IMPORTANT POINT
Liberty granted to file a fresh suit by High Court would not enable the party to revive a cause of action and save limitation.

ORDER

1. The question arising in the above case is as to whether the liberty granted to file a fresh suit by the High Court would enable the party to revive a cause of action and save limitation, so as to enable raking up all grounds earlier raised and rejected by concurrent findings of the trial court and the first appellate court, affirmed by the High Court in Second Appeal.

2. We heard Mr. Raghavendra Srivatsa, Senior Advocate appearing for the petitioners and Mr. Sharanagouda Patil, Advocate appearing for respondent No.1.

3. The original plaintiff, the predecessor-in-interest of the petitioners herein admittedly entered into an agreement for sale of the suit scheduled property to the first defendant, a Cooperative Society. It is also admitted that a Power of Attorney (PoA) was executed in favour of the second defendant, the Secretary of the first defendant. It is alleged that the PoA was executed on coercion and misrepresentation, which also stood cancelled before the execution of the sale deed in favour of the first defendant by the second defendant, by virtue of the PoA. Admittedly, the plaintiff first filed a suit for permanent injunction against the second defendant, impleaded in his capacity as the Secretary of the Society, for a permanent injunction from alienating or disposing off the plots comprised in the suit scheduled property and from making any constructions thereon. The said suit was dismissed by the trial court confirmed by the First Appellate Court against which the plaintiff approached the High Court in the second appeal. The second appeal stood allowed upon which the Society filed an SLP before this Court in which leave was granted and the Civil Appeal was allowed as per Annexure P/9, remanding the matter to the High Court by Annexure P/10.

4. The High Court on remand, dismissed the second appeal finding no substantial question of law and also rejected an amendment application to incorporate additional reliefs of declaration of title and recovery of possession, which applications were filed in the second appeal. The High Court having agreed with the concurrent findings, while dismissing the Second Appeal granted liberty to file a comprehensive suit for the reliefs sought for, including the proposed amendment.

5. Relying on the liberty granted, the plaintiff filed a fresh suit for declaration of two sale deeds executed by second defendant in favour of the first defendant as void ab initio and declaration of the further sale of plots comprised in the scheduled land by the first defendant in favour of the defendant nos. 2-120 as illegal and invalid. The plaintiff also sought possession of the property from defendant nos. 1-120 and a permanent injunction restraining them from interfering with the actual physical and peaceful possession of the scheduled property by the plaintiff. The said suit was decreed by the trial court and in first appeal the judgment and decree were set aside, and the suit was dismissed on the grounds of resjudicata, limitation and non-joinder of necessary parties.

6. On the ground of resjudicata, we cannot but notice that the High Court in the earlier round in Annexure P/10 judgment found that the plaintiff had executed two sale agreements in favour of the first defendant and had put the first defendant in possession of the scheduled land, the conveyance having been effected subsequently by the Secretary of the Society to the Society on the strength of a PoA. The High Court approved the concurrent finding that the notice of cancellation of the PoA was never served on the Secretary of the Society. The acknowledgement produced to prove its service was not with respect to the notice of cancellation, since it was four months later to the date in the notice of cancellation. It was also found by all the three courts that sale deeds were executed in favour of the allottees of the Society in whose possession the plots were, who had constructed residential buildings in the said lands: not impleaded i