Allahabad High Court
Ram Bhool Yadav And 3 Others vs Gyan Kunj Construction Pvt. Ltd. And 4 ... on 9 December, 2020
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 09.11.2020 Delivered on 09.12.2020 Court No. - 10 Case :- SECOND APPEAL No. - 435 of 2020 Appellant :- Ram Bhool Yadav And 3 Others Respondent :- Gyan Kunj Construction Pvt. Ltd. And 4 Others Counsel for Appellant :- Mahendra Pratap Singh,Prem Prakash Chaudhary Counsel for Respondent :- Devesh Saxena,Vinayak Mithal Hon'ble Rohit Ranjan Agarwal,J.
1. This is defendant's second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") against the judgment and decree dated 05.8.2020 passed by District Judge, Ghaziabad in Civil Appeal No.109 of 2019 arising out of judgment and decree dated 05.10.2009 passed by Civil Judge (Junior Division) Ghaziabad in Original Suit No.52 of 2014 decreeing the suit of the plaintiff.
2. An Original Suit No.52 of 2014 was filed by the plaintiff-respondent against defendant-respondents no.2 to 5 in the present appeal for the relief of executing rectification deed in their favour for the sale deed executed by their father (late Jassi) on 08.12.2005, wherein due to clerical error, Khasra No.2242 was typed in place of 2442 and also sought declaration in respect of Khasra No.2442 and further claimed that the sale deed executed by defendants-respondents no.2 to 5 in the present appeal in favour of defendants-appellants no.1 to 4 be declared as null and void and also sought relief for permanent prohibitory injunction against the defendants for not interfering in the peaceful possession.
3. In the plaint, it was alleged that late Jassi, father of defendants no.1 to 4 (respondents no.2 to 5 in the present appeal), who was the bhumidhar of Khata No.414, Khasra No.2442M, measuring 0.5060 hectare of land situated at village Shahpur Bamhaita, Pargana Dasna, Tehsil and District Ghaziabad sold the said land through a registered sale deed in favour of plaintiff-respondent Company on 8.12.2005, which was registered in the office of Sub-Registrar-I, Ghaziabad. The total sale consideration, paid by the plaintiff-respondent Company was Rs.54,46,716/- out of which Rs.47,44,500/- was paid through cheque and Rs.7,02,216/- was paid in cash, but due to typing error, Khasra No.2242 was mentioned in the sale deed instead of 2442. While the boundaries were mentioned of Khasra No.2442. Map attached along with the sale deed show that Khasra No.2420 is situated to North, Khasra No.2426 to the East, Khasra No.2443 to the South and Khasra No.2435 to the West of the land sold, which was Khasra No.2442.
4. It was further averred that this mistake was not noticed by the Company, and after the death of Jassi, his sons defendants no.1 to 4, (present defendant-respondents no.2 to 5 in the appeal) got their names mutated in the Revenue records and sold the said land to present defendants-appellants, who were arrayed as defendants no.5 to 8 in the original suit filed by the plaintiff on 22.10.2012. It was on 05.01.2014 when the defendants-appellants came to take possession from employees of the Company, then it came to the knowledge of the plaintiff. Thereafter an application was moved on 06.01.2014 for getting copy of sale deed dated 22.10.2012, which the plaintiff got on 10.01.2014. Thus, it was on 10.01.2014 when for the first time the plaintiff came to know about the sale deed executed by the defendants no.1 to 4 in favour of defendants no.5 to 8 and the cause of action arose for filing the suit.
5. The aforesaid suit was contested by the defendants and separate written statements were filed on behalf of defendants no.1 to 4 as well as defendants no.5 to 8. It was stated that plaintiff was not owner in possession of Khasra No.2442M measuring 0.5060 hectare and their father was never interested in selling the said land in favour of the Company. It was further averred that in the said area many builders had come for purchasing the land for constructing multi-storeyed building and one of the sister concern of plaintiff company i.e. "Sonex Project" was working in the area in field of real estate and through its Authorized Signatory Jitendra had purchased number of land. In para 29 of the written statement it was specifically mentioned that Jassi was also the bhumidhar of Khasra No.2419 measuring 0.4050 hectare and Khasra No.2420 measuring 0.3160 hectare, for which two post dated cheques of Rs.68,00,000/- and for Rs.47,44,500/- was given and a sale deed was executed on 05.12.2005. It was the representative of the Company who had approached their father late Jassi on 08.12.2005 on the pretext of getting Khasra No.2419 and 2420 mutated in the Revenue records and certain documentation was done, and Jassi being illiterate had made his thumb impression over the documents and no sale deed was executed by Jassi on 08.12.2005 for Khasra No.2442.
6. Similarly, defendants no.5 to 8 i.e. purchaser of the land from the sons of Jassi defendants no.1 to 4 stated in their written statement that they were the bona fide purchaser who were recorded in the Revenue records as Bhumidhar of Khasra No.2442 and after execution of the sale deed on 22.10.2012, they became owner in possession.
7. From the pleadings of the parties, the Trial Court framed the following issues :
(I) Whether plaintiff is entitled to relief sought on the basis of case pleaded in the plaint?
(II) Whether in relief clause the reliefs claimed are not alternative to each other?
(III) Whether sale deed in favour of defendants No.5 to 8 is illegal and liable to be cancelled?
(IV) Whether Veer Singh is authorized representative of the plaintiff company and has right to file suit?
(V) Whether suit is undervalued?
(VI) Whether Court fee paid by the plaintiff is insufficient and on alternative reliefs separate Court fee was payable?
(VII) Whether suit is barred by Section 331 of U.P.Z.A. & L.R. Act?
(VIII) Whether suit is barred by law of limitation?
(IX) Whether suit is barred by Sections 34, 38 and 41 of Specific Relief Act?
(X) Whether defendants are entitled to special cost to the tune of Rs.20,000/-?
8. The Trial Court partly decreed the suit of the plaintiff as far as the rectification of the sale deed dated 08.12.2005 was concerned and declaring sale deed dated 22.10.2012 as null and void but did not grant relief of permanent prohibitory injunction holding that the plaintiff was not in possession.
9. Defendants filed Civil Appeal No.109 of 2019 before the District Judge, Ghaziabad wherein cross objection was filed by plaintiff-respondent which was decided vide judgment dated 05.8.2020, whereby the appeal of the defendants was dismissed and cross objection filed by plaintiff-respondent was allowed and the decree of Trial Court was modified in the manner that it shall also include the relief of prohibitory injunction.
10. Sri P.P.Chaudhary, learned counsel appearing for defendants-appellant while assailing the judgment of the Courts below raised four objections, firstly, the suit filed by the plaintiff-Company was not maintainable for want of proper description of the plaintiff and the plaint was not signed and verified by the representative of the Company, as contained in Order 6 Rule 15 CPC, thus the suit could not have been treated to be validly instituted. In this regard, reliance has been placed upon decision of Apex Court in the case of State Bank of Travancore vs. M/s Kingston Computers (I) Pvt. Ltd. 2011 All.C.J. 913 (Para 15), which is extracted here as under :
"The Division Bench of the High Court did take cognizance of the fact that the company had not summoned any witness from the office of the Registrar of Company to prove that Shri Ashok K. Shukla was a Director of the company and that the minute book of the company had not been produced to prove the appointment of Shri Ashok K. Shukla as a Director, but reversed the finding of the trial Court on issue No. 1 on the basis of the authority letter issued by Shri Raj K. Shukla and resolutions dated 14.2.2001 and 19.4.2001, by which the Board of Directors of the company had authorised some persons to operate the bank account."
11. Order 29 Rule 1 CPC provides that in suit by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the Secretary or by any Director or other principal officer of the Corporation who is able to depose to the facts of the case. As no representative of the plaintiff-company had signed or verified the suit and the cross objection filed by the plaintiff in the appeal thus the Court below could not have decreed the suit.
12. The second point canvassed was that the plaintiff had sought rectification of the sale deed dated 08.12.2005 claiming that Khasra No.2242 be read as 2442, whereas sale deed executed by the defendants no.1 to 4 in favour of defendants no.5 to 8 on 22.10.2012 of Plot No.2442/3M be declared null and void was in fact misconceived and not maintainable, as the suit for cancellation of sale deed as well as permanent injunction relating to agricultural land was not maintainable in Civil Court, as admittedly defendant-appellants are recorded tenure holder over Khasra No.2442/3M. In this regard, reliance has been placed upon decision of the Apex Court in case of Shri Ram and Another vs. Ist Addl. District Judge & Ors. (2001) 3 SCC 24. Relevant para of the judgment is extracted here as under :
"On analysis of the decisions cited above, we are of the opinion that where a recorded tenure holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue court -- reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession.
For the aforesaid reasons, we are of the opinion that the view taken by the High Court in allowing the writ petition suffers from serious infirmity. The appeal, therefore, deserves to be allowed. Consequently, the judgment under appeal is set aside. The trial court is directed to proceed with the suit on merits. There shall be no order as to costs."
13. Thirdly, it was contended that the suit of the plaintiff was barred by limitation as the mutation application of the plaintiff was dismissed way back on 10.4.2006 and it was well within his knowledge that there was defect in the khasra number but no step was taken to get it rectified and it was in the year 2014 the suit for rectification as well as declaring the sale deed of the defendants null and void was filed. Reliance has been placed upon decision of Apex Court in the case of Mst. Rukhmabai vs. Lala Laxminarayan and others 1960 AIR 335. Relevant para is extracted here as under :
"33. The legal position may be briefly stated thus :
The right to sue under Art. 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that treat effectively invades or jeopardizes the said right.
34. The facts relevant to the question of limitation in the present case may be briefly restated : The trust deed was executed in 1916. The suit house was constructed in 1920. If, as we have held, the trust deed as well as the construction of the building were for the benefit of the family, its execution could not constitute any invasion of the plaintiff's right. Till 1926, the plaintiff's father, Ratanlal was residing in that house. In 1928 when Daga challenged the trust deed, the family compromised the matter and salvaged the house. From 1936 onwards the plaintiff has been residing in the suit house. It is conceded that he had knowledge of the litigation between Rukhmabai and Chandanlal claiming the property under the trust deed; but, for that suit he was not a party and the decision in that litigation did not in any way bind him or affect his possession of the house. But in execution of the decree, the Commissioner appointed by the Court came to the premises on February 13, 1937, to take measurements of the house for effecting partition of the property, when the plaintiff raised objection, and thereafter in 1940, filed the suit. From the aforesaid facts, it is manifest that the plaintiff's right to the property was not effectively threatened by the appellant till the Commissioner came to divide the property. It was only then there was an effectual threat to his right to the suit property and the suit was filed within six years thereafter. We, therefore, hold that the suit was within time.
In the result, the appeal fails and is dismissed with costs.
35. Appeal dismissed."
14. Lastly it was contended that the statement of plaintiff witness -1 and examination-in-chief was filed through affidavit but it was never proved and thus was not admissible in evidence. Further the Trial Court had recorded a categorical finding that the plaintiff was not in possession over the land in dispute and thus the lower Appellate Court could not have recorded any finding relating to possession of the plaintiff, as the PW-2 in his oral statement had admitted the possession of the defendant-appellants. As far as Order 18 Rule 4 CPC is concerned, reliance has been placed upon decision of Apex Court in the case of Ameer Trading Corpn. Ltd. vs. Shapoorji Data Processing Ltd. (2004) 1 SCC 702. Relevant paras 30 to 34 of the judgment are extracted here as under :
"30. In Laxman Das (supra) the Rajasthan High Court held: (AIR p. 78, para 16) "16. Therefore, in view of the above, the words "in every case", contained in Rule 4 of Order 18 have to be understood in a limited sense that every case wherein the ultimate order is not appealable, and by no means, it can take in its ambit the orders which would be appealable. In view of above, the position which emerges is that in cases where the final orders to be passed by the Court would not be appealable, the discretion has been conferred upon the Court to accept the examination-in-chief in the form of affidavit as provided under Order 18, Rule 4; or to record the substance thereof by the Court itself as provided under Order 18, Rule 13. But in cases where orders would be appealable, the evidence is to be recorded strictly as provided under Order 18, Rule 5."
31. On the other hand, in F.D.C. Ltd. (supra) it has been held (AIR pp.374-75, paras 7-8):
"The harmonious reading of Rules 4 and 5 of Order XVIII would reveal that while in each and every case of recording of evidence, the examination-in-chief is to be permitted in the form of affidavit and while such evidence in the form of affidavit being taken on record, the procedure described under Rule 5 is to be followed in the appealable cases. In non-appealable cases, the affidavit can be taken on record by taking resort to the provisions of law contained in Rule 13 of Order XVIII. In other words, mere production of the affidavit by the witness will empower the court to take such affidavit on record as forming part of the evidence by recording the memorandum in respect of production of such affidavit taking resort to Rule 13 of Order XVIII in all cases except in the appealable cases wherein it will be necessary for the Court to record evidence of production of the affidavit in respect of examination-in-chief by asking the deponent to produce such affidavit in accordance with Rule 5 of Order XVIII. Undoubtedly, in both the cases, for the purpose of cross- examination, the Court has to follow the procedure prescribed under Sub-rule (2) of Rule 4 read with Rule 13 in case of non- appealable cases and the procedure prescribed under Sub-rule (2) of Rule 4 read with Rule 5 in appealable cases.
In other words, in the appealable cases though the examination-in-chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be ordered to form part of the evidence unless the deponent thereof enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature and this statement being made on oath to be recorded by following the procedure prescribed under Rule 5. In non- appealable cases, however, the affidavit in relation to examination-in-chief of a witness can be taken on record as forming part of the evidence by recording memorandum of production of such affidavit by taking resort to Rule 13 of Order XVIII. The cross-examination of such deponent in case of appealable cases, will have to be recorded by complying the provisions of Rule 5, where as in case of non-appealable cases the Court would be empowered to exercise its power under Rule 13"
32. We agree with the view of the Bombay High Court.
33. The matter may be considered from another angle. Presence of a party during examination-in-chief is not imperative. If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such an objection can always be taken before the court in writing and in any event, the attention of the witness can always be drawn while cross-examination him. The defendant would not be prejudiced in any manner whatsoever the examination-in-chief is taken on an affidavit and in the event, he desires to cross-examine the said witness he would be permitted to do so in the open court. There may be cases where a party may not feel the necessity of cross-examining a witness, examined on behalf of the other side. The time of the court would not be wasted in examining such witness in open court.
34. Applying the aforementioned principles of interpretation of statute, we have no doubt in our mind that Order 18 Rules 4 and 5 are required to be harmoniously construed. Both the provisions are required to be given effect to and as Order 18 Rule 6 cannot be read as an exception to Order 18 Rule 4."
15. Sri Naveen Sinha, learned Senior Advocate, assisted by Sri Vinayak Mithal and Devesh Saxena, counsel for the plaintiff-respondent submitted that on 17.01.2014 the Board of Directors of the Company had passed resolution for filing a suit for cancellation of sale deed in respect of Khasra No.2442 against the defendants and it was resolved that Mr. Bir Singh was authorized on behalf of the Company to file the suit. Copy of Board resolution was filed as paper No.14Ga. Para 1 of the plaint makes disclosure as to the authorized representative of the Company as per the Board resolution dated 17.01.2014 and the plaint was verified and signed by the Authorized Signatory on 18.02.2014 thus compliance of Order 6 Rule 15 and Order 29 Rule 1 CPC had been made.
16. He next contended that the registered sale deed executed by late Jassi discloses that possession was handed over to plaintiff Company and a sum of Rs.47,44,500/- was paid through Cheque No.219529 dated 07.12.2005 and the balance amount of Rs.7,02,216/- was paid in cash. The map of Khasra No.2442 was also part of sale deed, wherein boundaries were mentioned and Chandra Pal son of Jassi, who is defendant no.3 in the suit filed by the plaintiff was witness to the sale deed dated 08.12.2005.
17. Replying to the first issue raised by appellant, Sri Sinha submitted that not only examination-in-chief of PW-1 was filed through affidavit and resolution through annexure, but the same was proved in the cross-examination of PW-1 in which he had stated that he was the Authorized Representative of the Company. Reliance has been placed upon decision of Apex Court in the case of United Bank of India vs. Naresh Kumar and others (1996) 6 SCC 660. Relevant paras 9 and 10 of the judgment are extracted here as under :
"9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the CPC, to ensure that injustice is not done to any party who has a just case as for as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
10. In cannot be disputed that a company like the appellant can sue and be sued in its in its own name. Under Order 6 Rule 14 of the CPC a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the CPC, therefore, provides that in a suit by or against a corporation the secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the CPC it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto an de hors Order 29 Rule 1 of the CPC, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the CPC. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The Court can. on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer."
18. In Bharat Petroleum Corporation Ltd. vs. Amar Autos & Ors. 2008(5) ADJ 584 (DB) in paras 9 to 12 are extracted here as under :
"9. By showing such provision and relying upon the persuasive value of a single Bench Judgment of Delhi High Court in Nibro Limited v. National Insurance Co. Ltd. AIR 1991 Delhi 25 , he stated that this provision only authorises a person to sign and verify the pleadings on behalf of the corporation but does not authorise to institute suit on behalf of the corporation. He said that unless a power to institute a suit is specifically conferred on a particular Director, he has no authority to institute a suit on behalf of the company. Needless to say that such a power can be conferred by the Board of Directors only by passing a resolution in this regard. The question of authority to institute a suit on behalf of the company is not a technical matter. It has far reaching effects. It often affects policy and finances of the company. Therefore, there is no wrong on the part of the court below in dismissing the suits under Order VII, Rule 11 of the C.P.C., which the court below is otherwise competent to pass when found from the statement in the plaint that the same is barred by any law.
10. Upon considering the pros and cons of the matter we are of the view that the learned Judge of the court below has proceeded in a wrong premises and with hot-haste. According to us, a power of attorney or an affidavit of such nature is only required to prima facie satisfy the Court that a company or corporation or a body corporate has presumably proceeded with the suit under its seal and signature. It has nothing to do with the registration of the document unless it is compulsorily registrable. Persuasive value of M/s. Nibro Ltd. (supra) cannot pursue us. There is a thinner line in between authorization to sign and verify the pleadings, and to institute a suit on behalf of the corporation, company or a body corporate. Whenever a person is authorized to sign and verify the pleadings other than verification of plaint, written statement, memorandum of appeal, etc., it is doing so by filing affidavit in support of such contentions. Therefore, it stands on a better position than ordinary verification. But a person when verifies the plaint, written statement or memorandum of appeal, it is a verification simplicitor, meaning thereby that the verification part is also to be evidently proved unlike an affidavit, which itself is an evidence. Hence, authorization to institute a suit stands in the lower side than putting signature and verifying a pleading by way of an affidavit. On the other hand, signature and verification of the pleading of a plaint cannot be made for the sake of signature and verification alone but for the purpose of filing of the same before the Court either by him or by his learned advocate. As soon as it is filed, the same will be treated to be institution of such proceeding by the person who has signed and verified. It is automatic. Institution of suit and right to institute the suit are distinct and different. The argument of Mr. Shashi Nandan restricted only to the first part of Order XXIX, Rule 1 of C.P.C. but not to the last part. If the suit is proceeded and the evidence is led and if any of the defendants want to challenge the verification of the plaint, he can call the deponent as witness for the purpose of examination. But Court cannot prevent anyone from instituting a suit when his authority is apparently satisfactory. No body will be prevented from enforcing his legal right. It is a gross mistake on the part of the court below to construe that the power of attorney should be registered and then only the suit can be instituted by a representative of the company or corporation. Moreover justification of filing the plaint by the authorised representative of the corporation or company will be considered from the practical point of view. If the court below is not happy, it could have called upon the company to file an affidavit of competency, which is desirable under such,/circumstances, but not outright, rejection of the plaint.
11. Therefore, from any angle the order/s impugned appear to be perverse in nature. Thus, in totality the orders impugned in both the appeals cannot be sustained. Hence, the orders dated 24th January, 2008, passed by the court below in the above referred suits, impugned in the instant appeals, are set aside. Thus, both the appeals are allowed without imposing any cost.
12. The suits will be heard as expeditiously as possible. In case of any displeasure of the parties about particular Court, it is open for them to approach the learned District Judge, who is administrative head of the District, for transferring the matters from one Court to other but we should not judicially encroach upon such field to maintain the judicial restraint."
19. Regarding the second issue, Sri Sinha contended that the present suit had been filed for rectification of Khasra No.2442M, which was wrongly transcribed in the sale deed dated 8.12.2005 as ''2242' and the said Khasra was identifiable by boundaries. It has been held in number of judicial pronouncement that when there is conflict between area, it is the boundaries that prevails and the mistake which had cropped up in the sale deed could have been rectified under Section 26 of the Specific Relief Act, 1963. He further contended that once it is held that Jassi had transferred his land to plaintiff then sale deed executed by defendants no.1 to 4 in favour of defendant no.5 to 8 would become void ipso facto and mutation in favour of defendants will go with the sale deed, thus no adjudication of bhumidhari right is involved. Reliance has been placed upon decision of this Court in case of Kishori Prasad vs. IIIrd Additional District Judge and others, AIR 2003 Alld. 58.
20. Replying to the third issue of limitation, it was contended that when defendants no.5 to 8 came to take forceful possession of the plot on 05.01.2014 plaintiffs, for the first time came to know about the sale deed dated 22.10.2012 and thereafter an application was made to get a copy of the sale deed, which was obtained on 10.01.2014 and the mistake was deciphered. Thereafter suit was filed for rectification of khasra No. ''2242' as ''2442' and relief for declaring sale deed dated 22.10.2012 as null and void alongwith relief for permanent prohibitory injunction was claimed. Thus the suit is not barred by limitation. Reliance has been placed upon decision of Apex Court in case of Shakti Bhog Food Industries Ltd. vs. The Central Bank of India and Ors. AIR 2020 SC 2721. Relevant paras 9 to 12 of the judgment are extracted here as under :
"9. The expression used in Article 113 of the 1963 Act is "when the right to sue accrues", which is markedly distinct from the expression used in other Articles in First Division of the Schedule dealing with suits, which unambiguously refer to the happening of a specified event. Whereas, Article 113 being a residuary Clause and which has been invoked by all the three Courts in this case, does not specify happening of particular event as such, but merely refers to the accrual of cause of action on the basis of which the right to sue would accrue.
10. Concededly, the expression used in Article 113 is distinct from the expressions used in other Articles in the First Division dealing with suits such as Article 58 (when the right to sue "first" accrues), Article 59 (when the facts entitling the Plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded "first" become known to him) and Article 104 (when the Plaintiff is "first" refused the enjoyment of the right). The view taken by the trial Court, which commended to the first appellate Court and the High Court in second appeal, would inevitably entail in reading the expression in Article 113 as - when the right to sue (first) accrues. This would be re-writing of that provision and doing violence to the legislative intent. We must assume that the Parliament was conscious of the distinction between the provisions referred to above and had advisedly used generic expression "when the right to sue accrues" in Article 113 of the 1963 Act. Inasmuch as, it would also cover cases falling Under Section 22 of the 1963 Act, to wit, continuing breaches and torts.
11. We may usefully refer to the dictum of a three-Judge Bench of this Court in Union of India and Ors. v. West Coast Paper Mills Ltd. and Anr. (2004) 2 SCC 747, which has had an occasion to examine the expression used in Article 58 in contradistinction to Article 113 of the 1963 Act. We may advert to paragraphs 19 to 21 of the said decision, which read thus:
"19. Articles 58 and 113 of the Limitation Act read thus:
Description of suit Period of Limitation Time from which period begins to run
58. To obtain any other declaration Three years When the right to suit first accrues.
* * *
113. Any suit for which no period of limitation is provided elsewhere in this Schedule Three years When the right to sue accrues.
20. It was not a case where the Respondents prayed for a declaration of their rights. The declaration sought for by them as regards unreasonableness in the levy of freight was granted by the Tribunal.
21. A distinction furthermore, which is required to be noticed is that whereas in terms of Article 58 the period of three years is to be counted from the date when "the right to sue first accrues", in terms of Article 113 thereof, the period of limitation would be counted from the date "when the right to sue accrues". The distinction between Article 58 and Article 113 is, thus, apparent inasmuch as the right to sue may accrue to a suitor in a given case at different points of time and, thus, whereas in terms of Article 58 the period of limitation would be reckoned from the date on which the cause of action arose first, in the latter the period of limitation would be differently computed depending upon the last day when the cause of action therefor arose." (emphasis supplied)
12. Similarly, in Khatri Hotels Private Limited and Anr. v. Union of India and Anr. (2011) 9 SCC 126, this Court considered the expression used in Article 58 in contradistinction to Article 120 of the old Limitation Act (the Indian Limitation Act, 1908). In paragraph 24, the Court noted thus:
"24. The Limitation Act, 1963 (for short "the 1963 Act") prescribes time limit for all conceivable suits, appeals, etc. Section 2(j) of that Act defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 3 lays down that every suit instituted, appeal preferred or application made after the prescribed period shall, subject to the provisions of Sections 4 to 24, be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article. In other words, the residuary Article is applicable to every kind of suit not otherwise provided for in the Schedule."
(emphasis supplied) The distinction between the two Articles (Article 58 and Article (sic)) has been expounded in paragraphs 27 to 30 of the reported decision, which read thus:
"27. The differences which are discernible from the language of the above reproduced two articles are:
(i) The period of limitation prescribed Under Article 120 of the 1908 Act was six years whereas the period of limitation prescribed under the 1963 Act is three years and,
(ii) Under Article 120 of the 1908 Act, the period of limitation commenced when the right to sue accrues. As against this, the period prescribed Under Article 58 begins to run when the right to sue first accrues.
28. Article 120 of the 1908 Act was interpreted by the Judicial Committee in Bolo v. Koklan [(1929-30) 57 IA 325 : AIR 1930 PC 270] and it was held: (IA p. 331) "There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the Defendant against whom the suit is instituted." The same view was reiterated in Annamalai Chettiar v. Muthukaruppan Chettiar [ILR (1930) 8 Rang 645] and Gobinda Narayan Singh v. Sham Lal Singh [(1930-31) 58 IA 125].
29 In Rukhmabai v. Lala Laxminarayan (AIR 1960 SC 335), the three-Judge Bench noticed the earlier judgments and summed up the legal position in the following words: (Rukhmabai case [AIR 1960 SC 335 AIR p. 349, para 33) "33. ... The right to sue Under Article 120 of the [1908 Act] accrues when the Defendant has clearly or unequivocally threatened to infringe the right asserted by the Plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right."
30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word "first" has been used between the words "sue" and "accrued". This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued. (emphasis supplied) Notably, the expression used in Article 113 is similar to that in Article 120, namely, "when the right to sue accrues". Hence, the principle underlying this dictum must apply proprio vigore to Article 113."
21. Lastly it was contended that the possession followed title and the Trial Court was not correct in refusing grant of decree of possession while granting decree of rectification of the sale deed dated 08.12.2005 holding the plaintiff having title over land and declaring the sale deed dated 22.10.2012 as null and void. Reliance has been placed upon decision of Apex Court in case of Anathula Sudhakar vs. P.Buchi Reddy (Dead) by LRs. And Ors. (2008) 4 SCC 594. Relevant para 14 of the judgment is extracted here as under :
"But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs."
22. I have heard counsel for the parties and perused the material on record.
23. In this appeal, defendants-appellants have tried to raise following issues:
(i) The suit of the plaintiff-company was liable to be rejected for non-compliance of provisions contained under Order 6 Rule 15 read with Order 29 Rule 1 CPC.
(ii) As the plaintiff was not recorded tenure holder and the suit was filed for cancellation of sale deed in respect of agricultural plot of recorded tenure holder, therefore the suit was not maintainable before the Civil Court.
(iii) Suit filed by plaintiff for rectification of sale deed was barred by limitation.
(iv) Statement of plaintiff's witness in examination-in-chief filed through affidavit were inadmissible in evidence and also in absence of proof of execution of sale deed dated 08.12.2005 whether the suit could be decreed ?
24. As far as issue (i) is concerned, it is not in dispute that para 1 of the plaint categorically discloses the fact that the suit was filed through Authorized Representative of the Company and the resolution of the Board of Directors dated 17.01.2014 was brought as paper No.14Ga, which was not only filed through affidavit of PW-1 through his examination-in-chief, but was also proved in his cross-examination. The said plaint was signed and verified by the Authorized Representative Bir Singh thus compliance, as mandated under Order 6 Rule 15 read with Order 29 Rule 1 CPC, has been clearly made out and the issue raised by the applicant find no support. Further in the case of United Bank of India vs. Naresh Kumar (supra) the Apex Court had categorically held that a Company is a juristic entity. It can authorize a person to sign the plaint or written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6, Rule 14 CPC.
25. As in the present case the Board's resolution was there on the record, thus sufficient compliance of Order 6 Rule 15 read with Order 29 Rule 1 CPC has been made. Reliance place by the appellant in the case of State Bank of Travancore (supra) is distinguishable in the present case.
26. As far as issue (ii) of the Civil Court not having jurisdiction in the matter is concerned, it has been pressed by the appellants that plaintiff being unrecorded tenure holder could not have instituted suit before Civil Court against a recorded tenure holder for cancellation of sale deed in respect of bhumidhari land. As from the pleadings of the parties it is evident that Jassi on 08.12.2005 had executed the sale deed in favour of plaintiff-respondent and instead of Khasra No.2442, Khasra No.2242 was transcribed in the sale deed, though map attached with the sale deed reflect the execution of Khasra No.2442 and their boundaries. The witness to the sale deed was Chandra Pal, one of the sons of Jassi, who is defendant no.3 in the suit. The suit brought by plaintiff was for rectification of the sale deed dated 08.12.2005 and for declaring the sale deed of defendants no.5 to 8 null and void. Thus there was no question of adjudication of bhumidhari rights in the present case and was only for the rectification of the sale deed in view of the provisions of Section 26 of the Specific Relief Act, 1963. This Court in Kishori Prasad (supra) has held that an executant or his successor could file suit in Civil Court for cancellation of void instrument.
27. Thus, once suit for rectification of sale deed dated 8.12.2005 is decreed, the sale deed executed by defendants no.1 to 4 in favour of defendants no.5 to 8 on 22.10.2012 automatically became void. Both the Courts below had recorded concurrent finding on this point, which need not be interfered by this Court.
28. Coming to issue no.(iii) with regard to limitation, learned counsel for the appellant had submitted that period for rectification is three years, as provided under Article 113 of the Limitation Act and limitation for filing the suit came to an end on 07.12.2008, thus suit having been filed in 2014 was clearly barred by law of limitation. It was also submitted by appellants that PW-2, Scribe of the sale deed dated 8.12.2005, in his cross examination had said that on 12.12.2005 Jitendra, representative of plaintiff Company had come to him and told about some mistake which had occurred in the sale deed and it was to be corrected. Despite the said fact, no suit for rectification was filed by the plaintiff within the period of limitation, while the plaintiff's case is that when defendants no.5 to 8 had come on 5.01.2014 and thereafter on 10.01.2014 when they got certified copy of the sale deed dated 22.10.2012, then for the first time they came to know about the sale deed executed by sons of late Jassi in favour of defendants no.5 to 8, thus suit for rectification of sale deed and declaration was filed.
29. It is no doubt clear that Article 113 of Limitation Act provides that any suit for which no period of limitation is provided elsewhere in the schedule, period of limitation is three years, "when right to sue accrues". Similarly, Article 58 of Limitation Act provides for the relief of any other declaration, period of limitation of which is three years, when the right to sue accrues.
30. In the present case, Jassi had executed a registered sale deed in favour of plaintiff Company and one of his sons Chandra Pal was the witness to the said sale deed. As khasra number was wrongly transcribed, which at the first glance did not appear to be incorrect and when seen cautiously mistake appeared. The boundary map attached to the sale deed is of Khasra No.2442. Thus, the cause of action arose when defendants no.5 to 8 came to take possession from plaintiffs-respondents on the basis of sale deed dated 22.10.2012 on 05.01.2014 and also when the copy of the sale deed was obtained on 10.01.2014, thus the suit was within limitation.
31. The law propounded by Hon'ble Supreme Court in the case of Shakti Bhog Food Industries Ltd. (supra) is clear that the period of limitation as envisaged under Article 58 and 113 of Limitation Act will start when the right to sue accrues. The lower Appellate Court rightly relying upon the said decision recorded a categorical finding that the suit filed by plaintiff-respondent was within the period of limitation.
32. Now adverting to the issue (iv) that statement of plaintiff witness in examination-in-chief filed through affidavit were not admissible in evidence and the sale deed which is the basis of claim having not been proved, the suit could not have been decreed. According to Order 18 Rules 4 and 5 CPC, in each and every case of recording of evidence the examination-in-chief is to be permitted in form of affidavit. Further in appellable cases though examination-in-chief of witness is permitted to be produced in form of affidavit, such affidavit shall form part of evidence only when witness enters the box and contends that contents of affidavit are as per his say and the affidavit is under his signature and this statement being made on oath is to be recorded by following the procedure prescribed under Rule 5 of Order 18 CPC.
33. In the present case PW-1 was cross examined on 16.10.2018 and compliance of Rule 5 of Order 18 CPC was made wherein after recording on oath, PW-1 had proved paper no.127Ka/11, which was authorization letter for instituting the suit and paper no.127Ka/13, the certificate of incorporation of the Company. Thus, issue raised as far as disbelieving the statement of PW-1 in evidence falls flat.
34. While the sale deed dated 08.12.2005 was a registered document and there was a valid presumption in regard to its execution and the same was proved by PW-1 and PW-2 (scribe of sale deed) though Chandra Pal, the son of late Jassi, who was the witness to the said sale deed was the best witness to depose about its non execution was never produced as defendant witness thus the argument of the appellant has no force that the sale deed dated 8.12.2005 was never proved. The lower Appellate Court had recorded a categorical finding to this effect which need not be interfered by this Court.
35. Moreover, late Jassi on 08.12.2005 had sold the land in dispute for a sum of Rs.54,46,716/- while the second sale deed executed after 7 years was only for Rs.55 lakhs and the entire amount was paid in cash to which defendants failed to prove withdrawal from the bank of such huge amount, nor the same was reflected in their income tax return. Further stamp duty was paid as per circle rate by the defendant-appellant for value of land at approximately Rs.1.438 crore. Both the courts below had recorded categorical finding except on possession, thus this Court finds no ground for interference and the appeal lacks merit.
36. The Apex Court in Civil Appeal No.8971 of 2010 (Kripa Ram (deceased) through Legal Representatives and others vs. Surendra Deo Gaur and others decided on 16.11.2020 has held that the second appeal can be dismissed without even formulating the substantial question of law. Relevant paras 25 and 26 reads as under :
"25. In a judgment reported as Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar (2015) 16 SCC 763, this Court held that the second appeal can be dismissed without even formulating the substantial question of law. The Court held as under:
"18. In the light of the provision contained in Section 100 Code of Civil Procedure and the ratio decided by this Court, we come to the following conclusion:
(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;
(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the Respondent;
(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 Code of Civil Procedure."
26. In view of the above findings, we do not find any error in the judgment and order of the High Court dismissing the Second Appeal. The present appeal is thus dismissed. Pending applications, if any, shall stand disposed of."
37. Having considered the case of the appellants, I find that no substantial question of law arises and both the Court below had recorded categorical finding against the defendant-appellant. No interference is required. The appeal stands dismissed.
Order Date :- 9.12.2020 KA