Punjab-Haryana High Court
Hari Singh vs Gurdial Singh on 7 October, 1999
Equivalent citations: (2000)125PLR250
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Unsuccessful plaintiffs Hari Singh and Darbara Singh sons of Shri Gurnam Singh, have filed the present appeal against the Gurdial Singh, Kaur Singh and Ajmer Singh, respondent No. 1 to 3, respectively and it has been directed against the judgment and decree dated 19.12.1979, passed by the Court of Additional District Judge, Bhatinda, who affirmed the judgment and decree dated 28.10.1978, passed by the Court of Sub Judge, 1st Class, Bhatinda who dismissed the suit of the plaintiffs for specific performance.
2. The brief facts of the case are that plaintiffs filed a suit for possession of agricultural land measuring 11 marlas 3 marlas, through specific performance of the contract dated 7.3.1974, by getting a regular sale deed executed by defendant No. 1 Gurdial Singh or in the alternative for the payment of Rs. 2,000/- along with interest at the rate of 1 per cent per annum till realisation. The case set up by the plaintiffs was that defendant No. 1 Gurdial Singh had entered into an agreement of sale dated 7.3.1974. Vide this agreement, he agreed to sell his agricultural land measuring 11 Kanals 3 Marlas for a sum of Rs. 11,430/- and as per the terms of the agreement the sale deed was to be executed on or before 22.4.1974. The defendant No. 1 received a sum of Rs. 1,000/- as cash from the plaintiff as earnest money and agreed to accept the balance at the time of the execution of the, sale deed after adjusting Rs. 7,000/- (mortgage money) as the land was under mortgage with defendants Nos.2 and 3. The defendant No. 1 also agreed that in case he commits default to perform his part of the contract, the plaintiffs will be entitled to get the sale deed executed through Court. The plaintiffs were also given the right to claim Rs. 2,000/-. In case the plaintiffs committed default the defendant was to forfeit the earnest money paid by the plaintiffs. Defendant No. 1 decided not to sell the property to the plaintiffs and started negotiations for the sale of the suit land with defendant Nos.2 and 3. The plaintiffs came to know about it and they filed a suit for specific performance of the contract on 9.4.1974 against all the defendants and they obtained a temporary injunction. The plaintiffs further stated that they appeared in the office of the Sub-Registrar on 22.4.1974 and they waited for defendant No. 1 but he did not turn up nor he executed the sale deed in their favour. It is further alleged by the plaintiffs that the plaint dated 9.4.1974 of the earlier suit was defective one and it did not disclose any cause of action. The trial Court instead of rejecting the plaint, dismissed the suit of the plaintiffs being premature and on account of non-disclosure of the cause of action. The plaintiffs under the circumstances could not file the second suit in a proper form after the date fixed in the agreement had expired for the execution of the sale deed. The plaintiffs could file an appeal against the decree dated 31.5.1976 passed by the Trial Court. The learned District Judge accepted the appeal and rejected the plaint under Order 7 Rule 11 C.P.C. and the decree dated 31.5.1976 was set aside. The plaintiff were always ready and willing to perform their part of the contract. It was further pleaded by the plaintiffs that defendant No. 1 executed the sale deed in favour of defendants No. 2 and 3 on 11.6.1976 for a fictitious consideration of Rs. 11,000/-. Defendants No. 2 and 3 fully knew about the agreement dated 7.3.1974 executed in favour of the plaintiffs by defendant No. 1. The sale deed dated 11.6.1976 was executed by defendant No. 1 in favour of defendant No. 2 and 3 with a mala fide intention. The plaintiffs could not file the suit for specific performance of contract earlier because of their previous suit which was dismissed by an illegal order and as such there was a bona fide mistake on the part of the plaintiffs. The plaintiffs had to file an appeal to get the illegal order of dismissal set aside and, therefore, the plaintiffs are entitled to exclude the time spent in the prosecution of the prior suit and the appeal because the same were prosecuted with due diligence and all bona fides in good faith. The plaintiffs in these circumstances prayed for a decree of possession against the defendants No. 1 to 3 and in the alternative they prayed for the recovery of Rs. 2,000/- by way of damages along with interest.
3. Notice of the suit was given to the defendant. Defendant No. 1 contested the suit by stating that the suit is hopelessly barred by limitation and as such it is liable to be dismissed; that the suit is not maintainable; that the plaintiffs have got no cause of action. According to defendant No. 1 he never executed any agreement; that the plaintiffs might have obtained his signatures or thumb-impression due to fraud as defendant No. 1 is an uneducated person. It was also stated by the defendant that plaintiffs filed a suit for possession on 9.4.1974 but the learned Court refused to give the discretionary relief and the plaint dated 9.4.1974 did not disclose the cause of action. Even in the ground of appeal, the plaintiffs admitted that the plaint does not disclose the cause of action. The plaintiffs are not entitled to the exclusion of the time spent in the previous litigation and it will amount to take away the valuable right of the defendant. The plaintiffs never acted in good faith nor they prosecuted the suit with due diligence.
4. The suit was also contested by defendant No. 2 and 3. They also took the plea of limitation. Further, these defendants stated that earlier the plaintiffs filed a suit against the defendants regarding the same subject matter but the said suit was dismissed as withdrawn against the replying defendants on 25.5.1975 without the permission of the Court to file a fresh suit on the same cause of action.
5. From the pleadings of the parties, the learned trial Court framed the following issues:-
1. Whether the suit is within time as alleged? OPP
2. Whether the suit is barred under Order 23 Rule 1 against defendants No. 2 and 3, as alleged? OPD Vide judgment and decree dated 28.10.1978, the trial Court decided issue No. 1 against the plaintiffs. However, issue No. 2 was decided against the defendants. Finally the suit of the plaintiffs was dismissed for the reasons given in para No. 10 to 22 of the judgment. The trial Court placed reliance upon Munsha Singh v. Gurdit Singh. (1964)66 P.L.R. 1066 and Munsha Singh v. Gurdit Singh. (1964)66 P.L.R. 1066 and Bhai Jai Kishan Singh v. Peoples Banks of Northen India, A.I.R. 1994 Lahore 136.
6. Aggrieved by the judgment and decree of the trial Court, the plaintiffs filed the first appeal before the Court of Additional District Judge, Bhatinda, who for the reasons given in paras No. 7, 8 to 10, dismissed the appeal and aggrieved by the judgment and decree dated 19.12.1979, passed by the Additional District Judge, Bhatinda, the present appeal has been filed.
7. I have heard Shri J.R. Mital, Senior Advocate, on behalf of the appellants and Shri Harbhagwan Singh, Senior Advocate, on behalf of the respondent and with their assistance have gone through the record of the case.
8. Before, I deal with the submissions raised by the learned counsel for the appellants, it will be proper for me to reproduce paras Nos.7 to 10 of the judgment of the first Appellate Court, which are as under:-
"Shri Kanwar Narain, the learned counsel for the plaintiff-appellants has vehemently contended while assailing the findings on issue No. 1 that the approach of the trial Court on this issue is misconceived and highly erroneous. According to him, the present suit was within limitation if the time spent in the appellate Court is excluded Under Section 14 of the Indian Limitation Act. He has further contended that the previous suit for specific performance filed by the plaintiffs on 9.4.1974 being premature and showing no cause of action should not have been dismissed by the trial Court and that the trial Court should have rejected the plaint. He has further contended that because of the dismissal of the suit on 31.5.1976 by the Senior Sub Judge, the plaintiffs could not file a fresh suit and had to prefer an appeal to get the order of dismissal set aside. The contention of the learned counsel is that the suit was wrongly dismissed by the learned Senior Sub Judge on 31.5.1976 and for this mistake of the Court the appellant cannot be penalised. He has further contended that the plaintiff-appellants prosecuted their case in good faith and with all due diligence and that there was no negligence and mala fide on their part. According to him, the plaintiffs were, in fact, driven from Court to Court by the mistake of the trial Court, whereby, it dismissed the suit instead of rejecting the plaint and, as such, they were entitled to the exclusion of the time spent in the appellant Court in the former suit. In support of his contention, the learned counsel has referred to (1963)65 P.L.R. Page 884 (S.C.) Jang Singh v. Brij Lal, 1970 Current Law Journal Page 108 Nazar Singh plaintiff-appellant v. Munshi Singh defendant-respondent, 1968 Current Law Journal 635, Sita Ram v. Data Ram, (1968)70 P.L.R. 882, Om Parkash Gupta petitioner v. Ram Nath Gupta, and 1977 Rent Law Reporter 658, Harendra Nath Mallick-petitioner v. Ram Rattan Dey, and A.I.R. 1925 Oudh 493 Raghubar Dyal and Ors. plaintiff-appellants v. Kanhaiya and Ors. defendant-respondents,.
I have gone through each and every case law referred to above. I fully agree with the principle laid down in all these authorities that no party should be allowed to suffer because of mistake by the Court. There cannot be any dispute with this proposition.
The question in the instant case to be decided is whether the appellants could not file the present suit within limitation because of the mistake of the Court when it dismissed the suit being premature instead of rejecting the plaint, as the suit was filed before 22.4.1974, the stipulated date in the agreement of sale and that they are entitled to the exclusion of time from 16.5.1976 to 24.8.1977 spent in the appellate Court. To my mind, the case law relied upon by the learned counsel for the appellant will not help the plaintiffs. In the instant case, it cannot be said that the plaintiff-appellants were in any way deprived from filing the suit for specific performance because of the order of dismissal. Rather the appellants challenged the correctness of the order on merits. It cannot be said that they prosecuted the appeal in the Court of the learned District Judge with due diligence. There is nothing on the file that any application was given by the appellants before the learned District Judge before whom the appeal was pending for early disposal, to get the order of dismissal converted into that of rejection of the plaintiff. This clearly indicates that the appellants contested their suit on merits. Further, the perusal of Ex.P.2, the copy of judgment dated 31.5.1976 passed by Shri Gurdial Singh, the then Senior Sub Judge, Bhatinda clearly indicates that the suit was filed by the plaintiffs well before the expiry of date fixed for execution of the sale-deed. The dismissal of a suit by the learned Senior Sub Judge on the ground that it was filed before the cause of action accrued to the plaintiffs did not effect their rights in filing a fresh suit after the period of limitation had commenced as per the terms of agreement of sale. The decision of the learned Sub Judge could not operate as res judicata in a subsequent suit. Therefore, I conclude that the plaintiffs were not prevented from seeking their remedy for possession of the suit land by way of specific performance as contended by the learned counsel because of the mistake of the Court.
9. Now the second question is whether the plaintiffs are entitled to the exclusion of time spent in prosecuting the appeal. In A.I.R. 1944 Lahore page 136 Bhai Jai Kishan Sigh Appellant v. Peoples Bank of Northern India, it was held "that if a plaint or a petition, does not disclose a cause of action, it will have to be rejected but the time spent in its prosecution cannot be excluded Under Section 14 of the Limitation Act." The appeal field by the plaintiffs against the judgment and decree of the learned Senior Sub Judge, was a continuation of the said suit and, therefore, to my mind, the plaintiffs are not entitled to the exclusion of the time spent in prosecuting the appeal also. There is a direct authority of our own High Court reported as (1964)66 P.L.R. page 1066 Munsha Singh and Ors. v. Gurdit Singh and Ors., which provide us a complete answer to the point in issue in this case. It was held in this authority as under:-
"That where in the previous litigation the suit was dismissed on the ground of being premature, it cannot be said that court had refused to grant relief on account of defect of jurisdiction or other cause of the like nature within the meaning of Section 14(1) of the Limitation Act. Therefore, the time spent in the previous litigation cannot be excluded in computing the limitation for the subsequent suit."
10. There is another aspect in this case, which does not entitle the plaintiff-appellants to the benefit of the provisions of Section 14 of the Limitation Act. The previous suit against Kaur Singh and Ajmer Singh was dismissed as having been withdrawn as is evident from the copy of order, which is Ex.D.1 Kaur Singh and Ajmer Singh were also not the parties in appeal. They purchased the suit land vide sale deed dated 11.6.1976. The present suit was filed on 24.9.1977. Thus, the suit against them is clearly time barred. For taking the benefit of the provisions of Section 14 of the Limitation Act, the parties to the previous suit must be the same in the present suit.
In view of the above, I am of the considered view that the learned Sub Judge was perfectly right in not allowing the exclusion of time spent in appeal to the plaintiffs and in deciding issue No. 1 against them. I, therefore, maintain the finding of the trial Court on issue 1'.
The learned counsel for the appellant made an endeavour to convince me that the appellant under bona fide mistake filed a suit for possession by way of specific performance on 9.4.1974 considering that they were entitled to file a suit for possession by way of specific performance of contract on the basis of the agreement of sale dated 7 3.1974. The counsel submitted that if on 9.4.1974, the plaintiffs had not achieved any cause of action because of the last date of performance of contract was 22.4.1974, the trial Court ought to have rejected the plaint under Order 7 Rule 11, C.P.C. It could not dismiss the suit as the judgment of the trial Court was against the law, therefore, the plaintiff had to file the appeal before the Court of District Judge against the judgment dated 31.5.1976 of the trial Court and the same was disposed of on 24.8.1977 and in these circumstances, the plaintiffs are entitled to avail the benefit from 9.4.1974 to 24.8.1977 and in this view of the matter, the present suit which was instituted on 24.9.1977 should be held within limitation. In support of his contention, the learned counsel for the appellants relies upon Section 14 of the Limitation Act, which lays down that in computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceedings, 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.
Sub-clause (2) and Sub-clause (3) of Section 14 of the Limitation Act, lays down as follows:-
"(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due. diligence another civil proceedings, 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.
(3) Notwithstanding anything contained in Rule 2 of Order XXIII of Code of Civil Procedure, 1908 (5 of 1980), the provisions of Sub-section (1) shall apply in relation to a fresh suit instituted on 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 a defect in the jurisdiction of the Court or other cause of a like nature.
Explanation.- For the purposes of this section.-
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of cause of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
Though for our purpose it may not be much relevant.
11. On the contrary, the counsel for the respondent submitted that both the Courts have rightly decided issue No. 1 against the appellants because the suit of the plaintiffs was hopelessly barred by time and the plaintiffs cannot take benefit of Section 14 of the Limitation Act as their case is not covered under that Section.
12. I have considered the rival contentions of the parties and am of the considered opinion that the appeal is without any merit.
13. There is no dispute about the position of limitation. A suit for possession by way of specific performance could be instituted on or after 22.4.1974 because 22.4.1974 was the last date of the performance of the contract on the part of defendant No. 1. If on 22.4.1974, defendant No. 1 was not inclined to execute the sale deed in favour of the plaintiffs, it furnished a cause of action. There was hardly any necessity on the part of the appellants to file a suit for possession by way of specific performance on 9.4.1974 as there is no indication that defendant No. 1 had refused either by circumstances or by overt act to perform the part of contract under agreement of sale dated 7.3.1974. The institution of the suit dated 9.4.1974 if it has been made by the plaintiffs under a wrong advice even, it never debarred them to file a suit for possession by way of specific performance after 22.4.1974 up to 22.4.1977. When the suit was dismissed on 31.5.1976 clearly holding that on the date of the institution of the suit i.e. 9.4.1974, the plaintiffs had no cause of action, in that circumstances, the plaintiffs ought to have filed a suit for possessing within limitation i.e. between 1.6.1976 upto 22.4.1977. Even if the plaintiffs did not make any effort to request the Civil Court that after 22.4.1974 the cause of action has matured, therefore, the earlier suit which was instituted on 9.4.1974 may not be dismissed and they may be allowed to amend the cause of action by making necessary amendment under Order 6 Rule 17 C.P.C. The dismissal of the suit vide judgment and decree dated 31.5.1976 did not affect the rights of the plaintiffs in filing the fresh suit. Rather they insisted with their appeal which was also dismissed on 24.8.1977. While interpreting the provisions of Section 14(1) of the Limitation Act, the Full Bench of the Lahore High Court in A.I.R. 1944 Lahore 136, Bhai Jai Kishen Singh v. Peoples Bank of Northern India, 2 held as under:-
"The words "or other cause of a like nature," in Section 14 must be read so as to convey something ejusdem generis or analogous with the preceding words relating to the defect of jurisdiction. If these words are read along with the expression "is unable to entertain" they would denote that the defect must be of such a character as to make it impossible for a Court to entertain the suit or application either in its inspection or at all events as to prevent it from deciding it on its merits. It is not possible to give an exhaustive list of defects that these words may be taken to cover. But if they are such as have got to be decided before the merits of the case can be gone into an and if they do not necessitate an examination of the merits of a Case, they may fall within the purview of these words. If, on the other hand, the Court has got to go into the merits before a case can be dismissed, the defect will not come within the ambit of these words. Illustrations of such defects which are covered by the words "or other cause of a like nature" in Section 14 may be found in cases where a suit had failed because it was brought without proper leave, or because no notice under Section 80, Civil P.C., was given or because of non-production of the Collector's certificate required by Section 6, Pensions Act. These go to show that although the Court had jurisdiction to decide them, it was unable to entertain them on account of a technical defect and it was not possible for the Court to proceed and consider them on their merits, it would follow that if a plaint or a petition does not disclose a cause of action, it will have to be rejected but the time spent in its prosecution cannot be excluded under Section 14. The fact of the matter is that if on the facts the relief asked for by a plaintiff or a petitioner is found by the Courts to have been misconceived either because it is not warranted by the facts mentioned by them or because the facts stated in the plaint or the petition do not disclose a good and complete cause of action and the plaint or petition is consequently dismissed or rejected, the provisions contained in Section 14 could not be of any help."
The reading of the above citation would show that the Hon'ble Full Bench has clearly ruled out that if a plaint or petition does not disclose a cause of action, it has to be rejected but the time spent in prosecution cannot be excluded under Section 14. So was held in (1964)66 P.L.R. 1066, Munsha Singh v. Gurdit Singh, 1 that where in the previous litigation, the suit was dismissed on the ground of being premature, it cannot be said that court had refused to grant relief on account of defect of jurisdiction or other cause of the like nature within the meaning of Section 14(1) of the Limitation Act. Therefore, the time spent in the previous litigation cannot be excluded in computing the limitation for the subsequently suits. The ratio of both these cited judgments are applicable to the facts in hand.
14. Thus, it is laid down that if a litigant is fighting a litigation without maturity of cause of action by filing a premature suit, he cannot take the advantage of the period when his suit or the appeal was pending. In the present case, the plaintiffs could only institute the suit upto 22.4.1977 because the cause of action started in their favour on 22.4.1974. The suit was instituted on 24.9.1977 which was beyond three years and rightly both the Courts have non-suited the plaintiffs on issue No. 1.
There is no merit in this appeal and the same is hereby dismissed. No order as to costs.