Rekha Mukherjee v. Asish Kumar Das — 1998 DIGILAW 528 (CAL)

JUDGMENT Bhaskar Bhattacharya, J. This revisional application is at the instance of a defendant in suit for Specific Performance of Contract and is directed against Order No. 35 dated February 27, 1992 passed by the learned Assistant District Judge thereby rejecting an application under Order VI Rule 16 of the Code of Civil Procedure filed by the defendant for striking out the first sentence of paragraph 17 of the plant i.e. "The plaintiffs were/are always ready and willing to perform their parts of contract at all materials time". 2. The facts giving rise to the filling of the instant application may be summarised thus:- (a) While a suit being Title Suit No. 412 of 1977 for eviction of the plaintiffs of instant suit and their mother, since deceased, was pending, three separate agreements for sale of the suit premises were entered into by the petitioner herein with each of the plaintiff and their mother thereby agreeing to sell 1/3rd undivided share of the suit premises to each of them. (b) On the allegation that the petitioner herein has illegally terminated the said agreements the plaintiffs filed the instant suit for specific Performance of contracts. One month before the institution of instant suit, the mother of the plaintiffs died. (c) In the eviction suit although the defence of the defendants was inter alia that they acquired thika tenancy right over the suit property, subsequently one of the defendants by way of amendment introduced a further defence that in view of subsequent agreement for sale, he was entitled to the benefit of section 53A of the Transfer of Property Act. (d) The learned trial Judge decreed the Title Suit No. 412 of 1977 after holding that the defendants were not entitled to the benefit of section 53A of the Transfer of Property Act and the tenants preferred an appeal before the learned District Judge being Title Appeal No. 309 of 1991. (d) The learned trial Judge decreed the Title Suit No. 412 of 1977 after holding that the defendants were not entitled to the benefit of section 53A of the Transfer of Property Act and the tenants preferred an appeal before the learned District Judge being Title Appeal No. 309 of 1991. (e) In view of the aforesaid decision of the learned trial Judge declining to afford protection to the tenants of the provision contained in section 53A of the Transfer of Property Act, the petitioner herein filed the aforesaid application under Order VI Rule 16 of the Code for striking out the aforesaid pleading on the ground that the said findings in the suit for eviction would be res judicata in the instant suit and as such should be deleted being unnecessary and is an abuse of the process of the Court. (f) By the order impugned the learned trial Judge has rejected the said application. Hence this application by the defendant under section 115 of the Code. 3. It will not be out of place to mention here that during the pendency of this application, the Title Appeal No. 309 of 1991 filed by the tenants was allowed and a second appeal filed by the petitioner herein against such appellate decree was heard along with the instant application and by a separate judgment delivered today we have allowed the second appeal filed by the petitioner herein after holding that the tenants were not continuing with the possession in pursuance of the agreement for sale and as such they were not entitled to the benefit of doctrine of part performance. 4. We, however, did not enter into the question whether the tenants were at all material time ready and willing to perform their part of contract as, in our opinion, the said question could be gone into only if we found that the tenants were in possession of the premises pursuant to the agreements for sale. 5. It will be partinent to mention here that at the time of passing of the order impugned in this revisional application, the judgment and decree of the learned trial Judge in eviction suit which is the basis of the petitioner's application under Order VI Rule 16 of the Code had already been set aside in Title Appeal No. 309 of 1991. 6. Mr. 6. Mr. Mukherjee, the learned advocate appearing in support of the application has strongly relied upon the decision of the Apex Court in the case of K.K. Modi vs. K.N. Modi reported in 1998 (3) SCC page 573 and two English decisions in the cases of Mc. Kay and another vs. Essex Area Heath Authority and Another reported in (1982) 2 All E.R. 771 and willams and Humbert Ltd. vs. W and H Trade Marhs (Jersy) Ltd. and Others reported in (1986) 1 All E.R. 129 to convince us that the prayer of the petitioner for striking out a part of pleading in paragraph 17 of the plaint should be allowed. The sum and substance of the principles laid down in those decisions is reflected in paragraph 44 of the decision in K.K. Modi (supra) to the following effects: "..................... It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the Court especially where the proceeding are absolutely groundless. The court has then the power to stop such proceedings summarily and prevent the time of the public and court from being wasted. Undoubtedly, it is a matter of court's decretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised and exercised only in Special cases. The court should also be satisfied that there is no chance of the suit succeeding." (underlines given by us) 7. Keeping in view the aforesaid principles laid down by the Apex Court we shall now proceed to examine whether the order impugned is in conformity with the aforesaid proposition of law. The court should also be satisfied that there is no chance of the suit succeeding." (underlines given by us) 7. Keeping in view the aforesaid principles laid down by the Apex Court we shall now proceed to examine whether the order impugned is in conformity with the aforesaid proposition of law. We are also conscious of our position in a revisional jurisdiction under section 115 of the Code where we are unable to interfere with a finding even though from the selfsame fact we may arrive at a different conclusion unless we are satisfied that the view taken by the court below is an absurd view. (See M/s. Bhojraj vs. Yograjsinha and Ors. reported in AIR 1984 SC 1894 ). 8. Now turning to the case in hand we find that the question whether the plaintiffs were at all material times ready and willing to perform their part of the contract has not been tried and decided in the eviction suit because the plaintiffs were not continuing with possession pursuant to the agreements. Such question could be gone into if they were found to be in possession in part performance of the agreement and had done some acts in furtherance of the contract. 9. Secondly, the agreements of sale and acceptance of earnest money to the tune of Rs. 2.25 lakhs having been admitted by the petitioner herein and the suit for specific performance of the contracts having been filed within eleven months from the date of agreement, in our opinion, the suit cannot at the first impression be branded as a "spurious claim" or a "vexatious of frivolous proceedings" or an absolutely groundless proceedings" having "no chance of the suit succeeding". 10. We cannot lose sight of the fact that in this case the petitioner within six months from the date of agreements has cancelled the agreements by forfeiting the earnest money although in the agreements there is no specific Clause authorising the defendant to forfeit earnest money. Without taking evidence it is impossible to hold that for the fault of the plaintiff the defendant could not get the Income Tax clearance certificate as alleged by her. 11. Under the aforesaid circumstances, we think, the learned trial Judge rightly refused to strike out the vital Clause in the plaint before inviting the parties to lead evidence. Without taking evidence it is impossible to hold that for the fault of the plaintiff the defendant could not get the Income Tax clearance certificate as alleged by her. 11. Under the aforesaid circumstances, we think, the learned trial Judge rightly refused to strike out the vital Clause in the plaint before inviting the parties to lead evidence. The discretion exercised by the learned trial Judge is quite a reasonable view in tune with the observation of the Apex Court in K.K. Modi's case (supra). 12. Moreover, at the time of passing of the order impugned, the judgement and decree passed by the learned trial Judge in eviction suit, which are the basis of the petitioner's application, were already set aside by the learned first appellate court. 13. Thus, we find no reason to interfere with the order impugned. The revisional application is dismissed. 14. No costs. Ruma Pal. J.: I agree. Application dismissed.