2017 (6) TMI 1408 - HC - Indian Laws

Applications filed u/s 151 of the Code of Civil Procedure 1908 seeking dismissal of the present suit - seeking declaration possession injunction and for enquiry into damages in respect of the property. Maintainability of application - HELD THAT - The inherent powers under S. 151 of the Code can be invoked only when its exercise is not inconsistent with some express provision or when a provision in the Code dealing with the aspect expressly or by necessary implication exhausts the scope of the powers of the Court. In the present case what is to be seen is the interplay between Order VII Rule 11 and Section 151 i.e. whether Order VII Rule 11 exhausts the circumstances under which a suit may be dismissed prior to trial? Under Order VII Rule 11 the plaint may be rejected in certain circumstances including when the suit appears from a statement in the plaint itself to be barred by any law. The provision may only be invoked when the suit is barred from the pleadings filed by the plaintiff himself and the submissions of the defendant or any other material produced by the defendant cannot be looked into. The question as to whether Order VII Rule 11 exhausts the powers of the Court to dismiss the suit/reject the plaint arose before a Single Judge of the Rajasthan High Court in Temple of Thakur Shri Mathuradassji v. Shri Kanhaiyalal Ors. 2008 2008 (2) TMI 976 - RAJASTHAN HIGH COURT wherein the appellant temple and some persons acting on its behalf had filed petition suit and application one after the other in order to deny a party to the benefit of his decree. The case pertained to land wherein the owner sought to get it vacated from the tenant/school but the Temple and its associates initially filed a PIL then a suit and ultimately an application under Order 21 Rule 97 of the Code to avoid the land from getting vacated even after a compromise had been effected between the owner and the tenant. Both this Court and the Rajasthan High Court have categorically held that Order VII Rule 11 is not the complete reservoir of power under which a frivolous suit may be nipped in the bud. The view has been accepted by the Supreme Court in Machado Brothers.23 Even otherwise the Court cannot be helpless and be forced to continue a vexatious suit which is an abuse of its process merely because the same cannot be rejected under the Order VII Rule 11. The appellant/plaintiff herein agreed that the applicants would not press the applications under Order VII Rule 11 of the Code but would press/file applications under Section 151 of the Code. No objection was raised that such applications would not be maintainable and incase the plaintiff/appellant had raised such an objection there would have been no reason for the applicants to agree for such an order more particularly when the Single Judge had decided the applications under Order VII Rule 11 of the Code in their favour and no prudent person would give up the favourable order. The present applications are maintainable. Bar of order XXIII Rule 1 (4) - HELD THAT - Order II Rule 2 stipulates that whenever the plaintiff omits to sue a portion of the cause of action on which the suit is based by relinquishing the cause of action or a part of it then he is precluded from suing in respect of such portion subsequently. The provision may apply in conjunction with Order XXIII Rule 1 as a bar to subsequent suits where the cause of action is the same but the plaintiff has sought additional reliefs in the subsequent suit - the provisions of Order XXIII Rule 1 of the Code are attracted when the subject matter in both the suits is the same. The term subject matter does not mean the identity of the property in question; but it refers to the right sought to be enforced in the property and further the cause of action and the relief claimed therein. Order XXIII Rule 1 of the Code may apply in conjunction with Order II Rule 2 of the Code where the plaintiff had failed to sue in relation to part of the cause of action of the previous suit. It again stipulates the cause of action to be identical in both the suits. Whether the cause of action of the 1997 Suit and present suit is identical or different? - HELD THAT - Even in the present suit the plaintiffs have derived their title from the Sale Deeds dated 20.05.1997 and are aggrieved by the denial of possession by Khanna. Both the suits are premised in the ownership in the Suit Property having been transferred pursuant to the Sale Deeds and possession of the property being denied to the plaintiffs. The rejection of the impleadment application by this Court or dismissal of SLP by the Supreme Court cannot give rise to a fresh cause of action. Accordingly it is clear that the cause of action in both the suits was identical. The court should not be limited to the form and headings and should go into the sum and substance of the prayers.16 A meaningful reading of the prayers would reveal that the reliefs sought are identical. In both the suit the plaintiffs/Vidur have sought a declaration of title possession and perpetual/permanent injunction in respect of the Suit Property. Since the prayers are also identical in substance it is clear that the subject matter of the two suits is identical. Therefore the present suit is barred by Order XXIII Rule 1 (4) - the applicants succeed on this count as well the present suit is barred by the provisions of Order XXIII Rule 1 (4) and even the additional prayer for damages is barred as having been relinquished under Order II Rule 2 of the Code. Limitation - HELD THAT - Under Article 65 it is settled law that the period of limitation starts from when there is a clear and unequivocal threat to the right claimed by the plaintiff. Supra n.57 paragraph 19 An ineffective or innocuous threat may not be sufficient to start the period of limitation; the threat gives rise to a compulsory cause of action if it effectively invades or jeopardizes the right claimed by the plaintiff.58 Prior to the suit being held to be barred by Article 65 it is necessary that the possession of the defendant must be shown to be adverse to the plaintiff. Merely because the defendant is in possession is not sufficient such possession must be hostile to the plaintiff. The compulsory cause of action to file the present suit arose on 20.05.1997 or latest on 15.07.1997 as per the own showing of the plaintiffs. The Suit Property has been in hostile possession ever since and accordingly the 12 years statutory limitation period as per Article 65 would expire on 19.05.2009 or latest on 14.07.2009 while the present suit has been filed on 18.10.2012 well after the expiry of the limitation period - the suit is liable to be dismissed as being barred by limitation. Concealment - HELD THAT - The plaintiffs in the present case are guilty of suppressing the filing and withdrawal of the 1997 Suit which the aforegoing discussion would show had a material bearing upon the suit. Had the quantum of filing of the suit been disclosed this Court might have been reluctant in even issuing notice to the defendants. Yet precious judicial time has been wasted by the hearing of the suit and even the defendants have been harassed for years. Conclusion - i) The present applications are maintainable under Section 151 as none of the provisions of the Code expressly or by necessary implication exhaust or limit the inherent power of this Court. ii) The present suit is barred by the provisions of Order XXIII Rule 1 owing to the withdrawal of the 1997 Suit without seeking liberty to file afresh. iii) The additional relief of damages sought in the present suit is barred as having been relinquished under Order II Rule 2 of the Code. iv) The present suit is liable to be dismissed as having been filed after the expiry of the period of limitation on 18.10.2012 when the limitation period elapsed on 19.05.2009 or best on 14.07.2009. The suit is dismissed as being an abuse of process of this Court - application allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The primary legal issues considered in this judgment include:

• Whether the applications under Section 151 of the Code of Civil Procedure (CPC) are maintainable for dismissing the suit.
• The effect of the Supreme Court judgment in Vidur Impex on the present suit.
• Whether the present suit is barred by Order XXIII Rule 1(4) due to the withdrawal of a previous suit without liberty to file afresh.
• Whether the additional relief of damages is barred under Order II Rule 2.
• If the suit is barred by limitation as per Articles 58 and 65 of the Limitation Act, 1963.
• The impact of alleged concealment of previous litigation by the plaintiffs on the maintainability of the suit.

2. ISSUE-WISE DETAILED ANALYSIS

Maintainability of Applications under Section 151 CPC

• Legal Framework and Precedents: Section 151 CPC recognizes inherent powers of the court to make orders necessary for the ends of justice or to prevent abuse of court process. The court can dismiss suits under this section when Order VII Rule 11 is not applicable.
• Court's Interpretation and Reasoning: The court held that inherent powers under Section 151 can be invoked when there is no express provision in the CPC dealing with the situation, and the exercise of such power is not inconsistent with the provisions of the CPC.
• Conclusion: The applications under Section 151 were deemed maintainable as Order VII Rule 11 was not exhaustive for dismissing frivolous suits.

Effect of the Supreme Court Judgment in Vidur Impex

• Legal Framework and Precedents: The Supreme Court's judgment in Vidur Impex was considered to determine if it had conclusively decided the issue of title concerning the plaintiffs.
• Court's Interpretation and Reasoning: The court found that the Supreme Court had adjudicated on the nature of the plaintiffs' rights in the property, concluding that the sale transactions had no legal sanctity and conferred no rights.
• Conclusion: The Supreme Court's judgment was binding and effectively sealed the fate of the plaintiffs, rendering the present suit dismissible on this ground alone.

Bar of Order XXIII Rule 1(4) CPC

• Legal Framework and Precedents: Order XXIII Rule 1(4) precludes a plaintiff from instituting a fresh suit on the same subject matter after withdrawing a previous suit without liberty.
• Court's Interpretation and Reasoning: The court found that the 1997 Suit and the present suit involved the same subject matter, cause of action, and reliefs, thereby barring the present suit under Order XXIII Rule 1(4).
• Conclusion: The present suit was barred by Order XXIII Rule 1(4) due to the withdrawal of the 1997 Suit without liberty to file afresh.

Bar of Additional Relief of Damages under Order II Rule 2 CPC

• Legal Framework and Precedents: Order II Rule 2 bars claims for reliefs omitted in previous suits based on the same cause of action.
• Court's Interpretation and Reasoning: The court held that the claim for damages was based on the same cause of action as the 1997 Suit and was therefore barred under Order II Rule 2.
• Conclusion: The additional relief of damages was barred as it was not claimed in the 1997 Suit.

Limitation

• Legal Framework and Precedents: Articles 58 and 65 of the Limitation Act, 1963, prescribe limitation periods for suits for declaration and possession based on title.
• Court's Interpretation and Reasoning: The court applied Article 65, determining that the suit was filed beyond the 12-year limitation period from when the possession became adverse.
• Conclusion: The suit was dismissed as time-barred under Article 65.

Concealment

• Legal Framework and Precedents: Courts have consistently held that suppression of material facts disentitles a party from relief.
• Court's Interpretation and Reasoning: The plaintiffs' failure to disclose the 1997 Suit was considered a material suppression affecting the maintainability of the present suit.
• Conclusion: The suit was liable to be dismissed due to the plaintiffs' concealment of material facts.

3. SIGNIFICANT HOLDINGS

• The applications under Section 151 CPC were maintainable as Order VII Rule 11 was not exhaustive for dismissing frivolous suits.
• The Supreme Court's judgment in Vidur Impex conclusively determined that the plaintiffs had no subsisting rights in the property, rendering the present suit dismissible.
• The present suit was barred by Order XXIII Rule 1(4) due to the withdrawal of the 1997 Suit without liberty to file afresh.
• The additional relief of damages was barred under Order II Rule 2 as it was based on the same cause of action as the 1997 Suit.
• The suit was dismissed as time-barred under Article 65 of the Limitation Act, 1963.
• The plaintiffs' concealment of the 1997 Suit disentitled them from any relief, leading to the dismissal of the suit.

In conclusion, the court dismissed the suit as an abuse of process, allowing the applications under Section 151 CPC and denying any relief to the plaintiffs.