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TMI Blog2017 (6) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... t nos. 1 (i) to (iii), being the legal heirs of Late Sh. Pradeep Kumar Khanna, as "Khanna"; defendant no. 2/Tosh Apartments Pvt. Ltd. as "Tosh"; defendant no. 3(i) and (ii), being the legal heirs of Late Sh. L.K. Kaul, as "Kaul"; and defendant no. 4/Bhagwati Developers Pvt. Ltd. as "Bhagwati". 3. During the pendency of this suit, Khanna and Tosh had preferred applications under Order VII Rule 11 of the Code, being I.A. No. 608/2013 and I.A. No. 2049/2013 respectively, seeking the rejection of the plaint. By an order dated 31.05.2013, the applications were allowed by this Court and the plaint was rejected as having been filed without disclosing any cause of action. The order dated 31.05.2013 passed by the single judge was assailed by the plaintiffs herein before the Division Bench in appeal [RFA (OS) 61/2013]. 4. Before the Division Bench, learned senior counsel for Tosh had made a statement that he does not press his application under Order VII Rule 11, but instead he would press I.A. No. 4433/2013 pending before the Single Judge. Similarly, counsel for Khanna had also made a statement that he would not press his application under Order VII Rule 11, but instead he would file a fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Khanna executed an Agreement to Sell dated 13.09.1988 in favour of Tosh for sale of the suit property. The suit property was vacated by Sudan Embassy on 12.05.1992 and the possession was taken over by one, Late Sh. L.K. Kaul. As per the case of Sh. Kaul, the property continued to be in his possession as a mortgagee in consideration of getting the property vacated from Sudan Embassy. Late Sh. Kaul continued to be in possession of the property as a caretaker until he was dispossessed by the receiver appointed by this Court on 18.09.2007. 10. In 1993, Tosh filed a suit, being CS (OS) 425/1993, before this Court for specific performance, damages and injunction based upon the Agreement to Sell dated 13.09.1988. Along with the suit, an application under Order XXXIX Rules 1 and 2 CPC was also filed. Summons in the said suit were issued on 10.02.1993 and by an interim order dated 18.02.1993 directed Late Sh. Kaul and Late Sh. Khanna not to transfer, alienate or part with possession in any manner or create third party rights in respect of the suit property; the interim order stands confirmed on 31.01.2000. 11. In 1997, during the pendency of CS (OS) 425/1993, Late Sh. Khanna execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit. The same may be dismissed as withdrawn. RO & AC Sd./- Adv. (D-530/93) Sd./- (NK Goel) ADJ-05 (WEST), THC 1-06-2011 Present : Sh Rajesh Mahendru, advocate for the plaintiffs. None for the proposed LRs of the deceased defendant. I have recorded the statement of the deceased defendant. In view of his statement, the present suit is dismissed as withdrawn. File be consigned to record room. Sd./- 1-6-11 (NK Goel) ADJ-05 (WEST), THC 1-06-2011 (Announced in the open court)" 14. During the pendency of the proceedings before the arbitral tribunal, an I.A. No. 8145/1998 in CS (OS) 425/1993 and Contempt Petition 118/1998 were filed by Tosh alleging violation of the interim injunction order and further seeking an injunction against Late Sh. Khanna and Late Sh. Kaul from handing over/delivering the actual possession of the Suit Property to Vidur based upon the sale deed dated 20.05.1997. Late Sh. Khanna in his reply, contended that he had never executed the Sale Deeds. 15. Late Sh. Khanna had also instituted a suit, being CS (OS) 161/1999, before this Court again alleging that none of the sale deeds were executed by him and seeking a declaration of the Sale Deeds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 001. 19. When the receiver appointed by the Calcutta High Court went to take possession of the Suit Property, Late Sh. Kaul filed another application I.A. No. 1211/2001 not to dispossess him. On 08.02.2001, this Court restrained Vidur, Bhagwati and the receiver from taking possession of the Suit Property. Late Sh. Kaul also approached the Calcutta High Court, which made its orders subject to the orders of this Court vide order dated 15.02.2001. 20. As per the plaint, Vidur/plaintiffs claim to have learnt of CS (OS) 425/1993, pending before this Court upon notices being received in I.A. No. 625/2001. 21. Thereafter, Vidur filed an application I.A. No. 1861/2008 under Order I Rule 10 of the Code seeking impleadment in CS (OS) No. 425/1993. This application was dismissed by a Single Judge of this Court vide order dated 26.05.2008. An appeal FAO (OS) No. 324/2008 was preferred by Vidur before a Division Bench, which was also dismissed on 20.02.2009. Thereafter, a Special Leave Petition, SLP (C) 11501/2009, later converted to CA 5918/2012 was filed before the Supreme Court of India; which has been dismissed by a detailed judgment dated 21.08.2012. The judgment of the Supreme Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ird party interest or entering into any compromise of any nature whatsoever; d) Decree for recovery of possession in favour of the plaintiff and against the defendants and/or against their men, agents and associates be passed directing the defendants and/or the Court Receiver appointed by this Hon'ble Court to quit, vacate and deliver the vacant possession of the property to the plaintiffs; e) An enquiry into damages be made by this Hon'ble Court and after ascertaining the quantum of damages suffered by the plaintiffs, this Hon'ble Court may be pleased to award damages for such sum as this Hon'ble Court may deed fit and proper; -AND- f) Pass such further or other orders as this Hon'ble Court may deed fit and property." (Emphasis Supplied) 25. In 2014, Tosh filed CS (OS) 864/2014 before this Court seeking a declaration that the Sale Deeds dated 20.05.1997 are null and void and their registration be cancelled. This suit is pending before this Court. 26. During the pendency of the present suit, a settlement has been arrived at between Khanna and Tosh. Accordingly, they filed I.A. No. 18222/2015 under Order XXIII Rule 3 of the Code in CS (OS) 425/1993, which was allowed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self and the suit being frivolous should be being nipped in the bud as held by the Supreme Court in the case of T. Arivandandam v. T.V. Satyapal and Anr.. (1977) 4 SCC 467, paragraph 5 Judgment of the Supreme Court 28.1 While placing strong reliance on the judgment of the Supreme Court in Vidur Impex,1 Mr. Anand contends that the plaintiffs do not have a valid title or interest in the suit property as the transactions under which they claim to have acquired interest in the suit property did not confer any right. It is contended that a declaration has already been made by the Supreme Court on the claim made by the plaintiffs under the six registered sale deeds, which are the basis of the prayers in the present suit. In particular, he refers to the following paragraphs of Vidur Impex1: "6. On 19-2-1997, Respondent 2 executed 6 agreements for sale in favour of the appellants for a total consideration of Rs 2.88 crores. In furtherance of those agreements, six sale deeds were executed and registered on 30-5-1997. In the meanwhile, the appellants executed agreement for sale dated 18-3-1997 in favour of Bhagwati Developers for a consideration of Rs 4.26 crores and received Rs 3.05 cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit property which is binding on the parties, thus they would have no cause of action or locus standi to seek any declaration under Section 34 of the Specific Relief Act, 1963. He submits that under Section 34, for any person to seek a declaration he has to fulfil a pre-condition of having a subsisting right to the property in question. Suit being Barred by Law 28.3 The second contention of the learned counsel for Khanna is that the suit is barred by law as the plaintiffs are precluded from filing the present suit by Order XXIII Rule 1 (4) of the Code. He submits that Order XXIII Rule 1 enables a plaintiff to abandon his suit or a part thereof. Whenever he abandons his claim, he is presumed to have given up the reliefs sought by him and is precluded from instituting any fresh suit in respect of such subject matter. Learned counsel submits that in respect of the same subject matter and claim in the present suit, the plaintiffs had in 1997 filed a suit being CS (OS) No.1675/1997 Later renumbered as CS 629/2011/97 on being transferred to the District Court. (hereinafter referred to as the "1997 Suit") in this Court making the same claim/seeking the same relief, i.e. that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit; for this reason alone, Vidur is disentitled to any relief and the present suit is liable to be dismissed. It was obligatory on the part of the plaintiffs to disclose to this Court the factum of having filed the earlier suit and its withdrawal and also produce the copy of the plaint and withdrawal order as the same are relevant having bearing on the maintainability of the present suit. The plaintiffs deliberately withheld this material fact and vital documents from this Court to gain advantage over the defendants and as such are guilty of playing fraud on this Court as well as on the defendants. The case of the plaintiffs, thus being based on falsehood requires to be summarily rejected at this stage itself. Limitation 28.8 The next contention of learned counsel for Khanna is that the present suit is barred by the law of limitation. Mr. Anand submits that the period of limitation for seeking both declaration and possession have expired and consequently, the present suit is not maintainable. 28.9 In respect of declaration, Mr. Anand submits that Article 58 of the Schedule to the Limitation Act stipulates that a suit to obtain any declaration has to be filed within three years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.13 Learned counsel submits that the suit for relief of declaration under Article 58 could be filed only within three years of 1997 and the present suit having been filed in 2012 is hopelessly time barred. It is submitted that the plaintiffs have pleaded subsequent purported cause of action on the passing of the Supreme Court Judgment on 21.08.2012, which is of no relevance and period of limitation is to be construed only from the date when the right to sue first accrued and successive violations will not give rise to fresh cause of action as laid down by the Supreme Court in the case of Khatri Hotels.17 28.14 Mr. Anand prior to making his submissions upon the relief of possession submits that once it is clear that the plaintiffs/Vidur are not entitled to declaration, all consequential reliefs, including possession and damages, would also be barred by limitation. In support of the submission, he relies upon paragraph 17 of the judgment in Balkaran Singh.19 28.15 In respect of relief for possession, learned counsel submits that as per Article 65, the period of limitation for filing a suit for possession based on title is 12 years and runs from the date when the possession of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. No locus standi 28.19 Mr. Anand submits that the plaintiffs have no locus standi to file the present suit as they have no existing right to the suit property; even according to their own pleadings in the plaint and as held by the Supreme Court Vidur Impex.1 28.20 It is submitted that the plaintiffs have themselves pleaded in the plaint that even prior to execution of the Sale Deeds dated 20.05.1997, they have on 18.03.1997 entered into an agreement for sale with Bhagwati. Bhagwati had also instituted arbitration proceedings against the plaintiffs seeking specific performance of the said agreement for sale along with possession of the suit property; the sole arbitrator has passed an award in favour of Bhagwati, which was sought to be executed before the Calcutta High Court. Since no challenge was made to the award, the said award has become final. He concludes that this had led to the Supreme Court to observe that Vidur has "no subsisting legal or commercial interest". Supra n.1, paragraph 42 28.21 Mr. Anand relying upon averments made by the plaintiffs themselves in paragraphs 5, 9 and 10 of the plaint, submits that it is the own case of the plaintiffs that they have diveste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of a suit would amount to an abuse of the process of the Court and interest of justice requires that such suit should be disposed of as having become infructuous, an application under Section 151 CPC is maintainable. 30.2 The submissions in respect of the nature and scope of Vidur Impex1 are similar to the ones led by Mr. Anand. Concealment 30.3 Learned senior counsels further relies that in the case of Oswal Fats & Oils Ltd. v. Additional Commr. (Admn.), Bareilly Division, Bareilly and Ors., (2010) 4 SCC 728, paragraph 20 wherein the Supreme Court came down heavily on the plaintiff therein for not disclosing the relevant document, terming such non-disclosure as part of strategy to keep the Court in the dark, the Apex Court held that such a conduct disentitles the plaintiff from grant of any relief, equitable or otherwise. 30.4 Learned senior counsel submit that the filing of the previous suit [CS (OS) 1675/1997/1997 Suit] and its withdrawal has been concealed from this Court and in CS (OS) 425/1993 right upto the Supreme Court, and on this ground alone, the suit is liable to be dismissed. They additionally rely upon M/s. Seemax Construction (P) Ltd. v. State Bank of India a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applications are not maintainable. He substantiates his arguments by contending that the present applications, being under Section 151 of the Code, are not maintainable and accordingly, should be dismissed. 32.2 Mr. Manoj submits that the present applications are not maintainable as Section 151 cannot be used to defeat substantive rights of the plaintiffs without trial or following due procedure. It is submitted that the powers under Section 151 are subject to the following limitations: (i) S. 151 cannot be used when there is an express provision in the Code. State of U.P. and Ors. v. Roshan Singh and Ors., (2008) 2 SCC 488, paragraph 8, K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275, paragraph 12 (ii) S. 151 can only be used as a matter of procedure and not when it affects the substantive rights of the parties. Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527, paragraphs 21, 22, 27 and 43 (iii) S. 151 cannot be used to bypass the procedure established by law. State of Punjab v. Davinder Pal Singh Bhullar and Ors., (2011) 14 SCC 770, paragraphs 60 and 64 (iv) S. 151 cannot be used to short circuit a suit. Alka Gupta v. Narender Kumar Gupta, (201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were entitled to be impleaded in a suit for specific performance, being CS (OS) No. 425/1993. The ratio of the judgment is that parties in violation of injunction order are not entitled to impleadment in a suit for specific performance. Any observations made by the Supreme Court are not a declaration of law under Article 141 read with Article 136 of the Constitution of India qua the plaintiffs" title. He submits that his stand is vindicated by the fact that the Apex Court did not issue any direction to cancel the registration of sale deeds in question. 32.7 Elaborating his argument, the counsel submits that any observations made by the Supreme Court on an issue neither considered nor decided cannot be binding. It is submitted that as per the provisions of Order XX Rule 4 (2) CPC, a judgment can be rendered only on the "points for determination". He submits that the issue of title was not before the Supreme Court and thus, the Supreme Court could not have assumed the jurisdiction of a Trial Court. To this end, Mr. Manoj relies upon the judgments in Mohd. Mustafa v. Sri Abu Bakar and Ors. (1970) 3 SCC 891, pa ragraph 6 and Balwant Rai Saluja and Anr. v. Air India Limited and Ors. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation on that point. Counsel relies on Dalbir Singh and Ors. v. State of Punjab (1979) 3 SCC 745, paragraphs 22 and 24 and submits that general observations are only views and not a law. Counsel next relies on Krishena Kumar v. Union of India & Ors. (1990) 4 SCC 207, paragraphs 19 and 20 and submits that concrete decision alone is binding on the parties and only the ratio decidendi has the force of law. In the cases of Commissioner of Income Tax v. Sun Engineering Works (P) Ltd. (1992) 4 SCC 363, paragraph 39 and Dr. Nalini Mahajan & Ors. v. Director of Income Tax (Inv.) and Ors., (2002) 98 DLT 525 (DB), paragraph 93 it has been held that a judgment has to be considered in the light of the questions before the Court. 32.12 Relying upon the aforegoing judgments, counsel submits that the only issue before the Supreme Court was regarding impleadment of Vidur in CS (OS) 425/1993. He submits that it was not even necessary to come to the conclusion that the sale deeds are void to deny impleadment. Learned counsel for the plaintiffs submits that the plaintiffs impleadment in a suit for specific performance was held to be totally unwarranted as the plaintiffs were not a necessary party t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel for the plaintiffs further submits that the term "subject matter" has not been defined in the Code but the same has been construed as the "same cause of action and relief" in the judgments rendered in the cases of Vallabh Das v. Dr. Madan Lal and Ors.; (1970) 1 SCC 761, paragraph 5 Kasarapu Sujatha and Anr. v. Veera Velli Veera Somaiah; 2008 (3) ALD 525: 2007 SCC OnLine AP 676 The Kartar Singh and Ors. v. Shiv Rattandev Singh and Ors.; AIR 1996 J&K 32 and Inbasagaran and Anr. v. S. Natarajan. (2015) 11 SCC 12, paragraphs 20 - 26 32.16 Learned counsel submits that the prayers in the 1997 Suit were for possession and injunction, while the present suit is for declaration of title and consequential reliefs along with damages. He submits that even the cause of action is different in both the suits; therefore, order XXIII Rule 1 has no bearing on the present suit. Limitation 32.17 It is also contended by the learned counsel for the plaintiffs that the arguments of the defendants/applicants that the present suit is barred by limitation are without any force. 32.18 Learned counsel for the plaintiffs submits that the suit has been filed within the period of limitation. Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SCC 614, paragraphs 4 and 5 learned counsel submits that unless defendant proves adverse possession, plaintiff cannot be non-suited. With regard to starting point of limitation under Article 65, learned counsel relies upon Annakili v. A. Vedanayagam and Ors. (2007) 14 SCC 308, paragraphs 24 to 26 and Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & Ors. (2009) 16 SCC 517, paragraph 21 33. Learned counsel for the plaintiffs/non-applicants concludes that in view of the aforegoing submissions, the applications should be dismissed as being frivolous. As an alternative, he submits that incase this court comes to the conclusion that in view of judgment in Vidur Impex1 the suit deserves to be dismissed, then the suit may be allowed to proceed in respect of damages. REJOINDER ARGUMENTS OF APPLICANTS 34. Mr. Anand in his rejoinder arguments has submitted on the following lines: 34.1 In response to the submissions of the plaintiffs in respect of Principle of "Issue Estoppel" or the applications being barred by Order XXIII Rule 1, learned counsel submits that before the Division Bench, a consensus was arrived. It was agreed that all grounds urged in the applications under Order V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties. Relying upon judgment in Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai Ummer and Ors., (2000) 3 SCC 350, paragraphs 10 - 19 learned counsel concludes that the test to be applied is whether the court considers the adjudication of a particular issue as material and essential for its decision and if the answer is in the affirmative, then the particular issue will be treated as "directly and substantially" in issue. In Vidur Impex,1 Mr. Anand submits that the Supreme Court while deciding the issue of impleadment, the right of Vidur was considered and decided. He further relies upon the decisions of the Apex Court in Director of Settlements, A.P. and Others v. M.R. Apparao and Anr. (2002) 4 SCC 638, paragraph 7 and Union of India and Ors. v. Dhanwanti Devi and Ors. (1996) 6 SCC 44, paragraph 9 35. Mr. Sharma and Mr. Bhushan, learned senior counsel for Tosh, submit that the objections raised by the plaintiffs in respect of the maintainability of the present applications are without any justification owing to the extraordinary progression of the case and extraordinary circumstances that have prevailed. They submit on the following lines: 35.1 Learned senior counsel subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations under Section 151 of the Code are not maintainable owing to the limited scope of the provision; (ii) Substantial rights of the plaintiffs in the suit property cannot be snatched away without following the due process of law; (iii) Applications under Section 151 are not maintainable as being barred by the Principle of "Issue Estoppel"; (iv) The judgment of the Supreme Court in Vidur Impex1 was limited to impleadment application in CS (OS) 425/1993 and by no way effects the title of the plaintiffs herein; and (v) The present suit is neither barred by operation of Order XXIII Rule 1 nor by the law of limitation. 38. The facts of the present dispute have already been detailed in paragraphs 1 to 27 aforegoing. I also deem it appropriate to mention that after the factum of filing and withdrawal of previous suit CS (OS) 1675/1997 (Later renumbered as CS 629/2011/97 on being transferred to the District Court) by Vidur was brought to the notice of this Court, the plaintiffs have filed an application, bearing I.A. No. 16689/2013 seeking amendment of the plaint to incorporate the same. 39. Since the submissions of the parties are multiple and diverse, it would be better to deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conclusion that inherent power under S. 151 could not be exercised by the Additional Munsif to appoint a commissioner to seize the books of accounts of the plaintiff therein. The Apex Court observed as follows: "8. ...The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code." 45. In Ram Chand & Sons Sugar Mills,62 the Apex Court holding that S. 151 can be invoked as to secure ends of justice or prevent abuse in the absence of any express provision, when a director had failed to appear under Order XXIX Rule 3 of the Code. In coming to the said conclusion, the Court held that the power under S. 151 "will not be exercised if its exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e concerned. Undisputedly, an aggrieved person is not remediless under the Act." (Emphasis Supplied) 47. In Davinder Pal Singh Bhullar,38 the Supreme Court observing that the power under S. 482 of the Code of Criminal Procedure is analogous to S. 151 of the Code, again held that the "powers can be used provided there is no prohibition for passing such an order under the provisions of CrPC and there is no provision under which the party can seek redressal of its grievance." Supra n.38, paragraph 59 48. The Supreme Court in K.K. Velusamy36 held that the inherent power could be exercised to reopen evidence or recall witnesses for further examination or cross-examination even after arguments have commenced or even concluded. The Supreme Court after referring to numerous decisions, came to the following conclusions: "11. There is no specific provision in the Code enabling the parties to reopen the evidence for the purpose of further examination-in-chief or cross-examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of justice or to pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect, if the ends of justice warrant it. The breadth of such power is coextensive with the need to exercise such power on the facts and circumstances. (c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code. (d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eject the plaint arose before a Single Judge of the Rajasthan High Court in Temple of Thakur Shri Mathuradassji v. Shri Kanhaiyalal & Ors., 2008 (1) ILR (Raj) 619: 2008 (3) W LC (Raj) 534 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. In this background, the Trial Court had dismissed the suit after holding the same as an abuse of the process of law. Similar arguments were urged in respect of the limitations on the power of the Court to dismiss a suit qua the power in Order VII Rule 11; the Single Judge rejected the arguments and observed as follows: "16. Totality of the circumstances clearly shows that the plaintiffs filed the suit for taking benefit of procedure provided by the Civil Procedure Code and, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code of Civil Procedure is not the complete reservoir of the power to nip a frivolous suit when it is still in the stage of infancy. The inherent powers of a Court of record, and we highlight that Section 151 of the Code of Civil Procedure does not confer, but saves the inherent power of a Court also constitutes the reservoir of the power of a Court of record to throw out vexatious suits." (Emphasis Supplied) 53. Both Temple of Shri Mathuradassji73 and Aniruddha Dutta74 have been accepted and followed in Keshav Chander Thakur & Anr. v. Krishan Chander & Ors. 211 (2014) DLT 149 (DB): 2014 (143) DRJ 330 (DB), paragraphs 38 - 42 Therefore, 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. 54. Even the Supreme Court has accepted that suits may be dismissed under Section 151 in Machado Brothers.23 The appellant therein had appointed the respondent as steamship agents and later terminated the agency, which was challenged before the the City Civil Court, Chennai. During the pendency of the suit, another termination notice was issued and as such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally 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, I am of the view that 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. 57. In the present scenario, the objections of limitation, suit being barred by Order XXIII Rule 11 and the effect of the judgment of the Supreme Court in Vidur Impex1 could not have been entertained in an application under Order VII Rule 11; therefore, the present applications are maintainable. This is primarily for the reason that the scope of Order VII Rule 11 is limited and the court can only go into the contents of the plaint and accompanying documents; while adjudication of such objections other documents need to be gone into. This was also the reason that the applicants made statements before the Division Bench that they shall not press the applications under Order VII Rule 11, but prefer applications under S. 151 of the Code. 58. Mr. Manoj, learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the Supreme Court in Vidur Impex1 which is impermissible in law (paragraph 23). The Single Judge had also expressly stated that "whether or not the observations made by the Supreme Court in respect of the sale deed being relied upon by the plaintiffs herein to get a declaration of title in their favour operate as res judicata or not is not the question to be considered and decided by this Court at the stage of consideration of applications under Order VII Rule 11 C.P.C." Therefore, the contentions urged by the applicants being outside the scope of adjudication of applications under Order VII Rule 11 of the Code, the question of prohibition of Order XXIII Rule 1 or Principle of "Issue Estoppel" do not arise. 61. Even the judgments cited by the learned counsel for the plaintiffs do not come to his aid. In Bhanu Kumar Jain,40 the Supreme Court was dealing with the dichotomy of a regular appeal and an appeal from an application filed under Order IX Rule 13 of the Code arising out of a common ex parte decree. In such a background, Justice S.B. Sinha delivering the opinion for the Bench held that the grounds once urged in application under Order IX Rule 13 and thereafter, settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the present applications are maintainable. JUDGMENT OF THE SUPREME COURT 65. The next aspect to be considered, which has been hotly contested by the parties, is the effect of the judgment of the Supreme Court in Vidur Impex,1 i.e. whether the Supreme Court has sealed the fate of the plaintiffs/Vidur by deciding the issue of title? 66. All three contesting parties have made numerous submissions and cited multitude judgments. It would be appropriate to deal with judicial authorities cited by the parties first. 67. The first set of judgments relied upon by the counsel for the plaintiff is Mohd. Mustafa42 and Balwant Rai Saluja.43 In Mohd. Mustafa,42 the Supreme Court was dealing with a situation where the High Court had given a contradictory finding as to the nature of suit properties; on one hand, they were held to be properties of the father of the appellant and on the other the claim of the appellant that the suit was bad for partial partition based upon the very same properties was denied. In this background, the Supreme Court allowing the appeal, held that the findings arrived at by the High Court were "without proper pleadings and necessary issues the same cannot bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... automatic absorption of contract workers operating in the establishment and the principal employer will not be burdened with any liability thereof. The issue surrounding workmen employed in statutory canteens and the liability of principal employer was neither argued nor subject of dispute in SAIL case. Therefore, in our considered view the decision on which reliance was placed by the learned counsel does not assist him in the facts of the present case." (Emphasis Supplied) 69. Therefore, the Supreme Court held that any observations on topics which were neither before the Court nor had the occasion to express its opinion thereupon cannot be said to have precedential value as they remain mere orbitur. 70. Both the applicants and non-applicant have relied upon the judgment of the Supreme Court in Arun Kumar Aggarwal,46 wherein the Division Bench was dealing with the effect of a stray line in the order of the Special Judge, Katni, while rejecting the closure report, in respect of seeking sanction under S. 19 of the Prevention of Corruption Act, 1988. The relevant portion of the order of the Special Judge reads as under: "32. ...Therefore matter may be taken up seeking necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on has been drawn between mere obiter and 'judicial dicta', the latter being an expression of opinion on a point deliberately passed upon by the court." (emphasis supplied) Further at pp. 525 and 526, the effect of dictum has been discussed: "190. Decision on legal point; effect of dictum ... In applying the doctrine of stare decisis, a distinction is made between a holding and a dictum. Generally stare decisis does not attach to such parts of an opinion of a court which are mere dicta. The reason for distinguishing a dictum from a holding has been said to be that a question actually before the court and decided by it is investigated with care and considered in its full extent, whereas other principles, although considered in their relation to the case decided, are seldom completely investigated as to their possible bearing on other cases. Nevertheless courts have sometimes given dicta the same effect as holdings, particularly where 'judicial dicta' as distinguished from 'obiter dicta' are involved." 25. According to P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Edn., 2005), the expression "observation" means a "view, reflection; remark; statement; observed truth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before court is 'obiter dictum'." 29. The concept of "dicta" has also been considered in Corpus Juris Secundum, Vol. 21, at pp. 309-12 as thus: "190. Dicta a. In general A dictum is an opinion expressed by a court, but which, not being necessarily involved in the case, lacks the force of an adjudication; an opinion expressed by a Judge on a point not necessarily arising in the case; a statement or holding in an opinion not responsive to any issue and not necessary to the decision of the case; an opinion expressed on a point in which the judicial mind is not directed to the precise question necessary to be determined to fix the rights of the parties; or an opinion of a Judge which does not embody the resolution or determination of the court, and made without argument, or full consideration of the point, not the professed deliberate determination of the Judge himself. The term 'dictum' is generally used as an abbreviation of 'obiter dictum' which means a remark or opinion uttered by the way. Such an expression or opinion, as a general rule, is not binding as authority or precedent within the stare decisis rule, even on courts inferior to the court from which such expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led that the statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative. (See Karnataka SRTC v. Mahadeva Shetty [(2003) 7 SCC 197 : 2003 SCC (Cri) 1722] .)" 33. In Girnar Traders v. State of Maharashtra [(2007) 7 SCC 555] this Court has held: "53. ... Thus, observations of the court did not relate to any of the legal questions arising in the case and, accordingly, cannot be considered as the part of ratio decidendi. Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authoritative precedent, it is clear that the reliance placed on mere general observations or casual expressions of the court, is not of much avail to the respondents." 34. In view of the above, it is well settled that obiter dictum is a mere observation or remark made by the court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the part of the judgment of the Court and have no authoritative value. The expression of the persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision." 20. In other words, the enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th edn., Vol. 26, para 573) "The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observation that it was the duty of the Income Tax Officer "to levy tax on the entire income that had escaped assessment during that year." Upholding the latter opinion, the Supreme Court held that it is impermissible to pick out a word or sentence from the judgment. The relevant portion reads as under: "39. ... Of course, in the reassessment proceedings it is open to an assessee to show that the income alleged to have escaped assessment has in truth and in fact not escaped assessment but that the same had been shown under some inappropriate head in the original return, but to read the judgment in Jagan Mohan Rao case as if laying down that reassessment wipes out the original assessment and that reassessment is not only confined to "escaped assessment" or "under assessment" but to the entire assessment for the year and start the assessment proceedings de novo giving right to an assessee to reagitate matters which he had lost during the original assessment proceeding, which had acquired finality, is not only erroneous but also against the phraseology of Section 147 of the Act and the object of reassessment proceedings. Such an interpretation would be reading that judgment totally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a certain degree of sanctity and definiteness of meaning to the words used by the Legislature. The same cannot be said of a judgment which deals only with the particular fact situation on hand. It will be too much to ascribe and read precise meaning to words in a precedent which the Judges who wrote them may not have had in mind at all. Equally, it is not possible to impute an intent to render a decision on a point which was not before them and which they never intended to deal with, even though such as inference may seem to flow logically from the ratio decidendi of the case. That was why it was stated by Lord Halsbury LC in Quinn v. Leathern, [1901] AC 495 (HL), at page 506: "........... there are two observations of a general character which I wish to make and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther a particular issue was "directly and substantially" in issue in the previous proceedings. The relevant portion reads as under: "17. American jurists and courts have also found difficulty but they have tried to lay down some tests. It is conceded in Corpus Juris Secundum (Vol. 50, para 725) that "it is sometimes difficult to determine when particular issue determined is of sufficient dignity to be covered by the rule of estoppel. It is said that estoppel by judgment does not extend to any matter which was only incidentally cognizable or which came collaterally in question, although it may have arisen in the case and have been judicially passed on" (per Taft, J. in North Carolina Railroad Co. v. Story [45 S Ct 531 : 268 US 288 : 69 L Ed 959 (1924)] ). But this rule does not however prevent a judgment from constituting an estoppel with reference to incidental matters necessarily adjudicated in determining the ultimate vital point. American Jurisprudence (Vol. 46, Judgments, para 422), too says: "Under this rule, if the record of the former trial shows that the judgment could not have been rendered without deciding the particular matter, it will be considered as having settled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of the Supreme Court held as under: "7. So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has "declared law" it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An "obiter dictum" as distinguished from a ratio decidendi is an observation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject- matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second in respect of appointment of receiver by this Court. From the present proceedings, this Court is only concerned with the first appeal filed by Vidur. 85. The Supreme Court noticed that Vidur had sought impleadment after more than 11 years of the execution of the Sale Deeds dated 20.05.1997 Supra n.1, paragraph 19 and the fact that Vidur had pleaded that they had become the absolute owner of the property by virtue of the sale deeds as well as the benefit of the doctrine of lis pendens. The Court furthered noticed that Tosh had raised the objections of delay, no locus standi and that the "transactions entered into between the Respondent 2 [Late Sh. Khanna], the appellants [Vidur] and Bhagwati Developers were ex facie illegal and on the basis of such transactions the appellants did not acquire any right or interest in the suit property." Id., paragraph 20 86. After noticing the facts, the Supreme Court has recorded the following submissions made on behalf of the appellants therein/Vidur in paragraph 25: (i) Vidur was unaware of the transaction and pending litigation between Tosh and Khanna; (ii) They were bona fide purchasers of the Suit Property; and (iii) The Agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missed on this ground alone. 91. Another reason I am unable to accept the submissions of the learned counsel for the plaintiff/non-applicant is that Vidur had preferred a review petition before the Supreme Court, it could have easily sought a clarification as to the nature of the observations, but they failed to do so. 92. Mr. Manoj had also submitted that even the Supreme Court cannot ignore substantive provisions of law. To this end he had cited Suraj Lamp,44 Supreme Court Bar Association45 and Thomson Press.51 None of the judgments come to the aid of the plaintiffs as this Court does not have the jurisdiction to scrutinize a judicial pronouncement of the Apex Court; even otherwise, I do not find any conflict with substantive provisions of law. 93. These applications are to be allowed on this ground alone. BAR OF ORDER XXIII RULE 1 (4) 94. The next contention of the applicants is that the present suit is barred owing to the provision of Order XXIII Rule 1 (4) of the Code. The issue is premised on the scope and subject matter of the 1997 Suit filed by Vidur before this Court and later transferred to the District Court. The factum of filing of the 1997 Suit and its withdrawal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any part of the claim. If the plaintiff fails to seek leave or is rejected, he is precluded from bringing a fresh suit in respect of the same subject matter or that part of the claim.14 Supra n.33, paragraph 5 The rule is based in public policy and has been extended in its application to writ petitions under Article 226 of the Constitution Supra n.29, paragraph 6 - 9 as well as special leave petitions before the Supreme Court.15 The rationale for the rule is that no defendant should be vexed twice for the same cause of action. At the same time, it is the duty of the plaintiff to consolidate all his claims in respect of one cause of action in one suit and avoid multiplicity of proceedings. See Order II Rule 2 of the Code and Supra n.32, paragraph 7 The intention of the legislature was to limit the parties to one round of litigation. The bar of Order XXIII Rule 1 (4) has also been held to be applicable to suits where the previous suits are withdrawn after filing of the subsequent suit.16 98. The primary condition for any suit to be barred by the provisions of sub-rule (4) is that the subsequent suit should be in respect of the same subject matter or such part of the claim. It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject- matter as the first suit." (Emphasis Supplied) 99. In Kasarapu Sujatha,54 the Andhra Pradesh High Court held that where the cause of action of filing the two suits is different, the second suit cannot be said to be barred by the provisions of Order XXIII Rule 1. The Single Judge was hearing a second appeal preferred by the defendants in the original suit wherein it was contended that the suit was barred by Order XXIII Rule 1. The Court rejected the objection on the ground that the first suit was filed for injunction simplicitor, whereas the second suit was for declaration of title, injunction and recovery of the portion of the property which had been trespassed and encroached upon by the defendants. The defendants had failed to show that the encroaching structures were present at the time of filing of the first suit and therefore, the suit was not barred by either Order II Rule 2 or Order XXIII Rule 1. Accordingly, the appeal filed by the defendants was dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff 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. 103. In Vineeta Sharma31 the defendant had filed an application under Order XXXIX Rule 4 of the Code wherein it came to the notice of this Court that the plaintiff therein had previously filed and withdrawn two suits before the District Court. In both the suits before the District Court, the plaintiff had sought a decree restraining the tenant from making any further payment to the defendant and to pay the entire rent to the plaintiff for the remaining period of lease or till the plaintiff had realised her share, being half of the rent that had accrued; along with a restraint order against the defendant from renewing the lease deed or to enter into any other kind of transaction in respect of the properties. In the subsequent suit, which was before the Single Judge of this Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the relinquishment deed and the memorandum of understanding which he is seeking now. In the earlier suit the plaintiff did not seek leave of the court to resolve his right to sue for the relief of cancellation of the relinquishment deed. His second prayer for partition also must fail because this prayer squarely depends upon the first prayer of cancellation of the deed. The suit, therefore, is utterly barred by Order 2 Rule 2 CPC and has to be dismissed on that ground. ... 9. As the contents of the two plaints have been narrated above, the subject matter of the two suits is the same. The subject matter is the plaintiff's grievance in respect of relinquishment deed and the memorandum of understanding. According to him he executed the relinquishment deed on the understanding that defendant No. 1 will pay a sum of Rs. 56 lakhs and the defendant was trying to take advantage of the documents and was attempting to dispossess the plaintiff by getting her name mutated in the municipal records (the relinquishment deed on record does not mention any understanding of payment of any money). Since the subject matter of the two suits is the same and the first suit has been withdrawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1997 Suit reads as under: "19. The cause of action for filing the present suit first accrued on when the plaintiff in pursuance of the sale deed obtained title in respect of the said property and also obtained possession thereof. The cause of action further arose on 15.7.97 when the defendant inspite of demand failed to vacate the portion marked "A". The cause of action is continuing day to day and no part of it is barred by limitation." 111. The paragraph states that the cause of action arose upon title being acquired and the possession being deprived. Paragraph 30 of the present suit is on similar lines, which reads as under: "30. The cause of action for the present suit is a continiance [sic: continuing] cause of action which arose on and from 20th day of May 1997 and on 30th day May 1997 when Pradeep Kumar Khanna executed and registered Sale Deeds in favour of the plaintiffs after taking full consideration. Till the year 2001 the Plaintiff were not informed about any challenge to their title. In the year 2001, the Plaintiffs came to learn about the pendency of Suit No.425/93, which proceedings only for specific performance of agreement entered into between M/s. Tosh Apart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im have no right to occupy, possess and hold the property marked "A" in Blue colour in the plan annexed hereto and also stated in schedule filed with the plaint. a) b) Decree for declaration that plaintiffs herein are the absolute joint owners in respect of Land and Property No.21, Aurangzeb Road, New Delhi-110001 by virtue of six registered Sale Deeds (1) Sale Deed dated 20/30.05.1997 executed and registered by Pradeep Kumar Khanna in favour of Vidhur Impex & Traders Pvt. Ltd. (2) Sale Deed dated 20/30.05.1997 executed and registered by Pradeep Kumar Khanna in favour of Panchvati Plantation Pvt. Ltd. (3) Sale Deed dated 20/30.05.1997 executed and registered by Pradeep Kumar Khanna in favour of Haldiram Bhujia Bhandar Pvt. Ltd. (4) Sale Deed dated 20/30.05.1997 executed and registered by Pradeep Kumar Khanna in favour of Star Exim Pvt. Ltd. (5) Sale Deed dated 20/30.05.1997 executed and registered by Pradeep Kumar Khanna in favour of VKS Finvest Pvt. Ltd.; and (6) Sale Deed dated 20/30.05.1997 executed and registered by Pradeep Kumar Khanna in favour of Convenient Tours & Travels Pvt. Ltd. Decree for declaration that the defendant Nos.1(i) to 1(iii) remained with no right, titl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). 116. To conclude, 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 117. The next ground urged by the applicants is that the present suit is liable to be dismissed as having been filed beyond the period of limitation. The first bone of contention between the parties is whether Article 58 or Article 65 of the Schedule to the Limitation Act, 1963 will govern the present suit. 118. Simply put, if Article 58 is to apply, the period of limitation shall be three years from the date on which the right to sue first accrues; but if Article 65 applies, the period would be substantially longer, i.e. 12 years from when the possession became adverse. 119. In C. Natrajan57 the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew by: A. Ghanshyamdas Vallabhadas Gujrathi Vs. Brijraman Rasiklal MANU/MH/0449/1984 where a Division Bench of the High Court of Bombay negatived the contention as found favour with the learned Additional District Judge in the impugned order and held that the main relief being of possession, and declaration being an ancillary relief, the proper Article of the Limitation Act would be Article 65 and not Article 58 of the First Schedule; B. State of Maharashtra Vs. Pravin Jethalal Kamdar (2000) 3 SCC 460 where it was held that the factum of the plaintiff besides the relief of possession having sought declaration also is of no consequence and in such a case the governing article of the Schedule to the Limitation Act is Article 65; C. Mechineni Chokka Rao Vs. Sattu Sattamma MANU/AP/0751/2005 where the High Court of Andhra Pradesh reiterated that to a suit based on title but claiming declaration of title to the suit property with consequential relief of possession, Article 65 would apply and Article 58 would have no application; Article 58 applies only to a case where declaration simpliciter is sought i.e. without any further relief; the 89th Report of the Law Commission recommendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation period for such a composite suit, claiming both declaration of title and possession, the period of limitation shall be computed as per Article 65 and not as per Article 58. 121. Since Article 58 is inapplicable to the present suit, the judgments in Khatri Hotels,17 L.C. Hanumanthappa18 and Balkaran Singh19 do not have any bearing on the present lis. 122. 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.59 61 Supra n.60, paragraph 29 - 30 123. The present applications are to be decided upon the touchstone of the aforegoing well-settled law. It is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hanna and was handed over to Vidur, it is an admitted position before this Court that Late Sh. L.K. Kaul was in possession of the Suit Property since its vacation by Sudan Embassy until he was evicted by the receiver appointed by this Court on 18.09.2007. 125. The possession for the whole period remained neither with Khanna nor with Vidur. Late Sh. Kaul, being the defendant-in-possession, was continuously asserting his right as adverse to both Khanna and the plaintiffs. As per clause 13 of the Sale Deed extracted above, Vidur was specifically authorised to recover possession from Kaul. Therefore, it is clear that there was a clear and unequivocal threat to the title of the plaintiffs from the date of execution of the Sale Deeds, i.e. 20.05.1997, as since then the defendant-in-possession continued to assert his right adverse to the plaintiffs herein. 126. The plaintiffs have, during the course of the arguments, have relied upon the withdrawal of CS (OS) 161/1999 on 10.01.2001 and a Letter dated 25.01.2001 to show that Late Sh. Khanna had accepted the execution of the Sale Deeds and that the plaintiffs were his successors- in-interest. Per contra the heirs of Sh. Khanna/ defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to be dismissed as being barred by limitation. CONCEALMENT 132. The final contention raised by the applicants is that the present suit is liable to be dismissed owing to gross and blatant suppression of the filing of the 1997 Suit by the plaintiffs which disentitles them to any relief, equitable or otherwise. 133. Though authorities upon the subject are multitudinous, I may refer to a few. In S.P. Changalvaraya Naidu27 the Supreme Court, while dealing with a case where a release deed was suppressed, came down heavily upon the such tactics of litigants. It observed that the non-mentioning and non-production of the release deed amounted to "playing fraud upon the court" and concluded that: "6. ...A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party." 134. A coordinate bench of this Court in Shiju Jacob Varghese26 has held that S. 151 of the Code may be utilized to throw out vexatious cases premised upon fraud in order to prevent the abus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed, 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. 139. Only after the concealment was pointed out, did the plaintiffs have in an unrepentant manner moved an application under Order VI Rule 17 of the Code I.A. No. 16689/2013 seeking amendment of the plaint by mentioning the 1997 Suit. In the application, no rationale has been given for concealing the 1997 Suit, it merely states that the 1997 Suit has "no material bearing on the present suit" and that the same is sought to be included "by way of abundant caution" and to "facilitate the course of adjudication." I deprecate such conduct of the plaintiffs and such a practice should not be encouraged. The case should have been dismissed as vexatious on this ground alone, but I have also decided the applications on merits in order to give a quietus to the matter. CONCLUSION 140. I sum up my findings as under: (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 p ..... 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