H.K. Mody (Deceased) Through Lrs. vs K.D. Sharma
1999 Latest Caselaw 966 Del

JUDGMENT

J.B. Goel, J.

1. These two applications I.A. 4545/96 under Order 6, Rule 17, CPC and the other I.A. 9516/99 under Section 14 of the Limitation Act have been filed by the defendant.

2. The material facts are that the plaintiff had entered into an agreement to sell dated October 22, 1971 with the defendant to sell his house at K-21, Hauz Khas Enclave, New Delhi for a consideration of Rs. 1,80,000/-. The possession of the property is alleged to have been taken by the defendant on 25.11.1971 for some religious function and defendant is in unauthorised possession. The defendant made only part payment and did not make payment of the balance sale consideration and committed breach of the agreement. He has claimed possession and mesne profits in the suit. The suit was filed on 11.2.1981.

3. Defendant in his written statement has disputed the claim of the plaintiff and has alleged that he has made full payment of the sale consideration and even interest thereon for some delay but the plaintiff has committed breach of the agreement and has failed to complete the sale. Possession of the property was delivered to him on 25.11.1971 in pursuance of the agreement to sell. Issues were framed on 7.2.1986 and the plaintiff has adduced some evidence when the defendant filed first application (I.A. 4545/96) under Order 6, Rule 17, CPC and Order 8, Rule 6A, CPC on 8.4.19% seeking amendment in the written statement inter alia to incorporate counter claim for specific performance of the aforesaid agreement to sell. Plaintiff filed a reply contesting the application. After more than three years when the case was to be taken up for arguments, defendant filed the second application (I.A. 9516/99) on 22.9.1999 under Section 14 of the Limitation Act, claimed exclusion of time taken by him in pursuing proceedings in Suit No. 332/74 initially filed in this Court which was later transferred to the District Judge and registered as Suit No. 135/80 by the Commercial Sub-Judge seeking mandatory injunction against the plaintiff to execute/sign the sale deed.

I.A. 9516/99

4. Taking up application (I.A. 9516/99) under Section 14 of the Limitation Act first.

5. On the basis of the aforesaid agreement to sell, the present defendant had filed a suit against the present plaintiff being Suit No. 332/74 Keshav Dev Sharma v. H.K. Modi, on 5.6.1974. It was alleged that he had paid full sale price besides Rs. 6,890/- as interest for some delay. Stamp paper was purchased, draft sale deed was approved by defendant and sale deed was to be executed before Sub-Registrar on 31.7.1972 but defendant did not turn up there. He claimed the following main reliefs :

" (a) A decree directing and ordering the defendant, by a mandatory injunction to sign the deed enclosed hereto;

(b) Should the defendant fail or neglect out of intention, or refusal in any manner or pretext, to comply with the orders of this Hon'ble Court (as prayed for in Sub-para (a) above, a decree against the defendant to the effect that the said deed be executed and got registered in favour of the plaintiff, be passed under Order 20, Rules 5 and 6 of the Code of Civil Procedure (1908).

(c) xxxxxxxx

(d) xxxxxxxx

6. That suit was instituted in this Court but on being transferred, it was registered as Suit No. 135/80 in the Court of the Commercial Sub-Judge, Delhi.

7. The suit was contested and the following issues were framed in that suit :

"(i) Whether the defendant had delivered the vacant possession of the house in dispute on 25.11.1971 after redemption, if so, to what effect ? O.P.P.

(ii) Whether the stamp papers were purchased by the plaintiff with the consent of the defendant and typed draft of the Sale Deed was approved by the defendant ? If so, to what effect ? O.P.P.

(iii) Whether the parties agreed that the plaintiff should pay liquidated damage of Rs. 6,890/- to the defendant on account of delay in payment of a part of the price ? If so, its effect ? O.P.P.

(iv) Whether there has been any novation of the original terms of the Agreement as alleged in para II of the plaint ? If so, its effect ? O.P.P.

(v) Whether the plaintiff has paid the entire consideration in accordance with the agreement for sale entered into between the parties ? O.P.P.

(vi) Whether time was the essence of the agreement ? If so, its effect ? O.P.P.

(vii) Whether the agreement of sale in question is no longer subsisting and consequently the defendant is not liable to execute the sale deed in favour of the plaintiff ? O.P.P.

(viii) Which of the parties has committed default in getting the sale deed executed on 31.7.1972 ? O.P.P.

(ix) Whether the plaintiff is entitled to the grant of mandatory injunction as prayed for ? O.P.P.

(x) Relief.

8. The suit was dismissed by the learned Commercial Sub-Judge on 14.3.1991 holding as under :

"This case was filed by the plaintiff in March, 1980. Plaintiff did not pursue the case diligently or and got the dismissal in default number of times. It was dismissed in default on 16.9.1987. Thereafter, it was dismissed on 8.1.1990. The suit was restored each time. Issues were framed in this case on 26.4.1989. Plaintiff was required to produce his evidence on 5.9.1989. It was not produced on 5.9.1989 and on 26.5.1989 and when the case was fixed for evidence on 8.11.1990, the suit was got dismissed in default. It was again restored and fixed for PE on 27.2.1991 with payment of cost of Rs.150/-. Cost was not paid on 27.2.1991 and no evidence was produced. Case was again fixed for payment of cost and for producing evidence on 14.3.1991. The earlier cost of Rs. 225/- had also not been paid. No cogent reason has been assigned for not producing the evidence today. What is stated that the plaintiff is sick. No medical certificate is produced is support of sickness of the plaintiff. No steps have been taken for producing evidence today. The suit is liable to be dismissed not only under Section 35B, C.P.C. for having not complied with the condition precedent of paying cost and then adducing

evidence but also for want of evidence. The onus of Issues No. 1 to 6 and 9 is on the plaintiff. In the absence of any evidence of the plaintiff on these issues, the suit of the plaintiff falls flat. The suit of the plaintiff is dismissed with cost. Decree sheet be prepared accordingly. File be consigned to the Record Room."

9. Appeal being RFA 238/91 filed by the present defendant in this Court was dismissed by a Division Bench vide judgment dated December 14, 1995. The Appellate Bench in their judgment also has noticed these circumstances and conduct of defendant showing lack of diligence.

10. Before the Appellate Bench, the main contention was that the Trial Court was not justified in having invoked the provisions of Order 17, Rule 3, CPC and only Rule 2 of Order 17 could be invoked. This contention was rejected and it was held that in the facts and circumstances Order 17, Rule 3, CPC was attracted and was rightly applied by the Trial Court. Appeal was dismissed on 14.12.1995.

11. Application for review was filed but was dismissed on April 19, 1996. Special Leave to Appeal No. (12268/96) was dismissed by Supreme Court on 23.10.1996 and review was sought but dismissed on December 10, 1996. While those proceedings were pending, the application for amendment of the written statement was filed on 14.10.1996 and later on application under Section 14 of the Limitation Act was filed on 22.9.1999. Both the learned Counsel for the parties have submitted written arguments.

12. I have considered the same. When the application for amendment of the written statement was filed, suit for specific performance and for that matter counter claim otherwise has become time barred. The question is whether the time taken in pursuing the proceedings arising out of the aforesaid suit filed by the defendant is entitled to be excluded under Section 14 of the Limitation Act. Section 14 of the Limitation Act reads as under :

"14. Exclusion of time of proceeding bona fide in Court without jurisdiction (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) x x x x x x x

(3) x x x x x x x

Explanation--for the purposes of this section--

(a) x x x x x x x

(b) x x x x x x x

(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."

In order to attract the application of Section 14, the parties seeking its benefit must satisfy the Court that: (1) that the plaintiff must have prosecuted the earlier civil proceeding with due diligence; (ii) the former proceeding and the later proceeding relate to the same matter in issue; and (iii) the former proceeding must have been prosecuted in good faith

in a Court which, from defect of jurisdiction or other cause of a like nature, was unable to entertain it. Gurdit Singh and Ors. v. Munsha Singh and Ors., and Zafar Khan and Ors. v. Board of Revenue, U.P. and Ors., .

13. It was held therein that the scope of the words "or other cause of a like nature" which follow the words "defect of jurisdiction" in Section 14 has to be determined according to the rule of ejusdum generalis. According to that rule, they take their colour from the preceding words "defect of jurisdiction" which means that the defect must have been of an analogous character barring the Court from entertaining the previous suit.

14. The suit of the plaintiff on the basis of which exclusion of time is claimed was not dismissed by the Courts due to "defect of jurisdiction" or "other cause of like nature". The Court had entertained the suit, framed issues and gave opportunity to parties to lead evidence but the present defendant (who was plaintiff therein) did not adduce any evidence in spite of opportunities given to him and the suit was dismissed under Order 17, Rule 3, CPC. That case was decided under Clause (a) of Rule 3 of Order 17, CPC. The issues were decided against him. That decision is on merits and is a decree. Remedy was in appeal which was availed. The Appellate Bench has also specifically held that Order 17, Rule 3, CPC was rightly applied by the Trial Court. Review was dismissed by that Bench and SLP and then review were dismissed by Supreme Court. That suit was thus "heard and finally decided" and the decree passed therein will operate as res judicata under Section 11, CPC. Second suit on the same facts would not lie. (Hingo Singh and Ors. v. Jhuri Singh and Ors., (1918) 40 All. 590; Venkatachalam v. Mahalakshmamma, (1887) 10 Mad. 272; Rama Rao v. Suriya Rao and Ors., (1876) 1 Mad. 84 (DB); HarDayalv. Ram Ghulam, AIR 1944 Oudh 39 (DB); Nila v. Punum & Anr., AIR 1936 Lahore 385; Govindoss Krishnadoss v. Rajah of Karvetnagar & Anr., .

15. That suit was thus not dismissed due to lack of jurisdiction or other cause of a like nature. Condition No. 3 laid down in the case of Gurdit Singh and Zafar Khan (supra) is thus not fulfillled.

16. Condition No. 1 is also not fulfillled inasmuch as it was held in that case by the Trial Court and which finding was affirmed in appeal that the conduct of the plaintiff in that case (here defendant) lacked diligence in pursuing that suit which is so obvious from the facts noticed in the judgments.

17. The defendant thus is not entitled to the benefit of Section 14 of the Limitation Act. This application (IA. 9516/99) has no merit and the same is hereby dismissed with costs.

I.A. 4545/96.

18. By this application, the defendant wants to make amendment in the written statement. First amendment sought is in para 4 of the written statement. By this amendment, he wants to incorporate a plea under Section 53-A of the Transfer of Property Act.

19. The defendant in his written statement has already pleaded that he has paid whole of the sale consideration of Rs. 1,80,000/- and even paid Rs. 6,890/- as interest for late payment; he was put in possession of the property in pursuance of the agreement to sell in question on 25.11.1971; he purchased the stamp paper required for sale deed,

appeared in the office of the Sub-Registrar on the appointed day for the execution and registration of the sale deed by the plaintiff but the plaintiff did not turn up and then he had filed a suit for mandatory injunction for execution of the sale deed. He had also pleaded that he was willing to perform his part of the contract and has performed the same in the terms of the said contract and the plaintiff is not entitled to claim possession. In view of this pleading, no further amendment in the written statement is required for incorporation of plea under Section 53-A of the Transfer of Property Act. This amendment is not necessary and otherwise is highly belated.

20. Second proposed amendment is that the suit is barred by Sections 34/41 of the Specific Relief Act. This is a vague plea without particulars. Plaintiff's suit is neither for declaration nor for injunction. This amendment is not necessary and is not bona fide.

21. The third proposed amendment is that the suit is under-valued, Court fee is insufficient and the plaintiff has illegally invoked the pecuniary jurisdiction of the higher Court instead of that of the District/Civil Court and the suit deserves to be returned. This plea of under-valuation is somewhat self-contradictory. The plaintiff has claimed three reliefs : (1) recovery of Rs. 74,500/- as damages for unauthorised possession; (2) for possession of the property; and (3) decree for mesne profits after the institution of the suit. The suit has been valued for these reliefs in para 19 of the plaint. The correctness of para 19 of the plaint had not been disputed in the written statement where it is pleaded that "para 19 of the plaint needs no reply being legal."

22. The fourth amendment is about insufficiently/under valuation for the relief of possession. The plea is that for the relief of possession, suit should have been valued at its market value of Rs. 50/- lakhs and not at Rs. 1,80,000/-. This relief is valued at the value of the sale consideration of Rs. 1,80,000/- in para 19 of the plaint. As noticed earlier, this valuation has not been disputed in the written statement.

23. The admission made in the written statement cannot be withdrawn nor any ground is made out to withdraw it. Even otherwise, these two amendments are being sought after 14 years of filing of the written statement, are belated and are not necessary for deciding the real controversy and are not bona fide.

24. The fifth proposed amendment is that the suit is barred under Order VII, Rule 11, CPC. This plea is also vague and without particulars. Perhaps the objection is about valuation which has already been discussed above. Moreover, issues had been framed on 7.2.1986 and additional issues were framed on 21.5.1993 and if there was any such defect that should have been taken before issues were framed. This amendment is also unnecessary, belated and not bona fide.

25. The sixth proposed amendment is that after getting possession of the house, defendant had raised construction on first floor at his cost with the consent of the vendor and the defendant was entitled to the benefit of Section 60(b) of the Easement Act. In para 11 of the written statement, it is pleaded that:

".......It is not denied that the defendant has made additions or alterations in the disputed property but it is submitted that the consent of the plaintiff was neither required nor the defendant has sought the same. The defendant being the owner of the disputed property has every right to put additions, alterations and constructions which are permitted under the law."

26. This amendment apart from being belated is against the admissions made in

the written statement. Defendant by amendment cannot be allowed to plead contradictory pleas nor any ground for withdrawing this admission has been made out. This amendment is also not bona fide.

27. By the seventh proposed amendment in para 20, the defendant wants to plead/add counter claim for specific performance of the agreement to sell. For this purpose, the cause of action sought to be pleaded is as under :

"20(i) That the cause of action for filing the counter claim firstly arose on 22.10.1971, when the Agreement to sell was executed in favour of the defendant by late Sri H.K. Mody, and again when the actual and physical possession thereof was given to the defendant, and further when the defendant from time-to-time made payments towards the sale consideration, but the vendor malafide avoided execution of the sale deed, and instituted the present suit, within the jurisdiction of the Hon'ble Court, and the Hon'ble Court has jurisdiction to allow the counterclaim."

28. The dates of making all the payments and when the sale deed was to be executed have not been pleaded in this cause of action.

29. According to the plaintiff, the balance amount was not paid even within the extended period, i.e. upto July 31, 1972, the breach has taken place on July 31, 1972 and the cause of action also arose on that day. In para 18 of his suit for mandatory injunction (Suit No. 332/74/Suit No. 135/80) also, the present defendant had pleaded that the cause of action arose on 31.7.1972 when the defendant (i.e. present plaintiff) failed to appear in the office of the Sub-Registrar for execution and registration of the sale deed. The cause of action thus arose on 31.7.1972. This suit was filed on 11.2.1981. Written statement was filed on 18.8.1981 and the present application for amendment was made on 8.4.1996. Under Article 54 of the Limitation Act, the period of limitation for suit for specific performance is three years from "the date fixed for the performance and if no such date is fixed, when the plaintiff has notice that performance is refused". The suit for specific performance itself thus could be filed by 31.7.1975 and was time barred when the present application for amendment was filed. The defendant cannot be allowed to do indirectly what he could not do directly. When the suit is time barred, the counter claim would also be time barred. Time barred claim cannot be allowed to be raised by amendment. And application for extension of time under Section 14 of the Limitation Act, is being dismissed.

30. This application for amendment of the written statement, in the circumstances, has no merit, is not bonafide and is misconceived. The same is also hereby dismissed with costs.

31. Costs on both the applications quantified at Rs. 2,000/-. I.A. No. 4545/96 and I.A. No. 9516/99 are disposed of accordingly. S. No. 105/81 :

IA Nos. 4545/ 96 and 9516/99 have been disposed of vide separate judgment. Case be now listed on the dates already fixed for trial.