Liberty Granted To File Fresh Suit By High Court Would Not Enable The Party To Revive Cause Of Action, Save Limitation: Supreme Court

The Supreme Court has held that the liberty granted to file a fresh suit by the High Court wouldn't enable the party to revive a cause of action and save limitation, so as to enable raking up all grounds earlier raised and rejected by concurrent findings of the trial court and the first appellate court, affirmed by the High Court in Second Appeal.

The Court was considering a Special Leave Petition against an order of the High Court affirming the Trial and Appellate Court's findings in a Special Appeal and granting liberty to the Party to file a fresh suit.

The division bench of Chief Justice Vinod Chandran and Justice N.V. Anjaria observed, "We perfectly agree with the findings in the impugned judgment regarding limitation and resjudicata and cannot but observe that the liberty granted by the High Court in the second appeal was akin to flogging a dead horse; which cannot give a fresh lease of life to either the cause of action; to save limitation or the grounds on which the declaration and consequential relief has been prayed for in the present suit; which grounds were already adjudicated in the earlier suit and found against the plaintiff by three Courts."

The Petitioners were represented by Senior Advocate Raghavendra Srivatsa while the Respondents were represented by Advocate Sharanagouda Patil.

Facts of the Case

The Original Plaintiff, the predecessor-in-interest of the Petitioners admittedly entered into an Agreement for Sale of the Suit scheduled property to the First Defendant, a Cooperative Society. It was also admitted that a Power of Attorney (PoA) was executed in favour of the Second Defendant, the Secretary of the first Defendant. It was alleged that the PoA was executed on coercion and misrepresentation, which also stood cancelled before the execution of the Sale Deed in favour of the first Defendant by the Second Defendant, by virtue of the PoA. Admittedly, the Plaintiff first filed a Suit for Permanent Injunction against the Second Defendant, impleaded in his capacity as the Secretary of the Society, for a Permanent Injunction from alienating or disposing off the plots comprised in the suit scheduled property and from making any constructions thereon. The said Suit was dismissed by the Trial Court confirmed by the First Appellate Court against which the Plaintiff approached the High Court in the Second Appeal. The Second Appeal stood allowed upon which the Society filed an SLP in which leave was granted and the Civil Appeal was allowed remanding the matter to the High Court.

The High Court on remand, dismissed the Second Appeal finding no substantial question of law and also rejected an amendment application to incorporate additional reliefs of declaration of title and recovery of possession, which applications were filed in the second appeal. The High Court having agreed with the concurrent findings, while dismissing the Second Appeal granted liberty to file a comprehensive Suit for the reliefs sought for, including the proposed amendment.

The Plaintiff filed a fresh Suit for declaration of two Sale Deeds executed by Second Defendant in favour of the First Defendant as void ab initio and declaration of the further sale of plots comprised in the scheduled land by the First Defendant in favour of the Defendant Nos. 2-120 as illegal and invalid. The Plaintiff also sought possession of the property from Defendant Nos. 1-120 and a permanent injunction restraining them from interfering with the actual physical and peaceful possession of the scheduled property by the Plaintiff. The said Suit was decreed by the trial court and in first appeal the judgment and decree were set aside, and the Suit was dismissed on the grounds of resjudicata, limitation and non-joinder of necessary parties.

Reasoning By Court

The Court at the outset observed that the entire sub-stratum of the Plaintiff’s case is built upon the alleged coercion and misrepresentation in execution of the PoA and subsequent cancellation effected, which ground does not survive having been rejected concurrently by three courts in the earlier proceeding, clearly barring the present suit on the ground of res judicata.

It further held that the liberty granted to file a fresh suit by the High Court wouldn't enable the party to revive a cause of action and save limitation, so as to enable raking up all grounds earlier raised and rejected by concurrent findings of the trial court and the first appellate court, affirmed by the High Court in Second Appeal.

"We also notice that the High Court has further observed that the suit is barred for reason of non-joinder of necessary parties, namely the Belgaum Urban Development Authority and the Badminton Association who were conceded certain extents of property for forming a lay out and civic amenities; with roads to be maintained by the former, and the establishment and management of a Badminton Hall by the latter, which we agree with," the Court observed.

The Petition was accordingly rejected.

Cause Title: Smt. Arifa & Ors. vs. Abhiman Apartment Cooperative Housing Society Ltd. & Ors.

Appearances:

Petitioners- Senior Advocate Raghavendra Srivatsa, Advocate Prashant Gouder, Advocate-On-Record D.L. Chidananda

Respondents- Advocate Sharanagouda Patil, Advocate-On-Record Supreeta Sharanagouda

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