Agyarani Dua vs Vidyagauri J. Tripati and another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(Bom) 475

IN THE HIGH COURT OF BOMBAY
R.M. Lodha, J.
Agyarani Dua ..... Plaintiff.
Versus
Vidyagauri J. Tripati another .... Defendants.
Notice of Motion No. 2436 of 1996 in Suit No. 2480 of 1996, decided on 27-8-1998.
Advocates appeared :
S.U. Kamdar with K.R. Parekh, for plaintiff.
Nusrat Shah with P.D. Contractor with H. Wadia and Nomin i/b Naazish N. Shah, for defendants.

Headnote:Order VII, Rule 11-Limitation Act, 1963, Articles 56, 57, 58 and 65-Filing of declaration suit-When the suit is filed after a considerably long period, it is hopelessly barred by limitation, Article 54 is not applicable in this case, as the principal prayer is for declaration that the agreement is given up and the declared void.-It would be noticed from the Article 58 that for obtaining any declaration which is not covered by Article 56 and 57 is 3 years when right to sue first accrues. According to the plaintiff himself the agreement dated 24.11.1984 stood terminated when within 15 days of the notice dated 12.12.1984 terms of the agreement were not complied with by the defendant No. 1 and payment of balance amount of Rs. 86,000/- was not made. Thus it is apparent that the right to sue accrued to the plaintiff when terms of the agreement dated 24.11.1984 were not complied with and in any case on expiry of fifteen days of the notice dated 12.12.1984 the agreement stood revoked and terminated. Obviously, therefore, the suit seeking declaration that the agreement dated 24.11.1984 stands abdicated or given up or is void or voidable was required to be filed within 3 years from 27.12.1984 i.e. on expiry of fifteen days from notice dated 12.12.1984. The present suit has been filed long thereafter on 9.6.1996 and, therefore, it is hopelessly barred by limitation.
       Article 65 has no application in the facts and circumstances of the present case since the principal prayer made by the plaintiff in the suit is for declaration that the agreement dated 24.11.1984 is abdicated or given up and be declared void or inasmuch as according to the plaintiff, as per the agreement dated 24.11.1984 the defendants were put in possession and since the Small Causes Court has ultimately found that the defendants are in possession under the agreement for sale, upon declaration of that agreement is bad in law, the possession be restored. Thus the present facts definitely render Section 65 inapplicable.
       Section 14-Bona fide proceedings filed in Court not having jurisdiction-Exclusion of time-Material facts necessary for not specifically pleaded-Held-As the relief claimed in two proceedings are distinct-Cause of action also different-Thus, prior proceeding not bona fide-Hence benefit of Section 14 cannot be granted.-Apparently Section 14 has no application and cannot be invoked by plaintiff for more than one reason. In the plaint nowhere the plaintiff has sought for exclusion of time on the ground that the plaintiff proceeded bona fide in the Small Causes Court which was having no jurisdiction in the matter. The facts which may constitute exclusion of time under Section 14 of Limitation are not at all pleaded in plaint. Even otherwise plaintiff has not filed the suit before the Small Causes Court seeking reliefs which are sought for in the present suit. The reliefs sought for in the Small Causes Court were absolutely distinct and different based on different cause of action from the reliefs which plaintiff is seeking in the present suit. The earlier suit was filed by the plaintiff against JOT seeking eviction against him. The suit was not directed against the present defendants. JOT died in the year 1986 and despite that fact the suit for eviction was filed against dead person and ex-parte decree was obtained by the plaintiff against the dead person. Prosecution of such suit by no stretch of imagination can be said to be in good faith or bona fide with the diligence. Section 14 of Limitation Act has, thus, no application.
       Section 14, Article 58-Exclusion of time-Claim for-Exclusion of time vide Section 14 of the Limitation Ad cannot be claimed because the case before Small Causes Court and present case are quite different to each other.-Apparently, Section 14 has no application and cannot be invoked by plaintiff for more than one reason. In the plaint, nowhere, the plaintiff has sought for exclusion of time on the ground that the plaintiff proceeded bona fide in the Small Causes Court which was having no jurisdiction on the matter. The facts which may constitute exclusion of time under Section 14 of Limitation Act are not at all pleaded in plaint. Even otherwise plaintiff has not filed the suit before the Small Causes Court seeking reliefs which are sought for in the present suit. The reliefs sought for in the Small Causes Court were absolutely distinct and different based on different cause of action from the reliefs which plaintiffs is seeking in the present suit. The earlier suit was filed by the plaintiff against JOT seeking eviction against him. The suit was not directed against the present defendants. JOT died in the year 1986 and despite that fact the suit for eviction was filed against dead person and ex-parte decree was obtained by the plaintiff against the dead person. Prosecution of such suit by no stretch of imagination can be sats to be in good faith or bona fide with due diligence. Section 14 of Limitation Act has, thus, no application.
       Sections 58, 59 and 6S-Applicability of-Suit for declaration-Agreement stands abdicted and given up-Is void-Suit filed after three years of expiry of agreement-Banned by limitation-Held-Since the prayer in plaint for possession is only a consequential relief in a suit For declaration that agreement is void-Thus, Article 65 has no application.-Article 65 has no application in the facts and circumstances of the present case since the principal prayer made by the plaintiff in the suit is for declaration that the agreement dated 24.11.1984 is abdicted or given up and be declared void or voidable. The prayer for possession is consequential relief to that declaration inasmuch as according to the plaintiff, as per the agreement dated 24.11.1984, the defendants were put in possession and since, the Small Causes Court has ultimately found that the defendants are in possession under the agreement for sale, upon declaration of the agreement is bad in law, the possession be restored. Thus, the present facts definitely render Section 65 in application.

JUDGMENT - R.M. LODHA, J.:---By this Notice of Motion taken out by the defendants it is prayed that plaint be rejected under Order VII, Rule 11, C.P.C. being barred by law of limitation.

2.The plaintiff in the suit has prayed for declaration that the agreement dated 24-11-1984 be declared to have been abdicated and/or given up or in the alternative it be declared that the said agreement for sale dated 24-11-1984 is void/voidable for want of consideration and for not abiding by the material terms thereof and therefore illegal, bad in law and not binding on the plaintiff. The plaintiff has also sought the relief that the defendants being trespassers be ordered and decreed to hand over quiet, vacant and peaceful possession of the suit premises i.e. flat No. 12, Building No. 24, Ashish Co-operative Housing Society, Guru Nagar, J.P. Road., Andheri (West), Bombay. In the alternative, the plaintiff has prayed for decree of Rs. 3,71,000/- together with interest on the said principal sum at the rate of 18% per annum and damages to the tune of Rs. 30,00,000/-.

3.The brief facts which have been highlighted in the plaint are that on 1-9-1972 the said suit premises were given on the leave and license basis to one Jethalal Damodar Tripathi. The agreement for sale of the suit premises took place between the plaintiff and the present defendant No. 1, who is the wife of Jethalal Damodar Tripati. The terms of the agreement for sale were not complied with by the defendant No. 1 and agreement for sale of said suit premises was revoked on 12-2-1984. Thereafter on 11-5-1988 the plaintiff issued notice to quit and notice of demand of arrears from 1-1-1985 to 30-4-1988 amounting to Rs. 20,000/- since the said premises were let out to the husband of the defendant No. 1. On 1-8-1988 the plaintiff filed a suit for eviction against Jethalal Damodar Tripati for recovery of possession and arrears of rent. The plaintiff obtained ex parte decree for possession and for recovery of arrears of rent from Small Causes Court on 18-3-1991. The plaintiff then levied execution of the ex parte decree and in the said proceedings the defendants puts obstruction to warrant of possession and accordingly the plaintiff took out Obst. Notice on 3-8-1992. The defendant No. 1 filed reply to the Obst. Notice on various pleas and it was also brought to the notice of the Court that Jethalal Damodar Tripati had died in the year 1986 and filing of the suit against the dead person by the plaintiff and decree obtained thereon was a nullity. Ultimately on 19-7-1995 the Obst. Notice taken out by the plaintiff was dismissed by the Executing Court. An appeal came to be filed by the decree holder before the Appellate Bench of the Court of Small Causes but without any success. Writ Petition was then filed by the plaintiff challenging the orders of the Small Causes Court and the writ petition too was dismissed. Thereafter the present suit has been filed by the plaintiff seeking aforesaid reliefs on 9-7-1996.

4.Mr. Shah, learned Counsel appearing for the defendants in the back ground of aforesaid averments made in the plaint submit that limitation in the present suit is governed by Article 58 of the Limitation Act. According to him the limitation provided to obtain declaration as prayed for by plaintiff is 3 years when the right to sue first accrued. The learned Counsel for defendant would urge that right to sue accrued to the plaintiffs in the year 1987 itself and, therefore, filing of the present suit in the year 1996 is hopelessly time barred. Mr. Kamdar, learned Counsel for the plaintiff on the other hand relied upon Article 59 and Article 65 of the Limitation Act and urged that suit is within limitation.

5.I have already referred to the reliefs prayed for the plaintiffs. It is clear therefrom and also the tenor of the plaint that the principal relief prayed for by the plaintiff is for declaration that the agreement dated 24-11-1984 stands abdicated and given up and other consequential relie

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