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Showing contexts for: reverse auction in Dwijendra Narain Roy vs Joges Chandra De And Ors. on 31 December, 1923Matching Fragments
12. In the previous litigation, the appellant, then defendant, pleaded that although what purported to be his signature on the four leases had been affixed by him thereon, the documents were not genuine, inasmuch as words and clauses had been interpolated, after execution and without his consent. He asserted that the deeds as engrossed accurately represented the contract between the parties, I that he executed them in that state, and that they were then materially altered by the plaintiff, with the result that they no longer represented the real agreement. The trial Court accepted his version. The High Court on appeal directed an enquiry into genuineness of a document which purported to be the draft agreement between the parties. On the result of the supplementary investigation by the trial Court, the High Court pronounced the f draft agreement to be genuine and held that the disputed documents were in the form provided by the contract between the parties. This was the ground work of the decision of the High Court, when it came to the conclusion that the documents had not been altered after execution and must be deemed genuine. In our opinion, the defendant is not competent to re-agitate the question of the conformity of the documents to the contract between the t parties it is no longer open to him to contend that the documents had been materially altered after execution the decision of the High Court is conclusive upon these matters. It must further be borne in mind that the Judicial Committee accepted not only the judgment of the High Court but also the reasons given for that judgment. But the grounds of attack formulated by the appellant in his written statement in the present litigation reiterate the grounds which were put forward by him in the former suit, and were overruled. To this extent, the matter is clearly res judicata. We shall next pass on to the attempt made on the 20th April, 1922, to formulate new grounds of attack. These were not only not contained in the written statement, but were directly contradictory to the positions previously taken up. The Subordinate Judge has, for adequate reasons, held that this bold attempt must end in failure; and, we may add that the appellant could not, on well established principles possibly succeed-in his endeavour to take up inconsistent positions in Court. Assume that it might have been open to him at the proper stage, to plead that the contract itself was vitiated by fraud, mistake, undue influence or like reason, as this would not have militated against the previous decision that the disputed documents were accurate representations of the contract between the parties. No such defence, however, was attempted to be included in the written statement either in its original form or by way of amendment. Oa the other hand the defendant contended at a late stage that interpolations had been made - not after execution as pleaded in the previous suit - but before execution. This new defence must be ruled out on two grounds. In the first place, it contradicts the prior decision that the documents as presented for registration were correct representations of the contract. In the second place, the appellant cannot be allowed to take up in this suit a position entirely inconsistent with that adopted in the previous suit. It is an elementary rule that a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponent : Bhaja Choudhury v. Chuni Lal (1906) 11 C.W.N. 284; Giris v. Bepin (1917) 27 C.L.J. 535; Rama Charan v. Nimai Mandal A.I.R. 1922 Cal. 114. This wholesome doctrine applies not only to the successive stages of the same suit, but also to another suit than the one in which the position was taken up, provided! that the second suit grows out of the judgment in the first. In our opinion, the attempt made by the appellant to circumvent the decision in the previous suit cannot succeed and the doctrine of res judicata presents an insurmountable bar. As regards the application of the rule of limitation to the claim for rnesne profits we have been pressed to hold that Article 109 of the first schedule to the Indian Limitation Act bars the claim for a period antecedent to three years prior to the institution of this suit. That article provides that a suit for the profits of immovable property belonging to the plaintiff, which have been wrongfully received by the defendant, must be instituted within three years from the date when the profits are received. The argument is that as this suit was instituted on the 28th April, 1921, the plaintiff is not entitled to mesne profits for a period prior to the 28th April, 1918, whereas the Subordinate Judge has allowed the plaintiff mesne profits from the 17th January, 1913, the date of execution of the four leases which form the root of his circle. The question thus raised is apparently one of first impression and is by no means free from difficulty. Under Section 47 of the Indian Registration Act, a registered document operates from the time it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration. Section 49 provides that no document required by Section 17 to be registered shall (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has bean registered. The effect of these provisions is that a document, which is compulsorily registrable, does not affect any immovable property comprised therein till it has been registered, but, as soon as it has been registered, it takes effect, not from the date of registration but retrospectively from the date of execution. In the case before us, the four disputed documents did not affect the lands comprised therein till the 22nd June, 1918, when they were registered; but as soon as they were registered on the 22nd June, 1918, they took effect retrospectively from the 17th January, 1913, when they had been executed. The position, consequently, is that though by virtue of Sections 47 and 49 of the Indian Registration Act, the title of the plaintiff related back to the 17th January, 1913, the title was in suspense as it were till the 22nd June, 1918, when for the first time he was placed in a position to assert and establish his right. His right was kept in a state of suspended animation from the 17th January, 1913 to the 22nd June, 1918, solely by reason of the unfounded opposition of the defendant. He could neither sue for recovery of possession nor for realisation of mesne profits, inasmuch as the right to mesne profits is an appendage to the right to possession. In these circumstances, the Subordinate Judge has held that time could not be taken to run against the plaintiff prior to the 22nd June, 1918. In support of this view, the Subordinate Judge has invoked the principle recognised by the Judicial Committee in Surnomoyee v. Shooshee Mokhee (1868) 12 M.I.A. 244 (P.C.). In that case, a sale under the Patni Regulation having been set aside and the patnidars restored to possession, the zemindar sued them to recover the arrears of rent which had accrued before and during the time they~ were out of possession; the contention of" the tenants that the claim was barred because the suit had not been brought-within three years from the date wheat each instalment of rent fell due, was overruled, and it was held by the Judicial Committee that the cause of action accrued upon the reversal of the auction sale and the consequent revival of the obligation to pay the rent. The same principle was applied in Bassu Koer v. Lala Dhwn Singh (1888) 11 All. 47 (P.C.). In that case, a debtor agreed to convey certain property to his creditor and to set off the debt against part of the consideration for the conveyance. A sale deed was executed, but a dispute arose as to whether it had been executed in accordance with the contract. Litigation was commenced by the debtor to enforce the agreement, but he was unsuccessful. The creditor then sued to recover the debt and was met by the plea of limitation. The Judicial Committee held that the time-began to run only when the agreement became wholly ineffectual and that from that date a fresh obligation was imposed upon the debtor to pay his debt. These cases illustrate the proposition that ordinarily limitation runs from the earliest time at which an action can be brought and after time has commenced to run there may be a revival of a right to sue when a previous satisfaction of the claim is nullified with the result that the right to sue which had been suspended is reanimated. This principle was applied by the Judicial Committee in Prannath Roy v. Rookea Begum (1859) 7 M.I.A. 323 (P.C.), Hem Chandra v. Kali Prosanna (1903) 30 Cal. 1033 (P.C.), and Nrityamoni v. Lakhan Chandra A.I.R. 1916 P.C. 96. On the other hand the principle that when once time has begun to run no subsequent disability or inability to sue stops it was strictly applied in Huro Persad v. Gopal Das (1892) 9 Cal. 255 (P.C.), Lala Soni Ram v. Kanhaiya Lal (1913) 35 All. 227 (P.C.), and Juscurn v. Pirthi Chand A.I.R. 1918 P.C. 151. The limits of applicability of the doctrine-of suspension of right recognised in Surnomoyee v. Soosheemokhee (1868) 11 W.R. P.C. 5 (P.C.), may be gathered only from a long series of decisions, such as, Eshan Chunder v. Khajah Assanoollah (1871) 16 W.R. 79 : Deen Dyal v. Radha Kishoree (1872) 17 W.R. 415, Mohesh Chunder v. Gungamonee (1872) 18 W.R. 59; Watson v. Dhonendra (1877) 3 Cal. 6; Brojendro v. Bakhal (1878) 3 Cal. 791; Surjiram v. Barhamdeo (1905) 1 C.L.J. 337, Nagendra v. Sadhu A.I.R. 1921 Cal. 525; Laloo v. Jagat A.I.R. 1921 Cal. 572, Hemendra v. Dharani A.I.R. 1921 Cal. 381; Janaki v. Bejoy Chand A.I.R. 1921 Cal. 596; Uma Charan v. Nibaran A.I.R. 1923 Cal. 389; But the underlying principle deducible from Surnomoyee v. Soosheemokhee (1868) 11 W.R. P.C. 5 (P.C.); and Baijnath v. Ramgut (1896) 23 Cal. 775 (P.C.); was tersely and accurately enunciated by Sadasiva Aiyar, J., when he stated in Mutha v. Madar (1919) 43 Mad. 185 (F.B.), that whenever proceedings are being conducted between the parties bone fide in order to have their mutual rights and obligations in respect of a matter finally settled, the cause of action for an application or for a suit, the relief claimable wherein follows naturally on the result of such proceedings, should be held to arise only on the date when those proceedings finally settle such rights and liabilities. A useful analogy is furnished by cases where it has been ruled that time cannot be held to run against a person who is not in a position to sue for such a person has no enforceable cause of action which is extinguished by lapse of time; examples are furnished by Womesh v. Raj Narain (1868) 10 W.R. 15, where it was ruled that adverse possession against a tenant does not operate against the landlord during the continuance of the tenancy and Priyasakki v. Bireshwar (1916) 44 Cal. 425, where it was ruled that adverse possession against mortgagor does not operate against a simple mortgagee who is not entitled to immediate possession. The substance of the matter is that time runs when the cause of action accrues, and a cause of action accrues when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed : Coburn v. Colledge (1897) 1 Q.B. 702; Gelmani v. Morriggia (1913) 2 K.B. 549. The cause of action arises when and only when the aggrieved party has the right to apply to the proper tribunals for relief : Whalley v. Whalley (1816) 1 M.R. 436. The statute does not attach to a claim for which there is as yet no right of action and does not run against a right for which there is no corresponding remedy or for which judgment cannot be obtained. Consequently the true test to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result. (Angell on Limitations, Section 42; Story on Equity Jurisprudence, Section 1521-a). In the case before us, the earliest date when the plaintiff could have sued for mesne profits for the period between 17th January, 1913 and 21st June, 1918, was the 22nd June, 1918, as the present suit has been instituted on the 28th April, 1921, that is, well within three years from that date, the claim for mesne profits cannot be held to be barred by limitation. Before we leave this point, we may add that the appellant contended that the plaintiff might have included a claim for possession and mesne profits in the suit instituted under Section 77 of the Indian Registration Act to compel registration of the leases. The analogy was invoked of suits for specific performance of contracts of sale of land, which, it has sometimes been held, may include a claim for possession of the land agreed to be sold. There is divergence of judicial opinion upon that point : Ranjit v. Kalidasi (1909) 37 Cal. 57; Madan Mohan v. Gaja Prasad (1911) 14 C.L.J. 159; Fate Chand v. Narsing Das (1912) 22 C.L.J. 383; Narayana v. Kandasami (1898) 22 Mad. 24; favour the view that a claim for possession may be so included, while Krishnammal v. Soundararaja (1913) 38 Mad. 398, supports the contrary position, on the ground that the right to possession accrues only on execution of the conveyance and it may be an interesting question to consider the true bearing of the decision of the Judicial Committee in Rangayya v. Nanjappa (1901) 24 Mad. 491 (P.C.), upon the point. But we may observe that in so far as suits under Section 77 of the Indian Registration Act are concerned, it is well-settled that no other claim, such as a claim for possession and mesne profits, can be coupled with the prayer to on force registration of the document : Vankataramachandra Rao v. Veeramma (1899) 9 M.L.J. 107. The purpose of a suit of this description is strictly limited; special period of limitation is prescribed for it; the Court-fee leviable is separately provided for; if we were to allow another claim to be included in such a suit, its scope and character would be completely altered.