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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 ..... ly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advs. For the Defendants : Mr.Sanjeev Anand, Mr.Yakesh Anand, Ms.Sonam Anand and Mr.Akshay Kapoor, Advs. for defendants no.1 (i) to (iii)/Khanna. Mr.Chetan Sharma and Mr.Jayant Bhushan, Sr. Advs. with Mr.Mandeep Singh Vinaik Adv. for defendant no.2/Tosh. Mr.C. Mukund and Mr.Vivek Anandh, Advs. for defendant no.4/Bhagwati G.S.SISTANI, J. I.A. Nos. 4433/2013 and 12308/2013 (both under S.151 of the Code by defendant no. 2 & defendant no. 1(i) to (iii) respectively) 1. Both these applications have been filed under Section 151 of the Code of Civil Procedure, 1908 (briefly the "Code") seeking dismissal of the present suit. 2. As there are numerous parties to the present suit, for the ease of reference, I shall refer to the plaintiffs/Vidur Impex & Traders Pvt. Ltd. and its sister concerns as "Vidur"; defendant 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. In this backdrop, I.A. No. 4433/2013 filed by Tosh and I.A. No. 12308/2013 filed by Khanna, both for dismissal of the suit have been taken up for hearing. 6. Some basic facts are required to be noticed before the rival submissions of the parties can be noticed and considered. 7. Present suit has been filed seeking declaration, possession, injunction and for enquiry into damages in respect of the property bearing No. 21, Aurangzeb Road, New Delhi (hereinafter referred to as the "Suit Property"). 8. The present case has a chequered history and is premised on a sale transaction between Khanna and Vidur in respect of the Suit Property. 9. The suit property was owned by one Late Sh. Pradeep Kumar Khanna at the relevant time and had been leased to the Sudan Embassy since 1962. Later in 1988, Late Sh. Pradeep 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 629/2011/97, which stands dismissed as withdrawn after recording the statement of the counsel for the plaintiff therein/Vidur on 01.06.2011. The order dated 01.06.2011 reads as follows: "629/2011/97 VIDUR IMPEX & TRADERS (P) LTD. VS. PRADEEP KUMAR KHANNA 1-06-2011 Present : Sh Rajesh Mahendru, advocate for the plaintiffs None for the proposed LRs of the deceased defendant. Counsel for the plaintiffs wants to withdraw the suit. Let this statement be recorded. Sd./- (NK Goel) ADJ-05 (WEST), THC 1-06-2011 Statement of Sh Rajesh Mahendru, advocate for the plaintiffs. Without Oath I am the advocate for the plaintiffs in the present suit. Therefore, I am competent to make this statement on their behalf. The plaintiffs have instructed me to withdraw the present suit. Accordingly, I withdraw the 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the award dated 07.01.1999, which was allowed by a Single Judge of the Calcutta High Court vide order dated 17.08.2000 and a receiver was appointed to take possession of the suit property. The receiver, thereafter, on 19.1.2000 and 5.2.2001 visited Delhi and took symbolic possession of the Suit Property by putting his locks and seals on all its inner and outer gates. 18. It is also relevant to note that when Tosh gained knowledge about the Award of the Arbitrator and the order passed by the Calcutta High Court, Tosh filed I.A. No. 625/2001 before this Court seeking a direction that they be restrained from taking possession in the garb of the order of the Calcutta High Court. Accordingly, Vidur and Bhagwati were restrained by a Single Judge of this Court by an ex parte ad interim injunction order dated 22.01.2001. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Khanna in favour of VKS Finvest Pvt. Ltd. and (6) Sale Deed dated 20/30.05.1997 executed & registered by Pradeep Kumar Khanna in favour of Convenient Tours & Travels Pvt. Ltd.; b) Decree for declaration that the defendant nos.1(i) to 1(iii) remained with no right, title and interest as the legal heirs of Pradeep Kumar Khanna since deceased in respect of and relating to the land and property No.21, Aurangzeb Road, New Delhi-110001 after the execution and registration of sale deeds in favour of the plaintiffs; c) Pass a decree of permanent injunction restraining defendant Nos.1(i) to 1(iii) from claiming themselves and representing themselves as owners of land and property No.21, Aurangzeb Road, New Delhi and/or from executing and registering any Sale Deed in favour of any third party or creating any third 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied) 27. In the present suit, as noticed earlier, two applications were filed, one by Khanna under Order VII Rule 11 I.A. No. 608/ 2013 and another by Tosh under Order VII Rule 11, I.A. No. 2049/2013 both seeking rejection of the plaint on various grounds. The applications were allowed by the Single Judge. The matter was carried in appeal by Vidur and as noticed in paragraphs 3 and 4 aforegoing, before the Division Bench, both Khanna and Tosh gave up their applications under Order VII Rule 11 of the Code for preferring applications under S. 151. In this background, extensive arguments have been addressed by all sides. SUBMISSIONS OF KHANNA (Applicant in I.A. 12308/2013) 28. In the application I.A. No. 12308/2013, Mr. Sanjeev Anand submits that the present suit is liable to be dismissed at the threshold itself 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 inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner and in violation of the injunction granted by the High Court. Therefore, it cannot be said that any valid title or interest has been acquired by the appellants in the suit property…" (Emphasis Supplied) [Note: "appellants" refers to Vidur; "respondent no.1" is Tosh; "respondent no.2" is Khanna; "respondent no.4 is "Kaul"] 28.2 Relying on the aforequoted observations, it has been contended that the Supreme Court has come to a clear conclusion and finding that the transactions relied upon by the plaintiffs, i.e. the registered sale deeds, are a nullity. Further that they do not confer any right upon Vidur and it cannot be said that any valid title or interest has been acquired in the suit property. Based on the aforesaid findings of the Supreme Court, it has been urged by Mr. Anand that the plaintiffs have no right in 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aph 3; Upadhyay & Co. v. State of U.P. and Others (1999) 1 SCC 81, paragraphs 11 to 15; and Jyoti Prashad & Ors. v. Nathu Ram. (2004) 78 DRJ 573 (DB): (2005) 116 DLT 585 (DB), paragraphs 7, 8, 11 and 12 28.6 In respect of the additional prayer for damages made in the present suit, learned counsel submits that it is barred under Order II Rule 2. It is submitted that when the Vidur instituted the 1997 Suit they were also entitled to include a claim for damages, which they intentionally omitted to do and also did not seek leave of the Court to sue subsequently, therefore, the claim for damages in the present suit is barred by the provisions of Order II Rule 2 of the Code. Concealment 28.7 Mr. Anand submits that the plaintiffs have deliberately concealed this material fact of instituting the 1997 Suit and its withdrawal in the present suit; 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel has drawn the attention of this Court to the averments made in paragraph 19 of the plaint in the 1997 Suit to show that the cause of action for seeking various reliefs claimed in the present suit including for declaration arose on 15.07.1997. Thus, the suit for declaration ought to have been filed within three years from that date and the present suit, filed in 2012, is hopelessly time barred. 28.12 Mr. Anand submits that even on the basis of the averments made in the plaint of the present suit it is apparent that the present suit is hopelessly time barred. The plaintiffs have themselves admitted in the plaint (paragraphs 11, 17 and 30) that the cause of action for filing the present suit first arose in the year 2001 when they came to know that the purported six Sale Deeds, i.e. the basis of their title, was being challenged. 28.13 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properties for more than two decades and have effected valuable improvements in the property. Since the property was already parted with under Ext. B3 the period of limitation has to be reckoned from the date of Ext. B3, that is 19-9-1959 and hence the suit is barred by law of limitation. Further since Ext. B3 was executed by the female daughter she is incompetent to execute Ext. A1 settlement deed dated 19-11-1959 and therefore to be ignored. Consequently we are of the view plaintiffs are not entitled to any of the reliefs prayed for in the suit. We therefore allow the appeal, set aside the judgment of the Court below. Parties would bear their respective costs." (Emphasis Supplied) 28.18 Thus, it is contended by Mr. Anand that in view of the above position, the plaintiffs neither entitled to declaratory relief nor one of possession. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mr. Sharma and Mr.Bhushan, learned senior counsels appearing for Tosh, while relying on I.A. No. 4433/2013, submit that the present suit is liable to be dismissed at the threshold, broadly on the following grounds: (i) Deliberate concealment of prior litigation/ 1997 Suit right upto the Supreme Court; (ii) Withdrawal of an earlier Suit on same cause of action for similar reliefs without any leave and liberty; Order XXIII Rule 1 (4) of the Code (iii) Adverse adjudication of locus and source of right by Supreme Court in Vidur Impex;1 and (iv) Suit being barred by the law of limitation. 30.1 In respect of the maintainability of the present application, learned senior counsels submit that the Supreme Court in the case of Shipping Corporation of India Ltd. v. Machado Brothers and Ors. (2004) 11 SCC 168 has held that if continuation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in denying possession way back in 1997 itself as is apparent from reading of the plaint in the 1997 Suit. 30.8 In respect of declaration, senior counsel submit that the limitation is 3 years from the accrual of cause of action and the same arises when the right of a party is denied. In the present scenario, the right of Vidur was definitely denied when Late Sh. Khanna had filed CS (OS) 161/1999 seeking declaration of the Sale Deeds dated 20.05.1997 as null and void. Therefore, the limitation for seeking declaratory relief has expired in 2002. 31. Accordingly, learned senior submit that the suit should be dismissed at the very threshold with heavy costs. SUBMISSIONS OF VIDUR/NON-APPLICANT 32. Mr. Manoj, learned counsel for the plaintiffs, has opposed the applications on the following grounds: Maintainability 32.1 First, that the 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 plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... press their applications under Section 151 of the Code, no liberty was granted to re-agitate the same grounds. Simply because leave was granted to press applications under S. 151, that by itself cannot be construed as a permission to re-agitate the grounds already raised in the previous applications. In order to fortify his submissions, learned counsel has relied upon the decisions in Bhanu Kumar Jain v. Archana Kumar and Anr. AIR 2005 SC 626: (2005) 1 SCC 787, paragraphs 30 - 31 and Aftab Ahmad and Anr. v. Nasiruddin and Anr. AIR 1977 Del 121, paragraph 8 Supreme Court Judgment 32.6 Learned counsel for the plaintiffs further submits that and reliance on the observations made by the Supreme Court in the Vidhur Impex1 is misplaced as the sole issue which arose for consideration before the Apex Court was whether the present plaintiffs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tretch of imagination, can Vidur Impex1 be called a judgment qua the title of the plaintiffs. Thus, question of any judgment in personam cannot arise when there is no judgment on the title of the plaintiffs. 32.11 The counsel submits that a decision is binding on two legal principles, firstly, it operates as res judicata, i.e. the same parties cannot re-agitate the same issue and secondly, its ratio is followed as a precedent, i.e. Rule of Stare Decisis. When a question is not in issue, the decision would not operate as res judicata or as a binding precedent. It can only be treated as obiter dictum. Reliance is placed on the judgment in the case of Arun Kumar Aggarwal v. State of MP and Ors., (2014) 13 SCC 707, paragraphs 24 - 30 and 32 - 34 to submit that obiter dicta lacks the force of law as there is no full investigation or adjudication 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 part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t holds the field is Thomson Press (India) Ltd. v. Nanak Builders and Investors Pvt. Ltd. and Ors., (2013) 5 SCC 397 wherein the Supreme Court has pronounced on the question of validity of sale deeds in violation of injunction order is contrary to the observation made in Vidur Impex.1 The ratio in Thomson Press51 is that sale deeds executed in violation of injunction order are not void but shall be governed by the principles of lis pendens. Emphasis is placed on Section 52 of Transfer of Property Act. Id., paragraphs 50 - 53 Suit being barred by Law 32.15 Learned counsel also submits that the submission of the defendants that the present suit is barred under Order XXIII Rule 1 is misplaced as the same is not applicable in the present case. The said provision applies when the "subject matter" of the two proceedings is the same. Learned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendants have failed to discharge their onus as admittedly, the Suit Property was with Late Sh. Kaul till 18.09.2007, when he was dispossessed in terms of the order dated 03.09.2007 by the receiver. In this regard, he submits that the plaintiffs being out of possession or the date of the Sale Deeds/ownership is irrelevant. 32.22 Mr. Manoj relies upon the decision in C. Natrajan v. Ashim Bai & Anr. (2007) 14 SCC 183, paragraphs 14 - 19 for the proposition that Article 58 is not applicable and that since the burden under Article 65 is upon the defendants, it is imperative for an issue to be framed in that regard. In respect of "clear and unequivocal threat", counsel relies upon Rukhmabai v. Lala Laxminarayan & Ors. (1960) 2 SCR 253: AIR 1960 SC 335, paragraphs 53 and 54 32.23 Further, relying upon Indira v. Arumugam and Anr., (1998) 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 Har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto under Order VII Rule 11. 34.5 In reply to the effect of the judgment of the Supreme Court in Vidur Impex;1 Mr. Anand accepts that matters collaterally and incidentally in issue are not ordinarily res judicata, but submits that there are exceptions to the rule. Learned counsel submits that is a particular issue was "necessary" to be decided for adjudicating on the principal issue and was decided, it would have to be treated as "directly and substantially" in issue. He substantiates that if a judgment is based upon the decision on a particular issue, then the decision would be res judicata in a later case. 34.6 Mr. Anand substantiates that if the record of the former trial shows that a judgment could not have been decided without deciding a particular issue, then it shall be considered to be decided for all future actions between the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a conclusive finding that Vidur has no subsisting right in the suit property and the Sale Deeds dated 20.05.1997 have no legal sanctity; (iii) The present suit is barred by law as being hit by the provisions of Order XXIII Rule 1 (4) owing to withdrawal of previous suit by Vidur, being CS (OS) 1675/1997;12 (iv) The additional prayer of damages is barred by Order II Rule 2 of the Code; (v) The present suit is barred by limitation by application of Articles 58 and 65 of the Limitation Act, 1963; and (vi) The suit is liable to be dismissed at the threshold itself owing to gross concealment of previous suit on the part of plaintiffs in the present proceedings as well as CS (OS) 425/1993 right upto the Supreme Court. 37. The contentions of the plaintiffs/non-applicants summarized, in seriatim, are as follows: (i) The present applications 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s exercise should not be in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. If there are express provisions exhaustively covering a particular topic, then they might give an implication that no power shall be exercised in derogation to those provisions, in such circumstances resorting to S. 151 is not permissible. At the same time, the Supreme Court has also held that "[w]hatever limitations are imposed by construction on the provisions of Section 151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court." Supra n.62, paragraph 5 44. A Full Bench of the Supreme Court in the case of Padam Sen & Anr. v. State of Uttar Pradesh (1961) 1 SCR 884 had come to the 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 compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not be available when there is alternative remedy and the same is accepted to be a well-settled ratio of law. The operative field of power being thus restricted, the same cannot be risen to inherent power. The inherent powers of the court are in addition to the powers specifically conferred on it. If there are express provisions covering a particular topic, such power cannot be exercised in that regard. The section confers on the court power of making such orders as may be necessary for the ends of justice of the court. Section 151 CPC cannot be invoked when there is express provision even under which the relief can be claimed by the aggrieved party. The power can only be invoked to supplement the provisions of the Code and not to override or evade other express provisions. The position is not different so far as the other statutes are 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 pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8] , National Institute of Mental Health & Neuro Sciences v. C. Parameshwara [(2005) 2 SCC 256] and Vinod Seth v. Devinder Bajaj [(2010) 8 SCC 1 : (2010) 3 SCC (Civ) 212] ]. We may summarise them as follows: (a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognises the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is "right" and undo what is "wrong", that is, to do all things necessary to secure the ends of justice and prevent abuse of its process. (b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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.72 (See Arjan Singh & Ors. v. Union of India & Ors., AIR 1987 Del 165, paragraph 12; Sopan Sukhdeo Sable and Ors. v. Asst. Charity Commissioner and Ors., (2004) 3 SCC 137; Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7 SCC 510, paragraph 25; Hardesh Ores (P) Ltd. v. Hede and Company, (2007) 5 SCC 614, paragraph 25 and 33; Wings Pharmaceuticals (P) Ltd. v. Praveen Bhasin, MANU/DE/ 3472/2016, paragraph 21 and Kuldeep Singh Pathania v. Bikram Singh Jaryal, (2017) 5 SCC 345, paragraphs 6 - 8) 51. 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 (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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us suit against any person on the ground that it cannot be dismissed since there is no provision under Order 7 Rule 11 CPC is virtually denying an aggrieved party his right to crush the frivolous litigation without suffering the trial of suit." (Emphasis Supplied) 52. A Division Bench of this Court was also faced with a similar issue in Aniruddha Dutta & Ors. v. Bhawani Shankar Basu & Ors., 2012 (127) DRJ 46 (DB) wherein the appellants had challenged the judgment of a Single Judge of this Court in two suits, both revolving around the exclusion of certain heirs from the will of one Ms. Nirod Bala Basu after lapse of 38 years. Dismissing the appeals, Justice Pradeep Nandrajog, delivering the opinion for the bench, observed as follows: "28. A Court of record has every inherent power to prevent the abuse of its process and Order 7 Rule 11 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if there is no such prohibition then the court will consider whether such power should be exercised or not on the basis of facts mentioned in the application. … 31. For the reasons stated above, we are of the opinion that continuation of a suit which has become infructuous by disappearance of the cause of action 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. The application under Section 151 CPC in this regard is maintainable." (Emphasis Supplied) 55. From the aforegoing, it is clear that the Apex Court has also accepted that Order VII Rule 11 is not exhaustive and frivolous suits may be dismissed as nipped in the bud by relying upon S. 151 of the Code. 56. 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. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icants/plaintiffs for non- maintainability of the application is that the same are barred by the provisions of Order XXIII Rule 1 of the Code or the Principle of "Issue Estoppel". Mr. Manoj has submitted that once the grounds had been urged in the applications filed under Order VII Rule 11 of the Code and the applications given up as not pressed, the same cannot be urged again under the present applications. I am unable to accept the submission of the learned counsel as when the previous applications were heard by this Court, the Learned Single Judge observed that such contentions could not be gone into as it required analysis of averments and documents beyond the plaint. This is also evident from the judgment dated 31.05.2013 of this Court, wherein it was held that as per the plaint, the cause of action was said to have arisen after the observations 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VII Rule 11 of the Code in favour of the applicants and the plaintiffs had filed an appeal before the Division Bench. The order sheets of the appeal4 show that the appeal was hotly contested. During the hearing of the appeal, parties agreed to a consent order. 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. 64. Therefore, 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? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se in a manner not requiring any decision and which was to an extent unnecessary, ought to be considered merely as an obiter dictum. We are further of the view that a ratio of the judgment or the principle upon which the question before the Court is decided must be considered as binding to be applied as an appropriate precedent. 27. The Constitution Bench in SAIL case, decided on the limited issue surrounding the absorption of contract workers into the principal establishment pursuant to a notification issued by the appropriate Government under Section 10 of the Contract Labour (Abolition and Regulation) Act, 1970. The conclusion in para 125 of SAIL case, inter alia, states that on issuance of a notification under Section 10(1) of the Contract Labour (Abolition and Regulation) Act, 1970 passed by the appropriate Government would not entail the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the disposition of the case, if the issue of constitutionality is involved in the suit and its settlement is of public importance. An expression in an opinion which is not necessary to support the decision reached by the court is dictum or obiter dictum. 'Dictum' or 'obiter dictum' is distinguished from the holding of the court in that the so-called 'law of the case' does not extend to mere dicta, and mere dicta are not binding under the doctrine of stare decisis. As applied to a particular opinion, the question of whether or not a certain part thereof is or is not a mere dictum is sometimes a matter of argument. And while the terms 'dictum' and 'obiter dictum' are generally used synonymously with regard to expressions in an opinion which are not necessary to support the decision, in connection with the doctrine of stare decisis, a distinction 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... full consideration of the point, are not the professed deliberate determinations of the Judge himself; obiter dicta are opinions uttered by the way, not upon the point or question pending, as if turning aside for the time from the main topic of the case to collateral subjects; it is mere observation by a Judge on a legal question suggested by the case before him, but not arising in such a manner as to require decision by him; 'obiter dictum' is made as argument or illustration, as pertinent to other cases as to the one on hand, and which may enlighten or convince, but which in no sense are a part of the judgment in the particular issue, not binding as a precedent, but entitled to receive the respect due to the opinion of the Judge who utters them; discussion in an opinion of principles of law which are not pertinent, relevant, or essential to determination of issues 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 opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decide anything." 31. In MCD v. Gurnam Kaur [(1989) 1 SCC 101], and Karnataka SRTC v. Mahadeva Shetty [(2003) 7 SCC 197], this Court has observed that: "12. … Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority." 32. In State of Haryana v. Ranbir [(2006) 5 SCC 167], this Court has discussed the concept of the "obiter dictum" thus: "13. … A decision, it is well settled, is an authority for what it decides and not what can logically be deduced therefrom. The distinction between a dicta and obiter is well known. Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a viewpoint or sentiments which has no binding effect. See ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521] . It is also well settled 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. … ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... homogenous class preventing any further classification among them. Justice K.N. Saikia, answering the question in the negative, held that the doctrine of precedent is limited to what was necessarily involved in the decision. The relevant paragraphs read as under: 19. The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain "propositions wider than the case itself required". This was what Lord Selborne said in Caledonian Railway Co. v. Walker's Trustees [(1882) 7 App Cas 259 : 46 LT 826 (HL)] and Lord Halsbury in Quinn v. Leathem [1901 AC 495, 502 : 17 TLR 749 (HL)] . Sir Frederick Pollock has also said : "Judicial authority belongs not to the exact words used in this or that 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 dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it. But in Nakara it was never required to be decided that all the retirees formed a class and no further classification was permissible." (Emphasis Supplied) 75. In the often-quoted judgment in Sun Engineering,49 the Supreme Court was interpreting the scope of reassessment of "escaped income" under S. 147 of the Income Tax Act, 1961. The High Courts had rendered contradictory decisions relying upon one line observations made in CIT v. V. Jagan Mohan Rao. (1969) 2 SCC 389 Few High Courts opined that the entire assessment is reopened by relying upon the observation to the effect that "the previous under-assessment is set aside and the whole assessment proceedings start afresh"; while other High Courts opined that reassessment is confined only to escaped income relying upon the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally be deduced therefrom. (See Union of India v. Dhanwanti Devi, (1996) 6 SCC 44. 93. In Commissioner of Income Tax v. K. Ramakrishnan, 202 ITR 997, it has been stated: "The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament, (See the judgment of Lord Reid in the appeal from the above decision--Goodrich v. Paisner, [1957] AC 65 (HL) at page 88). We have to remember that the words in a judgment are not used after weighing the pros and cons of all conceivable situations that may arise. They constitute just the reasoning of the judges in the particular case, tailored to a given set of facts and circumstances. What is made relevant and binding is only the ratio decidendi and no more. The careful drafting--perhaps with reference to analogous statues--the multiple reading in the Legislature and the discussion which go behind the making of a statute inject 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andbag or the like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act." Id., paragraph 3 The Division Bench in Ranbir87 held the same to be an orbitur as the facts before the Court in Namdi Francis Nwazor88 did not warrant such observations as the bag in question therein was not being carried but had already been checked in and the accused was later called back for the search (paragraph 11). The Division Bench went on to hold it was not necessary for the Bench in Namdi Francis Nwazor88 to make any further observation and therefore, the view being unnecessary was a mere orbitur. 79. Justice M. Jagannadha Rao giving the opinion for the Division Bench of the Supreme Court in Sajjadanashin Sayed65 held that the Courts must decide the plea of res judicata on legal principles rather on vague grounds by adjudicating as to whether 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 Jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was directly and substantially in issue (Ishwer Singh v. Sarwan Singh [AIR 1965 SC 948] and Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780 : AIR 1976 SC 1569] ). We are of the view that the above summary in Mulla is a correct statement of the law. 19. We have here to advert to another principle of caution referred to by Mulla (p. 105): "It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision."" (Emphasis Supplied) 80. In M.R. Apparao,66 a Full Bench 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 Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates--(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not aspects which were never before the Court as the same constitute mere orbitur. (iii) The prime test to ascertain whether a particular issue was decided is that of necessity, i.e. whether the issue was directly in issue and not collaterally or incidentally in issue. (iv) If a particular expression or opinion was not necessary and was made only "by the way", the same would be orbitur and not binding. (v) It must also be remembered that it is not permissible to dissect a single line from a judgment as judgments are tailored to a particular set of facts. Accordingly, all observations should be adjudged in their context and not isolated therefrom. 84. Now, we must proceed to cull out the ratio of the judgment of the Supreme Court in Vidur Impex.1 The Supreme Court was faced with two appeals [CA 5918/2012 filed by Vidur and CA 5917/2012 filed by Bhagwati]; the first concerning the impleadment of Vidur in CS (OS) 425/1993 and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court to come to the conclusion that the presence of Vidur or Bhagwati was not at all necessary. Id., paragraph 42 The Apex Court went on to hold that the application for impleadment was highly belated and Vidur had knowledge of the lis pending between Khanna and Tosh for years. 90. Accordingly, it is clear that the adjudication of the nature of the right of Vidur and Bhagwati in the Suit Property was deemed necessary by the Supreme Court of India and in this background, it had observed that the sale transactions did not have any legal sanctity and did not confer any right in the Suit Property. It cannot be said that the findings were mere orbitur not affecting the rights of Vidur/plaintiff. Such a judicial pronouncement can neither be ignored nor taken lightly by any judicial forum in India. Therefore, I am of the view that the Supreme Court has sealed the fate of the plaintiffs and the present suit is liable to be dismissed 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 clarificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of the claim. (4) Where the plaintiff-- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim." (Emphasis Supplied) 97. Sub-rule (1) gives the plaintiff an unqualified right to withdraw from any suit, subject to the only caveat where the defendant has become entitled to a relief in his favour.13 While withdrawing his suit and subject to the satisfaction of the Court that any of the conditions of sub - rule (3) are met, the plaintiff may seek leave to file a fresh suit in respect of the same subject matter or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said, that the subject-matter of the second suit is the same as that in the previous suit. … Mere identity of some of the issues in the two suits do not bring about an identity of the subject-matter in the two suits. As observed in Rukhma Bai v. Mahadeo Narayan, [ILR 42 Bom 155] the expression "subject-matter" in Order 23 of the Rule 1, Code of Civil Procedure means the series of acts or transactions alleged to exist giving rise to the relief claimed. In other words "subject-matter" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. We accept as correct the observations of Wallis, C.J., in Singa Reddi v. Subba Reddi [ILR 39 Mad 987] that where the cause of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which relief cannot be granted or rejected to the plaintiffs and for the purposes of cause of action of the facts pleaded have to be looked as a bundle of facts in the collective capacity which give right to a claim. Each fact cannot be looked into isolation. We entirely agree with the reasoning of the learned single Judge that if the relief claimed in subsequent suit though not expressly stated but was implicit in the previous plaint by the reason of the bundle of fact pleaded constitute the same for the cause of action, the plaintiff certainly would be disbarred from claiming the relief in a subsequent suit based on the same bundle of facts. In the present suit, the cause of action for filing the suit by the appellant was the same. The appellant claimed joint ownership of the house through their father and the relief claimed in both the suits were exactly the same. … (Emphasis Supplied) 102. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 18.4.2002. Unless the relinquishment deed is cancelled the plaintiff can lay no claim on any part of the suit property. Although cancellation of relinquishment deed is shown as prayer (b) and partition as prayer (a), the principal relief is cancellation of relinquishment deed. He did not make this claim in the previous suit. In the previous suit he alleged that the defendant had not fulfilled her part of the agreement leading to the relinquishment and is now proceeding to take possession and also to get her name mutated. The cause of action in the previous suit was in no way different from the cause of action in the present suit. Nothing has happened after the filing of that suit giving rise to any fresh grounds for filing a fresh suit. As mentioned earlier, the pleadings are almost identical but for the prayer. In the previous suit he only prayed for injunction against dispossession and against mutation. He could but omitted to pray for cancellation 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 relinquis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary for the plaintiff to prove in order to get relief from the court, the Supreme Court came to the conclusion that the subsequent suit was not barred as being based on a different cause of action. 108. The term "cause of action" means every fact which will be necessary for the plaintiff to traverse in order to support his right to the judgment. See Read v. Brown, (1888) LR 22 QBD 128 (CA) and Mohd. Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78 109. From the aforegoing, the question which arises is whether the cause of action of the 1997 Suit and present suit is identical or different? 110. On going through the plaints filed in the present suit and the 1997 Suit, it is clear that both plaints are structurally and materially similar; the only difference in the present suit relates to the mentioning of CS (OS) 425/1993 and the impleadment application filed by Vidur therein. Even the paragraph pertaining to cause of action is similar. Paragraph 19 of the 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suits was identical. 113. From the perusal of paragraphs 26 and 28 of the plaint, it is evident that the plaintiffs have claimed damages owing to loss occasioned by being deprived of the Suit Property despite payment of the entire sale consideration. The claim is based on the same cause of action as the 1997 Suit and the plaintiffs having failed to sue in the previous suit are precluded from claiming them today. Accordingly, the claim for damages shall be deemed to have been relinquished under the provisions of Order II Rule 2. 114. The next aspect to the considered is as to the prayers in the 1997 Suit and the present suit. For ready reference, I deem it appropriate to reproduce the prayers in the previous suit and the present suit below: Prayer in 1997 Suit [CS (OS) 1675/1997 later CS 629/2011/97] Prayer in Present Suit/ [CS (OS) 3195/2012] a) A decree of declaration that the defendant, his agents, employees or anyone acting under him 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 jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nent injunction restraining defendant nos.1(i) to 1(iii) from claiming themselves and representing themselves as owners of land and property No.21, Aurangzeb Road, New Delhi and/or from executing and registering any Sale Deed in favour of any third party or creating any third party interest or entering into any compromise of any nature whatsoever. d) Award costs of the present proceedings in favour of the plaintiffs and against the defendant. 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 deem fit and proper. (Emphasis Supplied) 115. It has been held that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le inasmuch as without establishing title to property, if disputed, no decree for the relief of possession also can be passed. Thus, merely because a plaintiff in such a suit also specifically claims the relief of declaration of title, cannot be a ground to treat him differently and reduce the period of limitation available to him from that provided of twelve years, to three years. Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (2008) 4 SCC 594 held (i) where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession is the remedy; (ii) where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession; (iii) a cloud is said to arise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. 17. I am supported in my aforesaid view 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 impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, the right over an immovable property will not get extinguished; thus when a person has a right over an immovable property which right is not extinguished, he can lay the suit in respect of immovable property, even praying for the relief of declaration, at any time within the period of 12 years at the end of which only his right would get extinguished; therefore declaratory suits pertaining to immovable property are governed by Articles 64 and 65 and not by Article 58 of the Act; G. Seetharaman Vs. Jayaraman (2014) 2 MWN (Civil) 643 where also it was held that a title over immovable property cannot extinguish unless the defendant remains in adverse possession thereof for a continuous period of 12 years or more and therefore Article 65 of the Schedule to the Limitation Act applies to a suit for declaration of title and for recovery of possession of immovable property." (Emphasis Supplied) 120. From C. Natrajan57 and Ashok Kumar104 it is clear that the limitation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to recover possession from the occupants and shall also be entitled to recover damages for unauthorised use and occupation, whether pertaining to past, present or future and further shall be entitled to retain the possession so recovered. If need be or so required by the Vendee, the Vendor shall also give further authorisation by way of Power of Attorney or otherwise in the name of the nominee of the Vendee for this purpose." (Emphasis Supplied) Note: "Vendor" refers to Late Sh. Pradeep Kumar Khanna and "Vendee" refers to Vidur Impex and Traders Pvt. Ltd./ plaintiff no. 1. 124. All the Sale Deeds executed in favour of the plaintiff companies are identical in all material aspects. From the aforegoing extract, it is clear that the plaintiffs knew that the possession was not with Late Sh. Khanna, but with "some unauthorised occupant", the phrase which one would assume refers to Late Sh. L.K. Kaul. Though the Sale Deeds state that partial possession was with Khanna 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missal of the SLP cannot give rise to any fresh cause of action. 129. In the 1997 Suit, it had been averred by the plaintiffs themselves that the cause of action to file the suit arose on 15.07.1997, when Khanna failed to hand over possession of the Suit Property. As per the plaintiffs themselves this was a clear and unequivocal threat to their right, giving rise to a cause to file a suit. If the averment is taken to be true, the period of limitation has expired on 14.07.2009. 130. Therefore, I am of the view that 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. 131. Thus, the suit is liable 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 filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Muneesh Suneja; (2001) 3 SCC 92 Prestige Lights Ltd. v. SBI; (2007) 8 SCC 449 Sunil Poddar v. Union Bank of India; (2008) 2 SCC 326 K.D. Sharma v. SAIL; (2008) 12 SCC 481 G. Jayashree v. Bhagwandas S. Patel; (2009) 3 SCC 141 Dalip Singh v. State of U.P.; (2010) 2 SCC 114 and Sripal v. South Delhi Municipal Corporation. 2017 SCC OnLine Del 7522 137. Any person who approaches the Court is duty bound to come with clean hands disclosing all relevant particulars and documents. If any document which has a material bearing upon the suit and is within the knowledge of the plaintiff, he should disclose the same. Failure to do so would disentitle him from any relief whatsoever. The Court in such a scenario should summarily dismiss such cases. 138. 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. 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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