested the defendants to take steps for sending the decree aforesaid to the Registrar, Patna for registration and thereafter on 11.3.1983 the defendants filed a petition in the court of execution Munsif for sending the compromise decree to the Sub Registrar, Patna Patna High Court SA No.33 of 2007 dt.11-09-2012 7 for registration but the defendants did not move the said petition. Surya Narayan Gupta died on 25.5.1986. It was fully understood by both the parties on the legal advice by their lawyers that the compromise decree was not compulsorily registerable and title passed under decree even without registration. If the plaintiffs or their father Surya Narayan Gupta had believe and knowledge and doubt that the compromise decree required compulsory registration, then they would have got it registered within time with due diligence.
6. It is further pleaded that Devashish Palit who is an engineer filed Eviction Suit No. 61 of 1986 for eviction of the plaintiffs from schedule 2 properties. The plaintiffs filed written statement alleging that the compromise decree was valid and operative and fully acted upon by both the parties and did not require compulsory registration. However, the suit was decree on contest on 29.5.1999. The plaintiff then filed Title Appeal No. 45 of 1999 which was dismissed on 6.3.2002 after hearing the appellant only on the ground that the compromise decree being unregistered did not pass title. The plaintiffs filed Second Appeal No. 102 of 2003 which was dismissed on 26.8.2005. Against the judgment of the High Court in Second Appeal plaintiffs filed SLP No. 19469 of 2005 before the Apex Court. The said SLP was also dismissed on 30.9.2005. Then the plaintiffs got the legal opinion that now there has arisen a cause of action for filing a Patna High Court SA No.33 of 2007 dt.11-09-2012 8 suit for specific performance of the contract as contained and implicit in the compromise aforesaid which has been fully acted upon by both the parties and was never challenged, disturbed or set aside and thus the cause of action for filing this suit for specific performance of contract arose on the date of dismissal of the SLP by the Hon'ble Supreme Court. Before that the plaintiffs were under bona fide mistake of law under which they laboured from the time of the compromise till the final decision of the Hon'ble Supreme Court. The plaintiffs asked the defendants on several dates after 1.10.2005 and lastly on 15.2.2006 but the defendants refused to execute and register the deed of transfer of the title in suit land to the plaintiffs in part performance of the contract aforesaid.
7. It appears that along with the plaint the plaintiffs filed all the relevant documents, i.e. compromise decree the judgments of earlier suit up to the Apex Court and also various decisions. The Trial court at the time of admission of the plaint itself as stated above rejected the plaint. On appeal, it was dismissed.
8. At the time of admission on 14.10.2009 the following two substantial questions of law were formulated :
"(i) Whether the learned courts below were justified in misconstruing the judgment of the Hon'ble Supreme Court failing to appreciate that by the said decision, the Hon'ble Apex Court had only held that Patna High Court SA No.33 of 2007 dt.11-09-2012 9 unregistered compromise decree was not enforceable and had not held that such compromise between the parties cannot be subject matter of a fresh suit for specific performance of contract ?
(ii) Whether the question of limitation, specially in view of the pendency of appeals before the High Court and the Supreme Court was a mix question of fact and law and can be legally decided at the preliminary stage under Order VII Rule 11of the Code of Civil Procedure ?"
9. The learned counsel Mr. J.S. Arora appearing on behalf of the appellant submitted that the Courts below have wrongly held that there is no cause of action for the suit and that the suit is barred by law of limitation. According to the learned counsel question of limitation requires investigation in terms of agreement on the basis of evidences that would be produced by the parties. Further the question of limitation is mixed question of law and fact, therefore, it could not have been held by the courts below that the plaintiffs' suit is barred by law of limitation, particularly, when it is the specific case of the appellants that the appellants were under bona fide belief that registration of compromise decree was not at all required and they were prosecuting their case that the compromise decree has fully been acted upon and title passed on them. Their contention was negative by Patna High Court SA No.33 of 2007 dt.11-09-2012 10 the Apex Court only in the year 2005. All the judgments right from the trial court up to the High Court merged in the order of the Apex Court therefore, cause of action to claim relief arose on the date of dismissal of the SLP by the Apex Court and not prior to that. According to the learned counsel cause of action is bundle of facts which required to be investigated in the lis between the parties and in the present plaint the plaintiffs have categorically disclosed the entire facts for the purpose of obtaining relief for specific performance of contract. Therefore, the learned courts below have wrongly held that there is no cause action for the suit and for finding that the courts below have read here and there of the plaint dissecting the same which is impermissible for the purpose of rejection of the plaint. The court is required to read the plaint as a whole and then record the finding but both the courts below have not done so. Earlier the suit was compromised and the compromise decree was acted upon. The plaintiffs were under bona fide belief that they became the owner. Moreover, the intention of the parties while entering into compromise was that title on schedule 2 land is confirmed on the plaintiffs. Since in lieu of consideration the plaintiffs have already surrendered the available constructed portion in favour of the defendants they had already performed their part of the contract. When it was held that title did not pass because of non-registration then only cause of action Patna High Court SA No.33 of 2007 dt.11-09-2012 11 accrued to the plaintiffs which was the date when the Apex Court dismissed the SLP. In such circumstances, it cannot be said that there is no cause of action nor it can be said that the suit is barred by law of limitation. Both the Courts below approached the case in wrong angle and although there are full description of the facts disclosing the cause of action and the starting point of limitation the courts below wrongly held that there is no cause of action and suit is barred by law of limitation. The learned counsel further submitted that at the very initial stage the plaintiffs' plaint cannot be thrown and their right to approach the civil court cannot be closed without investigating the case pleaded by the plaintiffs. Whether the plaintiffs' suit will be decreed or not is not a ground for rejection of the plaint. In support of his above contentions the learned counsel relied upon various decisions of the Apex Court. He also contended that both the courts below misconstrued the judgments of the Apex Court as the Apex Court had only held unregistered compromise decree was not enforceable and had not held that such compromise between the parties cannot be subject matter of a fresh suit for specific performance of contract.
10. On the other hand, the learned counsel appearing on behalf of the contesting defendants respondents contended that none of the arguments raised by the learned counsel for the appellants can be Patna High Court SA No.33 of 2007 dt.11-09-2012 12 termed to be a substantial question of law. Both the courts below have neither dissected the facts pleaded in the plaint nor read the plaint in part. According to the learned counsel all the facts were pleaded by the plaintiffs and in support of the facts pleaded the plaintiffs filed the relevant documents and decisions and even without notice to the defendants at the time of admission of the plaint the trial court recorded the finding that the suit is barred by law of limitation and there is no cause of action for specific performance of contract. According to the learned counsel in the terms and conditions of the compromise decree it was specifically mentioned that the cost of registration of the compromise decree if and when deemed necessary will be born by the defendants but both the parties shall be bound to sign applications and papers for taking out permission and to do all acts and expenditures necessary for securing an early registration thereof and on their failure to do so the plaintiffs shall be liable to damage and compensation. When for a considerable period no steps were taken by the present plaintiffs for getting the compromise decree registered the present defendants filed eviction suit under the BBC Act which was decreed up to the Apex Court. Even after the judgment of the Apex Court the plaintiffs did not vacate the suit premises, therefore, the respondents filed contempt application before the Apex Court and then on the direction of the Apex Court the execution case Patna High Court SA No.33 of 2007 dt.11-09-2012 13 was allowed and delivery of possession has been effected. The learned counsel submitted that in the eviction suit giving rise to Second Appeal No. 102 of 2003 the High Court in paragraph 12 of the judgment considering these very facts and circumstances disclosed in the plaint held that the lessee (present appellants) did not take steps for registration of the compromise decree and purposely avoided the same to save the cost of registration and stamp duty. This Court also observed that the lessee have treated or misused the compromise decree as a device to obviate payment of stamp duty and frustrate the law relating the registration and ultimately dismissed the second appeal. This decision is reported in 2005 (3) PLJR 623. Now therefore, the same question cannot be considered here in the present suit. When it has already been held that the present plaintiffs did not take steps for registration the plaintiffs were never ready and willing to perform their part of the contract. Since the compromise decree in view of the terms and conditions as quoted above is of the year 1980, registration was necessary but for six years the present plaintiffs did not take any steps for getting the same registered because of his intention to save stamp duty. In such circumstances, the present respondents filed eviction suit in the year 1986 clearly mentioning that title did not pass because of non-registration of the compromise decree. Therefore, on the date when the defendants came to know Patna High Court SA No.33 of 2007 dt.11-09-2012 14 about the eviction suit filed by the present respondents the right to sue arose on that day and part 2 of Article 54 of the Limitation Act came into play. The suit has been filed in the year 2006 therefore, admittedly it is time barred. Merely, because the plaintiffs are saying that the cause of action accrued after dismissal of the SLP by the Apex Court it cannot be held so in view of the specific provision of the Limitation Act. The bundle of facts stated by the plaintiffs in the present plaint is nothing but out come of skilled Advocate who has drafted the plaint in such a way to over come bar of limitation and the facts disclosed in the plaint requires no fresh decision and no evidence is necessary therefore, both the courts below have rightly held so and in the second appeal the same cannot be interfered.
11. It is further contended that there is no contract between the parties by which the respondents herein ever agreed to execute any sale deed in favour of the plaintiffs therefore, there is no question of any part performance arises when there is no such terms and conditions or agreement between the parties in the compromise. The court cannot presume that there was an agreement between the parties whereby the defendant respondents are bound to execute the sale deed in favour of the present plaintiffs.
12. In view of the above contentions raised by the parties, now let us examine the substantial questions of law formulated by this Patna High Court SA No.33 of 2007 dt.11-09-2012 15 Court at the time of admission of this second appeal.
13. Admittedly, in the eviction suit the contention of the present plaintiffs was that he had already acquired title by compromise decree and it is not compulsorily registerable. The said defence of the present plaintiffs was negatived by the Hon'ble Apex Court. Therefore, finding of the Apex Court is that by that compromise decree title did not pass. In the said compromise between the parties the terms and conditions No.3 was that the present plaintiffs were allowed to remain in possession of 3 kattha 3 dhur as full owner of the said land containing residential building, shop, shads etc. In condition No. 6 it was specifically mentioned that the cost of registration of the compromise decree will be born by the defendants (plaintiffs herein). It is the pleading of the plaintiffs that the father of the plaintiffs requested the defendants to take steps for sending the decree to the Registrar, Patna for registration and thereafter on 11.3.1983 the defendants filed a petition in the court of Execution Munsif for sending the compromise decree to the Sub Registrar vide paragraph 13 of the plaint. Therefore, the plaintiffs were knowing that in terms of the compromise the compromise decree was required registration and the plaintiffs were required to bear the cost of registration. The defendants have already filed petition as far back as on 11.3.1983 as pleaded by the plaintiffs. However, as has been held by the High Patna High Court SA No.33 of 2007 dt.11-09-2012 16 Court the present plaintiffs did not take any steps for filing the required state with a view to de-fraud stamp. The plaintiffs also pleaded that in the year 1986 the present respondents filed eviction suit wherein the same very defence was raised which was negatived up to the Apex Court. It may be mentioned here that this same very pleading was there in the written statement in eviction suit and the same very facts have been pleaded in the present plaint for specific performance of contract. The question is whether on the same very fact can it be said that the plaintiffs are entitled for a decree for specific performance of contract. As stated above in the terms and conditions in the compromise nowhere there is any clause that in the event it is held that title did not pass to the present plaintiffs on the basis of the compromise the plaintiffs will be entitled to get a deed executed by the defendants herein.
14. The learned counsel relied upon AIR 2006 SC 1556 Gunwant Bhai Mulchand Shah and others vs. Anton Elis Farel and others and submitted that dismissal of suit as barred by limitation as preliminary stage is not proper. The learned counsel placed reliance at paragraph 11 of the said judgment. It appears that in the said case the suit for specific performance was filed after 29 years seeking to enforce the agreement on the ground that the plaintiff had already performed his part of the contract. From the facts it appears that there Patna High Court SA No.33 of 2007 dt.11-09-2012 17 was registered deed of agreement between the parties dated 18.12.1964. The agreement was to be performed by the predecessor in interest of defendant Nos. 1 to 3 within three months of the date of getting due permission for such sale from other co-owners. Possession was delivered. It was averred that entire consideration of the amount in terms of agreement was paid and possession was delivered to the plaintiffs and there remained nothing to be performed. The plaintiffs came to know on 19.11.1993 that the defendants refused to perform their part of the agreement as such the suit was filed for specific performance of contract and also praying for injunction. It is clear from the above facts that there were no further facts between the intervening period from the date of registration of the agreement and the date when the defendant objected to the selling of the property by the plaintiffs i.e. on 19.11.1993. The plaintiffs clearly mentioned therein that he came to know that the defendants were refusing to perform their part of the agreement in 1993. In the present case at our hand, it cannot be said that the defendants for the first time refused to perform their part of the so called agreement. During this intervening period from the date of compromise decree till the institution of the suit an eviction suit was filed in the year 1986 which continued up to the year 2005. It is well settled principles of law that cause of action is bundle of facts pleaded by the plaintiffs entitling him to a relief.
Patna High Court SA No.33 of 2007 dt.11-09-2012 18 Merely because a lengthy plaint has been drafted very skillfully it cannot be said that it is the cause of action for the relief claimed by the plaintiffs. The question requires to be considered is as to what is the said cause of action. Here in the present case according to the plaintiffs the cause of action to file the present suit accrued because the defendants refused to execute registered sale deed. We have quoted above the terms and conditions. Nowhere it is mentioned that the defendants will execute and register sale deed if it is found that title did not pass on the basis of the compromise decree. Now therefore, according to the plaintiffs appellants the plaintiffs appellants are insisting to draw an inference from the terms and conditions of the compromise decree that there was agreement between the parties whereby the defendants agreed to confer title on the present plaintiffs. It is well settled principles of law that the golden rule of construction of a document is to ascertain the intention of the parties to the instrument after considering of the words in their ordinary natural sense. A sentence or term used here or there may not be determinate of the real nature of the transaction. When the words used in the compromise decree are clear no inference can be drawn contrary to the intention of the parties.
15. The learned counsel next relied upon AIR 2006 SC 1828 Mayar (H.K.) Limited and others vs. Owners and Parties Vessel Patna High Court SA No.33 of 2007 dt.11-09-2012 19 M.V. Fortune Express and others and submitted that the court has to read the entire plaint as a whole to find out where it discloses a cause of action and if it does then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code of Civil Procedure. The learned counsel placed paragraph 11 of the said decision. It has been held in the said paragraph by the Apex Court that essentially whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. This is the settled principles of law decided by the Apex Court i.e. whether the plaint discloses a cause of action or not is to be decided on the reading of the entire plaint in each case. This is entirely a question of fact to be ascertained from the facts in each case. In the present case, after perusal of the plaint both the courts below concurrently recorded the finding that the plaint did not disclose cause of action. In view of this decision relied upon by the learned counsel for the appellants this question is essentially a question of fact. It is well settled principles of law that when there is concurrent finding of fact of both the courts below this High Court has no jurisdiction to interfere with the concurrent findings of fact in second appeal. The Apex Court recently in the case of Vishwa Agrawal vs. Sarla Vishwa Agrawal (2012) 7 SCC 288 at paragraph 37 relying on the earlier decision of the Patna High Court SA No.33 of 2007 dt.11-09-2012 20 Viddyadhar vs. Manik Rao (1999) 3 SCC 573 and Abdul Rahim vs. Karnataka Electricity Board 2007 (14) SCC 138 held that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. Because another view is possible on the basis of the evidence the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. Therefore, the findings of both the courts below that the plaint did not disclose cause of action appears to be a pure finding of fact.
16. The learned counsel next relied upon AIR 1998 SC 3085 M/s. Raptakos Brett and Company Ltd. vs. Ganesh Property and placing paragraph 11 submitted that the cause of action is to be found out on reading of entire paragraph of the plaint. So far this decision is concerned, also it is the settled principles of law. In that case the Hon'ble Supreme Court was considering the case instituted by an unregistered partnership firm. So far this principle laid down by the Apex Court is concerned, there is no dispute. It is well settled that a pleading has to be read as a whole to ascertain its true impact. It is not permissible to call out a sentence or a passage and to read it out of the context, in isolation. Although it is a substance and not merely the Patna High Court SA No.33 of 2007 dt.11-09-2012 21 form that has to be looked into and the pleading has to be construed as it stands without addition or substraction of words or change of its apparent grammatical sense. Here according to the pleading itself the compromise was entered into between the parties in the year 1980 wherein it was stipulated that as early as possible the compromise decree will be registered and the plaintiff herein will bear the registration cost. The defendants herein also filed the application before the Execution Munsif to send the decree for registration in the year 1983 but in view of the finding of this Court in second appeal arising out of the eviction suit it appears that the present plaint did not take any step for getting the compromise decree registered. Had he been diligently prosecuting his case in terms of the compromise, he could have filed the required stamp and could have got the compromise decree register but instead of doing so he remained silent till the dismissal of the SLP by the Apex Court in the year 2005.
17. The cause of action according to the plaintiffs that on the dismissal of the SLP by the Apex Court the plaintiffs approached the defendants for executing and registering the sale deed. Can this averment be said to give rise to the plaintiffs a cause of action to institute a suit for specific performance ?
18. The learned counsel next relied upon AIR 1998 SC 1128 Dr. Ramchandran vs. R.V. Jankiraman and submitted that the Patna High Court SA No.33 of 2007 dt.11-09-2012 22 court cannot dissect pleading into several part and strike out portion which does not disclose cause of action. On the basis of these decisions the learned counsel submitted that the courts below have committed error in considering pleading here and there in the present. So far the decision of the Apex Court is concerned, in my opinion the same view has been reiterated here also as referred to in above decision. Here in the present case, there is no question of dissection of any pleading arises. The plaintiffs pleaded themselves and quoted the terms and conditions in the plaint which have been considered in ex tenso by both the courts below. Consideration of entire plaint does not mean that in the judgment or order the courts are required to quote each and every line of each and every paragraph. The simple case of the plaintiffs is that there was compromise wherein 3 kattha 3 dhur land with construction was given in favour of the plaintiffs as full owners and there was stipulation that the compromise decree may be registered and the cost of the registration will be borne by the present plaintiff. He did not comply the said condition. With a view to deprive the State of Bihar from the court fee he did not get the decree registered although application was filed by the present respondents. Ultimately the eviction suit was filed in the year 1986. The same contention was raised in the said suit which was negatived by the trial court and which was confirmed up to the Apex Court. This is the true Patna High Court SA No.33 of 2007 dt.11-09-2012 23 meaning of the plaint. Now the submission is that the plaintiffs were prosecuting their case that title had already passed on the basis of the compromise decree which was not compulsorily registerable. This submission appears to be contrary to the pleading of the terms and conditions of the compromise. It was specifically mentioned in the compromise that the compromise decree will be registered as early as possible and the plaintiff shall bear the cost. The property is situated in the heart of Patna town and it is valuable. Therefore, plaintiffs did not perform his part of the contract. In view of the above facts it cannot be said that both the courts below read the plaint dissecting it. The terms and conditions and the judgments of the earlier suit was quoted by the lower appellate court.
19. The learned counsel next relied upon (2007) 10 SCC 59 Ram Prakash Gupta vs. Rajeev Kumar Gupta and others and submitted that the duty of the court to verify the entire plaint averments and not to read few lines, passages in isolation before deciding the issue of limitation. It has been held in that decision that if the plaint does not contain necessary averments relating to limitation the same is liable to be rejected. The learned counsel for the appellants submitted that in the present case the plaintiffs have clearly mentioned that the limitation will start running from the date of rejection of the SLP and the date when the defendants refused to Patna High Court SA No.33 of 2007 dt.11-09-2012 24 execute and register the sale deed.
20. So far the submission of the learned counsel regarding limitation is concerned, no doubt, it is question of law and fact but in all cases it cannot be said that the same can only be decided on the basis of evidence. In the present case, the cause of action has been pleaded by the plaintiffs which is the only fact regarding the termination of the compromise decree up to the dismissal of SLP by the Apex Court. Now whether these facts will entitle the plaintiffs to a relief for specific performance.
21. Article 54 of the limitation Act provides three years for filing the suit for specific performance of contract from the date fixed for the parties, or if no such date is fixed, when the plaintiff had noticed that performance is refused. In view of Article 54 of the Limitation Act the first part will not apply in this case because no time has been fixed for getting the compromise decree registered. There can be no inference from this fact that there was agreement between the parties whereby the defendants respondents herein agreed to execute and register a sale deed in favour of the plaintiffs. The second part of Article 54 says that the suit must be filed from the date when the plaintiffs has notice that performance is refused. Herein it is admitted case of the plaintiffs that the defendants filed eviction suit for eviction of the present plaintiffs from the said 3 kattha 3 dhur of Patna High Court SA No.33 of 2007 dt.11-09-2012 25 schedule 2 property in the year 1986. Now can it be said that even after institution of the said eviction suit the present plaintiffs had no notice about the refusal by the respondent herein to perform their part of the compromise decree. In my opinion, therefore, only because the plaintiffs has pleaded so in the plaint it cannot be said that the plaintiffs got the notice that the respondents refused to execute the sale deed only after the decree for eviction was passed by the Apex Court. It may be mentioned here that in the eviction suit of the year 1986 the trial court recorded the finding that the compromise decree was in operative and the present plaintiffs' possession was that of lessee and there was relationship of landlord and tenant between the parties and decreed the suit which was confirmed up to the Apex Court. Now can it be said that the plaintiff is entitled for a registered sale deed pursuant to the said compromise decree which has already been held inoperative and the finding was recorded that there was relationship of landlord and tenant between the parties. The present plaintiffs appellants nowhere filed counter claim in that suit that they are entitled for specific performance of contract. Even they did not file separate suit for specific performance of contract because as soon as they got the notice of the eviction suit they came to know that their title was threatened/ the defendant respondent herein refused to recognize their title and, therefore, cause of action arose on that very Patna High Court SA No.33 of 2007 dt.11-09-2012 26 date.
22. The learned counsel for the appellants submitted that in the eviction suit the defendant could not have filed counter claim regarding specific performance of contract. In my opinion, the submission has got no force because the Apex Court in the case of Jag Mohan Chawla and another vs. Dera Radha Swami, Satsang and others AIR 1996 SC 2222 held that the counter claim is maintainable against any cause of action and the cause of action need not have any nexus with case of the plaintiffs.
23. In the case of N.V. Shrinivasa Murthy and others vs. Mariyamma (dead) by proposed LRs. and others 2006 (1) PLJR 1 SC the Hon'ble Supreme Court has held that the trial court must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order 7 Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, the court must nip it in the bud at the first hearing by examining the party searchingly under Order 10 C.P.C. An activist judge is the answer of the irresponsible law suits. The trial court would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is Patna High Court SA No.33 of 2007 dt.11-09-2012 27 also resourceful enough to meet such men and must be triggered against them. In that case the Apex Court confirm the rejection of the plaint and awarded a cost of Rs.10,000/- on the plaintiff appellant. It appears that in that case on the basis of the averments itself it was found that the suit was barred by law of limitation. The Apex Court further held that the facts pleaded on the basis of which it was claimed that fresh cause of action had arisen was nothing but camouflage to get over the bar of limitation. Here also from the facts pleaded in the plaint it is clear that although the right to sue arose on the date when the defendants filed the suit for eviction in the year 1986 under B.B.C. Act and when the defendants got the notice of it. No doubt, in the present plaint the plaintiffs have stated that the right to sue accrued when SLP was dismissed. Can it be said that the right to sue accrued only after dismissal of the SLP by the Apex Court particularly when in the case pleaded by the plaintiff in the plaint the second part of Article 54 of the Limitation Act is applicable.
24. In the case of Abdul Gafur and another vs. State of Uttarakhand (2008) 10 SCC 97 the Apex Court held that it is trite that the rule of pleadings postulates that a plaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil court, it may be rejected in terms of Order 7 Rule 11 C.P.C.
Patna High Court SA No.33 of 2007 dt.11-09-2012 28
25. In view of the discussion of the facts and circumstances of the case, the submissions of the parties and the case laws it is clear that it is the law that while exercising the jurisdiction under Order 7 Rule 11 (a and d) C.P.C. the court is required to read the plaint as a whole to find out as to whether it discloses any cause of action entitling the plaintiffs to claim a relief from the plenary jurisdiction of the civil court under Section 9 of the C.P.C. Whether there is cause of action or not is a question of fact which is to be determined from the pleading of the plaint which will depend on the facts pleaded in each case. There cannot be any straight jacket formula that if there is any pleading wherein the facts have been disclosed then the court will presume that there is cause of action. It must be determined by the court that whether the bundle of facts disclosed by the plaintiffs in fact give rise a cause of action to the plaint to claim the relief or not. Therefore, it is the duty of the court to find out this from the fact of the pleading and it do not depend on the skillfully drafting of the plaint. Merely because the plaint is saying that the cause of action accrued on such and such date, the Court will not blindly accept the same if from the facts disclosed in the plaint cause of action arose on different dates then the date disclosed by the plaintiffs. In the present case the lower appellate court has dealt the pleading in the plaint in ex tenso vis. a vis. the case of the plaintiffs herein in ex tenso in the Patna High Court SA No.33 of 2007 dt.11-09-2012 29 earlier suit and the finding in the earlier suit and then recorded the finding that there is no cause of action. Admittedly, in view of the above facts and circumstances discussed above the question of limitation also is apparent and for that no evidence is required to prove the same in my opinion, therefore, in the present case from the admitted case the limitation i.e. second part of Article 54 of the limitation will apply as such the suit which was filed in the year 2006 is hopelessly barred by law of limitation.
26. So far the submission of the learned counsel for the appellants that he was pursuing the matter bona fidely up to the Apex Court is concerned, it may be mentioned here that the plaintiffs were never prosecuting their case in the earlier suit. They were only defending the plaintiffs' case. It is well settled principles of law that ordinarily a defendant who is mainly defending a suit filed by the other party cannot be taken to be prosecuting the said suit. This is for the reason that he is merely defending the suit. Since the term "plaintiff' and "defendant" had different prescribed meaning which are well known it is only the plaintiff who prosecute the suit. However if it is found that in a case where the defendant sets up his own claim or claims and has also prayed for a relief thereto he will also taken to be prosecuting the suit. Here in the present case as stated above the defendant was defending the case of the plaintiff up to the Apex Patna High Court SA No.33 of 2007 dt.11-09-2012 30 Court. He never sets up his own claim and, therefore, it cannot be said that he was bona fidely prosecuting his case.
27. In view of my discussion, the first substantial question of law formulated does not arise for consideration in this case. None of the courts below have misconstrued the judgment of the Apex Court. From the discussion of the facts pleaded in the plaint it is found that the cause of action disclosed is not cause of action for suit for specific performance of contract. Therefore, the first substantial question of law is answered against the appellants. Likewise since in the present case the question of limitation is admitted from the facts pleaded itself therefore only on the ground that it is mixed question of fact and law it cannot be said that the suit is not time barred. Here the facts are admitted and, therefore, only law is required to be applied. In my opinion, therefore, both the courts below have rightly held that the suit is hopelessly barred by law of limitation. Thus, substantial question of law No.2 is also answered against the plaintiffs. Accordingly, this second appeal is dismissed.
Patna High Court, Patna (Mungeshwar Sahoo, J.) Date : 11.09.2012 A.F.R. S.S.