First Appeal No.198 Of 1999 vs : Versus : on 14 August, 2009
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Mumbai High Court
First Appeal no. 198 of 1999. 1
IN THE HIGH COURT OF JUDICATURE
AT BOMBAY
NAGPUR BENCH NAGPUR.
FIRST APPEAL NO.198 OF 1999.
APPELLANT: Ashok Kumar s/o Dulichand Sharma, aged 52 years, Occu: Business, r/o
4,
Muktaram Babu Street, Calcutta 7 (L.R. Of
original plaintiff, Dulichand Balukund
Sharma).. since deceased.
: VERSUS :
RESPONDENTS: 1.Shri Jethmal Motilal Jedia, s/o Motilal Jedia, r/o Naik Galli,
Itwari,
Bazar, Nagpur.
2. Shri Jagannath Motilal Jedia, son of
Late Motilal Jedia, resident of Naik Galoli,
Itwari, Saraf Bazar, Nagpur.
3. Smt.Bhawaridevi wd/o Dulichand Sharma,
aged major.
4. Shri Bhawarilal s/o Dulichand Sharma,
aged about Major, Occu: Business.
5. Shri Maniklal s/o Dulichand Sharma,'
aged Major, Occu: Business.
Nos.3 to 5 all residents of Muktaram
Babu Street, Calcutta 7.
First Appeal no. 198 of 1999. 2
======================
Mr.A.J.Thakkar, Advocate for the appellant.
Mr.S.V .Manohar, Advocate for the respondent no.1. Mr.M.R.Joharapurkar, Advocate
for respondent no.2. ======================
CORAM: C.L.PANGARKAR,J
DATED : 14th August, 2009.
ORAL JUDGMENT:
1. This is first appeal by the plaintiff. The parties shall hereinafter be
referred to as the plaintiff and the defendants.
2. The facts giving rise to the appeal are as follows One Motilal Jadia was
uncle of the plaintiff. Defendant nos.1 and 2 are the sons of late Motilal
Jadia. The original plaintiff Dulichand is dead. Dulichand the original
plaintiff came to Nagpur in 1970 to join the business run by defendant nos.1
and 2. While the plaintiff started working with defendant nos.1 and 2 in their
business, the plaintiff's family was at Calcutta. Plaintiff Dulichand while at
Nagpur was residing with defendant nos.1 First Appeal no. 198 of 1999. 3
and 2. Plaintiff Dulichand was trying to build up his career in the jewellery
business. However, up to the age nof 49 he had not secured any accommodation
for the family. He, therefore, decided to give top priority for securing
residential accommodation for himself and his family. Due to his tremendous
labour and industry, the plaintiff Dulichand was able to purchase a plot at
Nagpur on 18th April, 1971. The said plot was in the occupation of the tenant
and he was carrying on business there. Since property was in occupation of the
tenant, the plaintiff could purchase it at a lesser price. The plaintiff
purchased the said plot for a consideration of Rs.20,000/. The defendants had
established their business at Nagpur and their business was thriving, while
Dulichand was financially weak. He had no local influence at all. The
defendants always used to remind the plaintiff of his weak financial condition
and of his being new to Nagpur. The plaintiff contended that when the
defendants came to know of the purchase of the property, they rebuked the
plaintiff as to how the plaintiff has purchased the property which is in
occupation of the tenant. The plaintiff First Appeal no. 198 of 1999. 4
Dulichand was also told that he neither had financial capacity nor resources to
evict the tenant. The defendants thus scared the plaintiff. Due to this, the
plaintiff felt very scary and in good faith he told the defendants to do
whatever was necessary to be done in the matter so as to have a residential
accommodation for the plaintiff. Taking advantage of the goodness of the
plaintiff Dulichand, the defendants told the plaintiff to execute one sham
document in favour of the defendants and they assured that the said document
would not be acted upon. It was assured to the plaintiff that the said document
would, in fact, be used merely to show to the people that the defendants were
the owners of the property. It was also assured that if that is so done, the
tenant would come to terms and would vacate. The plaintiff further contends
that the defendants suggested that an agreement for sale be made showing
purchase price of Rs.20,000/ and earnest amount of Rs.10,000/, but in reality,
there would be no monetary transaction and the agreement would be sham. The
plaintiff believed in the said assurance and executed an agreement of sale in
First Appeal no. 198 of 1999. 5
favour of defendant no.2 on 8th of July, 1971. He also executed a power of
attorney in favour of defendant no.2. The plaintiff submits that he was never
paid a sum of Rs.10,000/ as mentioned in the agreement. The plaintiff further
contends that the said documents were obtained from him under undue influence,
coercion and fraud. The plaintiff also contends that the plaintiff had time and
again requested the defendant to cancel and revoke the said power of attorney.
The defendants assured that the said agreement and power of attorney were sham
documents and there was no question of them being used for any other purpose.
It was also assured that since the documents were executed long back, they
were deemed to be cancelled. The plaintiff contends that in the month of
December, 1986 he had come to Nagpur due to the death of his uncle. When he
came to Nagpur in December, 1986, he learnt that defendant no.2 had allegedly
sold the suit property to defendant no.1. The plaintiff became apprehensive and
contacted a lawyer. The lawyer served a notice on defendants. The plaintiff
submits that he had never authorized defendant no.2 to sell the First Appeal no.
198 of 1999. 6
property to defendant no.1. The said sales are void and do not confer any title
on defendant no.1. The plaintiff denies to have received any consideration
under the saledeed. Further, it is contended that in the month of January, 1988
the plaintiff received a registered letter from defendant no.1 containing a
draft of Rs. 5000/. On reading those letter and the draft the plaintiff finally
came to know that the house has been sold by defendant no.2 to defendant no.1
for Rs.40,000/. In fact, the house was not to be sold and was acquired by the
plaintiff for his own use.
3. The plaintiff had filed the suit at Calcutta. The court at Calcutta held
that the suit could not be entertained by Calcutta court for want of
territorial jurisdiction, as no cause of action arose there. The plaint was
returned to plaintiff. It was represented by the plaintiff at Nagpur and at the
time of representation an amendment was made to the effect that the uncle of
the plaintiff had died in September, 1986 and he had come to attend the funeral
and at that time he came to know of the alleged saledeed. He had First Appeal
no. 198 of 1999. 7
then instructed the lawyer to issue the notice. The plaintiff, therefore,
prayed that the agreement of sale and the power of attorney executed were null
and void and were nominal documents, and also for a declaration that the
saledeed executed in favour of defendant no.1 was also void.
4. Defendant no.1 filed written statement and admitted the relationship between
the parties. The defendant denies all the allegations of undue influence, fraud
and coercion. The defendant also denies that the documents i.e. the agreement
of sale and the power of attorney were sham and bogus. The defendant further
denies that he has not paid consideration to the plaintiff. In fact, it is his
contention that entire consideration has been paid to the plaintiff and the
saledeed has been executed in his favour by the power of attorney and
therefore, it is valid document. The main contentions that have been raised by
the defendant are that the tenant of the suit premises had filed an inter
pleader suit in which Dulichand as well as defendant nos.1 and 2 were party.
The tenant First Appeal no. 198 of 1999. 8
had called upon Dulichand on one part and defendant nos.1 and 2 on the other
part to interplead. In the said suit it was held that defendant was entitled to
receive the rent and were landlords. The defendant contends that these findings
recorded in civil suit No. 437 of 1981 operate as res judicata. It is his
contention that the plaintiff Dulichand had never contested the suit. The next
contention that is raised is that the suit is barred by limitation. Rest of the
defendants did not file written statement in the matter.
5. On these pleadings of the parties, the leaned judge of the trial court
framed issues and he found that plaintiff had failed to prove that the
agreement of sale and the power of attorney were executed either by coercion,
undue influence or fraud. He found that the sale deed executed by defendant
no.2 in favour of defendant no.1 acting on the basis of power of attorney was
not void. He also further found that the suit was not within limitation and
suit was barred by principles of res judicata. Holding so, he dismissed the
suit. The plaintiff feels aggrieved and prefers this appeal. First Appeal no.
198 of 1999. 9
6. I have heard the learned counsel for the appellant and the respondents.
7. Following points arise for determination POINTS FINDINGS.
1. Whether the plaintiff proves that the
Power of attorney and the agreement
of sale were brought about either by
coercion or fraud ? ...... .. No.
2. Whether they were brought about by
exercise of undue influence ? ...... .. No.
3. Does he prove that the general power
of attorney and the agreement of sale
were sham documents and were never
intended to be acted upon ? .. Yes.
4. Is the registration of the saledeed in
favour of defendant no.1 void ? .. Yes.
5. Is the suit filed within limitation ? .. No.
6. Whether the judgment in Civil Suit
No.437/81 operates as res judicata ? .. No. First Appeal no. 198 of 1999. 10
7. Is the plaintiff entitled to declaration
as sought ? .... .. No. R E A S O N S
8. Points No.1 and 2 : The plaintiff in para no.8 of the plaint simply alleges
that the two documents i.e. General Power of Attorney and the Agreement of Sale
were brought about by fraud, coercion and undue influence. Order 6 Rule 3 of
the C.P.C. requires a party raising the above plea to give particulars. As far
as coercion is concerned, I find that there are no particulars of coercion.
There is nothing suggesting that any threats were given to the plaintiff or any
act forbidden by Indian Penal Code was committed by the defendants at the time
of execution of the said document. With regard to the fraud, the said plea must
fail due to the following averements made in the plaint.
6. That apart from making the plaintiff Dulichand scared in the
aforesaid manner, the Defendants and their father also told the plaintiff that
by purchasing the aforesaid plot the plaintiff was creating unnecessary
complications and the First Appeal no. 198 of 1999. 11
defendants and their father would be compelled to disassociated the
plaintiff Dulichand from the jewellery business if the plaintiff continued to
create further complications in regard to the purchase of the said plot. The
plaintiff Dulichand felt his future aimless and mirky and thus out of good faith
told the defendants and their father to do the needful so that the plaintiff
Dulichand could at least raise a residential accommodation on the said purchase
plot.
7. That taking the advantage of goodness of the plaintiff Dulichand
and his reliance on the defendants and their father, the defendants and their
father told the plaintiff to execute one sham document whereby it would be shown
that
the plaintiff was about to sale the said plot of land to the
defendants. The defendants assured the plaintiff that such sham document would
not be used for any actual purpose between the plaintiff Dulichand and the
defendants but the same would be published to create atmosphere
that the defendants were going to be owners of the said plot of land.
The defendants also gave First Appeal no. 198 of 1999. 12
out the idea that the tenant occupying the said plot of land would
certainly come to compromises once the said tenant came to know
about the possibility of eviction after knowing that the defendants
have acquired ownership of the said plot of land. The defendants also assures
the plaintiff Dulichand that the agreement for purported sale would be made
showing the purchase prices of the land to be Rs. 20,000/ and payment of earnest
money of Rs.
10,000/ but in reality there would be no monetary transaction to
constitute consideration for the said sham agreement. Making the plaintiff
Dulichand believe the aforesaid assurances and creating undue influences and
coercion on the plaintiff Dulichand just after few months of purpose of the sale
dated July 8, 1971 executed by the plaintiff Dulichand at his Calcutta residence
sometime in the 3rd week of July, 1971. In the said sham agreement of sale it
was purportedly agreed that the plaintiff would sale the said plot of land to
the defendants for a price of Rs.20,000/ only. The said sham agreement was,
however, made without any First Appeal no. 198 of 1999. 13
consideration and the plaintiff Dulichand never received the alleged
Rs.10,000/ as earnest money nor did the plaintiff Dulichand received any other
money from the defendants
or any one of them or from any other person in consideration of
executing the said sham agreement for sale.
9. Thus, it is clear that out of good faith, the plaintiff voluntarily executed
the documents. Good faith has been defined in Indian Penal Code, General
Clauses Act as well as in the Limitation Act. The definition in Indian Penal
Code says that anything done with due care and attention shall be deemed to be
done in good faith. To my mind, the definition as given in the General Clauses
Act would be more useful in this regard. It says that if a thing is done
honestly, it is said to be done in good faith. The word honestly has been
defined in advanced Law Lexicon, 3rd Edition by Ramnath Ayer as follows
"Absence of fraud, collusion or deceit"
10. Therefore, when the plaintiff comes out with a case that he First Appeal no.
198 of 1999. 14
executed the document in good faith then it must be deemed to have been
executed by free will and after knowing the consequences. The plaintiff,
therefore, himself honestly believed that execution of such document is
necessary. His case of undue influence and fraud on this count alone must be
negatived.
11. Further more, the plaintiff also says that the documents were sham and not
to be acted upon. When the plaintiff pleads that the documents were sham and
were not to be acted upon as such, it must be assumed that he knew the nature
of the documents he had executed but he was assured of the fact that they will
not be so acted upon; i.e. they will not be used for the purported purpose. In
Para no.11 of the plaint the plaintiff says that he time and again requested
the defendant to cancel or revoke the agreement and power of attorney but
defendant assured that they being too old were invalid. This clearly shows
voluntary execution of document. So, in no case it could be said that they were
the outcome of fraud, undue influence or coercion. For these reasons, there is
no need First Appeal no. 198 of 1999. 15
even to consider evidence in the matter. The points are answered accordingly.
12. Point No.3 : The plaintiff has clearly pleaded that the documents Power of
attorney and agreement of sale were not to be acted upon and they are sham. It
is his case that they were executed with a view to get tenant evicted through
the defendants who were considered influential persons.
13. The original plaintiff Dulichand died before his evidence could be
recorded. That has certainly put the plaintiff in disadvantageous position.
14. PW 1 Ashok son of Dulichand does not seem to have personal knowledge about
the transaction. He admits in cross examination that he does not have any idea
about transaction between his father and defendant no.1. He also admits that he
has not even till day read the plaint. Obviously his evidence is of no First
Appeal no. 198 of 1999. 16
help to decide the question.
15. It is said that men may lie but circumstances do not. The plaintiff had
purchased the suit property on 18th of April, 1971 for a consideration of
Rs.20,000/. It is plaintiff's case that he purchased the suit property in order
to have his own house for his family. It is not in dispute that plaintiff
Dulichand was alien to Nagpur. The property in question was plot with a tin
shed and there was a tenant in it. Since Dulichand was alien to Nagpur, it was
but natural for him to have reposed the confidence in defendants, who were his
cousins. They were moneyed and influential. It is in this context that the
circumstances need to be interpreted and appreciated. We have seen that the
saledeed is dated 18/4/1971. The agreement of sale in favour of defendant no.1
is dated 8 th July, 1971. The question would be why would a person purchasing
the property to provide accommodation for family, agree to sell it within
three months. There is no explanation to this from the defendants. The burden
is on defendants to show this, since in First Appeal no. 198 of 1999. 17
normal circumstances no person would sell his property within 2 3 months after
purchase when it was purchased with an intention to provide shelter for the
family. It is not shown by the defendant that the plaintiff was in any way in
distress. The next circumstance that needs to be taken into consideration is
that the agreement shows that it was agreed to be sold at the same price. This
is still more strange. This fact also cannot be lost sight of. No time
whatsoever is fixed for the performance of the contract. An inference can be
drawn that it was not to be acted upon, otherwise, why would a prospective
purchaser pay money and wait for an indefinite time. The third circumstance is
that the agreement of sale does no bear signature of any attesting witness
though a space is left for signature of the two attesting witnesses. Had this
been a genuine agreement of sale, the defendant no.1 would not have failed to
have signatures of the two attesting witnesses on the documents. It does not
even bear signature of the prospective purchaser though again a specific space
is left blank for his signature. There is no explanation to this also. Though
the First Appeal no. 198 of 1999. 18
agreement is dated 8/7/1971, the saledeed is executed on 19/1/1982, that is
after lapse of eleven years. If defendant wanted to purchase the property,
there is no explanation from defendant as to why he waited for so long a time.
Had this been a genuine agreement of sale, the defendant would have ensured its
performance within a reasonable time. In no case the time of eleven years could
be said to be reasonable.
16. These circumstances, to my mind, are completely eloquent to hold that the
agreement was certainly nominal. There is every probability of the same having
come into existence to facilitate the eviction of the tenant. There is no
dispute that Dulichand ordinarily resided in Calcutta. It was not possible for
him to ensure eviction of tenant. It is only for this purpose, it seems that,
he had executed power of attorney. Without power of attorney it would not have
been possible for him to ensure eviction. The plea as raised by the plaintiff
in this regard not only appears to be probable but appears to be genuine too.
First Appeal no. 198 of 1999. 19
17. The next conduct of the defendant also appears to me to be strange and
shows complete betrayal. Both defendants appear to be handinglove though they
pretend to be fighting. No doubt, defendant no.1 has testified against
defendant no.2. If at all there is any dispute between defendant nos.1 and 2
inter se that must be said to be subsequent to the execution of the saledeed.
The price shown in the sale deed is Rs.40,000/. Neither of the defendants says
that the price is settled in consultation with the plaintiff. If that is so, it
is obvious that the defendants were handinglove. They do not explain why
Dulichand himself could not be called for execution of the saledeed if
defendant no.1 himself was to purchase the property. This conduct of not
contacting Dulichand and not consulting him after lapse of eleven years, before
execution of saledeed, leaves no manner of doubt that this is an outcome of
collusion and taking disadvantage of nominal agreement and power of attorney.
They are handinglove is evident from yet another fact.
First Appeal no. 198 of 1999. 20
18. PW 2 Jagannath is defendant no.2 who states in his evidence that defendant
no.1 took saledeeds from him by force. Now, if it was taken by force, where was
no difficulty in reporting the matter to the police or at least to the
plaintiff immediately. It cannot be said that force was applied on a single
day. If force was being applied, the matter could have been immediately
reported to the plaintiff by defendant no.2 Jagannath. He does not explain what
he means by force. Was he being given threats ? If yes, what kind of threats
?. The witness does not say anything. No power of attorney would fix the price
of the property without consulting the real owner and that too after a lapse of
eleven years. There is no evidence that Dulichand was made aware of all these
transactions beforehand and that price was fixed in his consultation. Further,
the term of payment of consideration is also extremely strange. It says that
consideration of Rs.30,000/ would be paid by installment of Rs.5000/ per year.
Which seller would agree to receive such a paltry sum of Rs.30,000/ by
instalment of Rs.5000/ per year ?. First Appeal no. 198 of 1999. 21
No seller would ordinarily do that. PW 2 Jagannath, who is also defendant no.2,
says that he did not receive any consideration from defendant no.1. If he did
not question is as to why did he not inform Dulichand immediately after the
saledeed was executed. All these circumstances certainly leave no manner of
doubt to hold that the documents were sham and bogus and were never intended
to be acted upon. The point is answered accordingly.
19. Point No.4 : The learned counsel for the appellant contended that the
registration of the saledeed is void since the power of attorney itself is not
registered as contemplated by Section 32 and 33 of the Registration Act, 1908.
The Sections read as follows '32. Persons to present documents for registration
Except in the cases mentioned in [Section 31, 88 and 89], every document to be
registered under this Act, whether such registration be compulsory
or optional, shall be presented at the proper registration office,
(a) by some person executing or claiming under the same, or, in the
case of a copy of a decree or order, claiming under the decree or order, or
First Appeal no. 198 of 1999. 22
(b) by the representative or assign of such person, or
(c) by the agent of such person, representative or assign, duly
authorized by powerofattorney
executed and authenticated in manner
hereinafter mentioned.
33. Powerofattorney recognizable for purposes of section 32 (1) For
the purposes of section 32, the following powersofattorney shall alone be
recognized, namely,
(a) if the principal at the time of executing the powerofattorney
resides in any part of India in which this Act is for the time being in force, a
powerofattorney executed before and
authenticated by the Registrar or SubRegistrar within whose district
or subdistrict the principal resides;
(b) If the principal at the time aforesaid resides in any part of
India in which this Act is not in force, a powerofattorney executed before and
authenticated by any Magistrate;
(c) If the principal at the time aforesaid does not reside in India,
a powerofattorney executed before the authenticated by a Notary Public, or any
Court, Judge, Magistrate, [India] Consul or ViceConsul, or representative of the
Central Government:
Provided that the following persons shall not be required to attend
at any registration office or First Appeal no. 198 of 1999. 23
Court for the purpose of executing any such powerofattorney as is
mentioned in clauses (a) and (b) of this section, namely,
(i) persons who by reason of bodily infirmity are unable without
risk or serious inconvenience so to attend;
(ii) persons who are in jail under civil or criminal process; and
(iii) persons exempt by law from personal appearance in Court.
[Explanation. In this subsection "India" means India, as defined in
clause (28) of section 3 of the General Clauses Act, 1897.]
(2) In the case of every such person the Registrar or SubRegistrar
or Magistrate, as the case may be, if satisfied that the powerof attorney has
been voluntarily executed by the person purporting to be the principal, may
attest the same without requiring his personal attendance of the office or Court
aforesaid.
(3) To obtain evidence as to the voluntary nature of the execution,
the Registrar or Sub Registrar or Magistrate may either himself go to the house
of the person purporting to be the principal, or to the jail in which he is
confined, and examine him, or issue a commission for his examination.
(4) Any powerofattorney mentioned in this section may be proved by
the production of it without further proof when it purports on the First Appeal
no. 198 of 1999. 24
face of it to have been executed before and authenticated by the
person or Court herein before mentioned in that behalf.
Section 32 says that the document must be presented for registration by the
agent duly authorised by power of attorney executed and authenticated in the
manner as mentioned in Section 33, which section follows after section 32. It
mus be registered power of attorney. The present power of attorney is not
registered.
20. Shri Manohar, learned counsel for the rspondents objects to such a plea
being considered on two counts. First; that such a plea is not raised in trial
court and second; had such plea been raised in the trial court, the respondent
would have shown that his case falls in the proviso to Section 33. Both grounds
need to be rejected. The first ground needs to be rejected because this is
purely a question of law and can be raised at any time and in any case this is
the first appeal only. As far as second ground is concerned, such exemption is
granted to a person executing power of attorney and not to the person in whose
favour it is executed. The plaintiff never claimed First Appeal no. 198 of 1999.
25
such a exemption and was a fit person. The Supreme Court in a decision reported
in AIR 1954 SC 316 (Sri Sri Sri Kishore Chandra Singh Deo ..vs.. Babu Ganesh
Prasad Bhagat and ors.) observes as follows.
13. In 'Jambu Prasad v. Muhammad Aftab Ali Khan', AIR 1914 PC 16(B),
it was observed by the Judicial Committee approving of the decision in ' Ishri
Prasad v. Baijnath', 28 All 707 (C) that, "......... the term of section 32 and
33 of Act III of 1877 are imperative and that a presentation of a document for
registration by an agent ....., who has not been duly authorized in accordance
with those sections, does not give to the Registering Officer the indispensable
foundation of his authority to register the document".
Where, therefore, a document is presented for registration by a
person other than a party to it or his legal representative or assign or by a
person who is not an agent authorized in the manner prescribed in S.33, such
presentation is wholly inoperative, and the registration of such a document is
void. In the present case, Exhibit. A was presented for registration by Mr.Tapip
as the agent of the defendant under a powerof attorney executed by him. Exhibit
B, and the question is whether that power satisfies the requirements of S. 33,
Exhibit B was executed by the defendant before the Registrar at the residence of
the Chief of Hindol at Cuttack and was authenticated by him. It was argued for
the appellant that the First Appeal no. 198 of 1999. 26
authentication was invalid on three grounds : (1) that the defendant
was not residing at Cuttack at the time of the execution of Exhibit B, and
consequently the Registrar at Cuttack had no jurisdiction to authenticate the
deed under S.33 (1)(a);(2) that Exhibit B was presented for registration by one
Sundaram who described himself as the Personal Assistant of the defendant, but
was, in fact, a person not authorized to present the document as required by
S.32, and therefore the authentication of the power based on such presentation
was void; and (3) that the authentication of the power under the proviso to
S.22(f) at the residence of the defendant was bad, as he was, in fact, not
suffering from any bodily infirmity at that time and that in consequence the
registration of Exhibit A pursuant thereto was void.
21. It is thus obvious that the person authorised must hold registered Power of
attorney and if he does not hold registered power of attorney, the registration
at his instance is void. The registration of the saledeed (Exh.81) is,
therefore, void. The point is answered accordingly.
22. Point No.5 : The prayer of the plaintiff in the suit is to the following
effect.
First Appeal no. 198 of 1999. 27
(a) A decree thereby declaring that the agreement for sale dated July
8, 1971 entered into by and between the plaintiff and the defendants for sale of
the house no.63, situate in Ward No.14, Circle no.7, Mahal, Nagpur (more fully
described in the schedule here to) is illegal, voidabinitio and not being
binding on the plaintiff, inoperative in the eye of the law and vitiated with
coercion, undue influence, fraud and collusion practiced by the defendants for
obtaining the same from the plaintiff.
(b) A decree thereby declaring that the General Power of Attorney dated July
9, 1971 thereby appointing the defendants no.2 to be the constituted attorney of
the plaintiff for taking care and affecting purchase sale of the premises no.63,
Ward No.14, Circle no.7, Mahal, Anagpur (more fully described in the Scheduled
hereto) did not empower the defendant no.2 to sell the said property to the
defendant no.1 and has been obtained by the defendants after exercising coercion
and undue influence, and practicing fraud First Appeal no. 198 of 1999. 28
on the plaintiff in collusion between them and thus the same is void ab
initio inoperative in the eye of law and not binding on the plaintiff.
(c) A decree for declaration that the deed of sale executed on January 19, 1982
by the defendant no. 2 as constituted Attorney of the plaintiff in favour of
defendant no.1 and registered on September 19, 1982 in the office of the
subregistrar Nagpur and whereby the house no.69 (new) 63, (old), Mahal Nagpur
Tahsil and district Nagpur measuring 6058 sq. ft. (more fully described in the
scheduled hereto), was sold to the defendant no.1 is nullity being completely
illegal, void ab initio inoperative in the eye of law and not binding on the
plaintiff. (d) A decree of declaration that plaintiff is the absolute owner
of property described in schedule. (e) A decree for permanent injunction
thereby restraining the defendants, and their servants, assigns, Associates,
subordinates and/or their agents from transferring assigning or in any manner
First Appeal no. 198 of 1999. 29
dealing with the said property being house no.69 (new), 63 (old) Mahal,
Nagpur Tahsil and District Nagpur measuring about 6058 sq. ft. (more fully
described in the Schedule hereto).
(f) Temporary injunction and ad interim injunction in terms of prayer
(e),
(g) Receiver;
(h) Costs of the suit and Advocate's fee;
(i) Any further or other relief or relief s your honour may deem fit
and proper.
23. If the prayer is seen, it is clear that the suit must fall within scope of
Article 59 of the Limitation Act. The plaintiff pleads that he came to know of
the execution of the sale deed by defendant no. 2 in favour of defendant no.1
in December, 1986 when he came to Nagpur due to death of his uncle. By this
pleadings, the plaintiff wants to show that he got the knowledge in December,
1986 and, therefore, wants the court to reckon the period from December, 1986.
The period of limitation certainly begins to run from the date of knowledge.
However, it appears that the plaintiff amended First Appeal no. 198 of 1999. 30
the plaint while representing it at Nagpur court and in the amended plaint he
contended that he had come to Nagpur in the month of September, 1986 and at
that time he had come to know. Obviously, there are two inconsistent and
contradictory pleas and this show that the plaintiff himself is not aware as to
the exact time when he came to know of the execution of the saledeed in favour
of defendant no.1 by defendant no.2. The evidence has to be in accordance with
the pleadings. Therefore, the first thing that needs to be determined is what
could be treated as date of knowledge. If these contradictory and inconsistent
pleadings are seen, it is still more difficult. But then we will have to assume
that the plaintiff pleads the date of knowledge as last week of September,
1986.
24. Let's turn to the evidence. If examinationinchief of PW Ashok is seen, it
would be clear that he merely states that his father came to know of the
saledeed and then he filed the suit. At least in examinationinchief he does not
give the date of knowledge at all. In cross examination he states as follows in
paragraph no.4. First Appeal no. 198 of 1999. 31
"I came to know about the transaction in between defendant no.1 and
2 relating to the suit property in 1982. I cannot state when my father came to
know about it. It is correct that my father has informed me about the
transaction between the defendant no.1 and 2."
This statement is eloquent enough to attribute knowledge to Dulichand as well
as this witness in the year 1982 itself. The admission is not a stray
admissions since he claims knowledge clearly through his father i.e. the
deceased plaintiff. There are three consequences of this statement. The first
is; there are inconsistent pleadings as regards the date of knowledge, second;
the evidence is not in accordance with the pleadings, that is at variance with
the pleadings and the third is; if the statement on oath is accepted then there
is no proof of the alleged date of knowledge as pleaded. Thus, there is a
variance between the pleadings and the proof.
First Appeal no. 198 of 1999. 32
25. If the plaintiff had come to know about the execution of the saledeed in
1982 itself, the suit was hopelessly barred by limitation even when it was
presented at Calcutta in 1989.
26. Assuming the date of knowledge to be September, 1986, it should be seen if
the suit is within limitation. The suit came to be instituted at Calcutta on
3/4/1989. Shri Thakkar, learned counsel for the appellant, submits that the
period should be reckoned from October, 1986 as pleaded in paragraph 16 (a) of
the plaint. Although it is not necessary to consider such argument, I shall
deal with the same. Shri Thakkar submits that the date may be taken as 1st
October, 1986. The suit was filed at Calcutta on 3/4/1989. The court at
Calcutta had passed an order of return of plaint for want of jurisdiction on
30/9/1993. The plaintiff applied for certified copy of order and perhaps took
plaint back on 10/12/1993 and represented it at Nagpur on 9/2/1994. The suit
was filed after 36 months and 2 days at Calcutta i.e. 21/2 years. The plaint is
returned on 10/12/1993 and represented at Nagpur on 9/2/1994 i.e. within First
Appeal no. 198 of 1999. 33
11/2 month. The material question is whether the time spent in prosecuting the
suit at Calcutta could be excluded by virtue of provisions contained in Section
14 of the Limitation Act. Section 14 reads as follows
14. Exclusion of time of proceeding bona fide in court without
jurisdiction. (1) In computing the period of limitation for any suit the time
during which the plaintiff has been prosecuting with due diligence another civil
proceeding, whether in a court of first instance nor of appeal or revision,
against the defendant shall be excluded, where the proceeding relates to the
same matter in issue and is prosecuted in good faith in a court which, from
defect of jurisdiction or other cause of a like nature, is unable to entertain
it.
(2) In computing the period of limitation for any application, the
time during which the applicant has been prosecuting with due diligence another
civil proceeding, whether in a court of first instance or of appeal or revision,
against the same party for the same relief shall be excluded, where First Appeal
no. 198 of 1999. 34
such proceeding is prosecuted in good faith in a court which, from
defect of jurisdiction or other cause of a like nature, is unable to entertain
it. (3) Notwithstanding anything contained in rule 2 of Order XXXIII of the Code
of Civil Procedure, 1908 (5 of 1908), the provisions of subsection (1) shall
apply in relation to a fresh suit instituted on permission granted by the court
under rule 1 of that Order where such permission is granted on the ground that
the first suit must fail by reason of a defect in the jurisdiction of the court
or other cause of a like nature.
Explanation For the purposes of this section,
(a) in excluding the time during which a former civil proceeding was pending,
the day on which that proceeding was instituted and the day on which it ended
shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed
to be prosecuting a proceeding; (c ) misjoinder of parties or of causes of
action shall be deemed to be a cause of a like nature with defect of
jurisdiction.
First Appeal no. 198 of 1999. 35
27. Thus, it is clear that the time can be excluded only if the proceedings is
prosecuted bona fide in court not having jurisdiction. Mr.Thakkar, learned
counsel for the appellant, submitted that in the present case it should be held
that the such presentation was bona fide and prosecution was also bona fide. He
submits that the plaintiff was to be benefited by filing suit in wrong court.
He relied on a decision in AIR 1985 SC 1669 (Vijay Kumar Rampal and ors.
..vs.. Diwan Devi and ors.). Their Lordships have observed as follows
3. Mr.Sharma learned counsel for the respondents urged that want of due
care and attention coupled with negligence in not properly valuing suits for
pecuniary jurisdiction and not paying courtfees as computed under sec.7(v)(b) of
the Court Fees Act would clearly show lack of good faith and if that be so,
learned judge of the High "Court was right in holding that the suits are barred
by limitation. We are at a loss to understand and appreciate the contention of
Shri Sharma as well as the approach of the leaned Judge. Section 14 of the First
Appeal no. 198 of 1999. 36
Limitation Act provides for exclusion of time of proceeding bona fide in
court without jurisdiction. In computing the period of limitation for any suit
the time during which the plaintiff has been prosecuting with due diligence
another civil proceeding against the defendant shall be excluded where the
proceeding relates to the same matter in issue and is prosecuted in a good faith
in a court which from a defect of jurisdiction is unable to entertain it. The
expression good faith qualifies prosecuting the proceeding in the court which
ultimately is found to have no jurisdiction. Failure to pay the requisite
courtfee found deficient on a condition being raised or the error of judgment in
valuing a suit filed before a Court which was ultimately found to have no
jurisdiction has absolutely nothing to do with the question of good faith in
prosecuting the suit as provided in section 14 of the Limitation Act. The High
Court in our opinion was in error in holding that defective valuation and
improper computation of courtfees discloses lack of good faith on the part of
the plaintiff.
5. The facts are very simple and call for no discussion. The order of the
learned judge directing that the plaints First Appeal no. 198 of 1999. 37
be returned for presentation to proper court was made on May 23, 1968 and
on the next day the plaints were returned and the same day were presented in the
Court of SubJudge at Jammu. There was not the slightest negligence nor any delay
in acting upon the order of the learned District Judge. Accordingly, Section 14
of the Limitation Act must come to the rescue of the plaintiffs. The learned
judge, in our opinion, was clearly in error in exercising of the revisional
jurisdiction in holding that the plaintiffs are not entitled to the benefit of
S.14 and that both the suits were barred by limitation. Accordingly, the order
of the learned single Judge of the High Court in both the revision petitions is
set aside and the one of learned Subjudge is restored with no order as to costs.
28. Yet another decision in (2008)7 SCC 169 (Consolidated Engineering
Enterprises ..vs.. Principal Secretary, Irrigation Deptt. And ors.) was also
cited to me. In case of of Consolidated engineering, the question was whether
Section 14(2) of the Limitation Act applies to the proceedings under Section 32
of the Limitation Act. That decision has no bearing. From the facts it First
Appeal no. 198 of 1999. 38
appears to me that neither institution nor prosecution of the suit at Calcutta
could be said to be bona fide. Bona fide means honestly. Let us see if such
filing was bona fide. A suit can be instituted where cause of action arises or
part of cause of action arises or where the defendant resides. Now, these are
the basic and elementary things and it is, therefore, difficult to comprehend
that the lawyer did not know this. The power of attorney was executed at
Nagpur. The agreement of sale was executed at Nagpur. Sale deed is executed at
Nagpur. The alleged fraud was played, undue influence was exercised by the
plaintiff, at Nagpur. The defendant resides at Nagpur. Knowing fully well all
these things which constitute the cause of action, the suit was filed and
prosecuted at Calcutta. No part of cause of action arose at Calcutta. It is in
this background, I say that presentation of such suit and prosecution was not
at all bona fide. The time, therefore, cannot be excluded.
29. Further more, the time spent for obtaining certified copy is also sought to
be excluded i.e. from 4/10/1993 to 10/12/1993. First Appeal no. 198 of 1999. 39
For that purpose, it would be necessary to read Rule 10 of Order 7. Sub Rule 2
says that while returning the plaint, the judge is supposed to endorse on it a
brief statement of reasons for returning the plaint. If such reasons are to be
recorded, there is no need to obtain certified copy. Section 12 of the
Limitation does not at all apply in such cases for it is neither an appeal nor
the revision or an application. If this period is not excluded, the suit is
certainly barred by limitation.
30. Point No.6 : There was a tenant in the suit property when the plaintiff
purchased the same in the year 1971. This tenant had instituted a suit against
present plaintiff Dulichand and defendant nos.1 and 2 to inter plead amongst
themselves, since defendant no. 1 had started demanding the rent. In the said
suit the tenant specifically pleaded that he was tenant of Dulichand (deceased
plaintiff) and Jagannath i.e. defendant no.2 in the present suit was collecting
the rent and passing receipt. It was further urged that Jethmal defendant no.1
was now demanding the rent alleging the First Appeal no. 198 of 1999. 40
purchase of the property from Dulichand. Next, it was pleaded that tenant had
received a notice from Dulichand that he is the owner and had not authorised
Jagannath to sell the house and rent should be paid to Dulichand. He further
prayed that defendant on one part and Jethmal and Jagannath on other should
interplead. The dispute, therefore, was necessary to be resolved between the
defendants in that suit. The question directly and substantially in issue was
as to who was the landlord of the suit house. The question could not be who was
the owner of the house and who had right to recover the rent. The question of
title was not directly and substantially in issue nor the question as to
whether defendant Jagannath had an authority to execute the sale deed. The
question that was directly and substantially in issue was, who was the
landlord. The question which may incidentally arise cannot be said to be
question substantially in issue. In the circumstances, I do not find that the
decision in the interpleader suit operates as res judicata. The question of
title could not be the material issue but the material issue would be one of
attornment of tenancy. The First Appeal no. 198 of 1999. 41
argument of Shri Manohar, learned counsel for the respodents, that since the
present plaintiff did not contest the interpleader suit, a constructive res
judicata should operate against him. The argument cannot be accepted for the
above reason. Point is answered accordingly.
31. Point no.7 : In view of my findings on the point No.5, the appeal is liable
to be dismissed. It is so dismissed. No order as to costs.
JUDGE.
chute