Andhra HC (Pre-Telangana)
Chintamaneni Netaji And Anr. vs Jonnalagadda Hanumantha Rao And Ors. on 21 June, 2002
Equivalent citations: 2002(5)ALD495
JUDGMENT C.Y. Somayajulu, J.
1. Plaintiffs in O.S.No.15 of 1979 are the appellants. For the sake of convenience the parties to the appeal would be referred to as they are arrayed in the trial Court.
2. The suit is filed, inter alia, for cancellation of the decree in O.S.No.85 of 1969 on the file of the Court of the Subordinate Judge, Gudivada, which was filed by the 1st defendant against defendants 2 to 6 and the plaintiffs seeking specific performance of the agreement of sale dated 17-6-1965 executed in his favour by 2nd defendant for himself and on behalf of his sons, i.e., plaintiff and others and consequently to direct him (1st defendant) to deliver possession of the plaint 'A' and 'B' schedule properties to them and to defendants 2 to 4, alleging that they and defendants 3 and 4 are the sons and 5th defendant is the daughter of 2nd defendant who are all members of a Hindu joint family, and that the plaint 'A' and 'B' schedule properties are their joint family properties and that 2nd defendant, without authority, had on 14-2-1964 gifted the plaint 'A' schedule property to the 5th defendant. As gift of joint family property is null and void as per of Hindu Law, 5th defendant did not acquire title to A schedule property. 2nd defendant for himself and as guardian of plaintiffs, along with 4th defendant, had on 22-6-1965 entered into an agreement to sell plaint 'A' and 'B' schedule properties to the 1st defendant and made the 5th defendant join the said agreement, and renewed the said agreement on 5-7-1965 and delivered possession of the plaint 'A' and 'B' schedule properties to the 1st defendant. Subsequently as one of the creditors of the 5th defendant filed I.P.No.13 of 1968 on the file of the Court of the Subordinate Judge, Bandar, she was adjudged insolvent on 15-11-1969 and consequently all properties of 5th defendant, including the plaint 'A' schedule property, also vested in the Official Receiver, i.e., 6th defendant. Thereafter 1st defendant filed O.S.No.85 of 1969 seeking specific performance of the agreement of sale dated 22-6-1965 and obtained a decree on 15-7-1965. In that suit it was held that the validity of the gift in favour of the 5th defendant by the 2nd defendant can be questioned by way of a separate suit. In A.S.No.650 of 1974 preferred against the decree in O.S.No.85 of 1969, this Court by its Judgment dated 7-4-1977 clarified that the plaintiffs, if they are so advised, can file a separate suit questioning the gift deed in favour of the 5th defendant. Hence, this suit. Since the plaintiffs and defendants 2 to 4 have been bona fide contesting O.S.No.85 of 1969 the time taken in contesting the suit O.S.No.85 of 1969 and the appeal A.S.No.650 of 1974 is liable to be excluded from computing the period of limitation for filing of the suit.
3. 1st defendant filed his written statement contending that Judgment in O.S.No.85 of 1969 operates as res judicata.
4. Defendants 2 to 6 remained ex parte.
5. Basing on the pleadings as many as 15 issues were settled for trial by the trial Court. In support of the case of the plaintiffs, only first plaintiff was examined as PW.1 and Exs.A1 to A15 were marked. On his behalf 1st defendant examined himself as DW.1 and marked Exs.B1 to B9. The trial Court held on issues 1, 4, 9, 10 and 12, whether the plaintiffs are entitled to seek cancellation of the decree in O.S.No.85 of 1969; whether the plaintiffs claim is in time, whether 1st defendant is protected under Section 53-A of the Transfer of Property Act and whether 1st defendant acquired title to 'B' schedule property by adverse possession, against the plaintiffs. On issues 6 and 6, i..e., whether the suit properties are the joint family properties of plaintiffs and defendants 2 to 5 and whether the gift made by the 2nd defendant in favour of 5th defendant is not binding on the plaintiffs, held that the suit properties are joint family properties and that the gift made by 2nd defendant in favour of 5th defendant is not binding on the plaintiffs. On issues 7 and 8, i.e., whether the Judgment in O.S.No.85 of 1969 operates as res judicata and what is the effect of the Judgment in A.S.No.650 of 1974, held that Judgment in O.S.No.85 of 1969 does not operate as res judicata and has no effect on the parties to the suit, since binding nature of Ex.B1 was left open to be decided by a separate suit, and did not answer issue No.11, i.e., whether the suit for partial partition of joint family property is not maintainable on the ground that that question does not arise for consideration in the suit. On issue No.13, whether the order in I.A.No.1257 of 1974 in O.S.No.85 of 1969 bars the plaintiffs from filing the suit, held in favour of the plaintiffs. On issue No.14, relating to the actual extent of plaint 'B' schedule property, held that the extent of 'B' schedule is 42 cents, and on the basis its findings on issues 1, 2 and 4, dismissed the suit.
6. The point for consideration is whether plaintiffs are entitled to seek cancellation of the decree in O.S.No.85 of 1969.
7. The main contention of Sri T.Veerabhadrayya, learned counsel for the appellants, is that in view of Section 14 of Limitation Act and the finding in O.S.No.85 of 1969 and A.S.No.650 of 1971 the time taken by the plaintiffs in defending O.S.No. 85 of 1967 and prosecuting A.S.No. 650 of 1971 should be excluded from computing the period of limitation, by placing strong reliance on KAPARTHA VS. E.V.RAJA, AIR 1959 KERALA 7. His next contention is that since the right of the 1st defendant to claim specific performance of the agreement in respect of 'B' schedule property was negatived in O.S.No.85 of 1969, plaintiffs are entitled to recover possession of the plaint 'B' schedule property, and so the Court below was in error in holding that 1st defendant is entitled to protection under Section 53-A of the Transfer of Property Act. The contention of Sri.C.C.S.Sastry, the learned counsel for the 1st defendant is that the suit is hopelessly barred by time because first plaintiff was a major even by the date of filing O.S.No.85 of 1969. His contention is that if 2nd plaintiff felt aggrieved by the gift in favour of 5th defendant, he ought to have questioned the gift in favour of the 5th defendant within three years from the date of his attaining majority.
8. It is no doubt true that both the trial Court in O.S.No.85 of 1969 and this Court in A.S.No.650 of 1974 have held that the plaintiffs are at liberty to question the validity of the gift, if they are so advised. Merely because the Courts in O.S.No.85 of 1969 and A.S.No.650 of 1974 observed that the plaintiffs are at liberty to question the gift deed in separate proceedings, it does not mean that they extended the period of limitation to question the gift. It only means that the defence raised by the plaintiffs herein, in those suits, without their filing a suit questioning the gift made by their father, (the 2nd defendant) is not tenable. The observation of a court in a judgment that a particular party to a suit has a right to claim relief by way of a separate suit does not and cannot be taken to mean that it gave a fresh cause of action by extending the period of limitation for filing the suit from that date. In the event of a father making a gift of the undivided joint family property to a daughter, the major son who felt aggrieved by the said gift has to question the gift, within three years from the date of gift. Since the first plaintiff was born on 5-1-1946 he attained majority on 5-1-1964, i.e., even before the gift made on 14-2-1964 under Ex.B.1. If he wanted to question the gift made by his father in favour of the 5th defendant, he had ample opportunity to do so much earlier to the Court giving a finding that he was at liberty to question the gift deed by appropriate proceedings. His inaction in questioning the gift deed cannot be set at naught by the observations made by the Court, and those observations, in any event, would not give him a fresh cause of action to file a separate suit after the expiry of the period of limitation.
9. As rightly observed by the trial Court the date of birth of 2nd plaintiff is not mentioned in the plaint and no evidence regarding his date of birth also was adduced, though 1st defendant specifically disputed the age of 2nd plaintiff mentioned in the cause title of the plaint.So, it has to be taken that the date of birth of 2nd plaintiff is deliberately suppressed by the plaintiffs and their father and brothers, i.e., defendants 2 to 5. In Para 18of its judgment the trial court observed that the learned counsel for plaintiffs (in the trial court) admitted that benefit of extended period of limitation on the ground of minority of 2nd plaintiff is not being claimed, and as alleged in Para 13 of the plaint, plaintiffs are claiming that the time taken for disposal of O.S.No. 85 of 1969 and A.S.No. 650 of 1977 and I.A.No. 1257 of 1974 filed on 27-4-1974 and dismissed on 22-11-1975 only has to be excluded as per Section 14 of the Limitation Act.
10. Section 14 of Limitation Act reads as follows-
"Section 14. Exclusion of time of proceeding bona fide in Court without jurisdiction:
(i) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(ii) In computing the period of limitation for any application the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(iii) Notwithstanding anything contained in Rule 2, Order XXIII of the Code of Civil Procedure, 1908, the provisions of sub-Section (1) shall apply in relation to a fresh suit instituted on a permission granted by the Court under Rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of defect in the jurisdiction of the Court or other cause of a like nature".
From a plain reading of the above Section 14 of Limitation Act it can be seen that in order to claim the benefit of the said Section 14, the plaintiff must be PROSECUTING , another civil proceeding in a Court not having jurisdiction to entertain the suit, with due diligence. Thus for a plaintiff, to claim the benefit of Section 14 of Limitation Act, must establish (i) that he was prosecuting a proceeding in another court earlier with due diligence and (ii) that Court did not entertain those proceedings for want of jurisdiction. " 'Prosecute' as per Webster's Dictionary means 'to bring suit against for redress of wrong or punishment of crime, to seek to enforce or obtain as a claim or right by legal process; to begin and carry on a legal proceedings". Since O.S.No. 85 OF 1969 was filed against the plaintiffs and was not instituted by them and since they were only defending the proceedings initiated against them by the 1st defendant and were not prosecuting those proceedings against the first defendant, it cannot be said that they were prosecuting O.S.No.85 of 1969. 'Defending' a proceeding is different from 'prosecuting' a proceeding. Prosecution is a positive act while defending a proceeding is a defensive act. Section 14 of Limitation Act contemplates the plaintiffs 'prosecuting' the earlier proceeding, but not their 'defending' the earlier proceedings, and gives the benefit of extended period of limitation to a plaintiff who filed a suit in court not having jurisdiction, obviously because he is debarred from filing suits for the same relief in two different courts separately or simultaneously. There is no bar for a defendant in a suit filing a separate suit in a court even during the pendency of the suit filed against him by the plaintiff and seeking a relief to which he might be entitled to. So, benefit of extended period of limitation given by Section 14 of Limitation Act cannot be given to a defendant in the earlier suit. The second condition for invoking Section 14 of Limitation Act is that the earlier suit must have been filed in a court, not having jurisdiction to entertain it. This condition also is also not satisfied because the earlier suit O.S.No.85 of 1969 was instituted by the 1st defendant in a Court having jurisdiction.
11. P.KARTH's case(1 supra) relied on by the learned counsel for the plaintiffs does not support the contention that a defendant in the earlier suit can be given the benefit of Section 14 of the Limitation Act. That is a case where an application for execution of a money decree was filed, 4 years and 2 months after passing of the decree. Before that the Judgment Debtor filed a petition for settlement of his debt under Section 16 of Travancore Debt Relief Act (Debt Relief Act) (Act II of 1116) and impleaded the decree holder as a party to the petition after a decree for payment of money was obtained against him. The decree holder appeared before the Court in response to the notice issued under Section 17(2) of the Debt Relief Act and filed a Memorandum claiming the amount due to him and demanding priority in payment. That petition was dismissed for non-prosecution. The question for decision before the High Court was whether the period covered by the pendency of the claim petition filed by the decree-holder could be excluded under Section 14 of the Limitation Act. The Court held that the decree holder was entitled to the benefit of exclusion of the period covered by the pendency of the claim memorandum filed by him under the Debt Relief Act, because it also is a civil proceeding between the same parties in respect of the same subject matter, observing that a defendant or respondent in a previous civil proceedings can seek the benefit of Section 14 of Limitation Act, if he had claimed therein the rights sought to be enforced in the subsequent proceedings, and was not merely resisting or defending the prior proceeding.So even as per the said decision a defendant in any earlier civil proceedings who merely resists or defends the proceeding initiated against him cannot seek the benefit of Section 14 of the Limitation Act. Plaintiffs in this case were defendants 4 and 5 in O.S.No.85 of 1969. They filed a written statement contending that the suit is barred by limitation, and since the gift by the 2nd defendant is void in law, the same is not binding on them and that the agreement entered into by their father, (the 2nd defendant) is not binding on them and in any event since, the plaintiff i.e., 1st defendant herein, was not ready and willing to perform his part of contract, they need not execute a document in his favour. They did not make any claim for cancellation of the gift deed executed by their father in favour of 5th defendant.So, it is a clear that plaintiffs were only defending the earlier suit O.S.No.85 of 1969 filed by the 1st defendant against them and other defendants and did not seek to enforce their right.Therefore the ratio in P.KARTHA (1 supra) does not apply to the facts of this case. In fact in NARAYAN JIVAJI PATIL vs. GURUNATHGOUDA KHANDAPPA GONDA PATIL AND ANOTHER, it is held that mere defending a suit does not amount to prosecuting the suit within the meaning of Section 14 of the Limitation Act.
12. The Supreme Court in GURDIT SINGH vs. MUNSHA SINGH, held that three important conditions have to be satisfied before Section 14 of the Limitation Act can be invoked i.e., (i) plaintiff must have prosecuted the earlier civil proceeding with due diligence,(ii) the former proceeding must have been prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of like nature, was unable to entertain it, and (iii) the earlier proceedings and the later proceedings must be based on the same cause of action. In CALCUTTA MUNICIPALITY vs. PULIN CHANDRA, AIR 1939 Bombay 1 it is held that the words "or other cause of a like nature" used in Section 14 of the Limitation Act,however liberally construed, must be read as to convey something ejusdem generis or analogues to the preceding words 'from defect of jurisdiction," and so the defect must be of such a character as to make it impossible for the Court to entertain the earlier suit or application.Since the earlier suit O.S.No.85 of 1969 was instituted in the Court having jurisdiction, and since the Court did not refuse to decide the said suit on the ground that it has no jurisdiction to entertain it, second condition mentioned in GURDIT SINGH (2 supra) is not satisfied and for that reason also Section 14 of the Limitation Act cannot be invoked by the plaintiff. The third condition mentioned in GURDIT SINGH (2 supra) for the applicability of Section 14 of the Limitation Act is that the cause of action for both the suits must be the same. The said condition also is not satisfied in this case because the cause of action for the earlier suit O.S.No. 85 of 1969 is the execution of the agreements of sale dated 22-6-1965 and 5-7-1965 by 2nd defendant and others in favour of 1st defendant, and that suit was filed for specific performance of those agreements. The cause of action for this suit is said to have arise on 5-7-1965 when the gifted land was taken possession of by 1st defendant and on 12-4-1974 when the suit O.S.No. 85 of 1969 was decreed against 5th defendant. The prayer in this suit is cancellation of the decree in O.S.No. 85 of 1969. The grounds for cancellation of a decree are entirely different from the ground on which specific performance of an agreement can be granted. Since, cause of action for both the suits is not the same and isentirely different the third condition laid down by the Supreme Court is not satisfied and so Section 14 of the Limitation Act does not apply.
13. All these apart even de hors the observations made in the judgments in O.S.No. 85 of 1969 and A.S.No. 654 of 1974, plaintiffs had a right to claim the relief of cancellation of the gift deed executed by the 2nd defendant in favour of 5th defendant. They failed to claim the relief within the period of limitation prescribed and filed the suit after expiry of the period of limitation claiming that they are entitled to the benefit Section 14 of the Limitation Act. For the reasons stated above, plaintiffs cannot seek the benefit of Section 14 of the Limitation Act. In fact this suit seems to have been got filed by the 2nd defendant in the name of the plaintiffs, to some how recover possession of the suit property after the petition I.A.No. 1257 of 1974 in O.S.No. 85 of 1969 for delivery of possession of the suit property was dismissed, taking advantage of the observations made in the earlier Judgments. Since the period of limitation for seeking cancellation of the gift expired, under the guise of challenging the gift in pursuance of the observations made in the judgments in O.S.No. 85 of 1969 and A.S.No. 654 of 1974, they sought for cancellation of the decree in O.S.No. 85 of 1969 and the consequent relief of recovery of possession of the suit property. In my considered opinion recovery of possession of the suit property cannot be a consequential relief to the relief of cancellation of the decree in O.S.No. 85 of 1969 because 1st defendant did not take possession of the suit property in pursuance of the decree in O.S.No. 85 of 1969.In fact the ingredients required for cancellation of a decree are not pleaded and proved by the plaintiffs. A decree obtained after full contest cannot be set aside in a separate suit for the mere asking of it. On what ground the plaintiffs seek the cancellation of the decree is not known. Fraud is not pleaded or proved. It is not the case of the plaintiffs that they were not properly represented in the earlier suit. In fact, as stated earlier 1st plaintiff was a major by the date of filing of O.S.No. 85 of 1969. Thus, the pleadings and evidence on record do not warrant setting aside the decree in O.S.No. 85 of 1969.So, the findings therein bind the plaintiffs. A specific finding was given in O.S.No. 85 of 1969 that the agreement of sale executed in favour of 1st defendant by defendants 2 to 5 and plaintiff is true valid and binding on the plaintiffs. The said suit was dismissed only on the ground of limitation. Therefore, the trial Court rightly held that 1st defendant is entitled to protect his possession under Section 53-A of Transfer of Property Act. Therefore, plaintiffs are not entitled to the relief of recovery of possession of the suit property. Therefore, I hold that the plaintiffs are not entitled to either cancellation of the decree in O.S.No. 85 of 1969 or recovery of possession of the suit property. The point is answered accordingly.
14. Therefore, the appeal is dismissed. No costs.