Delhi District Court
Sh. Bhagwat Prasad vs . Sh. Ramesh Chand on 3 September, 2015
IN THE COURT OF SH. RAJINDER SINGH, ADMINISTRATIVE
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER-CUM-
COMMERCIAL CIVIL JUDGE (NORTH-EAST),
KARKARDOOMA COURTS, DELHI.
Suit No. 288/14
SH. BHAGWAT PRASAD VS. SH. RAMESH CHAND
ORDER ON APPLICATION OF THE PLAINTIFF
UNDER SECTION 14 (1) OF THE LIMITATION ACT R/W
SECTION 151 CPC
03.09.15 Present : None.
1. It is stated that earlier the plaintiff filed a suit for
possession and permanent injunction against the defendant,
regarding the suit property. The defendant executed Agreement to
Sell, GPA, Will and Receipt, etc. for selling the suit property to the
plaintiff. The consideration amount was also supplied to the
plaintiff. This suit of the plaintiff was decreed by the court of Ms.
Nirja Bhatia, the then Ld. Civil Judge vide judgment dated
17.4.2010. The defendant preferred appeal against the said
judgment. The appeal of the defendant was allowed vide
judgment dated 26.8.2010. Thereafter the plaintiff preferred a
second appeal against the judgment dated 26.8.2010. Vide order
dated 24.11.2010 the Hon'ble High Court dismissed the second
appeal filed by the plaintiff.
1.1. Thereafter SLP was filed by the plaintiff before the
Hon'ble Supreme Court. The SLP was dismissed. While
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dismissing the SLP the Hon'ble Supreme Court granted
permission to the plaintiff to file the present suit.
2. The suit for possession and permanent injunction was
wrongly filed by the plaintiff upon the wrong legal advise from his
Counsel. The delay caused in the filing of the present suit may
kindly be condoned.
3. On 12.01.2015 Ld. Counsel for the defendant
submitted that the defendant did not wish to file any written reply
to the application.
4. In the order dated 17.11.2014 it was observed that in
view of the order dated 13.11.2014 of the Ld. Officiating District
Judge, North East, the parties were required to address
arguments on issue no. 2 regarding limitation. Thereafter the
matter was fixed for arguments on issue no. 2. In the order dated
13.11.2014 it was observed that the Hon'ble High Court has
clearly held that the bar of Rule 2 of CPC is not attracted qua the
present suit. In the order dated 11.3.2014 the brief history of the
present litigation is recorded. The present suit was dismissed vide
judgment dated 03.10.2011. Thereafter vide judgment dated
02.12.2013 the order dated 03.10.2011 was confirmed by the
court of Sh. Ritesh Singh, the then Ld. ADJ, North East.
4.1. Second appeal was filed before the Hon'ble High
Court. Therein vide order dated 05.5.2014, with the consent of the
parties the matter was remanded back by setting aside the
impugned judgment. After hearing the rival contentions of the
Suit No. 288/14 Page 2 of 9
parties the Ld. Officiating District Judge, North East arrived at the
conclusion that the Trial Court is required to re-decide the matter
afresh by deciding the application u/s 14(1) of the Limitation Act. If
the said application is allowed then only the issue with regard to
resjudicata has to be considered. In view of the above, it is clear
that first of all the application u/s 14(1) of the Limitation Act filed
by the plaintiff is to be decided. If the same is allowed the matter
shall be heard on merits.
5. Arguments heard.
5.1. It was argued on behalf of the plaintiff that the Hon'ble
Supreme Court allowed the plaintiff to file the present suit. Two
specific questions were put by the court to the plaintiff, one,
whether the Hon'ble Supreme Court condoned or directed any
court to condone the delay in filing the present suit? Second,
whether Section 14 of the Limitation Act applies to cases where
wrong forum is chosen by the party or will it also apply to the
cases where wrong remedy is chosen by the party? No specific
answer was given to these court questions.
5.2 Ld. Counsel for the plaintiff relied upon following
authorities:
1. Collector, Land Acquisition, Anantnag & Anr., Appellants
vs. Mst. Katiji & Ors., Respondents, AIR 1987 SC 1353,
2. N. Balakrishnan, Appellant vs. M. Krishnamurthy, Respondent, AIR 1988 SC 3222,
3. Smt. Satya Devi, Appellant vs. Rati Ram & Ors., Suit No. 288/14 Page 3 of 9 Respondent, 85(2000) DLT 17(DB).
4. Adhyaataman Bhamini Vs. Jagdish Ambalal Shah, 2007 (93) DRJ 18 (SC).
5.3. It was argued on behalf of the defendant that earlier a suit for possession and permanent injunction was filed by the defendant. After several rounds of litigation the relief was declined to the plaintiff. Thereafter the present suit was filed seeking specific performance of Agreement to Sell. The issue with regard to limitation was framed. It was argued that Section 14 of the Limitation Act applies where a party chooses a wrong forum but will not apply where a party choose a wrong remedy. In para no. 7 of the plaint it is stated that on 02.01.2008 defendant refused to execute the sale deed in compliance of the Agreement to Sell. The period of limitation for filing the suit for specific performance would start on 02.01.2008. The suit was filed on 18.3.2011. As such, the same is time barred. In the application it is simply stated by the plaintiff that he was given wrong advise by his Counsel. But this ground is not covered u/s 14 of the Limitation Act. In the judgment dated 26.8.2010 para no. 17 page 9 the Ld. ADJ observed that the respondent should have filed a suit for specific performance of the Agreement to Sell dated 29.11.02 instead of filing a suit for possession. In the judgment dated 24.11.2010 the Hon'ble High Court held that the proper remedy for the appellant /plaintiff was to file a suit for specific performance and not a suit for possession. It was also held that the execution of Suit No. 288/14 Page 4 of 9 Agreement to Sell, GPA, Will and Receipt were not coupled with delivery of possession, as such, no interest was created in the suit property in favour of the plaintiff/appellant. The appeal was dismissed in limine. It was repeatedly observed by the court that the remedy chosen by the plaintiff was wrong. In such circumstances, the plaintiff cannot claim that he was given wrong legal advise by the Counsel. The SLP filed by the plaintiff was dismissed as withdrawn. No permission was given by the Hon'ble Supreme Court to file fresh suit.
5.4. Ld. Counsel for the defendant relied upon following authorities:
1. Deena (dead) through LRs., vs. BharatSingh (dead) through LRs. & Ors., AIR 2002 SC 2768,
2. Mabel. Petitioner vs. State of Haryana & Ors, respondent, AIR 2002 SC 2773,
3. Zile Singh & Anr. vs. Avtar Singh & Ors., AIR 2010 Punjab and Haryana 42,
4. Corporation of Calcutta, plaintiff vs. Pulin Chandra Daw & Ors., defendants,
5. Pritam Kaur, Appellant vs. Sher Singh, Respondent, AIR 1983 Punjab and Haryana 363,
6. Basdeo Prasad Khemka, Plaintiff vs. Union of India, Defendant, AIR 1978 Calcutta 100.
6. Section 14 (1) of the Limitation Act, 1963 provides that Suit No. 288/14 Page 5 of 9 in computing the period of limitation for any suit, the time during which the plaintiff was prosecuting other civil remedy, with due diligence before another court, which could not entertain the said proceedings due to defect of jurisdiction or other cause of like nature, shall be excluded. In other words, where the plaintiff, with due diligence is prosecuting a civil remedy against the defendant, before a wrong forum, that period should be excluded for calculating the period of limitation for the suit.
7. It is pertinent to observe that the emphasis is upon the court not being able to entertain the matter, due to lack of jurisdiction or other cause of like nature. In the present application, it is submitted on behalf of the plaintiff that due to wrong legal advice the plaintiff filed Suit for Possession. In this regard it was argued on behalf of the defendant that in the Judgment dated 26.08.2010 the Court of Ld. ADJ observed that the respondent (the plaintiff) should have filed a Suit for Specific Performance of the Agreement to Sell dated 29.11.2002 instead of filing of Suit for Possession. In the Judgment dated 24.11.2010 the Hon'ble High Court up-held the aforementioned judgment. In view of this, it is clear that since 26.08.2010 and more particularly since 24.11.2010 the plaintiff had a clear notice that the remedy chosen by him was wrong and he should have filed a Suit for Specific Performance of the Agreement to Sell dated 29.11.2002. Despite this clear notice, the plaintiff filed Special Leave Petition (SPL) before the Hon'ble Supreme Court which was dismissed as Suit No. 288/14 Page 6 of 9 withdrawn. In view of the above, there is no reason for this court to believe that the plaintiff was prosecuting another civil proceeding with due diligence as acquired under Section 14 (1) of the Limitation Act.
8. It was argued on behalf of the plaintiff that the Hon'ble Supreme Court granted permission to the plaintiff to file fresh suit. However, during arguments even the date of the said order was not mentioned. One Certified Copy of the Order dated 07.03.2011 of the Hon'ble High Court, bearing the name of the parties, is on record. Therein, I do not find any mention of any permission being granted to the plaintiff regarding filing of fresh suit.
9. Ld. counsel for the defendant relied upon the Judgment of the Hon'ble Supreme Court in Deena (Supra), wherein it was held that the court must lack jurisdiction to entertain the suit. Where a suit is decided on merits by the court concerned, Section 14 (1) of the Limitation Act will not be applicable. In the present case also, the previous suit filed by the plaintiff was decided on merits. The same was not returned due to lack of jurisdiction. The defendant also relied upon the Judgment of the Hon'ble Punjab & Haryana High Court in Zile Singh and Ors., (Supra), wherein it was held that in case instead of filing the Suit for Specific Performance of the Agreement to Sell, the plaintiff was prosecuting the Suit for Permanent Injunction, the time period cannot be excluded under Section 14 of the Limitation Act. In the present case also, it was observed by Suit No. 288/14 Page 7 of 9 the Court of Ld. ADJ and Hon'ble High Court that the proper remedy for the plaintiff was to file Suit for Specific Performance. The defendant has relied upon the Judgment of N. Balakrishnan, (Supra) and Adhyaataman (Supra). It is observed that these cases pertains to Section 5 of the Limitation Act, as such the authorities do not apply to the facts of this case.
10. In view of the case laws cited by the defendant, it is clear that continuously chosen wrong remedy or continuing to chose wrong remedy in spite of clear notice, does not entitle the plaintiff to any benefit under Section 14 of the Limitation Act.
11. Section 14 of the Limitation Act would apply to cases where the plaintiff in good faith and with due diligence was prosecuting a civil remedy before a court which for the lack of jurisdiction could not entertain that civil proceeding, which is not the case here. As already observed above, the previous suit filed by the plaintiff was disposed of on merits. The Court of Ld. Senior Civil Judge i.e., the court of first instance in the previous suit, was having the jurisdiction to entertain the Suit for Specific Performance as well, since the Agreement to Sell between the parties was for a sum of Rs.2,50,000/- which was very much within the pecuniary jurisdiction of the Ld. Senior Civil Judge. It is clear that the court of first instance in the previous suit was having the pecuniary as well as inherent jurisdiction to grant relief of specific performance which the plaintiff should have sought in the previous suit. In view of the above, the application under Section Suit No. 288/14 Page 8 of 9 14 (1) of the Limitation Act filed by the plaintiff is dismissed.
12. Let the parties be heard on Issue No. 2 regarding the limitation.
Put up on 16.09.2015 for arguments on Issue No. 2 regarding the limitation.
Pronounced in the open court (RAJINDER SINGH)
on 03.09.2015 ACJ/ARC/CCJ (NE),
KKD COURTS,
DELHI.
Suit No. 288/14 Page 9 of 9