P. VASANTM v. VIMALA MARTIN — 1997 DIGILAW 57 (KAR)

CHIDANANDA ULLAL, J. ( 1 ) THE appeal is admitted. ( 2 ) THE instant appeal is filed against the order on la. no. Iv dated 10-2-1996 in o. s. No. 1949 of 1994 Passed by the v Additional City Civil Judge (c. c. h. No. 13) Bangalore, whereby the said judge was pleased to allow the said la. And further pleased to reject the plaint under order 7, Rule ll (d) of Civil Procedure Code. ( 3 ) THE matter was originally listed for admission. However, in view of the fact that parties are represented, by consent of parties, the matter was taken up for final disposal. ( 4 ) I heard the learned counsel Sri b. Vishwanath bhandarkar appearing for the appellant, Sri krishnappa, learned counsel appearing for respondent 1 and the learned counsel Sri c. s. prasanna kumar for kumar and kumar, appearing for the respondent 2. I have also perused the records, having called for from the Court of v Additional City Civil Judge (c. c. h. No. 13), Bangalore (hereinafter referred to as 'city civil judge' ). ( 5 ) THE facts in brief of the case are as follows: that the appellant/plaintiff had filed the suit in question before the city civil judge to enforce the agreement for specific performance of contract dated 10-7-1978 as against the respondent 1 with a prayer to direct the said respondent 1 to execute a valid deed of sale in favour of the appellant in respect of the suit schedule property. It is averred in the plaint that respondent 1 had executed an agreement of sale dated 10-7-1978 for a sale consideration of Rs. 18,000/- and received a sum of Rs. 5,000/- on the day of agreement and subsequently she had also received further sum of Rs. 13,000/- on 4-7-1979 also towards the sale consideration and that the appellant was put into possession of the suit schedule property, whereupon, the respondent 1 had postponed the execution of the deed of sale with one pretext or other, though the documents of title were also made over by respondent 1 to the appellant in the meantime. 13,000/- on 4-7-1979 also towards the sale consideration and that the appellant was put into possession of the suit schedule property, whereupon, the respondent 1 had postponed the execution of the deed of sale with one pretext or other, though the documents of title were also made over by respondent 1 to the appellant in the meantime. Furthermore, the respondent 1 had also permitted the appellant to put up the construction in the suit schedule property and accordingly, she had also constructed a house thereon after obtaining an approved plan by the b. d. a. with the co-operation of respondent 1; let apart, the appellant had also thereafter paid necessary taxes to the authorities in respect of the subject property. It is further averred in the plaint that to the surprise of the appellant, the respondent 1 issued a legal notice on 18-5-1985 informing that the appellant failed to perform her part of the obligation under the suit agreement; that time agreed for the completion of the transaction under the suit agreement was for six months and that time was the essence of the contract between the parties, that the said agreement was barred by limitation and had become invalid and that respondent 1 was therefore not bound by the said agreement. ( 6 ) THE appellant had filed yet another suit in o. s. No. 2373 of 1991 on the file of the city civil judge, as against the respondent 1 for a relief of permanent injunction in respect of the subject property. That in the said suit, the respondent 2 having been made a party had filed the written statement and further filed objection statement as against an la. Filed under order 39, rules 1 and 2 of Civil Procedure Code and contested the suit on the ground that the first respondent had sold the subject property in favour of respondent 2 under a registered deed of sale dated 25-2-1987. That fact came to the knowledge of the appellant herein for the first time on 18-2-1991 and according to her, the said date is the date of refusal on the part of respondent 1 to execute the valid deed of sale in her favour. That fact came to the knowledge of the appellant herein for the first time on 18-2-1991 and according to her, the said date is the date of refusal on the part of respondent 1 to execute the valid deed of sale in her favour. It is further stated in the plaint that the respondent 2 had filed a suit as against the appellant in o. s. No. 3384 of 1993 on the file of the city civil judge (c. c. h. No. 11), Bangalore to declare that the respondent 2 is the absolute owner of the subject property and also for the possession thereof as against the appellant herein. ( 7 ) THAT, it is further stated in the plaint that the cause of action for the instant suit filed by the appellant as against respondent 1 herein arose on 10-7-1978, on which date the appellant and respondent 1 entered into an agreement of sale, on 4-10-1979 on which date the appellant had paid a sum of Rs. 10,000/- towards part of sale consideration to the respondent 1 and further in the month of november, 1984 when the appellant approached respondent 1 and requested her to execute a registered deed of sale in her favour and further in the month of january, 1985 and on 18-5-1985 when the first respondent issued a legal notice to the appellant and on 4-10-1985 when the appellant gave reply for the same and further on 18-4-1991 when the appellant came to know for the first time that the respondent 1 sold the suit property to the respondent 2 by a registered deed of sale and that the said date is the date of refusal on the part of the respondent 1 to execute the registered deed of sale in favour of the appellant and refusal to perform her part of the contract and further on the date when the second respondent had filed the suit in o. s. No. 3384 of 1993 referred to above. ( 8 ) THAT the respondent 1 herein who had entered into an agreement of sale as contended by the appellant, having entered her appearance before the city civil judge, had not chosen to file her written statement. ( 8 ) THAT the respondent 1 herein who had entered into an agreement of sale as contended by the appellant, having entered her appearance before the city civil judge, had not chosen to file her written statement. However, respondent 2 had resorted to an application under Section 151 of Civil Procedure Code numbered as i. a. No. Iv by the city civil judge, wherein respondent 2 had contended that the case of the appellant rested on the agreement of sale dated 10-7-1978 and that as per the said agreement of sale, the period of 3 months was the essence of the contract as set out in clause 6 of the agreement. That the respondent 1 terminated the agreement of sale in question by causing a registered legal notice dated 18-5-1985 as per Annexure-H to the plaint, which was received by the appellant, that respondent 1 had sold the property under a duly registered deed of sale dated 25-2-1987 to respondent 2, that the plaintiff had filed a suit on 4-4-1994 after long lapse of 16 years and is therefore barred by time, that respondent 1 having issued a legal notice to the appellant as stated above had terminated the contract and that the appellant did give a reply notice to the said legal notice at Annexure-H on 25-2-1987, that the suit filed by the appellant in o. s. No. 2373 of 1991 did not give any cause of action for the instant suit before the city civil judge and further that the suit filed by the respondent 2 in o. s. No. 3384 of 1993 as against the appellant for declaration and that suit did not give any cause of action to the appellant herein to institute the instant suit before the city civil judge. ( 9 ) THAT the respondent 2 contended in her la. Iv that the suit was barred by time and is therefore liable to be dismissed at the threshold. The appellant herein had filed his detailed objection statement thereto on the lines of suit averments. ( 9 ) THAT the respondent 2 contended in her la. Iv that the suit was barred by time and is therefore liable to be dismissed at the threshold. The appellant herein had filed his detailed objection statement thereto on the lines of suit averments. ( 10 ) THE learned city civil judge having heard i. a. no, iv filed by respondent 2 heard the same and passed the impugned Order, whereby he held that the suit was barred by time and further held that the plaint of the appellant was liable to be rejected under order 7, Rule ll (d) of Civil Procedure Code. Accordingly, the city civil judge in passing the impugned order rejected the plaint of the appellant. ( 11 ) WHILE taking me through the detailed averments in the plaint to the effect that respondent 1 herself had caused for postponement of the execution of the sale deed in pursuance of the agreement of sale entered into by her with the appellant, he submitted that in the instant case in hand, the point of limitation is not a pure question of law but a mixed question of law and facts. ( 12 ) HE further argued that when the point of limitation in the instant case is a mixed question of law and facts, the city civil judge would have conferred him an opportunity to adduce evidence and that it is only thereafter, the city civil judge would have heard the parties and passed considered order on the point of limitation. In support of that argument that evidence had to be recorded whenever the issue of limitation is one of mixed question of law and facts, he had cited before me, the following decisions: (i) 1915 Indian cases 954. (ii) AIR 1974 SC 1165 (sic ). (iii) Shyam Sundar v Hudibai and others. He had also cited before me the decision in Srikrishna Keshav Kulkarni and others v Balaji Ganesh Kulkarni and others , on the point that the date of knowledge of sale is the knowledge for refusal for purpose of the suit, ( 13 ) THE other decisions he had cited before me are: Azizahmed Khan v La. Patel 3, on the point that the framing of issues is mandatory on the part of the court under order 14, Rule 1 of Civil Procedure Code. Patel 3, on the point that the framing of issues is mandatory on the part of the court under order 14, Rule 1 of Civil Procedure Code. In para (7) of the judgment, the full bench of Andhra Pradesh high court observed as follows: "7. We are not at all satisfied with the manner in. Which the case has been dealt with by the trial court. One of the important functions of the trial court is to settle all necessary issues, whether of fact or of law, arising out of the pleadings. If a question is raised that the suit is not maintainable under certain Provisions of law, the court cannot afford to lose sight of this material proposition which goes to the root of the matter. It has to necessarily frame an issue in that behalf. It is surprising that the trial court failed to notice that the plaint itself elicits that question and the written statement pointedly raises that issue and the statute referred to enjoins that the court shall frame and decide the issue". The said decision was cited before me to say that the city civil court at the first instance on the completion of the pleadings would have framed the issues including the issues relating to the maintainability of the suit and it is thereafter, it would have permitted the parties to adduce the evidence on the point of maintainability. ( 14 ) YET another decision the learned counsel for the appellant cited before me is Arjan Singh v Union of India, wherein the Delhi High Court in paras (7) and (12) of the judgment observed that normally a plaint has to be rejected not by taking evidence or reading the written statement, but by finding out what is contained in the plaint itself, that for the purpose of seeing whether the plaint is within time or not, every allegation of the plaint has to be assumed to be correct, of course if the plaint averments themselves show that the claim is barred by time, then the plaint can be rejected, that however if the real question of limitation is connected with the merits of the claim in the suit then it has to be tried along with other issues. The paras (7) and (12) of the above judgment read as follows: "7. The paras (7) and (12) of the above judgment read as follows: "7. Normally a plaint has to be rejected not by taking evidence, or reading the written statement, but by finding out what is contained in the plaint itself. So, we have to see in this case whether there is a statement in the plaint which shows that the suit is barred by law. There are two statements in the plaint which are of any relevance in this behalf. One is that there has been an award but the date is not mentioned. Let us take it that the award is dated 10-1-1973 and we can assume for argument's sake that this date is specified in the plaint. The next paragraph of the plaint states that this award is a nullity because (a) the purpose specified is not of public purpose and (b) the condition precedent being the notification under Section 4 has not been specified in accordance with law. For purpose of seeing whether a plaint is within tune or not every allegation of the plaint has to be assumed correct. 12. This discussion was meant to show that this question of limitation raised by reason of the statement in the written statement is different from the limitation involved in rejecting the plaint. If the plaint itself shows that the claim is barred by time, then the plaint can be rejected. However, if the real question of limitation is connected with the merits of the claim in the suit then it has to be tried along with other issues. I would accept this appeal only to the extent that the plaint could not be rejected, but I direct that this issue of limitation should be tried along with other issues in the suit because, notwithstanding what is said above, the suit may still be barred by time. The result would be that the suit will be decided on merits and the issue of limitation will also be re-decided, if necessary. I leave the parties to bear their own costs". ( 15 ) THEREFORE the learned counsel for the appellant submitted that the point of limitation being a mixed point of law and fact in the instant case, the court below would not have rejected the plaint without recording the evidence thereof by the respective side and further hearing both the parties. ( 15 ) THEREFORE the learned counsel for the appellant submitted that the point of limitation being a mixed point of law and fact in the instant case, the court below would not have rejected the plaint without recording the evidence thereof by the respective side and further hearing both the parties. Therefore, he prayed that the impugned order passed by the city civil judge be set aside and i. a. iv filed by the second respondent be dismissed. ( 16 ) AS against the above argument advanced by the learned counsel appearing for the appellant, the learned counsel appearing for the respondent 2, Sri prasanna kumar counter argued that the impugned order passed by the learned city civil judge was just and proper. He submitted that the respondent 2 herein had filed la. Iv before the city civil judge bringing to his knowledge at the first instance that according to showing of the appellant herself, the suit agreement is dated 10-7-1978 and that the period of completion of the contract agreed therein in clause 6 of the agreement is six months from the date of agreement and secondly that the said agreement of sale was validly terminated by respondent 1. By pointing out that under the suit agreement, the sale had to be completed within six months from the said date as per the clause 6 of the agreement and that for the purpose of limitation to institute the suit, the period of three years has to be reckoned from the expiry of six months period from the date of agreement i. e. , 10-7-1978. Alternatively, he argued that even if it is taken that respondent 1 had rescinded and put an end to the above said agreement of sale by issue of legal notice dated 18-5-1985 as at Annexure-H to the plaint, the period for the purpose of instituting the suit for specific performance has to be three years from the said date. Sri prasanna kumar further submitted in this context that at any stretch of imagination the institution of the suit as late as on 4-4-1994 was hopelessly barred by time and in the said circumstances, all that what the respondent 2 did in resorting to i. a. iv before the city civil court was only to bring the above facts very well set out in the plaint of the appellant herself. Hence, according to him, the impugned order passed by the learned city civil judge could not in any way be erroneous at all. Therefore he submitted that the impugned order is well reasoned and not called for to be interfered with by this court in the instant appeal. He had relied upon three decisions before this court too as he so did before the city civil judge in support of his above argument. They are K. Kallaiah v Ningegowda, on the point that when once a date is fixed for performance of contract, as in this case, the suit is necessarily regulated by the former part of the article 54 of the Limitation Act and not by the later part of that article; AIR 1988 kant. 83, on the point that in a suit for specific performance based on agreement of sale, for the purpose of limitation, time begins to run from the date of suit as fixed from the date of agreement, as per first part of article 54 of the Limitation Act and Ramazan v Smt. Hussaini, wherein the Hon'ble Supreme Court held that, when the date for execution of sale deed was fixed under the agreement, although not by mentioning a certain day, but by reference to a happening of certain event, then the executant is liable to execute the sale deed immediately after happening of that event and the period of limitation thus starts running from that date and the case therefore covered by the first part of article 54 and not the second part. Lastly, the learned counsel for respondent 2 while arguing that the suit in question is vexatious, unjust and untenable, he submitted that this court had to come down very heavily against the conduct of the appellant herein as she was resorting to one suit after another on false grounds only to harass the respondents knowing full well that the same are of no consequence and relief to her. In support of that argument, he had cited before me the decision in T. Arivandandam v T. V. Satyapal and another, wherein the Supreme Court held that if on a meaningful reading of the plaint, if it is found that the same is manifestly vexatious and meritless, in the sense not disclosing a clear right to sue, the trial court should exercise its power under order 7, Rule 11 of civil procedure code taking care to see that the ground mentioned therein is fulfilled and that the trial courts should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage and further that the penal code is also resourceful enough to meet such man and must be triggered against them. ( 17 ) FOR the aforesaid reasons, the learned counsel for the second respondent prayed that the appeal be dismissed by confirming the impugned order passed by the learned city civil judge in the facts and circumstances of the case. ( 18 ) THE learned counsel for the respondent 1 however chose to a dopt the line of argument of the learned counsel for respondent 2 as he had not put forth any argument from his side. ( 19 ) IN the light of the above arguments, the point for my consideration are as follows: (i) whether the impugned order passed by the learned city civil judge in rejecting the plaint under order 7, Rule 11 (d) of Civil Procedure Code is just and proper, and (ii) whether the same is called for to be interfered with in the instant appeal. ( 20 ) WHILE I answer the point No. (i) in the negative, I answer the point No. (ii) in the affirmative. The reasons are as hereunder: the impugned order now under challenge by the appellant is mainly on the ground that the point of limitation in the suit before the city civil judge is not a pure question of law, but a mixed question of law and facts. Whether the point of limitation is a mixed question of law and facts or a pure question of law alone has to be appreciated by reading the entire plaint as a whole together with the documents produced along with the plaint. Whether the point of limitation is a mixed question of law and facts or a pure question of law alone has to be appreciated by reading the entire plaint as a whole together with the documents produced along with the plaint. It is relevant to mention here that in paras 12 to 14 of the plaint, the appellant had averred in detail as to how she had performed her part of contract of the suit agreement in paying the full sale consideration of Rs. 18,000/-, as to now she had come in possession of the subject property as to how she had been enjoying the suit schedule property from the year 1978, as to how respondent 1 had postponed from one date to another to execute the deed of sale in her favour, as to how and what circumstances she could not immediately resort to the suit having come to know of the sale by respondent I in the name of respondent 2 on 18-4-1991 and as to how the cause of action arose on different dates commencing from 10-7-1978,18-5-1985,4-10-1985 and finally on 18-4-1991. ( 21 ) IN para 14 of the plaint, the appellant had averred as to the cause of action as follows:"14. The plaintiff submits that the cause of action for filing of this suit arose on 10-7-1978 on which date the plaintiff and the first defendant entered into agreement of sale on 4-10-1979 on which the plaintiff has paid a sum of Rs. The plaintiff submits that the cause of action for filing of this suit arose on 10-7-1978 on which date the plaintiff and the first defendant entered into agreement of sale on 4-10-1979 on which the plaintiff has paid a sum of Rs. 10,000/- towards the sale consideration price to the first defendant, the date on which the plaintiff has paid balance sale consideration price to the first defendant, the date on which the first defendant has put the plaintiff in physical possession of the suit schedule property and delivered all the original documents of the suit schedule property in the hands of the plaintiff, the date on which the first defendant has got a sanctioned plan to the plaintiff for constructing the residential premises on the suit schedule property, in the month of november, 1984 when the plaintiff approached the first defendant and requested her to execute a registered sale deed in her favour and to perform her part of contract and the date when the first defendant told the plaintiff that, it will be convenient for her if the same is fixed in the month of january, 1985 and the dates when the plaintiff repeatedly requested the first defendant to execute registered sale deed and to perform her part of contract and the dates when the first defendant demanded for payment of additional money from the plaintiff for executing the same and on 18-5-1985 when the first defendant issued a legal notice to the plaintiff and on 4-10-1985 when the plaintiff gave a reply notice for the same and thereafter on all those various dates when the plaintiff requested the first defendant to execute a valid registered sale deed and for the same the dates when the first defendant made false promises to the plaintiff that, she will execute a valid registered sale deed in her favour immediately after all the legal technicalities involved in respect of the same are over and cleared and on 18-4-1991 when the plaintiff came to know that the first defendant has illegally sold the suit schedule property to the second defendant by a registered sale deed dated 25-2-1987 and the said date also amounted as the date of refusal on the part of the first defendant to execute the registered sale deed in favour of the plaintiff and refusal to perform her part of contract and on the date when the second defendant has filed a suit in o. s. No. 3384 of 1993 on the file of the Hon'ble additional city civil judge, at Bangalore against the plaintiff, within the jurisdiction of this Hon'ble court. The plaintiff submits that, she has not filed any other suit before this Hon'ble court on the same cause of action". ( 22 ) IT has to be observed here that the 'cause of action' in a suit has got a direct bearing on the point of limitation under the Limitation Act. The term 'cause of action' has not been defined anywhere in Civil Procedure Code or for that matter any other statute, but its meaning had been settled by various rulings of the courts. Per esher, M. R. , in Read v Brown, a'cause of action' is the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain judgment (page 324 ). The privy council after an elaborated discussion of the authorities prevailing in India and england summed up the principles in paragraph 61 of the judgment in Mohammad Khalil Khan and others v Mehabub ali mian and others, as follows:" (61 ). . . . . . . (1) the correct test in cases falling under order 2, is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation of the former suit". (Moonshee Buzloor Ruheem v Shumsoonnissa Begum ). (2) the cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. (read's case, supra ). (3) if the evidence to support the two claims is different, then the causes of action are also different. (Brunsden v Humphrey ). (4) the causes of action in the two suits may be considered to be the same if in substance they are identical. (brunsden's case, supra ). (5) the cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers. . . . To the media upon which the plaintiff asks the court to arrive at a conclusion in his favour. Mt. Chandkour v Pratap Singh. It refers. . . . To the media upon which the plaintiff asks the court to arrive at a conclusion in his favour. Mt. Chandkour v Pratap Singh. This observation was made by lord watson in a case under Section 43 of the Act, 1882 (corresponding to order 2, Rule 2, civil procedure code) where plaintiff made various claims in the same suit". (this decision was accepted by the Supreme Court in Suraj Rattan Thirani and others v Azamabad Tea Co. Ltd. And others ). ( 23 ) FROM the above, it is clear that cause of action means, a cause which can give rise to an action in law. In the instant case, the appellant had set out in para (14) of the plaint, quoted above, as to how the cause of action according to her to institute the suit in question as against the respondents arose. No doubt, she had also produced along with the plaint, other documents such as an agreement of sale, legal notice, reply notice, etc. , but in my considered view, the suit agreement as at Annexure-A to plaint and the legal notice purported to have been issued by respondent 1 to the appellant as at Annexure-H to plaint cannot be read in isolation and devoid of the plaint averments as the learned city civil judge had ventured to in passing the impugned judgment. As a matter of fact, if we read Rule ll (d) of order 7, it is clear that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. Rule ll (d) of order 7 of Civil Procedure Code reads as follows: "rule 11. The plaint shall be rejected in the following cases: (a) xxxx; (b) xxx x; (c) xxx x; (d) where the suit appears from the statement in the plaint to be barred by any law: provided that the time fixed by the court for correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff. From the above provision of law, it is clear that emphasis is to the averments in the plaint and not to anything else, ( 24 ) IF we read the impugned order under challenge, it is clear that the learned civil judge had not guided himself by the plaint averments, but merely guided himself by annexure-a, the suit agreement executed by respondent 1 in the name of the appellant and Annexure-H the copy of the legal notice purported to have been issued by respondent 1 to the appellant, whereby the suit agreement was put an end to. It appears to me that the purport of Rule 11 (d) of order 7, civil procedure code is not to take the said documents apart and read but to read the entire plaint averments together with annexures thereto. in the instant case in hand, if we read plaint averments, particularly paras 12 to 14, it does not appear to me that there is positive statement in the plaint to take the suit as barred by law. Therefore, in my considered view, the impugned order passed by the learned city civil judge does not stand to reasons, for, as argued by the learned counsel for the appellant, in the instant case, as the case was put forth by the appellant before the learned city civil judge, the point of limitation is a mixed question of law and fact and not a pure question of law, and hence, to be decided by the city civil judge on recording of evidence thereto. Under the circumstances, the learned city civil judge obviously would have framed the issues including the issue on the point of limitation after the completion of the pleadings by the parties and it is thereafter, if the parties so urged the learned city civil judge would have decided the point of limitation as a preliminary issue in consonance with law. ( 25 ) IN the above circumstances, it appears to me that the impugned order passed by the learned city civil judge is erroneous and not in consonance with the provision of law in Rule ll (d) of order 7 of Civil Procedure Code. Hence, I proceed to pass the following: order (i) the impugned order passed by the learned city civil judge on i. a. No. Iv in rejecting the plaint of the appellant is set aside. (ii) la. Hence, I proceed to pass the following: order (i) the impugned order passed by the learned city civil judge on i. a. No. Iv in rejecting the plaint of the appellant is set aside. (ii) la. No. Iv filed by respondent 2 is dismissed. (iii) the learned city civil judge is hereby directed to frame issues including the issue on the point of limitation (provided such an issue does arise) on completion of the pleadings by the parties, in consonance with the mandatory provision of order 14, Rule 1 of Civil Procedure Code in the matter of framing of issues. He is further directed to decide the point of law/point of limitation, if the party/parties so urge to decide as preliminary issue in consonance with law in the light of the above observation in para 24, supra. ( 26 ) THE appeal is accordingly allowed with the above direction. --- *** --- .