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PATNA HIGH COURT
Mungeshwar Sahoo, J.
Dilip Gupta & Anr. —Appellants
versus
Debashish Palit & Ors. —Respondents
Second Appeal No.33 of 2007
Decided on 11.9.2012
For the Appellants :Mr. J.S. Arora and Mr. Bhuwaneshwar Prasad, Advocates.
For Respondent No.1.:Mr. Ganpati Trivedi and Mr. Madan Mohan, Advocates.
For the Respondent No. 2 Mr. R. K. Sinha and Mr. Manoj Kumar Pandey, Advocates.
For the Respondent Nos. 10, 11 & 12:Mr. Siddheshwari Prasad Sinha, Sr. Advocate, Mr. Srinandan Prasad Singh, Advocate, Mr. Krishan Kumar Sinha, Advocate with him.
IMPORTANT POINT
When words used in compromise decree are clear no inference can be drawn contrary to intention of parties.
Headnote:(i) Civil Procedure Code, 1908—Order 7 Rule 11—Limitation Act, 1963—Article 54—Rejection of plaint—There cannot be any strait-jacket formula that if there is any pleading wherein facts have been disclosed then court will presume that there is cause of action—It must be determined by court that whether bundle of facts disclosed by plaintiffs in fact give rise a cause of action to plaint to claim relief or not—It is duty of court to find out this from fact of pleading and it does not depend on skillfully drafting of plaint—While exercising jurisdiction under Order 7 Rule 11 (a and d) C.P.C. court is required to read plaint as a whole to find out as to whether it discloses any cause of action entitling plaintiffs to claim relief from plenary jurisdiction of civil court under Section 9 of C.P.C.—Whether there is cause of action or not is a question of fact which is to be determined from pleading of plaint which will depend on facts pleaded in each case—Merely because plaint is saying that cause of action accrued on such and such date, Court will not blindly accept same if from facts disclosed in plaint cause of action arose on different dates than date disclosed by plaintiffs—Suit of plaintiffs-appellants also barred by limitation—Appeal dismissed. (Paras 14 , 18 , 21, 25 , 26 and 27)
(ii) Interpretation of Documents—Golden rule of construction of a document is to ascertain intention of parties to instrument after considering of words in their ordinary natural sense—A sentence or term used here or there may not be determinate of real nature of transaction—When words used in compromise decree are clear no inference can be drawn contrary to intention of parties. (Para 14)
(iii) Limitation Act, 1963—Article 54—Suit for specific performance of contract—Bar of limitation—Ordinarily, a defendant who is mainly defending a suit filed by other party cannot be taken to be prosecuting suit—He is merely defending suit—Since term “plaintiff’ and “defendant” had different prescribed meaning which are well known it is only plaintiff who prosecutes suit—However if it is found that in a case where defendant sets up his own claim or claims and has also prayed for a relief thereto he will also taken to be prosecuting suit—Defendant was defending case of plaintiff up to Apex Court—He never sets up his own claim—It cannot be said that he was bonafidely prosecuting his case—Question of limitation is admitted from facts pleaded itself—Only on ground that it is mixed question of fact and law it cannot be said that suit is not time barred—Facts are admitted and only law is required to be applied. (Paras 26 and 27)
Result: Appeal dismissed.
Mungeshwar Sahoo, J.—The plaintiffs-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 Su
