DESH RAJ V. BALKISHAN (D) THROUGH PROPOSED LR MS. ROHINI
(The time for filing the written statement by the appellant could not be extended)
- Bench: Hon'Ble The Justice, B.R. Gavai, Surya Kant
- Appellant: Desh Raj
- Respondent: Balkishan (D) Through Propesed LR Ms. Rohini
- Citation: 2020 (2) SCC 708
Facts:
The appellant and the respondent are brothers and own one floor each of ancestral property.The ground floor was possessed and owned by the respondent, whereas the first floor was in the name of the appellant.
It has been claimed that in February 2017, the respondent approached the appellant offering to purchase the first floor of the ancestral property. Subsequently, an agreement to sell was entered into between the parties for total consideration of Rs 7.5 lakhs, of which an amount of Rs 1 lakh was paid as earnest money to the appellant. This agreement was subsequently not honoured and a legal notice was served upon the appellant by the respondent on 13.04.2017, calling upon him to accept consideration and perform his part of the contract.
Claiming that the appellant was attempting to sell the suit property to third parties, the respondent later approached the Civil Court praying for a decree of specific performance of the agreement to sell dated 17.03.2017 by directing the appellant to receive the balance sale consideration and execute/register the sale deed in favour of the respondent. Additionally, the respondent sought to permanently injunct the appellant from alienating the property in favour of any third party.
Alternatively, recovery of damages of Rs 2 lakhs with pendent lite and future interest @ 18% per annum was sought by the respondent.
The appellant was served on 01.05.2017, and he appeared through counsel on 15.05.2017 wherein the Civil Court granted the appellant 30 days to file his written statement. On 17.07.2017, noting that no written statement had been filed till then, the Court granted the appellant a final opportunity of two weeks to file his written statement. On 18.09.2017, the Court observed that despite the last opportunity having been accorded more than two months ago, no written statement had been filed. Nevertheless, the Court granted another final opportunity, subject to payment of Rs 3,000 costs and the matter was posted for 11.10.2017. On this date, appellant sought multiple pass overs but his Counsel did not appear before the Court. After noticing that despite several opportunities (including one beyond the maximum period of 90 days) the appellant had failed to file any written statement or deposit costs and that the matter could not be adjourned repeatedly, the Civil Court thus closed the appellant’s opportunity of filing written statement and struck off his defence. Even on the next hearing on 03.11.2017, the appellant’s Counsel did not appear or supply a copy of the written statement to the respondent, as noted in the Trial Court’s daily order.
The aggrieved appellant approached the High Court in revision, which noted how he had been granted repeated opportunities and yet the written statement was not filed within 120 days of notice. Relying upon the order of its coordinate bench in Oku Tech Pvt Ltd v. Sangeet Agarwal and Others wherein it was held that there was no discretion with courts to extend the time for filing the written statement beyond 120 days after service of summons, the Delhi High Court summarily dismissed the petition.
Issue:
Whether the time for filing the written statement by the appellant could be extended
Contentions raised by the Appellant:
The appellant put forth his contention that the deadline of 90 days could be relaxed keeping in view the facts and circumstances of a case and argued that he himself had personally appeared on all dates of hearing and the lapse was on the part of his Counsel, due to which written statement could not be filed. The appellant claims that severe prejudice would be caused to him if the delay is not condoned for he would be left defence less in the civil suit. He accordingly seeks that this Court invoke its inherent discretion under Order VIII Rule 1 of CPC and grant one final opportunity to file his written statement.
Contentions raised by the Respondent:
The respondent contended that the appellant had multiple chances had already been granted to the appellant by the Civil Court, including opportunities beyond the maximum statutory period of 90 days as provided for filing of written statement under Order VIII Rule I of CPC. It was argued that continued failure to adhere to the multiple deadlines set by the Civil Court and violation of Court directions, was evidence of gross negligence on part of the appellant at best, and a deliberate delaying tactic and abuse of the process of law at the worst.
Judgement:
It was held by the court that the time for filing the written statement could not be extended as nothing prevented the appellant from filing the written statement through counsel or in person. He has, thus, failed to give any cogent reason for the delay and was unable to satisfy due diligence on his part though he is right in his submission that the High Court erroneously relied upon the ratio of Oku Tech.
Pankaj bhai Ramesh bhai Zalavadia Vs Jetha bhai Kalabhai Zalavadiya (Deceased) Through LRs &Ors
- Bench : Justice Arun Mishra and Justice Mohan M. Shantanagoudar
- Appellant : PankajbhaiRameshbhaiZalavadia
- Respondents : JethabhaiKalabhaiZalavadiya (Deceased) Through LRs & Ors
- Citation :(2017) 9 SCC 700
Issue:
Whether legal representatives of deceased party can be impleaded under Order 1 Rule 10 CPC when application under Order 22 Rule 4 was dismissed?
Facts:
· The appellant initially filed a suit for setting aside a sale deed for a land purchased by D7. However, D7 died before filing of the suit. The trial court held that the suit has abated against D7.
· Then, appellant filed application under Order 22 Rule 4 CPC to bring on record the LRs of D7. The trial court dismissed it stating that Order 22 Rule 4 applies only when the defendant died during pendency of the proceedings & not before filing of suit.
· Appellant filed another application to implead the LRs under Order 1 Rule 10 but it was dismissed.
· The HC affirmed the decision of the trial court.
· Appellant has filed an appeal before SC against the said order.
Appellant’s contentions:
· It was contended that subsequent application under Order 1 Rule 10 CPC could not be dismissed by applying the principle of res judicata on the ground that application under Order 22 Rule 4 was dismissed.
Respondent’s contentions :
· The order passed by HC is justified as the application filed under Order 1 Rule 10 is for the same purpose as the application filed under Order 22 Rule 4 which has been already dismissed.
Judgement:
The Supreme Court allowed the appeal and dismissed the impugned judgement of HC. There is no bar to file an application under Order 1 Rule 10 when application under Order 22 Rule 4 has been dismissed.
“Merely because the earlier application filed by the appellant under Order 22 Rule 4 of the Code was dismissed on 9-9-2009 as not maintainable, it will not prohibit the plaintiff from filing another application, which is maintainable in law. There was no adjudication of the application to bring legal representatives on record on merits by virtue of the order dated 9-9-2009. On the other hand, the earlier application filed under Order 22 Rule 4 of the Code was dismissed by the trial court as not maintainable, inasmuch as Defendant 7 had died prior to the filing of the suit and that Order 22 Rule 4 of the Code comes into the picture only when a party dies during the pendency of the suit. The only course open to the appellant in law was to file an application for impleadment to bring on record the legal representatives of deceased Defendant 7 under Order 1 Rule 10 of the Code. Hence, the order passed by the trial court on the application filed under Order 22 Rule 4 of the Code, dated 9-9-2009, will not act as res judicata.”
-Para 9
ASHOK KUMAR KALRA v. WING CDR. SURENDRA AGNIHOTRI & ORS.
(Hon’ble Chief Justice of India looked into the matter and gave the final judgement on the basis of merit of the case)
- Bench: Justice N.V. Ramana
- Justice Mohan M. Shantanagoudar
- Justice Ajay Rastogi
- Citation: (2020) 2 SCC 394
- Petitioner: Ashok Kumar Kalra
- Respondent: Wing Cdr. Surendra Agnihotri &Ors.
Issue:
I) Whether Order VIII Rule 6 of the CPC mandates an embargo on filing the counterclaim after filing the written statement?
II) If the answer to the aforesaid question is negative, then what are the restrictions on filing the counterclaim after filing the written statement?
Facts:
• A dispute arose between Petitioner and the Respondent concerning performance of agreement to sell and the respondent filed the suit for specific performance against the petitioner.
• Petitioner then filed a written statement and counterclaimed in the same suit.
• The trial court rejected the objections, concerning filing of the counterclaim after filing of the written statement and framing of issues.
• The order was then challenged before the High Court, the High Court allowed the same and quashed the counterclaim.
• Aggrieved by the aforesaid order of the High Court, the petitioner filed approached the Division of Supreme Court, which referred the matter to a Three Judge Bench.
• The Three Judge Bench agreed with decision of the trial court and asked to place an instant Special Leave Petition for obtaining orders from the Hon’ble Chief Justice of India, for considering the case on Merits.
Arguments of the Petitioner:
• Intention behind Order VIII Rule 6A of the CPC is to provide an enabling provision for the filing of counterclaim so as to avoid multiplicity of proceedings, thereby saving time of the Courts and avoiding inconvenience to the parties.
• No specific bar has been imposed on Court’s jurisdiction to entertain a counterclaim except for limitation under the said provision, which says cause of action in the counterclaim should arise before or after the filing of the suit but before the defendant delivers his defence.
• If permitting the counterclaim would lead to protracting the trial and cause delay in deciding the suit, the Court can exercise its discretion by not permitting the filing of counterclaim, but the rules should not be interpreted in a manner that ultimately results in failure of justice.
Arguments of the Respondent:
• The language of the statute, and the scheme of the Order, indicates that the counterclaim has to be a part of the written statement.
• The cause of action relating to counterclaim must arise before the filing of the written statement, and counterclaim must therefore form a part of written statement.
• Relying on the language of Order VIII Rule 6 of CPC, a defendants claim to setoff to be a part of the written statement, same rules should apply to the filing of a counterclaim.
Judgment:
The Three Judge Bench mentioned that the court has to take into consideration the outer limit for filing the counterclaim, which is pegged till the issues are framed. In such cases the Courts have the discretion to entertain filing of the counterclaim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive.
Lastly, it was held by the Court that once issues have been framed (per curiam), court cannot entertain counterclaim filed after the submission of written statement.
A.B.C. Laminart Pvt. Ltd. &Anr v. A.P. Agencies, Salem
- Bench : Justice G.L Oza and Justice K.N Saikia
- Appellant : A.B.C. Laminart Pvt. Ltd. &Anr
- Respondents : A.P. Agencies, Salem
- Citation :(1989) 2 SCC 163
- Issue : Where can a suit arising out of a contract be filed ?
Facts:
· The appellant, manufacturer of metallic yarn at Udyognagar, Gujarat entered into contract with respondent for supply of yarn to respondent.
· Clause 11 of the said contract mentioned : ‘Any dispute arising out of this sale shall be subject to Kaira jurisdiction’. The order of confirmation was sent to respondent’s address in Salem.
· Due to disputes from contract, respondent filed a suit in Court of Subordinate Judge at Salem. The trial court held that it had no jurisdiction to entertain the case because of clause 11.
· Thereafter, HC allowed the appeal filed by respondent & ordered the trial court to hear the matter.
· Appellant filed special leave in SC.
Appellant’s contentions:
· It was contended that clause 11 of the contract only permits the parties to file a suit within Kaira jurisdiction & not Salem.
Respondent’s contentions :
· Clause 11 was only general terms & conditions of the sale & not a clause in the agreement. The clause cannot take away the jurisdictions of the other courts.
Judgement:
The Supreme Court dismissed the appeal. The jurisdiction of other courts has not been excluded in the contract.
“Under Section 20(c) of the Code of Civil Procedure subject to the limitation stated theretofore, every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. It may be remembered that earlier Section 7 of Act 7 of 1888 added Explanation III as under:
“Explanation III.—In suits arising out of contract the cause of action arises within the meaning of this section at any of the following places, namely:
(1) the place where the contract was made;
(2) the place where the contract was to be performed or performance thereof completed;
(3) the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable.”
The above Explanation III has now been omitted but nevertheless it may serve as a guide. There must be a connecting factor.
In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the law of contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit can be filed in a court within whose jurisdiction the acceptance was communicated. The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have been performed or its performance completed. The above are some of the connecting factors.”
-Para 13, 14, 15 A.B.C. Laminart Pvt. Ltd. &Anr v. A.P. Agencies, Salem
KASTURI V. UYYAMPERUMAL & ORS
(The respondents were neither necessary or proper party in the suit for specific performance)
- Bench: N.Santosh Hegde, Tarun Chatterjee, P.K.Balasubramanyan
- Appellant: Kasturi
- Respondents: Uyyamperumal&Ors
- Citation: 2005 (6) SCC 733
Facts:
The appellant herein has filed the suit against the respondent Nos.2 and 3 for specific performance of a contract entered into between the second respondent acting as a Power of Attorney of the third respondent on one hand and the appellant on the other for sale of the contracted property. In this suit for specific performance of the contract for sale, the respondent Nos.1 and 4 to 11, who were admittedly not parties to the contract and setting up a claim of independent title and possession over the contracted property, filed an application to get themselves added in the suit as defendants. The trial court allowed the application on the ground that as the respondent Nos.1 and 4 to 11 were claiming title and possession of the contracted property, they must be held to have a direct interest in the subject-matter of the suit, and therefore, entitled to be added as parties defendants in the suit as their presence would be necessary to decide the controversies raised in the present suit. The High Court in revision confirmed the said order and accordingly against the aforesaid order of the High Court this Special Leave Petition was filed at the instance of the appellant which on grant of special leave was taken up for hearing in presence of the parties.
Issue:
1. Whether the respondents were necessary party or proper party in the suit for specific performance
Contentions raised by the Respondent:
The respondent contended that since the respondent Nos. 1 and 4 to 11 claimed to be in possession of the suit property on the basis of their independent title to the same, and as the appellant had also claimed the relief of possession in the plaint, the issue with regard to possession is common to the parties including respondent Nos.1 and 4 to 11, therefore, the same can be settled in the present suit itself.
It was also submitted that the presence of respondent Nos.1 and 4 to 11 would be necessary for proper adjudication of such dispute and to avoid multiplicity of suits, it would be appropriate to join the respondents as party-defendants in the present case.
Judgement:
The court held that there are two tests to be satisfied for determining the question of who is a necessary party. They are:
1. There must be a right to some relief against such party in respect of the controversies involved in the proceedings
2. No effective decree can be passed in the absence of such party.
Therefore, the court reached a conclusion that the respondents making an independent claim are neither necessary or proper parties, and therefore, not entitled to o join as party defendants in the suit for specific performance of contract for sale.
RAVINDRA KAUR v. MANJIT KAUR
(Supreme Court discussed a large number of cases, overruled some and clarified the issue of acquisition of title by adverse possession by the plaintiff in its judgment)
Bench:Justice Arun Mishra
- Justice S. Abdul Nazer
- Justice M.R.Shah
- Appellant: Ravindra Kaur Grewal &Ors
- Respondent: Manjit Kaur &Ors
- Citation: Civil Appeal No. 7764/2014
Issue:
Can the plaintiff take acquisition of title by adverse possession under Article 65 of Limitation Act?
Analysis:
• The Punjab and Haryana High Court had concluded that, the plea of adverse possession is available as a defence to a defendant, because of the language used in IIIrd Column of the 65th Article of Limitation Act as it states the limitation of 12 years from the date of defendant’s possession becoming adverse to plaintiff. The court stated that, the column does not suggest that the plaintiff can file a suit for possession.
• Supreme Court discussed a large number ofself decisions and various decisions of Privy. Council, High Courts, English Courts and observations of Halsbury Laws which indicated that suit can be filed by plaintiff on the basis of title acquired by adverse possession or on the basis of possession of Article 64 and 65. there is no bar under Article 65 or any provision of Article 65 against the said issue
• It was also stated that the statute does not define adverse possession, it is a common law concept, whose period is prescribed under Limitation Act’s Article 65 as 12 years. Limitation Act does not define adverse possession nor contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and extinguishment of rights.
• Under Article 64 as well a suit can be filed based on possessory title; and law never intends to deprive a perfect title holder from filing a suit under Article 65 to recover possessions and to render him remediless.
• Law of adverse possession does not qualify to defendant alone but also to the person filing the suit. It only restricts the right of the owner to recover possession before the period of limitation fixed for the expiry of right. Once the right expires another person acquires perspective right which cannot be defeated by re-entry of the owner or subsequent acknowledgement of his rights.
• The suit can be filed only based on the possessory title for appropriate relief under the Specific Relief Act by a person in possession. If the rightful owner does not commence possession within the period of limitation, his rights are lost and person in possession would acquire absolute title. The Court then stated that in the opening part of Article 65 expression ‘title’ has been used, it includes the title acquired by the plaintiff by way of adverse possession. The concept of adverse possession goes beyond completion of period and extinguishment of right confers the same right on the possessor, which has been extinguished and not more than that.
• The Court also stated that the trespasser’s long possession is not equal to adverse possession as trespasser’s possession is constructed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from the trespasser at any time. Adverse possession is heritable and is transmissible to one or more persons. Two distinct trespassers cannot take their possession to constitute conferral of right by adverse possession for the prescribed period.
• Lastly it stated that, the property which is dedicated to public use cannot be accrued by rights of adverse possession.
Judgment:
The Supreme Court overruled some judgments which did not lay down the law correctly and held that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitations Act, 1963 to sue an aforesaid basis in case of infringement of any rights of a plaintiff. The matter was later to be placed on the basis of merit for consideration before the appropriate Bench.
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