Summary
A liberty reserved by the High Court while dismissing a second appeal to file a comprehensive suit for the reliefs refused by amendment does not create a fresh cause of action or save limitation, nor does it revive grounds concurrently rejected in the earlier litigation. The Supreme Court affirmed the High Court's dismissal of the fresh suit as barred by res judicata, limitation and non-joinder of necessary parties.
Issues
- Whether liberty granted by the High Court to file a fresh suit revives the cause of action and saves limitation so as to permit re-agitation of grounds concurrently rejected in the earlier suit, first appeal and second appeal.
- Whether the fresh suit for declaration that the sale deeds were void, recovery of possession and injunction was barred by res judicata under Section 11 CPC.
- Whether Section 14 of the Limitation Act, 1963 could be invoked to exclude the time spent in the earlier suit.
- Whether the suit was bad for non-joinder of necessary parties.
Provisions considered
- Section 11, Code of Civil Procedure, 1908The plaintiff's entire case rested on alleged coercion and misrepresentation in the execution of the power of attorney and its subsequent cancellation, a ground rejected concurrently by three courts in the earlier proceeding. The matter now agitated was substantially in issue there and decided against the plaintiff, so the fresh suit attracted the bar of Section 11. (¶¶ 6, 9, 10)
- Order XXIII Rules 1 and 2, Code of Civil Procedure, 1908The Court noted that even where a suit is withdrawn with leave to file a fresh suit under Order XXIII Rule 1, Rule 2 makes the law of limitation apply with full force to the fresh suit, so a liberty reserved by the High Court could stand no higher. (¶ 7)
- Section 14, Limitation Act, 1963Exclusion of the time spent in the earlier suit was not available because that suit was not laid before a court lacking jurisdiction; it was merely not properly framed. (¶ 7)
Held
- Liberty reserved by the High Court while dismissing a second appeal to file a comprehensive suit for the reliefs sought by a rejected amendment cannot give a fresh lease of life to a cause of action so as to save limitation, nor revive grounds already adjudicated against the plaintiff by three courts. No cause of action can be founded on such liberty, which is subject to just exceptions including limitation, and limitation must be computed under the statute from the date of the agreements and conveyances. (¶¶ 7, 10)
- Where the sale deeds in favour of the society were executed during the pendency of the first suit, were pleaded in the written statement and were admittedly known to the plaintiff from the record of rights, yet went unchallenged, the fresh suit filed after the second appeal was dismissed was barred by limitation; the date of the High Court's order reserving liberty could not be the cause of action. (¶ 7)
- Section 14 of the Limitation Act does not apply where the earlier suit was before a competent forum but was not properly framed; and even a withdrawal with leave under Order XXIII Rule 1 CPC leaves limitation fully applicable by virtue of Rule 2. (¶ 7)
- The fresh suit was barred by res judicata under Section 11 CPC because its substratum, the alleged coercion and misrepresentation in executing the power of attorney and its cancellation, had been directly and substantially in issue and concurrently rejected in the earlier suit, first appeal and remanded second appeal. (¶¶ 6, 9, 10)
- The High Court's finding that the suit was also bad for non-joinder of necessary parties, namely the development authority and the association to whom portions of the land had been conceded for layout, roads and civic amenities, was affirmed. (¶ 11)
Result
Special leave petition dismissed; the High Court's judgment reversing the trial court's decree and dismissing the suit on grounds of res judicata, limitation and non-joinder affirmed; pending applications disposed of.