Dismissed

Ved Prakash v. Municipal Board

Rajasthan HC23 Aug 2023CSA/118/2023

Case brief

AI extract

What is this about?

In a second appeal concerning a suit for specific performance of a land sale agreement, the High Court upheld the lower courts' finding that the suit was barred by limitation. The Court held that the cause of action arose in 1973 and that no exclusion of time was available for a suit withdrawn with liberty to file fresh.

What did the court decide?

Second appeal dismissed; stay petition and pending applications also dismissed.

Ved Prakash Vs Municipal Board — Contract and Commercial Disputes | Rajasthan HC (2023)

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[2023:RJ-JD:26603]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Second Appeal No. 118/2023

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Ved Prakash S/o Ram Narayan, Aged About 68 Years, By Caste Soni, Resident Of Opp. Kissan Hotel, Merta City, District Nagaur.

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----Appellant

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Versus

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Municipal Board, Through Its Chairman, Merta City, District Nagaur.

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Municipal Board, Through Its Executive Officer, Merta City, District Nagaur.

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Hemant Kumar S/o Ved Prakash, By Caste Soni, Resident Of Opp. Kissan Hostel, Merta City, District Nagaur.

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Yogesh Kumar S/o Ved Prakash, By Caste Soni, Resident Of Opp. Kissan Hostel, Merta City, District Nagaur.

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----Respondents

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For Appellant(s) : Mr. S.L. Jain Mr. Abhinav Jain

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HON'BLE MS. JUSTICE REKHA BORANA

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Judgment

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23/08/2023

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The present second appeal has been preferred against the judgment and decree dated 10.05.2023 passed by the Additional District Judge, Merta in Civil First Appeal No.09/2015, whereby the judgment and decree dated 17.03.2015 passed by the Civil Judge, Merta in Civil Original Suit No.112/2014 (164/2003) has been affirmed. The learned trial Court, vide judgment and decree dated 17.03.2015, rejected the suit of the plaintiffs for specific performance and permanent injunction. 2. The plaintiffs preferred the suit with the following averments:

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(i) The defendant – Department issued a notice for auction of a plot situated in Merta City. Ram Narain, appellant’s father participated in the auction proceedings and being the highest bidder, his bid was accepted on 26.03.1960. One-fourth of the bid amount was deposited on that date itself and a receipt of the same was also issued. On 27.02.1961, Ram Narain was directed by the Department to file an accurate map of the site/plot which was duly filed by him and ultimately on 07.03.1961, the auction bid was confirmed by the Department and direction for execution of the sale deed in his favour on deposit of balance three-fourth consideration was issued.

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(ii) When despite continuous requests of Ram Narain to accept the balance consideration and execute the sale deed, no action was taken by the Department, he preferred an application before the Additional District Magistrate (ADM), Nagaur. Vide order dated 03.09.1975 passed by the ADM, Nagaur, the defendants were directed to execute the sale deed in favour of Ram Narain after deposit of balance consideration amount. An appeal against the said order was preferred by the Department before the Revenue Appellate Authority (Appeal No.64/1976) which was dismissed on 09.09.1977.

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(iii) As Ram Narain expired on 07.09.1975, the plaintiffs, being the legal representatives of Ram Narain, approached the defendants to accept the balance consideration amount and execute the sale deed in their favour but their request was not acceded to. On 16.10.1999, the plaintiffs served a legal notice on the concerned authority annexing therewith a bankers cheque qua the balance consideration amount. The cheque was returned by the

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Department on 16.10.1999 with a letter refusing to accept the same.

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(iv) Again, on 23.06.2003, a registered notice was served on the concerned officer annexing therewith a bankers cheque qua the balance consideration amount. When the request was not acceded to, the present suit for specific performance and permanent injunction was preferred on 19.12.2003.

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(v) Ram Narain was handed over the possession of the property way back in the year 1960 when his bid was accepted. Therefore, the plaintiffs are in possession of the property from last 40 years and are entitled to get the sale deed executed in their favour and to enjoy the peaceful possession of the property.

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Written statement was filed by the defendant – Department denying the very factum of the auction proceedings having been taken place and averring that the documents pertaining to the so called auction as filed by the plaintiffs were forged and fabricated. The defendants, though filed their written statement, did not lead any evidence but while cross-examining the plaintiffs’ witness, got exhibited two applications dated 03.08.1971 and 07.10.1971 (Ex.A1 & A2) which were filed by Ram Narain before the then Chairman of Municipality. It was also averred that the plaintiffs had already preferred a suit in the year 2000 for the same reliefs wherein issues had also been framed and even after 7-8 opportunities being granted, the plaintiffs did not lead any evidence and ultimately, sought permission to withdraw the suit with liberty to file fresh. The said liberty being granted by the Court was even objected to by the defendants but still liberty was

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granted by the Court below. It was specifically pleaded by the defendants that the suit was on the face of it, barred by limitation. 4. On basis of the pleadings, learned trial Court framed as many as nine issues, which read as under :

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“1- vk;k oknh ds firk Lo- Jh jkeukjk;.k ds ¼i=koyh la[;k ih 241@58& 59½ uke 575@& :i;s dh uhykeh cksyh yxh o ,d pkSFkkbZ jkf’k oknh ds firk us tek djokbZ? - oknh

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2-vk;k oknh ds firk dks izfroknhx.k esa uhyke cksyh esa dUQeZ fd;k o cdk;k 3@4 jkf’k tek djus ij lsyMhM tkjh djus dk vkns’k fn;k ?

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oknh

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3-vk;k oknh ds i{k esa vfrfjDr ftyk/kh’k us izfroknhx.k dks vkns’k fn;k fd fu;ekuqlkj jde tek djokdj fodz; foys[k oknh ds firk ds Ik{k esa fy[kokus dh dk;Zokgh dh tk;sa ? - oknh

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4-vk;k oknh us izfroknhx.k ls cdk;k 3@4 jkf’k tek djokus gsrq fuosnu fd;k ? - oknh

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5-vk;k oknh dk utjh uD’kk esa n’kkZ;h lEifr ekdZ , ch lh Mh ij fiNys 40 o"kksZ ls dCtk gS ?

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oknh

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6-vk;k oknh vk;k oknh us izfroknhx.k dks uxjikfydk vf/kfu;e ds rgr 2 ekg dk uksfVl cSadlZ pkSd lfgr fHktok;k ?

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oknh

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7- vk;k oknh dk Lisf’kfQd ijQksjesal dk ckn fe;kn ckgj gS ?

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izfroknh

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8- vk;k oknh dk okn vi;kZIr U;k;Qhl ij gS o {ks=kf/kdkj ckgj ¼fo"k;&oLrq ckcr~½ gSa ?

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izfroknh

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9- vuqrks"k ?”

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Issues No.1, 2, 3 & 8 were decided in favour of the plaintiffs whereas issues No.4 to 7 were decided against them by the learned trial Court. While deciding issue No.7 against the plaintiffs, the Court below specifically held the suit to be barred by limitation. An appeal was preferred by the plaintiffs qua issues

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No.4 to 7 and the Appellate Court, while reversing the findings on issues No.4 & 6, decided the same in favour of the plaintiffs but maintained the findings of the learned trial Court on issues no.5 & 7. Meaning thereby, it is the concurrent finding of both the Courts below that the suit was barred by limitation and that the plaintiffs failed to prove that they were in possession of the property.

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Aggrieved against the said judgments and decree, the present second appeal has been preferred. 7. Learned counsel for the appellant submitted that the finding of both the Courts below on issue No.7 is totally contrary to law as the plaintiffs were entitled for exclusion of time taken in pursuing the earlier suit in terms of Article 14(2) of the Limitation Act, 1963. Learned counsel submitted that the plaintiffs had been prosecuting the earlier suit in good faith and because of some procedural/legal lacuna, the same was withdrawn and that too with a liberty granted by the Court below to file a fresh suit. Therefore, the finding of both the Courts below denying to grant the exclusion of time spent in prosecuting the earlier suit is totally in contravention to law and deserves to be set aside.

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Learned counsel further submitted that the earlier suit was withdrawn on 13.11.2003 and the present suit was preferred on 19.12.2003 i.e. within a period of about one month only. Further, limitation, if any, commenced only when, in response to notice dated 13.10.1999 as served by the plaintiffs, the defendants returned the cheque and denied to execute the sale deed. The cause of action, if any, arose only on that date when there was a specific denial by the Department. The earlier suit was filed on 30.05.2000 i.e. within limitation from the date of accrual of cause

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of action i.e. 16.10.1999. If the time spent in pursuing the earlier suit is excluded, the present suit specifically is within limitation and hence the findings of both the Courts below deserve to be set aside. In support of his submissions, learned counsel relied upon the judgments of the Hon’ble Apex Court in Shakti Bhog Food Ind. Ltd. Vs. The Central Bank of India, (2020) 17 SCC 260, Rangammal Vs. Kuppuswami, 2011 AIR SCW 3428, Deena (Dead) through LRs Vs. Bharat Singh (Dead) through LRs & Ors., AIR 2002 SC 2768 & Consolidated Engg. Enterprises and Ors. Vs. Principal Secy. Irrigation Deptt. and Ors., (2008) 7 SCC 169.

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Heard learned counsel for the parties and perused the material available on record.

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To reach to a conclusion whether the finding of the Court below on issue No.7 is correct and whether the suit was barred by limitation, a brief list of events in chronological order would be essential :

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26.03.1960 The alleged auction of the plot in question. Bid of Ram Narain accepted, 1/4th amount deposited.

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27.02.1961 Ram Narain was directed to file the exact map of the site.

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07.03.1961 Bid confirmed, Ram Narain directed to deposit the remaining 3/4th amount qua consideration.

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03.08.1971 Notice served by Ram Narain on municipal (Annex.A1) authorities. 07.10.1971 Second notice served by Ram Narain. (Annex.A2) 18.06.1973 Application preferred before the Collector. 03.09.1975 Order passed by the Collector – directing to

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(Ex.-7) execute the sale deed in favour of Ram Narain. ---Appeal by the Department before RAA (No.64/76)

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07.09.1975 Ram Narain expired.

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09.09.1975 Appeal preferred before RAA, by the department,

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(Ex.-9) dismissed in default

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13.10.1999 Registered notice calling upon to execute the sale deed - served by legal representatives of Ram Narain/plaintiffs alongwith cheque qua the remaining consideration amount.

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16.10.1999 Cheque returned with letter by the municipal authorities.

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30.05.2000 First suit filed by the plaintiffs (No.61/2000)

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27.06.2003 Again notice calling upon to execute the sale deed served by the plaintiffs on the respondentauthorities with cheque for remaining consideration amount.

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13.11.2003 First suit withdrawn with liberty to file fresh

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(Ex.17)

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19.12.2003 Second/present suit filed by the plaintiffs

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Both the Courts below while deciding issue No.7 held as under :

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(i) Admittedly, the plaintiffs preferred the application before the Collector on 18.06.1973 which was only after the notice served by him on Department being not responded to and the sale deed being not executed in his favour. Meaning thereby, there was a denial by the respondent – Department as a cause of which the application before the Collector was filed and hence, limitation started to run from the said date only. In application dated 18.06.1973 itself, it was pleaded by the applicant that the municipal authorities are not executing the sale deed in his favour, meaning thereby that the denial by the municipal authorities was

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the basic ground in the said application. Hence, in terms of Article 54 of the Limitation Act,1963 (for short ‘the Act of 1963’) the limitation commenced from the said date only.

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(ii) In terms of Section 9 of the Act of 1963, the limitation, if once begin to run, no subsequent disability or inability to institute a suit or make an application would stop it. Therefore, the limitation of 3 years as provided under Article 54 of the Act of 1963 began to run on 18.06.1973.

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(iii) Even if it is assumed that the proceedings as undertaken by Ram Narain before the Collector were before a wrong Court and period spent in those proceedings is to be excluded in terms of Section 14(2) of the Act of 1963, then also, the limitation would begin to run on 03.09.1975, that is, the date when the order was passed by the Collector. Therefore also, the present suit was barred by limitation.

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(iv) Even if it is assumed that the limitation commenced from 09.09.1977, that is, the date on which the appeal preferred by the Department before RAA was dismissed, the notice for performance of agreement along with the cheque qua the consideration amount was served by the plaintiffs on 13.10.1999 i.e. after a period of 22 years. The same, by no stretch of imagination, can be termed to be within limitation.

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(v) Even if it is assumed that the cheque sent by the plaintiffs along with notice dated 13.10.1999 was returned on 16.10.1999 and the denial, if any, would be presumed to be from the said date then also the present suit was barred by limitation having not been filed within a period of three years from 16.10.1999.

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While making all the above observations, the Court specifically held that the limitation in the present matter commenced on 18.06.1973 and therefore, the suit in question was by all means barred by limitation.

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A perusal of the chronological set of events and the findings of both the Courts below makes it crystal clear that the suit as preferred by the plaintiffs was barred by limitation and concurrent finding of both the Courts below on issue No.7 is totally in consonance with law as well as the material available on record. In the opinion of this Court, the finding of both the Courts below on issue No.7 deserves to be confirmed because of following reasons :

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(i) Admittedly, after confirmation of bid on 07.03.1961, the sale deed was not executed by the defendant – authorities and hence Ram Narain moved applications/served notices on 03.08.1971 & 07.10.1971. When no action on the said applications was taken, he preferred an application before the Collector. In the opinion of this Court, this was the first instance of clear denial by the respondent – authorities to execute the sale deed though not in writing. The notices as served on 03.08.1971 and 07.10.1971 having not been responded to, was the clear indication that the performance is refused. Ram Narain, having noticed that the performance is refused, preferred an application before the Collector for performance of agreement/execution of the sale deed in pursuance to confirmation of the bid. Meaning thereby, Ram Narain availed the appropriate remedy before the Collector in the year 1973 itself.

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(ii) The order in favour of Ram Narain was passed by the Collector on 03.09.1975 and the appeal preferred by the Department against the said order was dismissed on 09.09.1977. Meaning thereby, Ram Narain, having an order in his favour, was at liberty to get the same executed through the competent Court/ Forum. However, no such attempt was made. In the opinion of this Court, this was the second instance which gave cause of action to Ram Narain to get the sale deed executed. Even if the order passed by the Collector is assumed to be a decree in his favour, the maximum limitation available to the plaintiffs to get the sale deed executed, was for 12 years that is till year 1987.

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(iii) The notice dated 13.10.1999 was served after 38 years of confirmation of the bid; after 28 years of notices being served in the year 1971; and 24 years of the order being passed by the Collector. 12. So far as the averment of the plaintiffs that the cause of action for fresh suit arose on 13.11.2003 when the earlier suit was withdrawn with liberty to file fresh is concerned, the Court below specifically observed and held that no document pertaining to the earlier suit was filed by the plaintiff before the Court and even the date of filing of earlier suit was not mentioned by the plaintiffs rather it was averred by the defendants that the earlier suit was filed on 30.05.2000. The Court observed that even if it is assumed that the cause of action arose on 16.10.1999 and the earlier suit was filed within limitation on 30.05.2000, the same stood withdrawn on 13.11.2003 with liberty to file fresh and the fresh suit was preferred on 19.12.2003 which is also barred by

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limitation. Relying upon Order XXIII Rule 2 of Code of Civil Procedure, the Court below specifically held that if a suit is withdrawn in terms of Order XXIII Rule 2, the benefit of Section 14 of the Act of 1963 cannot be taken/granted to the party. The Court below held that even if the cause of action is deemed to have accrued on 16.10.1999, the present suit having been filed on 19.12.2003 was barred by limitation.

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Regarding notice dated 27.06.2003, the Court specifically held that service of the same would not in any manner extend the period of limitation and rightly so. It is the settled proposition of law that repeated notices/communications would not extend the period of limitation which has begun to run in terms of Section 9 of the Act of 1963.

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So far as the ground raised by learned counsel for the appellant that the benefit of Section 14 of the Act of 1963 ought to have been granted in the present matter is concerned, this Court is of the specific opinion that firstly, in view of the analysis made in the preceding paras, the said question would not even arise as even if the said benefit is granted, the suit would still remain barred by limitation. Admittedly, the earlier suit was filed on 30.05.2000 and was withdrawn on 13.11.2003. Even if the said period is excluded, the present suit preferred on 19.12.2003 was clearly time barred as first cause of action arose on 18.06.1973 and last cause of action if any, on 09.09.1977. In the specific opinion of this Court, the notice dated 13.10.1999 did not extend the period of limitation in any manner and hence even if the period from 30.05.2000 to 13.11.2003 is excluded, the suit is

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clearly barred by limitation. Secondly, as rightly observed and held by the Courts below, period from 30.05.2000 to 13.11.2003 cannot be excluded in the present matter and no benefit of Section 14(2) of the Act of 1963 can be granted to the plaintiffs as no pleading pertaining to earlier suit was even made in the present suit and no document pertaining to the same was even placed on record. Thirdly, the reliance of the Courts below on Order XXIII Rule 2, CPC was correctly placed as it is the settled proposition of law that if a fresh suit is filed after withdrawing the earlier suit with liberty to file fresh, the limitation as applicable for the first suit would apply to the fresh suit also.

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The judgments as relied upon by counsel would be of no help to him as when the pleadings qua the earlier suit were not even made in the present suit, the Court could not have concluded as to whether the earlier suit was prosecuted with due diligence or was withdrawn because of technical or legal defects/lacuna so as to decide whether the benefit of Section 14 could be granted. 15. So far as issue No.5 is concerned, it is the concurrent finding of both the Courts below that no oral or documentary evidence whatsoever was led by the plaintiffs to prove that they were in possession of the property. Learned trial Court specifically observed that although the averment of the defendants threatening the plaintiffs to be dispossessed from the premise in question had been made in the plaint but no such statement was

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made in his affidavit filed qua his evidence. No averment/statement pertaining to the incident of 12.12.2003 was made in the affidavit and therefore, the Court below reached to

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the conclusion that the said fact was not proved by the plaintiffs. The said findings of the Courts below being totally factual in nature and in consonance with the material available on record, does not deserve any interference by this Court.

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In view of the above observations and analysis, no substantial question of law arise in the present second appeal and the same is hereby dismissed .

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The stay petition and all the pending applications also stand

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dismissed .

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(REKHA BORANA),J

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152-/Vij/-

Ved Prakash v. Municipal Board

Case brief

What is this about?

What did the court decide?

Ved Prakash v. Municipal Board

Case brief

What is this about?

What did the court decide?

What the court decided

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