Dilip Gupta vs Debashish Palit - 2012 Supreme(Pat) 1205

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(Pat) 1205

MUNGESHWAR SAHOO, J.
(11.9.2012)
Second Appeal No. 33 of 2007
Against the judgment and decree dated 13.11.2006 passed by the learned Additional District Judge-7th Patna in Title Appeal No. 60 of 2006 dismissing the appeal and confirming the judgment and decree dated 3.5.2006 passed by Sub Judge-3rd, Patna in Titule Suit No. 69 of 2006.
Dilip Gupta & Anr. : Appellants
Vs.
Debashish Palit & Ors. : Respondents

Advocates:
For the Appellants : M/s J.S. Arora, Bhuwaneshwar Prasad.
For Respondent No. 1: M/s Ganpati Trivedi, Madan Mohan, R. K. Sinha No. 2, Manoj Kumar Pandey.
For Respondent Nos.: M/s Siddheshwari
10, 11 & 12 Prasad Sinha, Srinandan Prasad Singh, Krishan Kumar Sinha.

Headnote:Code of Civil Procedure, 1908–Section 100–Concurrent finding of fact–question regards 'cause of action' whether a finding of fact?–Whether the plaint discloses a cause of action or not is to be decided on the reading of the entire plaint in each case–this is entirely a question of fact to be ascertained from the facts in each case–in the present case, both the courts below concurrently recorded the finding that the plaint did not disclose cause of action–it is well settled principles of law that when there is concurrent finding of fact of both the courts below, the High Court has no jurisdiction to interfere with the concurrent findings of fact in second appeal–because another view is possible on the basis of evidence the High Court would not be entitled to exercise the jurisdiction under Section 100 of the C.P.C. (Para 15)
       Code of Civil Procedure, 1908–Section 100 read with Order 7 Rule 1 (e)–Plaint–Cause of action–plaintiff prosecuting their case that title had already passed on the basis of the compromise decree which was not compulsorily registerable–On the contrary, pleading of terms and conditions of compromise mentioning that compromise decree will be registered as early as possible at the cost of the plaintiff–plaintiff not perform his part of contract by getting the compromise registered to deprive the State of Bihar from the court-fee–it cannot be said that both the courts below read the plaint dissecting it to come to the conclusion that the plaint did not disclose the cause of action. (Para 18)
       Limitation Act, 1963–Section 54–Limitation in the suit for specific performance–Under a compromise decree, the plaintiff got 3 Kattha 3 dhur of land–the compromise decree, though required to be registered by the plaintiff but to the plaintiff did not get it registered–the defendant filing eviction suit against the plaintiff with regard to the said land–after institution of eviction suit the present plaintiff had knowledge regarding refused of respondent herein to perform their part of the compromise decree–it cannot be said that the plaintiffs get the notice that regarding refusal of respondents to execute the sale deed only after the decree for eviction was passed by Appex Court. (Para 21)
       Code of Civil Procedure, 1908–Order 7 Rule 11 read with Order 10–Rejection of plaint–if on a meaningful not formal reading of the plaint it is manifestly Vexatious and meritless in the sense of not disclosing a clear right to sue, the trial court should exercise its power under Order 7 Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled–if clever drafting has created the illusion of a cause of action, the court must nip it in the bud at the first hearing by examining the party searchingly under Order 10 C.P.C.–While exercising jurisdiction under Order 7 Rule 11 (a and d) C.P.C. the court is required to read the plaint as a whole to find out as to whether it disclosed any cause of action entitling the plaintiffs to claim a relief from the plenary jurisdiction of the civil court u/s 9 of the C.P.C.–In the present case lower Appellate Court not finding any cause of action–S.A. dismissed. (Paras 23 & 25)
       AIR 2006 SC 1556, AIR 2006 SC 1828, (2012)7 SCC 288 (Para 37), (1999)3 SCC 573, 2007 (14) SCC 138, AIR 1998 SC 3085, AIR 1998 SC 1128, (2007)10 SCC 59, AIR 1996 SC 2222, 2006 (1) PLJR 1, (2008)10 SCC 97–Referred to.

MUNGESHWAR SAHOO, J.:–The plaintiffs appellants appellants have filed this second appeal against the appellate court judgment and decree dated 13.11.2006 passed by Additional District Judge-7th, Patna in Title Appeal No. 60 of 2006 whereby the lower appellate court dismissed the title appeal and confirmed the judgment and decree of the trial court dated 3.5.2006 passed by Sub Judge-3rd, Patna in Title Suit No. 69 of 2006 whereby the appellants plaint was rejected under Order 7 Rule 11 (a and d) of the Code of Civil Procedure.

2. The plaintiffs filed the aforesaid Title Suit No. 69 of 2006 praying for a decree for specific performance of the contract for absolute conveyance of the land measuring 3 kattha 3 dhur described in schedule 2 of the plaint with full and absolute ownership as contained and envisaged in the compromise petition ending in decree dated 18.3.1980 in Title Eviction suit No. 70 of 1967 by the court of execution Munsif, Patna be passed in favour of plaintiffs and against the defendants – 1st party who be directed to execute and register deed of conveyance in favour of the plaintiffs and defendants – 2nd set within a reasonable time and the possession of the plaintiffs over the land in suit be confirmed and permanent injunction be granted restraining the defendants – 1st party from dispossessing the plaintiffs in any manner who are in possession of the suit property in part performance of the contract aforesaid and if the plaintiffs are dispossessed during the pendency of the suit, decree for recovery of possession with mesne profit in their favour. The plaintiffs also prayed that the defendants – 1st set be restrained by an order of temporary injunction from dispossessing the plaintiffs by executing the decree of Title Suit No. 61 of 1986 in any other manner till the disposal of the suit.

3. The trial court after perusal of the facts stated in the plaint and the documents filed with the plaint by deemed decree dated 3.5.2006 rejected the plaint holding that no cause of action is disclosed and the suit is barred by law of limitation. The plaintiffs then filed title appeal before the lower appellate court. The lower appellate court also by the impugned judgment confirmed the finding of the trial court and dismissed the appeal. Against these judgments of both the courts below, the present second appeal has been filed.

4. For better appreciation of the case the facts alleged in the plaint may be stated briefly that the lands described in schedule 1 of the plaint measuring 15 kattha 8 dhurs more or less being 100 feet long east to west, 210 feet long north to south in ward No. 10 Patna Municipal Corporation belonged to late Sri Tripurari Charan Palit, the grand father of the defendant No.1. The father of the plaintiffs namely Sri Surya Narayan Gupta took lease of vacant land on 25.8.1946 for a period of 29 years with an option of automatic renewal of said lease for further period of 10 years on a rental increase of 25% over the initial monthly rent of Rs.205/- by registered lease deed effective from 1.1.1947. The lessee was given right for making construction and as a matter of fact he constructed a triple storied pucca building on the western side with three shops and number of rooms, shades etc. for letting out to tenants and spent about over Rs.1,00,000/-. Sri Tripurari Charan Palit wrongly filed Title Suit No. 17 of 1967 before termination of lease for declaration of the termination of the lease and for possession of the premises. Written statement was filed by Surya Narayan Gupta. However, the parties compromised and a compromise petition was filed incorporating the terms and conditions which was accepted by the court and the suit was decreed in terms of the compromise by which the compromise application formed part of the decree dated 18.3.1980. In the plaint the terms and conditions of the compromise decree has been quoted which is being reproduced hereinbelow:–

“(i) That the defendant Surya Narain Gupta Surrende

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