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High Court Of Calcutta
PRANAB KUMAR CHATTOPADHYAY
MD.AKHTAR HOSSAIN - Appellant
Versus
SURESH SINGH - Respondent
S. A. 635 Of 1994
Decided On : 02/11/2003
LIMITATION - SUIT - WITHDRAWAL OF SUIT - JURISDICTION - WHETHER WITHDRAWAL OF SUIT ON GROUND OF JURISDICTION ATTRACTS SECTION 14 OF THE LIMITATION ACT - WHETHER SUBSEQUENT SUIT IS MAINTAINABLE - ORDER 21 RULE 97 CPC - WHETHER THIRD PARTY CAN FILE SUIT INSTEAD OF INTERVENING IN PENDING EXECUTION CASE.
Fact of the Case:
Plaintiff filed a suit for a declaration that the decree passed earlier in Title Suit No. 87 of 1968 and Title Appeal No. 209 of 1969 passed on 16-11-1970 are mala fide, fraudulent, inoperative and are not binding upon the plaintiff and also for permanent injunction against the defendants restraining the said defendants from ousting the plaintiff from the suit premises in any way and taking possession thereof by execution in T. Ex. No. 19 of 1970 or by any other execution. Plaintiff had earlier filed another suit for identical relief, which was withdrawn with liberty to sue afresh. The subsequent suit was filed after a lapse of more than 7 years from the date of withdrawal of the earlier suit.
Finding of the Court:
1. The learned Munsif never terminated the earlier litigation by allowing withdrawal on the ground of defect regarding Jurisdiction or other causes of a like nature. 2. The subsequent suit is clearly barred by limitation as the plaintiff admittedly challenged the decree passed earlier in Title Suit no. 87 of 1968 which was subsequently affirmed in the Title Appeal No. 209 of 1969 as far back as on 16th November, 1970. 3. Section 14 of the Limitation Act is not attracted to the facts of the present case. 4. The Title Suit No. 86 of 1990 is liable to be rejected being clearly barred under Order 21, Rule 101. The plaintiff should intervene in the pending execution case i. e. Title Execution Case No. 19 of 1970.
Issues: 1. Whether the learned Courts below were Justified In deciding the question of limitation without framing any specific issue In this regard ? 2. Whether or not the period covered under Section 14 of the Limitation Act in prosecuting the earlier suit between 1970 to 1983 should be excluded in computing the period of limitation Involved in the present case ? 3. Whether the Articles 58 and 59 of the limitation Act were applicable in the present case or not ? 4. Whether the observations by a competent Court regarding bindingness was otherwise of a decree is available in a subsequent suit between the parties ?
Ratio Decidendi: 1. The plaintiff cannot avoid the ultimate consequences of limitation by clever drafting. 2. A meaningless litigation should not be permitted to occupy the time of the Court. 3. Section 14 of the Limitation Act is not attracted to the facts of the present case. 4. The Title Suit No. 86 of 1990 is liable to be rejected being clearly barred under Order 21, Rule 101. The plaintiff should intervene in the pending execution case i. e. Title Execution Case No. 19 of 1970.
Final Decision: The second appeal is dismissed.
( 1 ) THIS Second Appeal arises out of the decision of the learned Assistant District Judge; Frist Court at Howrah in Title Appeal No. 169 of 1990 passed on 23rd Dec. 1993 affirming the order dated 8th May, 1990 passed by the learned Munsif, second Court at Howrah in Title Suit No. 86 of 1990.
( 2 ) THE plaintiff brought the aforesaid title Suit being T. S. No. 86 of 1990 on 4th april. 1990 for a declaration that the decree passed earlier in Title Suit No. 87 of 1968 and Title Appeal No. 209 of 1969 passed on 16-11-1970 are mala fide, fraudulent, inoperative and are not binding upon the plaintiff and also for permanent injunction against the defendants restraining the said defendants from ousting the plaintiff from the suit premises in any way and taking possession thereof by execution in T. Ex. No. 19 of 1970 or by any other execution.
( 3 ) ). Admittedly, prior to the aforesaid Title Suit No. 86 of 1990 the plaintiff instituted another suit being Title Suit No. 373 of 1970 for identical relief.
( 4 ) ). It appears from the records that on 7-12-1970 learned Munsif on perusal of the said plaint in Title Suit No. 373 of 1970 and petition filed in connection with the said Title suit held that a prima facie case for an order of interim injunction was made out and passed an interim order restraining the defendants from taking possession of the shop room in question by execution in Title Execution Case No. 19 of 1970. The said interim order of injunction passed by the learned Munsif was allowed to continue on the consent of both the parties.
( 5 ) IN view of coming into effect of the calcutta Thika Tenancy Acquisition and regulation Act, the plaintiff subsequently wanted to withdraw the said suit in order to make the State of West Bengal a party to the proceeding and the learned Munsif after a contested hearing by the order dated 27-1-1983 permitted the plaintiff to withdraw the said suit with liberty to sue afresh.
( 6 ) AGAINST the said order dated 27th january, 1993 passed by the learned munsif, a revisional application was filed before this Honble Court which was numbered as C. R. No. 1115 of 1983 for setting aside the said order passed by the learned munsif permitting the plaintiff to withdraw the said suit. On 27th March, 1990 the said civil Revision Case was disposed of when dilip Kr, Basu, J. (as His Lordship then was) was pleased to discharge the rule for non- prosecution,
( 7 ) THE plaintiff thereafter filed the Title suit being T. S. No. 86 of 1990 in the Court of the Second Munsiff at Howrah on the 4th of April, 1990 and also filed an application for temporary injunction in connection with the said Title Suit. The defendants further filed an application before the said learned second Munsif for dismissal of the said Title Suit No. 86 of 1990 on the ground of limitation.
( 8 ) THE learned Munsif considered the aforesaid application filed on behalf of the defendants and upon hearing the respective parties and considering the objections ultimately passed an order rejecting the plaint in whole as according to the learned munsif the same was barred by limitation.
( 9 ) BEING aggrieved by the said order of the learned Munsif, the plaintiff preferred an appeal, which was numbered as Title appeal No. 169 of 1990. The learned Judge of the lower Appellate Court also dismissed the said appeal preferred by the plaintiff on contest and affirmed the impugned order dated 8th May, 1990 of the learned Munsif passed in Title Suit No. 86 of 1990.
( 10 ) CHALLENGING the said order of the lower appellate Court passed in Title Appeal no. 169 of 1990, the plaintiff preferred this second appeal. For the purpose of deciding this second appeal, following substantial questions of law were formulated by this court:1) Whether or not the learned Courts below were Justified In deciding the question of limitation without framing any specific issue In this regard ? 2) Whether or not the period covered under Sectio
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