Chattisgarh High Court
Anil Kumar Dixit vs Dead (Ram Sahai) Legal Heirs on 3 March, 2022
Page 1 of 13
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No. 41 of 2006
Reserved on 04-01-2022
Delivered on 03-03-2022
Anil Kumar Dixit S/o Laxmi Narayan, Aged About 30 Years, R/o Sadar
Bazar Raipur (C.G.)
---- Appellant
Versus
1. Ram Sahai (dead) through Legal Heirs As Per Honble Court Order
Dated 21/07/2014
(A) Smt. Kunjwati W/o Late Ramsahay, Aged About 62 Years, R/o
Dhunsera.
(B) Durga Prasad, S/o Late Ramsahay, Aged About 38 Years, R/o
Dhunsera.
(C) Smt. Sumarit Bai, D/o Late Ramsahay, Aged About 36 Years,
R/o Village Davari Kurud, Tashil- Dhamtari.
(D) Rajeshwar, S/o Ramsahay, Aged About 34 Years, R/o Village
Dhunsera
(E) Smt. Duacia, D/o Ramsahay, Aged About 32 Years, R/o Village
Kurud, Tashil- Dhamtari.
(F) Smt. Rukhmani, D/o Late Ramsahay, Aged About 30 Years, R/
o Village Tuta, Abhanpur, Raipur.
(G) Dinesh Kumar, S/o Late Ramsahay, Aged About 28 Years,
Village Dhunsera
(H) Smt. Rajani, D/o Late Ramsahay, Aged About 28 Years,
Village Ghodhi, Kurud, Tashil- Dhamtari.
2. State of Chhattisgarh, through the Collector- Raipur (C.G.).
---- Respondents
For Appellant : Mr. Kishore Bharat, Advocate.
For respondent 1A to 1H : Mr. Manoj Paranjpe, Advocate
along with Mr. Anurag Singh,
Advocate.
For State/ respondent No. 2 : Mr. Sanjeev Kumar Agrawal, GA.
Page 2 of 13
SB: Hon'ble Mr. Justice Narendra Kumar Vyas
CAV JUDGMENT
1. The appellant/plaintiff has preferred this first appeal under Section 96 of CPC being aggrieved by the judgment and decree dated 25- 10-2005 passed by 2nd Additional District Judge, Raipur (CG) whereby the Civil Suit No. 15-A/2005 filed by the appellant has been dismissed.
2. For the sake of convenience parties would be referred to as per their status shown in the suit filed before the trial Court.
3. Brief facts as reflected from the plaint averments are that the plaintiff/appellant has filed a civil suit on 07-11-1999 before the Civil Judge, Class II, Raipur for declaration and injunction valued at Rs.400/- for declaration and Rs.400/- for permanent injunction, total valued at Rs.800/-. From the plaint the facts would reveal that plaintiff and defendant No.1 on 7-6-1998 executed an agreement for sale of land bearing Khasra No.188/1 and 271 total area 1.582 hectares at village Ghusera, Tahsil and District Raipur for which an advance of Rs.50,000/- was received by defendant No. 1 the remaining part of sale consideration was payable at the time of registration. It has also been pleased that the defendant No.2 Government of Madhya Pradesh has imposed ban on sale of land within 15 kms distance of Raipur District. This information was well within the knowledge of the plaintiff as well as defendant No.1 The defendant No.1 again received advance amount of Rs. 50,000/- on 02.07.1998 receipt of the amount was given in writing and it was agreed to execute the sale deed. Thereafter, the plaintiff has made efforts to perform his part of contract but defendant has not taken any steps to perform his part of contract. The plaintiff is in possession of the land and continued with its agricultural operation. Defendant No.1 has raised objection which has compelled the plaintiff to lodge FIR to Police Station Abhanpur on 10.08.1999. The defendant to cause damages to the standing crop has started illegal cutting the same, which has necessitated Page 3 of 13 the plaintiff to file the civil suit. It has also been contended that defendant has refused to perform his part of contract therefore by this suit declaration for performance of contract is sought. The plaintiff has also prayed that the declaration to fulfill the contract by defendant No. 1 be kindly directed, permanent injunction to use the suit land against defendant No. 1 be also granted.
4. The learned Civil Judge Class II has issued notice to the defendant, thereafter, the plaintiff has moved an application for amendment in the plaint on 31-10-2002 wherein he has prayed for amendment in the cause title and sought to incorporate valuation of suit at Rs.1,38,510/- for grant of declaration for performance of the contract. In para 2 following prayers were made to be permitted to add.
"Plaintiff is ready and willing to pay Rs.1,38,510/- to perform his part of contract, it be declared that the defendant after receiving the same will fulfill the agreement dated 07-06-1998."
In para 11 of the plaint, following be permitted to add :-
"For specific performance of contract the valuation of the court fee is at Rs.1,38,510/-and accordingly the court fee of Rs. 16,480/- has been affixed."
5. Since by way of proposed amendment valuation of the suit land is beyond pecuniary jurisdiction of the Civil Judge, Class 1, therefore, the trial court returned the said application and plaint with permission to file it before appropriate court vide its order dated 27-3-2003. In pursuance of the return of the said application, the plaintiff has filed a suit before the learned 5 th Additional District Judge, Raipur as reflected from the order sheet dated 7-5-2003 reiterating the same pleading which has been made before Civil Judge Class-I, Raipur in Civil Suit. It has been further contended that the learned trial Court has returned the plaint to file before the Court having jurisdiction it, as such, this amended plaint has been filed. It has also been clarified that the cause action has been arose because of the agreement dated 07.06.1998 & 02.07.1998 accordingly, the plaintiff has filed the Page 4 of 13 plaint on 17.11.1999 within the limitation, but the learned trial vide its order dated 27.03.2003 has returned the plaint to file before the appropriate forum. In pursuance of the order, the plaint was given to the counsel on 01.05.2003, accordingly the plaint has been filed on 09.05.2003, which is within limitation. The learned Fifth Additional District Judge, Raipur after verification has registered the suit and issued notice to respondent No.1/defendant for appearance and for filing of the written statement on 9-7-2003.
6. On 15-9-2003 defendant No.1 has raised preliminary objection about maintainability of the suit, therefore, the trial court adjourned the case to 19-10-2003, thereafter the case was transferred to 4th Additional District Judge, Raipur on 9-1-2004. The learned trial court has rejected the objection raised by the defendant No.1 on 19-1-2005 on the count that the objection which have been raised by the defendant with regard to filing of present suit by the plaintiff and with regard to earlier application filed by the plaintiff under Order 6 Rule 17 of the CPC for amendment in the plaint as the said amendment is time barred can be raised in the written statement and can be decided as preliminary issue, therefore, deserves to be rejected. The defendants have filed written statement raising the objection. The learned trial Court after pleadings of the parities have framed as many as 9 issues and vide its order dated 04-02-2005 fixed the case for argument on issue No. 5 whether the plaintiff's present suit is against the provisions of Order 2 Rule 2 of the CPC and deserves to be dismissed? which was treated as preliminary issue. For deciding the preliminary objection the learned trial Court has also requisitioned the record of Civil Judge, Class 2 bearing Suit No. 96-A/2001 and fixed the case on 25-2-2005.
7. Learned trial Court vide judgment and decree dated 25.10.2005 has dismissed the suit on the count that the plaintiff has filed new plaint incorporating the said amendment which was sought by the plaintiff without any permission of the Court and the plaint itself is barred by limitation as per Article 54 of the Limitation Act, the Page 5 of 13 limitation for filing of suit for specific performance of contract is three years and the plaintiff has sought application for amendment incorporating prayer for specific performance of contract on 31.10.2002 which is barred by limitation and the present new suit has been filed on 09.05.2003 when it has already barred by limitation. The learned trial Court has also recorded its finding that the plaintiff has waived his rights which has been sought in the previous plaint and has prayed for fresh relief of specific performance of contract for which limitation has already been expired at the time of filing of the application, therefore, the present claim is barred by Order 2 Rule 2 of C.P.C. The said judgment and decree dated 25-10-2005 which is being challenged by the plaintiff/appellant by filing the instant appeal under Section 96 of CPC.
8. Learned counsel for the appellant would submit that the judgment and decree passed by the trial court is contrary to the facts of law and provisions of Order 2 Rule 2 CPC are not applicable to the facts of the present case. The plaintiff has not waived any claim for specific performance of contract as in the plaint in paragraph 8 he has specifically pleaded that the plaintiff was ready and willing to perform his part of contract and still he is ready and willing which has been duly intimated to defendant No. 1 whereas the defendant No. 1 has specifically denied his part of contract. Learned counsel for the appellant would further submit that declaration for performance of contract was also sought in the previous suit. It has also been contended that by way of amendment application filed on 31-10-2002 the plaintiff has clarified the pleadings and sought relief for performance of contract which was pending consideration and because of the proposed amendment, valuation of the suit has been increased, therefore, the suit became beyond pecuniary jurisdiction of the Civil Judge, as such, liberty was granted to the plaintiff/appellant to file a suit along with the application for amendment, therefore, it is incumbent on the part of learned 2 nd Additional District Judge to Page 6 of 13 consider first the said application for amendment and thereafter he should have decided the issue No.5. Instead of deciding the amendment application, the trial court has dismissed the suit without considering the provisions of Order 2 Rule 2 CPC in true aspect and also holding that the suit has become barred by limitation, therefore, it is material illegality and irregularity as such the judgment and decree passed by the learned trial Court deserves to be set aside by this Court.
9. On the other hand, learned counsel for respondent/defendant would submit that by returning the suit the learned trial court has not committed any illegality and since no order for amendment has been passed, therefore, suo moto, the plaintiff cannot file fresh plaint to cover up the limitation issue. Submission of learned counsel for the plaintiff is that as the plaintiff filed the application along with original suit before the Civil Judge, Class 1, therefore, therefore, the trial court has committed illegality in dismissing the plaint is legal and justified as subsequent plaint which has been filed by the plaintiff without obtaining any permission or leave from the court to insert the facts which have been pleaded in the application of amendment. The trial court has rightly passed the judgment and decree as plaintiff has waived his claim for specific performance of contract. By way of said amendment, it cannot be related back as right of the plaintiff to file a suit for specific performance has elapsed by efflux of time which cannot be restored, as such, the trial court has rightly passed the judgment and decree by dismissing the suit.
10. I have heard learned counsel for the parties and perused the record with utmost satisfaction.
11. From perusal of the documents and in view of aforesaid consideration of the facts of the case, two points required to be determined by this court are that (1) Whether the finding recorded by the trial court that application for amendment dated 31-10-2002 moved by the plaintiff is barred by limitation in view of Article 54 of the Limitation Act; and Page 7 of 13 (2) whether learned trial Court was justified in applying the provisions of Order 2 Rule 2 of CPC without considering the facts and circumstances of the case.
12. The records of the case would show that the plaintiff/appellant has filed a civil suit on 17-11-1999 wherein in paragraph 8, the plaintiff has clearly pleaded that the plaintiff was ready and willing to perform his part of contract and he is still ready. The plaintiff has already intimated this to defendant No. 1 who has denied the specific performance of contract, therefore, he has sought declaration for performance of contract. The plaintiff has claimed similar prayer in the prayer clause. Thereafter, he has filed an application for amendment in the plaint before the court of Civil Judge, Class II on 31-10-2002 and has claimed for specific performance of the contract dated 7-6-1998 and also affixed the court fee valuing his suit to Rs.1,38,510- and accordingly affixed the court fee of Rs.16,480/-. The Article 54 of the Limitation Act, 1963 provides limitation for specific performance of contract is three years the time from which period begins to run is the date fixed for the performance or if no such date is fixed when the plaintiff has noticed that performance is refused. The plaintiff in the plaint filed on 17-11-1999 has mentioned that defendant has refused to perform his contract thereafter he has filed the suit on 17-11-1999. The learned trial Court without considering the fact how the said amendment is barred by limitation as in the plaint itself the plaintiff has mentioned that the defendant has refused to perform the contract and present amendment application was filed on 31-10-2002. The application was barred by limitation or not cannot be decided merely examining the pleadings of the parties as it is a triable issue which requires evidence. The learned trial Court should have allowed the application for amendment and thereafter issues which have already been framed regarding limitation should have been decided by the learned trial Court after recording of the evidence as the determination of limitation issue requires evidence as held by Hon'ble the Supreme Court in case Page 8 of 13 Ragu Thilak D. John Vs. S. Rayappan & others 1 at paragraph 5 & 6 as under:-
"5. After referring to the judgments in Charan Das v. Amir Khan [AIR 1921 PC 50], L.J. Leach & Co. Ltd. & Anr. v. Jardine Skinner & Company [1957 SCR 438], Smt.Ganga Bai v. Vijay Kumar & Ors. [1974 (2) SCC 393], M/s.Ganesh Trading Co. v. Moji Ram [1978 (2) SCC 91] and various other authorities, this Court in B.K.N. Pillai v. P.Pillai & Anr. [JT 1999 (10) SC 61] held:
"3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.
6. If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plant which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for."
13. The learned trial Court has committed illegality in treating the suit which was filed on 9-5-2003 as barred by limitation ignoring the fact that the plaintiff appellant filed the original suit on 17-11-1999 and that suit and the application for amendment is also available 1 (2001) 2 SCC 472 Page 9 of 13 with the records of the trial court as the trial court has requisitioned the records of Civil Judge Class-1, for deciding issue No.5. As such, the application for amendment filed by the plaintiff/appellant is also available with the trial court and without any decision on the said application, the trial court proceeded to decide issue No.5. The learned trial Court should not have ignored the liberty granted to the plaintiff by the learned Civil Judge. The learned Additional District Judge should have seen that both the plaints and application for amendment in the original plaint is available with the records of the Additional District Judge, then an option should have been sought which suit, the plaintiff wants to continue and thereafter, he should proceed further in the matter. The learned Second Additional District Judge has applied hyper technical view in dismissing the suit. Even the learned Additional District Judge has committed illegality in applying the provision of Order 2 Rule 2 of C.P.C. which are reproduced below:-
2. Suit to include the whole claim- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
14. Hon'ble the Supreme Court while interpreting the provisions of Order 2 Rule 2 CPC in case of Alka Gupta Vs. Narender Kumar Gupta2, has held at paragraph 13 to 14 as under:-
13. This Court in Gurbux Singh v. Bhoora Lal [AIR 1964 SC 1810] held :
"6. In order that a plea of a bar under O. 2, R. 2(3), 2 (2010) 10 SCC 141 Page 10 of 13 Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed.
From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar."
Unless the defendant pleads the bar under Order 2 Rule 2 of the Code and an issue is framed focusing the parties on that bar to the suit, obviously the court can not examine or reject a suit on that ground. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both parties. The plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action.
14. In the instant case, the respondent did not contend that the suit was barred by Order 2 Rule 2 of the Code. No issue was framed as to whether the suit was barred by Order 2 Rule 2 of the Code. But the High Court (both the trial bench and appellate bench) have erroneously assumed that a plea of res judicata would include a plea of bar under Order 2 Rule 2 of the Code. Res judicata relates to the plaintiff's duty to put forth all the grounds of attack in support of his claim, whereas Order 2 Rule 2 of the Code requires the plaintiff to claim all reliefs flowing from the same cause of action in a single suit. The two pleas are different and one will not include the other. The dismissal of the suit by the High Court under Order 2 Rule 2 of the Code, in the absence of any plea by the defendant and in the absence of an issue in that behalf, is unsustainable."
15. Hon'ble the Supreme Court in Pramod Kumar & another Vs. Zalak Singh & others3, has held at paragraph 25 to 27 as under:-
"25. Still further, in paragraph 63, the Court has proceeded to conclude as follows: [(Mohd. Khalil 3 (2019) 6 SCC 621 Page 11 of 13 Khan v. Mahbub Ali Main) 1948 SCC OnLine PC 44] "63. The plaintiffs' cause of action to recover the properties consists of those facts which would entitle them to establish their title to the properties. These facts are the same with respect to both properties, these being, that Rani Barkatunnissa was the owner of the properties; that she died on 13t-2-1927, that she was a Sunni by faith and that they are her heirs under the Muhammadan law.......Having regard to the conduct of the parties their Lordships take the view that the course of dealing by the parties in respect of both properties was the same and the denial of the plaintiffs' title to the Oudh property and the possession of the Shahjahanpur property by the defendants obtained as a result of that denial formed part of the same transaction. On this question, the learned Judges of the High court have expressed their opinion in two places in their judgment as follows: [(Mohd. Khalil Khan v. Mahbub Ali Mian) 1941 SCC OnLine All 73] "In the case before us the trespass on title or slander of title in the case so far as the Oudh suit was concerned was not distinct and different either in point of time or in point of character from the trespass on possession in the case of the Shahjahanpur property.....
26. Again, it is stated as follows: [(Mohd. Khalil Khan case)] "........Here in the present case we find that the two trespasses, one on the Shahjahanpur property and the other on the Oudh property were similar in character and formed part of the same transaction and the evidence to prove the facts which it was necessary for the plaintiffs to prove... was the same and the bundle of essential facts was also the same."
27. At this juncture, we may advert to Order II Rule 2, which reads as follows:
"2. Suit to include the whole claim- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs- A Page 12 of 13 person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
16. Thus, the judgment and decree passed by the learned trial Court is illegal and without considering the provisions of law whether amendment is barred by law of limitation, can be decided without recording of evidence and the facts that there was no foundation was made out for application of Order 2 Rule 2 C.P.C. as the suit filed before the Civil Judge has not been finally decided but it has been returned back to file before the Court having pecuniary jurisdiction over the dispute, therefore, considering the facts of the case and material placed on record, this court is of the view that the judgment and decree dated 25-10-2005 passed by the First Appellate Court deserves to be set aside and is hereby set aside. Now the matter is remitted back to the court of Second Additional District Judge, Raipur to first decide the application dated 31.10.2002 filed by the plaintiff before Civil Judge Class-I, in accordance with law and thereafter decide the suit in accordance with law granting defendant to file their written statement, if already not filed or if required to amend their pleadings.
17. This Court while admitting the appeal has granted interim protection to the appellant on 26.08.2014 by directing that further alienation of subject land, if already has not been made till today is stayed. The respondent No. 1 shall not create any third party right in respect of the suit property until further orders from this Court. The said interim order shall continue for further three months. The parties are directed to appear before the court of Second Additional District Judge, Raipur on 20th April, 2022 for deciding their case.
18. The learned Additional District Judge should make an endeavor to complete the trial within one and half year from the date of first appearance of the parties. Record of the trial court be sent forthwith.
Page 13 of 1319. Accordingly, the instant appeal is allowed in part to the extent as indicated hereinbove. No order as to costs.
20. A decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas) Judge Raju