S.M. Daud, J.
1. This is a suit for a declaration and cancellation vide conveyance marked Ex. J admitted for registration on 30-11-1967 and passed in favour of defendant 1 by defendant 2 in his capacity as the Court appointed Receiver of the estate of his brother, the late Ratanchand Hirachand.
2. Ratanchand, the father of defendants 3A and 3B, was the owner of a large piece of land measuring near about 6000 to 7000 sq.yds of land with a bungalow, outhouse, guesthouse, servants quarters and garages thereon on the Nepean Sea Road in Bombay. Out of the vacant portion to the south-coast, an area of less than 600 sq. yds. was sold by Ratanchand to a trust on 20-3-1951--the conveyance being at Ex. B. The settlers of the trust incorporated in a deed of 17-3-1951 were plaintiff's father Munchershaw, his uncle Kekobad and grandmother Dinbai. The deed vested a certain sum in trustees-Munchershaw, Kekobad, Maneckji and Khurshed--the last two, being the full brother and that brother's wife of the first two. The trustees used this money and more to acquire the vacant land hereinafter to be referred to as 'Maneckabad'. Under Ex.B certain convenants were given over the remaining property to be now known as 'Ratan Villa' for convenience. Two of these convenants were a restriction of the vertical expansion on what was described as 'the remaining land of the vender'--the permissible limit being that of the 'present existing garages'. Next was a convenant to keep free the central passage connecting the properties with the Nepean Sea Road and that portion of the garden which faced the main bungalow etc. Munchershaw, in 1959 for and on behalf of himself and the other trustees, had sought to construct a structure in excess of the F.S.I. apportionable to Maneckabad on the plea that Ratan Villa was to remain unbuilt upon pursuant to the first convenant aforementioned, which covenant entitled the owners of Maneckabad to appropriate the F.S.I. of Ratan Villa to their proposed structure. The Bombay Municipal Corporation (B.M.C.) to whom the letter was addressed declined to so view the proposal and there the matter rested. Munchershaw passed away in 1962. Plaintiff from that year onwards made it clear to Ratanchand, Maneckji and the authorities that the entire Ratan Villa was deemed to sterility consequent to the height covenant. Quite a few of those who had offered to purchase Ratan Villa backed out on learning of this convenant and other restrictions on developing the property. In a suit instituted by Ratanchand against his children for partition and separate possession, defendant 2 Lalchand was appointed the Receiver of the estate. Deceased defendant 4, Zaveri, a real-estate broker, got defendant 1 interested in the property. Zaveri, defendant 1 and Lalchand through their respective Solicitors entered into a protracted correspondence which went on even after Ex. J had been admitted to registration on 30-11-1967.Ex. J. made no reference to the restrictive convenants recorded in Ex.B. The conveyance does however make a reference, and prominently at that, to agreements dated 2-7-1966 (Ex.A--111) and 23-7-1966 (Ex.A--112).
3. In 1968, plaintiff filed a petition under Article 226 of the Constitution questioning the grant of F.S.I. '2' to defendant 1 in relation to the structure, this defendant was erecting to replace the demolished main bungalow. The petition was numbered as Misc. Petition No. 501 of 1968. That petition succeeded and the appeal Court dismissed the appeal has having become infructuous. Special leave to appeal has been granted by the Supreme Court and the appeal is pending. In the meantime on 5-12-1970 plaintiff filed Suit No. 891 of 1970 to enforce rights arising under Ex.B and allegedly contravened by defendant 1. The plaint therein avers the alleged antedating of Ex. J to evade payment of tax payable on capital gains. Zaveri and Lalchand are not parties to the 1970 suit and that non-joinder has been pleaded to be a fatal flaw by defendant 1 in its written statement there.
4. Plaintiff on 20-1-1973 got notices issued under section 164 Maharashtra Co-operative Societies Act, 1960 (M.C.S. Act) and section 80 of the Code of Civil Procedure, 1908 (C.P.C.). Defendants 1 and 2 did not reply to the said notices. The Chamber Judge was moved by plaintiff for leave to sue defendant 2 and that application was allowed on 13-3-1973. The plaint in this suit was lodged in the City Civil Court on 27-3-1973. The claim in suit was valued at Rs. 300 and Court fees of Rs. 30/- was paid thereon. The office of the City Civil Court appears to have entertained a doubt as to the valuation. The matter was put up before Judge Guttal (as his Lordship then was). That learned Judge sustained the valuation made by an order passed on 26-6-1973. Plaintiff on 24-7-1973 moved this Court on the Appellate Side vide Civil Application No. 35 of 1973 seeking a direction that the suit in the City Court be transferred to his side of the High Court and tried immediately before the 1970 suit. The Judge hearing the transfer application on 12-9-1973, passed an order directing the City Court to try as a preliminary issue that of Court fees and jurisdiction. Judge Suresh (later Suresh, J.) heard the parties and on 19-9-1973 passed on order holding that the claim was undervalued and that the correct valuation would take the suit beyond the pecuniary limits of the City Court which was then Rs. 25,000. Plaintiff took back the plaint and represented the same in this Court on 21-9-1973. The 1st defendant took a long time to file its written statement. Instead it initiated interlocutory proceedings to get the plaint quashed under Order VII, Rule 11 and Order VI, Rule 16 C.P.C. The first was averted by an amendment of the plaint. The second succeeded and it required an appeal, the decision whereof is reported in Bomi Mistry v. Kesharwani Co-operative Housing Society 1988(3) B.C.R. 238, to retrieve the situation. Defendant 1 naturally assailed the decision of the appeal Court by Special Leave Petition No. 7421 of 1988. The S.L.P. was dismissed on 2-11-1988 and it was a direction given in that order which compelled the 1st defendant to file its written statement after about 15 years.
5. Plaintiff's case is that Ex. J has been so worded as to cast a cloud on his right to enjoy Maneckabad in the manner and to the extent provided for under Ex. D. He had the right to sue as a beneficiary, remainder-man in the reversion, a co-sharer in the corpus and as a citizen and taxpayer. Ex. J was in fact executed on 30-11-1967 i.e. the very day it was presented for registration. The date of execution mentioned on it, viz 31-3-1967, was an antedating motivated by a desire to evade the proper sum payable as tax on capital gains. The vendor and vendee were both parties to this fraud practised on the exchequer. Ex. J was thus illegal being violative of the law as also public policy. Having regard to the date on which Ex. J was registered, the requirement to serve defendants 1 and 2 with statutory notices and the exclusion of time spent in bona fide prosecution of the suit in the City Court, the suit was well within limitation. The reliefs claimed are a declaration that Ex. J is void, a direction to defendant 1 to deliver up the same and an eventual order for cancellation of the said conveyance.
6. Defendant 1 in its written statement questions the locus standi of the plaintiff to sue. It contends that the Maneckabad vests in trustees and plaintiff as a mere beneficiary has no right to sue. Next, the plaint does not disclose a cause of action. Plaintiff is not a party to Ex. J and therefore can seek neither a declaration nor cancellation in respect of the said deed. There was no truth in the allegation of Ex. J's being antedated. Even otherwise defendant 1 was not privy to the purpose behind the alleged antedating. The cause of action sued upon existed even when the 1970 suit was filed. Not having been incorporated in that suit, the present one was barred under Order II, Rule 2 C.P.C. This cause of action viz. that constituting the entirety of the base of the present suit, was not set out in the statutory notices preceding the institution of the suit. This rendered the suit not maintainable in law. The plaintiff's computation of limitation was faulty. He was not entitled to the benefit of the time, the suit was before the City Court, Ex. J was neither invalid nor contrary to public policy. The suit in fact was false and vexatious motivated by a desire to compel the defendant 1 into submission to plaintiff's base designs. The other defendants have not filed written statements.
7. Pleadings summarised above have given rise to the issues enumerated below :
I. Whether defendants 1 and 2 have been served with valid statutory notices before the institution of this suit ?
II. Has plaintiff the locus standi to institute this suit?
A.II. Whether defendants seek to impair plaintiff's rights by conveyance Ex.J?
A.III. Whether the plaint discloses any cause of action?
III. Does plaintiff prove the antedating of conveyance passed in favour of defendant 1 by defendant 2?
IV. Was the above conveyance antedated with a view to evade tax on capital gains by defendant 2?
V. Was the alleged antedating of the conveyance actuated by considerations contrary to public policy?
VI. Is the present suit barred by Order II, Rule 2 of the Code of Civil Procedure?
VII. Is plaintiff's claim within limitation?
VIII. Relief and costs?
My findings, for reasons given below, are :
I. Yes.
II. Yes.
A.II. Yes.
A.III. Yes.
III. Yes.
IV. Yes.
V. Yes, but only as far as defendant 2 is concerned.
VI. No.
VII. Yes.
VIII. See decree.
8. It will be appropriate to began the reasoning part of this judgment with the controversy on facts. Simply stated, the question is whether Ex.J was antedated, and if yes, why? The burden of proof lies on the plaintiff. Defendants 1 and 2 deny that the date of execution appearing on Ex.J is fictitious and actuated by anything so sordid and dubious as evading taxes. Ex.J is not on stamp paper, for, being in favour of a co-operative society, no stamp duty was required to be paid on it. For the financial year 1967-68, the budget was not presented on the customary last day of February of the year preceding. Something in the nature of a vote on account in the shape of Finance Act 1967 was passed and made effective as from 1-4-1967. This Act provided for the continuance of the existing rates of income-tax. Finance Act (No. 2) of 1967 was passed on 27-7-1967. One of the measures introduced by this Act, was, a variation in the computation of capital gains. As a result, the computation for accounting year 1968-69 became heavier than that for the preceding accounting year of 1967-68. P.W. 1 Bugwadia's evidence shows the extent to which Lalchand or rather the estate of Ratanchand, could benefit by showing Ex.J as having been executed in the accounting year 1967-68, rather than the accounting year 1968-69. Computed in terms of money, the sum came to Rs. 3,14,848/-. Ratanchand and Lalchand signed the Return of Income for the accounting year 1967-68 on 8th and 18th of December 1967. Ex. P-2 is a table showing P.W. 1's estimate of the advantage and disadvantage by placing the date in either of the accounting years. The background having been set out, it is now necessary to say a few words in regard to the nature of the burden of proof in such matters. Plaintiff is accusing defendants 1 and 2 of having been privy to forging a deed, there helping evasion of tax payable by the estate which is now represented by defendants 3A and 3B, and, getting away with the scam. While it may not be correct to equate the burden to prove these allegations with that cast upon the prosecution in a criminal case, the burden is not that easy which passes under the label of preponderance of probabilities. And here it is necessary to remember the text book distinction between burden of proof as a matter of pleadings and that of adducing evidence. The former is constant while the latter is shifting. And direct proof of forgery or this being done to evade taxes is rarely available for forgers and their accomplices in the matter of tax evasions know how to cover up this tracks. Recourse is therefore had to circumstantial evidence and the danger of mistaking the mirage for the reality is greater when circumstances alone are what one has to go by. The circumstances though required to be singly established have to be cumulatively assessed. It is in the light of the above factual and legal environment that the evidence has to be considered.
9. The first circumstance pressed into service is the anomaly of the plan annexed to Ex.J being drawn up on and dated 30-11-1967 and yet being referred to in the body of Ex. J which is said to have been executed on 31-3-1967. Phadke who says that he was responsible for getting the plan drawn up is not in a position to explain the mystery. Ex.J refers to the plan in these words-
'all that piece or parcel of land or ground admeasuring about 5765 sq. yds. i.e. 4829.28 sq. metres or thereabouts--described in the schedule hereunder written and delineated on the plan thereof hereto annexed and thereon surrounded by a red-coloured boundary line.'
In the plan annexed to Ex.J., the land conveyed is enclosed in a red-coloured boundary line. When asked to explain the annexation of plan drawn up on 30-11-1967 to a sale deed executed on 31-3-1967, neither Johari nor Phadke have an answer. Phadke in fact concedes to being baffled by this phenomenon and more so, because in the body of Ex.J. there is a reference to the plan. Johari in clear terms admits that no plan was annexed to Ex.J. on 31-3-1967 and that the annexation was effected on 30-11-1967. In the face of this position the clear inference is that Ex.J, could not have been executed prior to the date of the plan which date is 30-11-1967.
10. Ex.J, is a tripartite agreement as between defendants 1, 2 and Zaveri. It purports to bear the date 21-3-1967. Phadke admits that Ex. K refers to a payment made and acknowledged in Ex. A-120. Ex. A-120. is of 5th July, 1967. Phadke, confronted with this facet, had to concede that Ex. K must have been drawn up after 5-7-1967. Loyally, he refused to budge from the position of Ex.J. necessarily being drawn up after 5-7-1967. He could not however reconcile how Ex.J could refer to a payment on 31-3-1967 when that payment was made on 5-7-1967 and when the tripartite document (Ex. K) itself though dated 21-3-1967, was according to the dictates of logic really drawn up after 5-7-1967. Johari coming into the witness box after Phadke tries to cover up the faux pas by inventing a loan advanced by moneylender Phadke to a client of Solicitor Phadke and this necessitating a whole set of manoeuvres. Phadke says not a word of this in his deposition though that should not have escaped his memory seeing that he had acted in a dual capacity as an arranger of finance as also Solicitor for defendant 1. Discrepancies in regard to consideration mentioned in Ex. K. need not be referred to as the conflict between Phadke and Johari is glaring enough.
11. Ex. AA-133 is the draft of a conveyance prepared on 29-3-1967. It makes no reference to Ex. K which in itself is an anomaly for Ex. K. had an importance-in at least in the sequential sense-if nothing more. Confronted with the suggestion that the omission was on account of Ex. K being antedated, Phadke had to concede that the suggestion had an air of correctness. He could not disclaim the mythically of the date of execution given to Ex.J. by defendants 1 and 2. Therefore, he essayed the belief that the final conveyance Ex.J must have been preceded by drafts other than Ex. AA-133. This plea is difficult to accept, for, only one day is said to have intervened between Ex. AA-133 and Ex.J. And if there were other drafts they should have been produced. Defendants 1 and 2 have been at great pains to refuse to produce documents which should be with them. Defendant 1's standard reply has been that documents of this or that category are not on its record. None of its office-bearers after Johari have been examined to show what became of the missing documents.
12. Plaintiff relies on a number of letters exchanged between the parties and the erstwhile tenants written after 31-3-1967 and desiring completion of sale or saying that defendant 1 had acquired title as from 30-11-1967. In law, it is the presentation of a deed for registration which completes a transfer of title and not mere execution. This being the position it is not necessary to go into a detailed analysis of the rival submissions as also a consideration of the case law in support thereof.
13. An explanation on the same lines may be accepted for defendant 1's audited accounts for the year ending 30-6-1967 not showing the exact area of Ratan Villa or of its being an asset of defendant 1. But the explanation may not sound believable having regard to the accounts being drawn up on 20-9-1967, when according to defendants 1 and 2, title had passed from defendants 2 to defendant 1, on 31-3-1967.
14. Plaintiff relies on Ex. A-27 dated 30-3-1967 by which Phadke intimated his customers that he would be moving from an address on the Mahatma Gandhi Road to Churchgate as from 10-4-1967. Ex.J was admittedly executed at the Churchgate address. Normally therefore, the address for execution of Ex.J should have been shown as M.G. Road. Phadke finds no difficulty in saying that from January to April 1967 he was operating from both the addresses. This explanation not being wholly inconsistent with the usual change-of-address happenings may have to be accepted.
15. The Registrar was asked to depute a representative for receiving an assurance as to execution when Ex.J. was presented for registration on 30-11-1967. Ex. A-120. speaks of Johari's sudden indisposition since the morning. In the witness-box Phadke cannot say whether this is true or otherwise. Johari makes no effort to conceal the falsehood and says that it had to be uttered to avoid a visit by him to the registration office. This is a factor of no consequence to the issue under discussion, except to show that aversion of the common man to endlessly wait in queues when dealing with public offices.
16. Reference is made to the verification clause of defendant 1's written statement. In this written statement there is a denial of the plaint averment about Ex.J having been executed on 30-11-1967. The verification in regard to this denial is on information and not to personal knowledge. It would not be proper to draw an inference that this manner of verification is an admission of Ex.J, having been executed on 30-11-1967. Another inferential conclusion is sought to be based on Ex. K's recital that FSI 2 was not available despite 'best efforts'. The best efforts are said to have been made under Ex. L-1 dated 16-10-1967. Therefore, Ex.K and Ex.J must have been drawn after 31-3-1967. The expression 'best efforts' could apply to efforts made till 31-3-1967, and also, those made thereafter. And efforts would include trips and oral pleas to BMC both pre and post 31-3-1967. Defendants 1 and 2's reliance on the apparent date of Ex. 139--the indemnity deed - is sought to be countered by Johari's admission that the waiver of height restriction clause by Munchershaw Mistry recited in Ex. A-112. dated 23-7-1966 had been rendered valueless by the passing of Ex. A-139 but after, 30-11-1967. But this answer would be equally effective irrespective of whether Ex. A-139 was executed on or after 31-3-1967. Defendants 1 and 2 submit that Ex. A-139's being executed on 31-3-1967 is itself a guarantee of Ex.J being drawn up on the same day. Both are unstamped and unregistered documents. And if one could be antedated, so could be the other. The party interested in antedating Ex.J would take the precaution to antedate documents so important as Exs. A-139 and K.
17. The dates on which Ratanchand and Lalchand signed and submitted their returns of income-tax for year 1967-68 i.e. 8-12-1967 and 18-12-1967 only probabilise, not prove, the execution of Ex.J, after 31-3-1967. The other factor going against the defence version is the non-examination of Lalchand. Were there no material in support of the plaintiff's version, the defence would have been under no obligation to examine Lalchand. But there is good material to bear out the plaintiff's accusation. There was both motive and opportunity to tinker with the date. The reference to a plan drawn up on 30-11-1967 in deed dated 31-3-1967 required an explanation. No credible explanation has been offered by Phadke and Johari. Ex.K is an antedated document as is clear from it reciting a payment mentioned in a writing dated 5-7-1967 at Ex. AA 120. The date of the said payment being 5-7-1967 was confirmed by Johari himself in his affidavit Ex. A-177 filed in the 1970 suit. As said earlier, the laboured explanation of Johari in his deposition is an afterthought and not worth any credence. The last factor pressed into service is the marked aversion of defendants 1 and 2 to filing written statements. Defendant 2 Lalchand flourished some such statement quite, some time after the trial's commencement. Defendant 1 went battling right upto the Supreme Court to get the plaint rejected on the preliminary ground of its not disclosing a cause of action. To that aspect of the case I shall turn to later. As to the purpose of antedating of Ex.J, men do not unnecessarily tinker with dates on solemn deeds. Phadke and Johari both speak of Lalchand's great anxiety to hurry up the execution of the conveyance on account of a tax problem. Tax problems beset every person who has an income subject to payment of taxes, inclusive of income tax. Avoidance of taxes, wholly or in part, is a perfectly legitimate desire. An activity to arrange one's affairs in such a manner as to lessen the burden on oneself is nothing to be ashamed about. So admitting in a trial open to the public should not embarrass the righteous folk. Not allowing one to be subjected to a scandal-ridden but unsubstantiated accusation, is also understandable. However, there cannot be any excusable persistence in staying away from the witness-box, when a prima-facie case requiring an explanation is made out. Here, such a case requiring an explanation has been made out. If Lalchand has not entered the witness-box, the sure inference is that he certainly did not want an exposure. The explanation that age had dulled his memory and intellect, cannot be accepted in the absence of credible material to that effect. The inference flowing is that Lalchand wanted to evade paying the tax rightfully due on the capital gain accruing from the sale effected in fact on 30-11-1967. To effectuate this desire Ex.J. was antedated to give the impression of it being executed on 31-3-1967.
18. The last point to be ruled upon is defendant 1's complicity in the evasion of tax by defendant 2. It is suggested that defendant 1 got the benefit of paying a sizeable balance of the price in instalments spread over a considerable period. Plaintiff submits that the guilty knowledge of defendant 1 is evident from its very participation in the allowing of a false date to be placed upon Ex.J. Defendant 1 is described as an abettor and conspirator under sections 107 and 120-A of the IPC. Next it is submitted that the very situation of defendant 1 being a co-operative society permitted the antedating. Deeds in favour of co-operative societies did not require to be on a stamp paper. This gave Lalchand the opportunity to devise a scheme for evasion of tax. The lame excuses given by Johari in Ex. A-172--illness of members of the families of himself and Dr. Kapur delaying presentation of Ex.J for registration--is cited as another indication of defendant 1's complicity. Now all this would not point to more than defendant 1's being co-operative in acceding to Lalchand's request to permit a particular date to being put on Ex.J so as to help him in tax planning. No tax payer will ever tell another that tax planning is to dodge tax legally payable by him. And persons faced with such a request as defendant 1, are not too curious to want to know what exactly is afoot. It was no concern of defendant 1 to see that Lalchand paid or evaded tax due from him. They had no reason to assume that in wanting an incorrect date to be put on Ex.J, Lalchand was out to cheat the taxman. The false excuses made in Ex.A--172 were a means to avoid lining up in a queue and wasting time in the registration office. Reliance is placed upon Phadke's telling Lalchand that he would not be able to avail of the tax benefits that he was seeking unless Ex J. was registered. The intricacies of fiscal laws are known to tax experts--if anyone, can be really said to be an expert in that complex field. A general statement of defendant 1's Solicitor cannot be construed as giving Lalchand a hint as to how the tax was to be evaded and that such a desire on his part had become known to the purchaser. Phadke in a letter of 13-12-1967 has referred to Lalchand being advised by an Income Tax Consultant and Advocate in the conveyancing of Ex.J. That again is no proof of defendant 1 being privy to the designs of Lalchand in cheating the State in regard to tax. Defendant 1 being aware of Lalchand being advised by experts in the law on income-tax, does not imply that these experts are engaged so as to perpetrate a fraud. Johari and Phadke admit of being aware of Lalchand wanting to save on taxes vis-a-vis Ex. J. Saving on taxes can be effected, by means legal as also illegal. The knowledge spoken of does not necessarily imply guilty knowledge. I am referred to the crude concoctions of defendant 1 to be within the deadline of the time upto which the permissible PSI was 2. These are Exs. A-141, A-41 and antedating of Ex.K. Being privy to one fraud does not make the guilty one, privy to all frauds. Last, it is suggested that defendant 1 got the benefit of an extention in time to pay the balance of the price. In appraising this argument one must not overlook the proved retraction of near about two to three offers to purchase the property. Defendant 1 with open eyes rushed into the bargain and made strenuous efforts to extract as much benefit as it could. Faced with plaintiff's obduracy, another buyer would have shied off. Far from that being the case with defendant 1, builder after builder elbowed out their predecessor to get into the controlling position. Lalchand had to give some relief to defendant 1, who all said and done, would stay the course despite the hazards of facing plaintiff. A more important reason for negativing the complicity of defendant 1 is the improbability of Lalchand confiding in any office-bearer of defendant 1 of his designs to cheat the Revenue. That was not necessary and in matters of such designs assesses are not known to be communicative. Defendant 1's office-bearers may have entertained auspicious. But that would not make them accomplices. To conclude, Ex.J was antedated, the antedating was to evade the heavier liability in the matter of tax on capital gains by Lalchand and lastly that defendant 1 was not fully in the know of the exact purpose of Lalchand . Therefore, it is not guilty of having abetted either the tax evasion or the forgery. Issue Nos. III and IV have thus to be answered in the affirmative.
19. The interlinked issues being Issues No. II, A-II and III have now to be dealt with. According to plaintiff Ex.J impairs the rights of the owners and beneficiaries of Meneckabad by falsehoods of suppression as also misrepresentation. The conveyance makes no reference to the various restrains placed upon Ratan Villa for the full enjoyment of Maneckabad. The omission is deliberate. On the other side is the attempt to get Exs. A-111 and A-112 into the picture to create the impression of the height covenant having been removed. Plaintiff avers that as a beneficiary and sharer in the reversion vis-a-vis Maneckabad, he has the locus standi to sue. This apart, as a citizen and taxpayer, he has an additional right to bring tax frauds to the notice of the courts. Defendants 1 and 2 take the stand that plaintiff begin a stranger to Ex.J is in no way affected by the recital or omissions thereof. His rights, if any, flow from Ex.B. As the ownership vests in the trustees, plaintiff had no right to sue. The plea that he was interested in the proper collection of revenue and exposure of tax frauds was an idle pretence and in any case could not be the subject of a suit. In fact the plaint discloses no cause of action. Plaintiff's right to sue for the protection of the Maneckabad property qua a beneficiary or remainder man or reversioner has been sustained by me in the judgment to the 1970 suit. For the reasons given in that judgment on the said issue, I uphold plaintiff's right to sue for the reliefs claimed in this suit, provided they are otherwise admissible. As to this admissibility, the first hurdle that plaintiff has to cross is that of his being a stranger to Ex.J. Plaintiff counters the argument by saying that the vendors of both the conveyances i.e. Exs. B and J are Ratanchand--personally in the first case and through a Court appointed representative in the second transaction. As a beneficiary of the trust property he has a vital stake in the removal of a cloud over the enjoyment of that property as stipulated by the common vendor, Ratanchand in a prior-in-point-of-time-conveyance Ex.B. That cloud has been generated by the suppression as also falsification of the true position. The mere omission to mention the convenants imposed by Ex.B upon Ratan Villa is a matter of no consequence. There is no requirement in law that all the burdens imposed upon property being conveyed should be enumerated for the benefit of the owners of persons otherwise concerned with property in the neighbourhood. The efficacy of the covenants recited in Ex.B is in no way affected by an absence of reference thereto in Ex.J. Those covenants bind defendant 1 because they run with the land and their effectiveness against defendant 1 is on account of the vendor having denuded himself of the rights conveyed under Ex.B. Suppression therefore would not furnish an actionable cause. But the same cannot be said about the reference in Ex.J to documents marked Ex. A-111 and A-112. Ex. A-111 records a commitment by the vendor Lalchand to remove the restrictive covenants appearing in Ex.B at the cost of the purchaser-Zaveri at that stage. This is a document of 2-7-1966. Twenty-one days later came Exs. A-112 dated 23-7-1966 which is in between Zaveri and defendant 1. It contains the following recital:--
'The vendor (Zaveri) has agreed with Munchershaw Phiroze Mistry and the owner of the adjoining property to give to them lease of 400 sq.ft. of land as shown on the plan hereto annexed....for a period of 98 years at the monthly rent of Rs. 10/- on the lessees agreeing to keep the said area unbuilt upon and open to the sky in consideration of the said lessees agreeing to waive the covenant against height restriction on the main bungalow. The purchaser shall abide by the said agreement and shall be entitled to the benefit and bound by the burden thereof.'
That there was no agreement between Zaveri and the trustees or any of them, is not in dispute. There could not be any agreement with Munchershaw for he had expired in 1962 and had there been any agreement with him, Ex. A-111 would have made a reference thereto. Faced with this, Johari's only explanation is that the name of Munchershaw is a mistake for the correct person to be named should have been Maneck Mistry. But even with Maneck Mistry there was no such agreement--at least not recorded anywhere in black and white. Now Exs. A-111 and A-112 are specifically referred to as events antecedent, culminating in the conveyance at Ex.J. Defendant 1 tries to blunt the charge of fabrication by arguing that Ex. A-112 only refers to an intended and not completed agreement. This argument cannot be accepted having regard to the conduct of defendant I displayed in this very suit. There is first the attempt to claim that defendant 1 was entitled to FSI 2 because its application for construction on the main bungalow site had reached the BMC site before the date on which the FSI has been reduced. A shoddier and cruder attempt at manipulation cannot be conceived of .Next are the numerous documents kept back on the specious plea of the same not being on their records. Third, is the determined effort put up by defendant 1 to block the admission of secondary evidence where the primary evidence had been withheld by them. Fourth, is the keeping out of the past and present office-bearers from the witness-box. As is clear, defendant 1 was bent upon acquiring Ratan Villa despite knowledge of plaintiff's interpretation of the height covenant and yet not willing to confront him openly. That explains the guarded language of Ex. A-112 about Zaveri agreeing with Munchershaw vis-a-vis the release of Ex.B covenants--the consideration being a long term lease of a tiny piece of land. At some future date, the amiable Maneck Mistry would have stepped in with a deed reciting that he was carrying out his dead brother's wishes in this regard. That, read with Ex. A-112, would have achieved defendant 1's purpose--at least; that is what defendant 1 so thought. And with the passage of time when contemporaries are no longer alive nor measurer as bright as before, stray recitals and documents become valuable repositories of transactions. That would be enough to furnish plaintiff with a cause of action to sue and the locus to do so. This conclusion is without prejudice to the other defences raised by defendant 1. At this stage a brief look at the authorities on the subject is called for.
20. The earlier decisions in this suit on the chamber summons of defendant 1 invoking Order VI, Rule 16 CPC have to be seen first. Deshmukh, J., on 10-1-1978 sustained defendant 1's contention that the plaint disclosed no actionable cause and was in fact an attempt at blackmail. Deshmukh, J., was of the view that plaintiff's legitimate rights did not go beyond enforcement of covenants set out in Ex.B, that the 1970 suit took care of this and that the present suit was a perfect illustration of the oft--used phrase 'abuse' of the process of the Court'. The Court of appeal whose decision is reported in Munchershaw v. Kesharwani Society, 1988(3) Bom.C.R. 238, reversed the decision of the Single Judge. The Supreme Court has left open the issue of maintainability of the suit. Having regard to my observations on Ex. A-112 and its said incorporation in Ex.J, it cannot be said that the plaint is bereft of a cause of action. Ex.J to the above extent impairs the right to enjoy Maneckabad to the utmost limit permitted vide Ex.B. Whether that would entitle plaintiff to the spaciously worded reliefs claimed by him, is a different matter. Defendants 1 and 2 place great emphasis on plaintiff being a stranger to Ex.J and therefore not bound by its terms. The result--so it is argued--is that plaintiff is entitled neither to a declaration nor cancellation vis-a-vis Ex.J. Plaintiff counters this submission by a host of authorities. The first is Mahadeo v. Nana, A.I.R. 1946 Nag. 359. The defendant 1--a quondam minor-in this case had sold some property during his minority to defendant 2. After attaining majority he passed a sale deed in favour of plaintiffs and they sued for possession contending that they were entitled to the same as the sale deed in favour of defendant 2 was void. It was in this context that Pollock, J., spoke of section 39 Specific Relief Act of 1877, not confining the relief of cancellation to a party to the transaction recorded in the instrument. The observations may not be the ratio, but an exposition of the equities having regard to the belief of the Judge that the plaintiffs and the ex-minor were acting in tandem to the detriment of defendant 2. Vemana Venkama v. R.V. Chisty, : AIR1951Mad399 , also makes a stray reference to the same section 39 not predicating the necessity of plaintiff being a party to the instrument in order to enable the granting of the relief of cancellation to him. Here again the observation is in the nature of an obiter because the issue really was whether a Muhammadan minor is exonerated from the liability to pay compensation to the party injured as a result of the grant of the relief of cancellation. Kedar Prasad v. Ganga Prasad, : AIR1980All85 , affirms the right of non-participant to a deed to claim cancellation where the document affects his rights in a property. This would assist plaintiff for he and defendant 1 are both claiming through the same vendor. To the same effect is Manick Lal v. Shiva Jute Bailing, 52 C.W.W. 389. Devi Das v. Mohan Lal, : AIR1982SC1213 , goes to the extent of enabling a tenant sued for ejectment by a purchaser-landlord to challenge the sale deed in favour of the latter, as a sham document to enable his eviction. Chajulal v. Gokul, A.I.R. 1952 Mp 168, goes the farthest enabling a stranger to seek cancellation of an instrument where the said instrument makes some incorrect recitals likely to cast a cloud on his title to property. Bhatasar v. Udit Narain, 40 A.W.R. 204 is really an answer to a bar to the entertaining of a suit by a Civil Court allegedly in violation of section 3 of the U.P (Temp) Control of Rent and Eviction Act. The relief of cancellation claimed in the plaint was held to exclude the bar pleaded. Passages dealing with the relief of cancellation are obiter. Balbhadra v. Bhawani, I.L.R.1907 Cal. 353, affirms the right of reversioners to seek cancellation of a deed which affected their right of reversion, albeit they were not parties to the transaction recorded therein. The participation or non-participation of the plaintiff in the deed sought to be cancelled, is, by itself not determinative of the entitlement to the relief of cancellation. Other factors would have to be taken into consideration to assess the extent of harm the deed was likely to do. The rights of innocent third parties could not be ignored. And the relief of cancellation is a drastic one vis-a-vis the defendant. A substitute effective in the circumstances could be evolved and this, on the simple common sense view of a fly-sweater being the more appropriate instrument to squash a fly, instead of a hammer.
21. Plaintiff seems to take the extreme stand by relying on a passage from Banerjee's Law of Specific Relief. At pages 466 and 467 of the 8th Edition the author refers to forged documents having the potential for the greatest mischief and therefore liable to be cancelled in anticipation. That would be entirely in order where the forgery seeks to attribute the authorship of the deed to plaintiff or a person from whom he claims. Next, there is a reference to cancellation being asserted and enforced as an independent source of jurisdiction, not requiring any accompaniment of fraud, accident, mistake, or any other basis of equitable intervention. These observations do not provide a carte blanche to courts to grant cancellation because a deed is forgery in the technical sense of the word or merely because the relief has been claimed in respect of a deed which casts a cloud over plaintiff's title. Indeed, one of the chief reasons dissuading courts may be the great sense of vigilance shown by plaintiff to guard against the mischief anticipated. In the instant case plaintiff has been pursuing defendants 1 and 2 relentlessly and with the institution of the 1970 suit, their capacity to get away with the most trifling of frauds, has been nullified.
22. The public law aspect is pressed into service by plaintiff to seek cancellation. Cusack, J's view in R. v. Green, is cited in Dymond's Death Duties 15th Edition about the inappropriateness of taking a light view of defrauding Inland Revenue. The learned Judge is quoted at page 930 as terming this view 'a misconception; if you defraud the Inland Revenue, you defraud your fellow-citizens'. But there are more effective ways of dealing with tax frauds than cancelling a conveyance e.g. a declaration, prosecution, initiation of penalty proceedings. Attention is drawn to Lalchand's position as a Receiver when executing Ex.J. Acts of forgery and fraud committed by Officers of the Court are most reprehensible and deserve to be punished most severely. Performance of a wrongful act by a Receiver may have varying consequences. Lalchand as a Receiver was to manage Ratanchand's property and pay off his debts. That duty he appears to have discharged quite satisfactorily. If he has cheated the income-tax in the bargain, the estate cannot suffer by a re-submergence into indebtedness. The simple reason is that his cupidity can be otherwise dealt with by measures such as a prosecution and penalty proceedings. Authorities cited by defendants 1 and 2 need not detain us for the existence of Ex.J, though actionable, may not merit the drastic action solicited by plaintiff.
23. The point now to be dealt with is in regard to issue No. V, to wit, whether Ex. J's antedating is violative of principles of public policy, and, if so, the effect thereof. In appraising the evidence on an earlier issue I have found that Ex.J was antedated by defendant 2 with the concurrence of defendant 1, that defendant 2's purpose in so doing was to evade tax duly payable on capital gains and that while defendant 1 knew that the antedating was actuated by a desire to save taxes, they could not be and were therefore not informed of the antedating being a device to defraud the Revenue. Section 23 of the Indian Contract Act, 1872, specifies the different categories of unlawfulness affecting the consideration or object of agreements. One such category is where the Court regards it as opposed to public policy. But this would imply a consensus between the parties to use an agreement for attaining an end opposed to public policy or though the end be legal, to use an illegal or immoral medium to reach it. Plaintiff argues the obvious when he contends that an agreement to defraud the Revenue is manifestly illegal. Defrauding the Revenue is forbidden by law and any agreement to facilitate tax evasion is per se contrary to public policy. A detailed reference to the ratios expounded in Surasaibalini v. Phavindra Mohan, : [1965]1SCR861 . Alexander v. Rayson, 1939(1) K.B. 169 and Miller v. Karlinski, 1945 (62) T.L.R. 85--decisions relied upon by plaintiff, is not necessary. Great reliance is placed on Ratanchand v. Askar Nawaz Jung, : AIR1976AP112 later affirmed by the Supreme Court which Court's decision is reported in Ratanchand Hirachand v. Asgar Nawaz Jung, : [1991]1SCR327 . That was a case of a plaintiff agreeing to use his influence with the-powers-that-be to help defendant get an estate or a share therein-plaintiff to get his out-of-pocket expenses and a percentage in the gains for his efforts. Both the parties knew or must have known that the bargain was a part of crony-capitalism at its most brazen. Unlike that situation, we have here the case of a purchaser being told no more than that a particular date on the conveyance would suit the seller's purpose of effecting a saving on taxes. Plaintiff relies on a passage from Alexander v. Rayson, 1936 (1) K.B. 169, to contend that the harbouring of an evil intent by one of the transacting parties is enough to void the transaction. The passage reads thus :
'But it often happens that agreement which in itself is not unlawful is made with the intention of one or both parties to make use of the subject matter for an unlawful purpose, that is to say a purpose that is illegal, immoral or contrary to public policy.' (page 182)
But the consequence is limited to precluding the party having the unlawful intent from suing upon it. The passage goes on to say that 'the Court will not lend its help to such a plaintiff'. If the 2nd defendant sued to enforce any of the terms in Ex.J perhaps the decision cited above would go against him. The person suing's interest in the present suit are adequately protected without voiding or cancelling Ex.J on the ground of the seller antedating Ex.J to perpetrate a tax fraud. Plaintiff points to Gurmukh Singh v. Amar Singh, : [1991]1SCR885 , where at page 82 K. Ramaswamy, J., observed :
'Every agreement of which the object or consideration is unlawful is void. The word 'object' would mean the purpose and design which is the object of the contract, if it is opposed to public policy which tends to defeat any provision of law or purpose of law, it becomes unlawful and thereby it is void under section 23 of the Contract Act. Section 23 is concerned only with the object or consideration of the transaction and not the reasons or motive which prompted it..... Certain objects of contract are forbidden or discouraged by law, though all other requisites for the formation of a contract are complied with, yet if these objects are in contemplation of the parties when they entered into the agreement, the law will not permit them to enforce any rights under it. Most cases of illegality are of this sort; the illegality lies in the purpose which one or both parties have in mind.'
Again, these observations appear in a claim made by one party to an agreement against the other party to the said agreement. Plaintiff relies on a statement in the same authority at page 86 which speaks of the stigma of voidness attaching to contracts of a fraudulent nature to defeat the rights of third parties. But it is not as if the entire transaction recorded in Ex.J is a fraud upon the rights of Maneckabad owners vis-a-vis Ratan Villa. Even on plaintiff's own showing. Ratanchand and consequently his estate, had a saleable interest in Ratan Villa subject to the convenants in favour of the vendee of Ex.B. A deception of the nature attempted under Ex.J would not invalidate the whole transaction or merit the accusation of being wholly fraudulent and thus void. Plaintiff falls back on the oft-expressed view that fraud vitiates all transactions. Pranballav v. Tulsibala A.I.R. 1958 Cal 712, Lazarrs v. Beaslev, 1956(1) D.B. 702, S.B. Naronha v. Prem Kumari, : [1980]1SCR281 . A fraud on the Revenue and the casting of a cloud on plaintiff's title stand proved. But the consequences cannot be so disproportionate as to unsettle the sale and restore the status quo ante. This is all the more-so, when neither party to Ex.J wants to get out of the bargain. The Revenue's rights or options are not diminished by the existence of Ex.J. The law's majesty is not destroyed by an officer of the Court practising a fraud on the Revenue. The law can be effectively vindicated by other means. Plaintiff claims the protection of the law as an innocent non-participant likely to be injured by Ex.J. That protection will be available to him; but not in the terms solicited by him. It is argued that Lalchand received additional consideration of Rs. 3,14,000/- by antedating Ex.J, that this was done with the active assent of defendant 1 and therefore the consideration of the agreement is illegal. Ex. G-1 shows with clarity the pecuniary advantage gained by the vendor in antedating the conveyance. But the probabilities militate against defendant 1 knowing anything more than the antedating being motivated by a desire to effect a saving in taxes by Lalchand. As said earlier a desire to save taxes is not the equivalent of an intent to do so by unlawful means. Antedating of a document though permitted by defendant 1 being without the accompanying mens rea would not render defendant 1 a participant in the tax evasion. The fifth issue has thus to be answered as 'only so far as defendant 2 is concerned'.
24. The first of the legal obstacles that plaintiff has to cross arises out of a statutory requirement incorporated in sections 80 and 164 of the CPC and the MCS Act respectively. Both require the plaintiff to give a notice preceding the institution of a suit. One of the requirements of such a notice is that it should state 'the cause of action'. Defendants 1 and 2 question plaintiff's compliance with this requirement. It is not disputed that the notices given, bear a substantial identity to the plaint sens the amendments brought about later. The point taken by defendants is that the amendments and subsequent pleadings have altered the cause of action substantially. This being the case, the requirement of the sections aforementioned has not been complied with. A critical examination of the notices, unamended plaint and amended plaint becomes necessary. There is no change in the reliefs claimed. The notices and plaint both indicate plaintiff's wanting a declaration of Ex.J being void and a direction for its cancellation. The amendment effect no changes in the reliefs prayed for. Next, the notices and unamended plaintiff coincide vis-a-vis the two main grounds on the basis of which the reliefs of declaration and cancellation are sought. There is first an averment that Ex.J will be used to construct a structure on Ratan Villa in violation of the different convenants given to Maneckabad. As a consequence there will be an adverse effect on the value and enjoyment of Maneckabad. This will be because of Maneckabad having to put up with congestion, overcrowding, a diminution in amenities like water, sewerage, traffic and the quality and quantity of light and air flowing thereto. Secondly, they aver Ex.J to being antedated and therefore illegal as a tax evasion as also a forgery. The amendments introduce pleadings which may be summarised as follows : Ex. J enables defendant 1 to obtain sanction to construct a building and sell flats forming part thereof. This cannot be allowed as Ex.J is tainted by illegalises which stain the transaction irretrievably. Secondly, the amendments amplify the different ways in which Ex.J affects the rights secured to maneckabad by Ex.B. Thirdly, they explain the joinder of the trustees and beneficiaries of the trust deed dated 17-3-1951. This, according to the pleading, has been necessitated by the contention of defendant 1 that the trustees and beneficiaries are necessary parties. The plea's correctness is disputed by plaintiff but he accepts it lest any technical defect vitiate the suit. The defence is that unless there be a substantial identity between the cause of action in the notices and the plaint, it cannot be said that the suit has been preceded by valid notices. A paradox of the science of interpretation is the difficulty in construing seemingly straight forward words and phrases. The expression 'cause of action' sounds transparently clear. Once we come to its application to a given set of data, the transparency is overtaken by an opaqueness which is difficult to remove. Parties have cited precedents in support of their view points and now turn to an examination of the cases relied upon by defendant 1.
25. Mclnerny v. Secretary of State of India, I.L.R. 1911 Cal 797, deals with a suit based on a notice founded upon negligence not allowed to be amended to be changed to nuisance, on the ground that this would result in a change of cause of action which change had not been pleaded in the statutory notice. For the purposes of this case the ratio to be culled out is the untenability of a suit which has to be preceded by a statutory notice, where the said notice does not cover a cause brought in or sought to be brought in subsequently by amending the plaint. Province of Madras v. R.B. Podar Firm, A.I.R. 1949 Mad 214 proceeds on the basis of a Privy Council decision in Bhagchand v. Secretary of State , where it was said that section 80 C.P.C. had to be strictly complied with and was applicable to all causes of action and all kinds of reliefs. Govinda Menon, J., in Province of Madras (supra) took a fairly detailed survey and brought out a distinction between amendments to leadings bringing in further material in support of a contention already taken, as contrasted with the introduction of a cause of action outside the scope of the suit as originally framed. U.P. Government v. Lala Wanhoo Mal, : AIR1960All420 says that plaintiff cannot in a suit against the Government be permitted to make a fundamental departure from the stand taken in a section 80 CPC notice. Ex.J giving defendant 1 an opportunity to be in a position to seek building permission and sell flats, both violative of convenants is favour of the covenantee under Ex.B, is not a plea to be found in the notices or the plaint as lodged. But the latter mention that defendant 1 claiming to be owners of Ratan Villa threaten to violate the rights of purchaser of Maneckabad, which rights have come to them under Ex. P. In a sense, greater emphasis is laid on the consequences of Ex. J in the original plaint as against the inception of the mischief in the plea brought in by way of an amendment to the plaint. The target in both the cases is Ex.J--initially, the disaster that will be wrought on Maneckabad if defendant 1 is allowed to go unchecked by the restrains of Ex.B and later, the leeway that defendant 1 gets because of Ex.J to initiate the disastrous consequences. This change cannot be said to be a foray beyond the confines of the cause put into action. Turning to the other alleged deviation, the same is to be found in para 15A of the plaint. This para details the injuries that plaintiff is likely to suffer if Ex.J. is left outstanding. First, Ex.J is said to impair the title to Maneckabad as it casts a cloud thereon. The expression 'cloud on title' may not in so many words have been used in the original plaint. But the adverse effects of defendant 1 using Ex.J as if Ex. B did not exist, are an amplification of defendant 1's doings impairing the value of Maneckabad. This latter portion is already covered by the original plaint in vivid details. The second detail in para 15A is that Ex.J seeks to transfer to defendant 1 a portion already conveyed under Ex.B. Can this be said to be outside the original frame of the suit? The pleading is an enumeration of Ex.J permitting defendant 1 to lay claim to property already conveyed under Ex.B. That Ex.J is an attempt to sanctify an intended land grab is no part of the cause of action specifically averred in the notices. But again this would be an addition to the reasons for nullifying Ex.J. In that sense, it could not be said that there was a departure in the amended pleading from the cause of action set out in the original plaint. Para 15A goes on to detail other invasions of the rights of covenanters as a consequence of Ex.J. It speaks of defendant 1 having practised a fraud on the State Government and BMC for obtaining FSI 2 and alleges that this shows defendant 1's propensity to misuse documents. Nothing of the nature of an impermissible deviation is discernible. The amendments details, and possibly, embellish and embroider, an existing cause of action, they do not invent a cause of action outside the purview of the cause set out in the notices or the original plaint. Plaintiff's citations to some extent fortify the conclusion that the amendments given further grounds in support of the contentions and allegations which constitute the cause of action e.g. Dinbai v. Dominion of India, : AIR1951Bom72 . He is not on good ground when contending that Gandhi, J.,'s order dated 5-3-1975 in Chamber Summons No. 34 of 1975 allowing a crucial amendment to the plaint concludes the matter and precludes defendant 1 from arguing that the suit has gone beyond the original cause of action. True, the learned Judge did say that the amendments did not alter the cause of action or make out a new cause of action. But that was in the context of Order VI, Rule 17 CPC. The general rule in respect of that provision is to permit pleadings to be amended. The consequences of the amendment vis-a-vis other provisions, whether substantive or procedural, are relegated to a later consideration. To conclude, the suit does not suffer from the pleaded infirmity vis-a-vis section 80 C.P.C. or 164 of the MCS Act.
26. The stage to appraise a vexed question has now has been reached. Defendant 1 pleads the bar of Order 2, Rule 2 C.P.C. to this suit. Their contention is that the cause of action on which this suit is based is the very same one that has been set up for the 1970 suit. The claim or reliefs solicited in this suit could have been the subject of the 1970 suit. Plaintiff having intentionally omitted, relinquished or given up these in the previously instituted suit, is precluded from making them the targets in this suit. Plaintiff's answer is that the cause of action in the two suits are distinct and different. In any event the 1970 suit has not yet proceeded to a decree and therefore the bar does not apply. The first requirement to a proper understanding of the principle underlying Order II, Rule 2 CPC, is to reproduce that rule as also all other rules of the Order, bar Rules 5 and 7. They read thus :
'1. Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.
2.(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) A person entitled to more that one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation--For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
Illustration
A lets a house to B at a yearly rent of Rs. 1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.
3.(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendants jointly may unite such causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject matters at the date of instituting the suit.
4. No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except-
(a) claims for mean profits or arrears of rent in respect of the property claimed or any part thereof;
(b) claims for damages for breach of any contract under which the property or any part thereof is held; and
(c) claims in which the relief sought is based on the same cause of action;
Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.
6. Where it appears to the Court that the joinder of causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient in the interests of justice.'
These rules are an offspring of section 12 CPC which empowers the rule making power to lay down rules precluding the institution of a further suit in respect of a particular cause of action already made use of in an anteriorly filed suit. The order's title is 'Frame of Suit' thus indicating the legislator's mind that the object is to prescribe a mode for the framing of suits. The first rule is couched in general terms embodying the public policy of wanting suitors to so frame their actions as to afford ground for a final decision upon the subjects in dispute and to prevent further litigation concerning them. The spirit of litigiousness is considered inimical to the public weal. Realising the inevitability of limitation, Rule 1 exhorts the populace to avoid multiplicity of suits. Rule 3 permits (i) a plaintiff to unite in one suit several causes of action against the same defendant or defendants jointly and (ii) plaintiffs having joint causes of action against the same defendant or defendants jointly to unite such causes in one suit. Again, the endeavour is to curb the evil of litigation and at the same time provide an effective media to do so. Rule 4 treats suits for the recovery of immovable property in a separate category. Except with the leave of the Court, no cause of action can be joined with a suit for recovery of immovable property bar--
(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof;
(b) claims for damages for breach of any contract under which the property or any part thereof is held; and
(c) claims in which the reliefs sought is based on the same cause of action.
The proviso makes it clear that the rule shall not be so construed as to prevent a party claiming foreclosure or redemption from seeking to be put into possession of the mortgaged property. Rule 6 confers on the Court the power to order separate suits or make such orders as may be expedient where joinder of causes of action may embarrass or delay a trial or is otherwise inconvenient. The principle to be derived from the foregoing analysis is a desire to curb the litigative spirit, but not at the cost of orderliness and clarity. That joinder of causes can cause obfuscation is recognised by Rules 4 and 6. That litigation should be a one-time affair is the spirit underlying Rules 1 and 3. Turn now to Rule 2 and what do we have? Sub-rules (1) and (2) are linked with claims accruing from one cause of action. The first sub-rule lays it down that a suit shall include the whole of the claim which plaintiff is entitled to make in respect of the cause of action. With a view to bring a suit within the jurisdiction of any Court, plaintiff is permitted to relinquish any portion of the claim. Sub-rule (2) prohibits a plaintiff who has omitted to sue or intentionally relinquished any portion of his claim to sue later in respect of such portion. Sub-rule (3) deals with reliefs. A cause of action can give rise to more than one relief. The plaintiff is entitled to sue for all or any of such reliefs. But where he has omitted to sue for all such reliefs, he shall not afterwards sue for the relief so omitted, except with the leave of the Court.
27. Defendant 1 contends that the allegation about Ex.J being antedated and made up with a view to evade tax was pleaded in the 1970 suit. This allegation has been put in issue in the said suit. To put it differently, defendant 1's point is that plaintiff's cause of action is a bundle of interlinked rights flowing from Ex.B allegedly being violated by Ex.J. Enforcement of these rights and the extinction of the violative instrument constitute a single cause of action. Rule 2 prohibited a splitting of the claim and reliefs. Plaintiff had contravened that prohibition with the consequence that the 1972 suit did not lie. The thicket created by citations of parties necessitates a careful scrutiny and I turn to that task.
28. The Apex Court in Gurbux Singh v. Bhoorlal, : [1964]7SCR831 , observed that inasmuch as the plea was a technical bar to a suit, it had to be established satisfactorily and could not be presumed merely on the basis of an inferential reasoning. This observation was in the context of defendant not having tendered the pleadings in the previous suit and thus disabling the Court from making a proper appraisal. But it holds good as a general proposition also. At another place (P. 1813) the Court defines the cause of action to be 'facts which the plaintiff alleged to support the right to the relief that he claims'. In Sidramappa v. Rajashetty, : [1970]3SCR319 , the Court cited with approval the Judicial Committee's decision in Mohd. Hafiz v. Mohd. Zakaria, 49. Ind. Appl. 9. The said decision defines the cause of action as that cause which had given the occasion for and formed the foundation of the suit. Kewal Singh v. Lajwanti, : [1980]1SCR854 , arises out of an application for eviction of a tenant on three grounds i.e. premises being then required as (i) landlady's residence was official accommodation given to her husband which accommodation had to be surrendered at once, the alternative being to pay penal rent for the said place, (ii) bona fide need of the landlady and (iii) the need to repair the tenement to make if fit for human habitation, which repairs could not be carried out unless the tenant vacated. After filing the application, but before defendant's coming on the scene, grounds (ii) and (iii) were withdrawn. Defendant was thereafter noticed to show cause. Plaintiff applied to withdraw ground (i) and it was while this application was pending, that defendant sought permission to defend the suit on the ground that plaintiff not being a Govt. servant, was not entitled to take recourse to section 14-A(1) of the Delhi Rent Control Act under which the pending proceeding fell. Plaintiff then sought and obtained leave to revive the ground of bona fide need to herself. The suit was allowed and the order affirmed in revision. In the appeal granted by special leave to the Supreme Court, the tenant invoke the defence based on Rule 2. Negativing this contention, it was held that the rule had no application to cases where plaintiff bases his suit on separate and distinct causes of action and chooses to relinquish one or the other of them. Reference was made to Mohd. Khalil v. Mahbub Ali and the oft-quoted summary of the principles referred to in the judgment of Sir Madhavan Nair. Applying the said principles the Court said.
'The plaintiff had first based her suit on three distinct causes of action but later confined the suit only to the first cause of action viz. the one mentioned in section 14-A(1) of the Act, giving up the causes of action under section 14(1)(e) and (f). Subsequently, by virtue of an amendment she relinquished the first cause of action based on section 14-A(1) and sought to revive her cause of action under section 14(1)(d)... we are satisfied that the 2nd amendment was not barred by the principles of Rule 2 C.P.C.'
The very first sentence shows the Court treating the original application seeking one relief, i.e. the relief of ejectment, as based, on three different causes of action --each ground, being treated as separate cause of action. Mohd. Khalil v. Mahbub Ali , contains and exhaustive survey of the case law with Sir Madhavan summarising the principles in these words--
'(1) The correct test in cases falling under Order 2, Rule 2 is 'whether the claim in the new suit is in fact, founded on a cause of action distinct from that which was the foundation for the former suit.'
(2) The cause of action means every fact which will be necessary for the plaintiff to prove, if transversed, in order to support his right to the judgment.
(3) If the evidence to support the two claims is different then the causes of action also are different.
(4) The causes of action in the two suits may be considered to be the same, if in substance they are identical.
(5) The cause of action has no relation whatsoever to the defence that may be set up by the defendant; nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.'
Each of these principles expounds a partial truth for the concept of what constitutes a 'cause of action' is riddled with obscurity. Some enlightenment comes from two decisions of our Court being Shridhar v. Codulal, : AIR1940Bom20 and Shankarlal v. Gangabisan, : AIR1972Bom326 . The bar of Order 2, Rule 2 was pleaded in Shridhar (supra) in the following context : Plaintiffs' first suit was for recovery of amount removed from them under an illegal distraint with interest. The second suit was an action for damages for loss of reputation and business flowing from the illegal distraint. The bar set up was negatived by Wassoodeo, J., thus;
'That was a transaction which gave rise to two different claims for the loss sustained...... In my opinion, these claims are found on different causes of action although they arise from the same transaction and therefore they have not been included in the same action.'
Shankarlal v. Gangabisan, : AIR1972Bom326 arose in the context of a holding over of premises after the expiry of the period of lease. The first suit was for damages stipulated in the lease deed after expiry of lease period. The second suit was for possession on the basis of title as owner and for damages for the period subsequent to the period in the first suit. The bar of Order 2, Rule 2 C.P.C. was negatived holding that causes of action for the two suits were entirely different.
29. Turning now two precedents relied upon by defendant 1, Dayaram v. Vishrantibai, 1990 M.L.J. 227, the facts require a clear enumeration. The first suit was for injunction when plaintiff was not in possession. This suit was later withdrawn, but before the withdrawal a second suit had been filed. The second suit was for recovery of possession. To this suit was pleaded the bar of Order 2, Rule 2. The plea was negatived by the Civil Judge, Ramtek, and that brought the defendant to the High Court in revision. Ratnaparkhi, J., sustained the contention, holding that possession and damages could have been claimed in the first suit also. Plaintiff having contended himself with the relief of injunction was precluded from claiming the reliefs sought in the second suit. With respect to the learned Judge, he appears to have misread the permissibility aspect of Order 2, Rule 3 into a mandatory requirement and further erred by implanting this into the narrow confines of Order 2, Rule 2(3). What has been overlooked by the learned Judge is the obvious untenability of the claim for injunction in the first suit when plaintiff was out of possession on the date the said suit was filed. That suit was sought to be and allowed to be withdrawn unconditionally. It is doubtful if an untenable claim in one suit, can operate as a bar to properly framed second suit though both the suits deal with the same property. Phani Bhusan v. Rajendra Nandan : AIR1947Cal11 , shows the bar of Order 2, Rule 2, being defeated by a change in the impalement of parties. That principle helps the plaintiff for Lalchand and Zaveri were not parties to the 1970 suit. Dwarkadas v. Vimal, : AIR1964Bom42 , is an application of the illustration to Order 2, Rule 2, except that the claim in the two suits was for mesne profits instead of rent as is the case in the two suits covered by the illustration. State v. Sarjoo Prasad Gumasia, I.L.R. (1968) Bom. 1024, deals with a case where the cause of action for the claim in the second suit arose after the decision of the first suit. For that reason it was held that the causes of action were different and no question of the bar of Order 2, Rule 2 could arise.
30. Applying the principles laid down by the cases considered above to the facts of the present case what emerges is as under--
The 1970 suit is primarily to enforce the rights of the covenantee and owner under Ex. B. In the 1973 suit the two-pronged attack is on Ex. J violating the rights of the covenanted as also plaintiff in his capacity as a citizen and tax payer. In the 1970 suit-there was a mention of Ex. J being antedated and this being done to evade tax. But the relief of declaration and cancellation were not sought. Lalchand and Zaveri were not impleaded to the 1970 suit. Having regard to Order 2, Rule 3, plaintiff could have united the cause of action of the 1973 suit to the differing purposes of the two suits, it does not appear that such a compulsion existed. The mention of antedating of Ex. J and the motive therefor did not imply putting that cause in action. The object-to put it bluntly- was to generate a prejudice against defendant 1. The recitals pertaining to antedating and the object being to evade tax unaccompanied by the relief of declaration-cum-cancellation of Ex. J was somewhat similar to the facts in Kewal Singh v. Lajwanti : [1980]1SCR854 . To put it differently, the antedating of Ex. J and the reason therefore mentioned in the 1970 suit was in the nature of an incompletely formulated cause mentioned more for depicting defendant 1 in a bad light, rather than securing any relief on the basis thereof. It may be argued that whatever be plaintiff's motives, having stated the factual position, plaintiff was bound to include the whole of the claim or solicit all the reliefs. But that would be the case only if the same constituted a single cause of action. Testing it from the angle of evidence required, would show the causes of action in the two suits to be different. Antedating of Ex. J and the motive therefor though the subject of an issue in the 1970 suit, is of peripheral importance to the outcome of that suit. This is so because the alleged antedating would have little or no bearing on the reliefs sought in that suit. Those reliefs are to enforce different convenants related to the enjoyment of Maneckabad and thwart an attempted encroachment. As against this innocuousness of Ex. J's antedating to the 1970 suit, the said antedating is of crucial importance to the 1973 suit. The alleged antedating and the motive therefor is the fulcrum on which the entire case hinges-at least, in relation to the public law aspect. To recapitulate, the causes of action in the two suits are different despite their being actuated by a single object -frustrating defendant 1's attempt to contravene plaintiff's rights allegedly flowing from Ex. B. Though the causes of action are interlinked, they are not substantially identical. Were the two causes united in a single suit, a possibly good case for soliciting a direction under Order 2, Rule 6 could have been made out. The fact of the principal contestants to the two suits being the same, could not overcome the position of Lalchand and Zaveri thereto. In the 1970 suit their joinder was not mandatory. Regard being had to the nature of the 1973 suit, the said suit would have failed without them being impleaded. Arraying of parties is an important facet of the principles underlying Order 2, Rule 2. Thus the bar of Order 2, Rule 2 set up by defendant 1 has to be negatived.
31. Plaintiff has raised an additional ground to meet the bar set up by defendant 1. This is that the bar is inapplicable as the 1970 suit has not yet been decided. There are two decisions of this Court and they appear to be in conflict with each other. Ganesh Ramchandra v. Gopal Lakshman, : AIR1943Bom12 speaks of there being no contravention of that part of the rule which prohibits a plaintiff from afterwards suing for a relief omitted in a prior suit, where the suits are filed simultaneously. This is a Division Bench ruling. It was noticed and distinguished by Dixit, J., in Krishnaji v. Raghunath, : AIR1954Bom125 , while holding that the point of time for ruling on the applicability of the bar was the date of suit's institution and not the date of decree. It is not necessary to labour over this aspect of the matter in view of the finding that the cause of action for the two suits is distinct and different.
32. Plaintiff has to establish that his suit is within limitation. The relevant data on the subject has been thus set out by the plaintiff in his written propositions :
'31-3-1967 - - Date of Conveyance (Ex. J) between Lalchand, Zaveri and D-1.
30-11-1967 - - Date on Plan annexed to the Conveyance (Ex.J)
23-2-1970 - - Date of registration of Conveyance (Ex. J)
12-2-1971 - - Conveyance Ex. J first used against the plaintiff after registration, being relied upon in D-1's affidavit in reply in Notice of Motion in Covenant Suit No. 891 of 1970.
20-1-1973 - - Statutory Notice to D-2 under section 80 C.P.C. (received by D-2 on 22-1-1973)
20-1-1973 - - Statutory Notice to Registrar Co-operative Societies under section 164 Co-operative Societies Act.
23-1-1973 - - Date of receipt of statutory notice under section 164 by the Registrar of Co-operative Societies.
16-2-1973 - - Application made by the plaintiff to the Chamber Judge for leave to sue Lalchand as Receiver.
13-3-1973 - - Leave granted by Chamber Judge to sue Lalchand Hirachand as the Receiver.
27-3-1973 - - Present plaint first filed in the Bombay City Civil Court.
26-6-1973 - - Order of His Honour Judge Guttal, J., then in the City Civil Court, admitting Plaint (Ex.P-7)
12-9-1973 - - Order of Hajarnaviz, J., on plaintiff's application for transfer of Suit 942 of 73 to the High Court.
19-9-1973 - - Judgment of His Honour Judge Suresh then in the Bombay City Civil Court directing return of the plaint for presentation to the proper Court.
21-9-1973 - - Plaint returned to the plaintiff and filed in the High Court as Suit No. 942 of 1973.'
Plaintiff would have it that the right or compulsion to sue accused on 23-2-1970 when Ex. J was registered. The suit had to be filed within three years of 23-2-1970. He was however entitled to two exclusions provided for by sections 15(2) and 14 of the Limitation Act. Thus construed, the lodging of the plaint in this Court on 21-9-1973, would bring the suit within limitation. The periods to be so excluded would be (i) two months as from 20-1-1973/13-3-1973 and (ii) 27-3-1973 to 20-9-1973. Roughly, the extension would be for a period a about 8 months i.e. upto 24-10-1973. The suit having been instituted in the City Civil Court on 27-3-1973, would be well within limitation. The other starting point for time to run would be 12-2-1971 when defendant 1 first used Ex. J against plaintiff. This was by way of reliance thereupon in an affidavit in reply to a motion taken out by plaintiff in the 1970 suit. If that be the starting point, plaintiff does not require the props of section 15(2) and 14 of the Limitation Act, for the suit was instituted in this Court on 21-9-1973 i.e. within 3 years of the accrual of cause of action on 12-2-1971. Defendant 1's reply is that limitation would be governed by Articles 56 and/or 52. The principal relief claimed in the suit is a declaration that Ex. is a forgery, therefore, void and liable to be cancelled. This attracts Article 56 and time would begin to run either on 30-11-1967 or at the latest on 23-2-1970. Time spent in the City Civil Court was not excludible. The plaint was lodged in this Court on 21-9-1973. In either case i.e. whatever be the starting point the suit would be beyond three years and therefore time-barred. If cancellation be deemed the principal relief then also time would run from 30-11-1967/23-2-1970. The former, because Ex. J was admitted for registration on that day, and the latter, because the act of registration itself constitutes notices to the wide world. Again, the time spent by the plaintiff in the City Court is not excludible and the lodging of the plaint in this Court on 21-9-1973 would be beyond limitation. The points for determination are :
(i) On which date the compulsion to sue accrued, or, to put it differently, when did time begin to run?
(ii) What period of time is excludible under section 15(2) of the Limitation Act?
(iii) Is plaintiff entitled to exclude the time spent in prosecuting the suit in the City Court under section 14 of the Limitation Act?
33. Defendant 1 contends that Article 56 is applicable, and that also, the date on which Ex. J was issued. The word issued implies the date on which Ex. J was executed or at least that date on which it was admitted for registration. The forgery i.e. the alleged antedating in Ex. J is said to have taken place on 30-11-1967. If so, the suit is definitely barred by limitation even if it be assumed that plaintiff is entitled to the benefit of section 14 Limitation Act. Plaintiff contends, and rightly so, that the word 'issued' occurring in Article 56 can have no application to a document pertaining to transfer of immovable property. Act XV of 1877 had an article being Article 92 therein which was in pari materia to Article 56 of the Limitation Act of 1963. The said article was sought to be used in relation to a written authority given to adopt unto the alleged executant. Exception was taken of the genuineness of the deed. The question was whether a deed such as the above could be said to have been issued. The Judicial Committee in Hurri Rhusan v. Upendra Lal, 23 I.A. 97, speaking through Lord Morris held that the word 'issued' was intended to refer to the kind of documents to which people commonly applied that term in business and that it had no application to an instrument such as a power to adopt. The word 'issued' even otherwise is not used in relation to non-commercial documents. Its use in relation to a deed of conveyance would be incongruous. A conveyance of immovable property such as Ex. J is compulsorily registerable. Ali Mirza Beg v. Hasan Raza Khan, A.I.R. 1917 Oudh 188, is authority enough for the proposition that limitation for a suit to cancel or set aside an instrument compulsorily registerable has to be within three years of its registration and not from three years of its execution. But to go further with Article 56, even registration by itself does not trigger the march of time. The article speaks of registration becoming known to the plaintiff. Ex. J after registration was used for the first time against plaintiff on 12-2-1971. It may be argued that the fact of registration by itself amounts to notice. But Article 56 excludes the concept of deemed notice or deemed knowledge. This is made clear by the use of the words 'registration becomes known to the plaintiff'. These words imply a direct perception without recourse to fictional props like knowledge flowing from deemed notice. Thus viewed, time would begin to run from 12-2-1971 and the lodging of the plaint in this Court on 21-9-1973, would bring the suit well within the period prescribed by Article 56. But it is doubtful if Article 56 is the appropriate provision for reckoning limitation for this suit. The suit in substance is one for a declaration. Plaintiff's penchant for the jugular has brought in the prayer for cancellation. This is an embellishment which can be safely ignored for assessing the true nature of the suit. Ex. J's existence vis-a-vis plaintiff in his private capacity, amounts to little more than a sneaky, surreptitious and covert attempt to outflank those claiming under Ex. B. A judicious venture for plaintiff had made known his determination to harry and run them to the ground. On the face of it Ex. J did not appear antedated. Documents which could have given a clue on the antedating were in the possession of the parties to the transaction. They, as later events have shown, fought a dogged battle to prevent even the copies from being received in evidence. This was after spurting away the originals and studiously keeping out the wrongdoers from the witness-box. Knowledge of Ex. J's registration was not enough to found an action. The appropriate provision for computing limitation would be Article 58 which governs suits for obtaining any declaration other than those covered by Articles 56 and 57. For such suits, time begins to run when the right to sue first accrues. Once again, the date would be 12-2-1971 for that was the first ties defendant 1 used Ex. J to ward off a claim advanced by plaintiff. That would bring the suit instituted even as on 21-9-1973, within limitation. By let us assume that cancellation is the principal relief claimed in the suit and that Article 59 is the provision for computing limitation. This article prescribes a period of three years for cancelling an instrument. Time begins to run 'when the facts entitling the plaintiff to have the instrument cancelled first became known to him'. Now a mere look at Ex. J could not have sufficed for plaintiff to institute a suit. He had to track down different documents mentioned in the many preambles to Ex. J. These were unregistered and plaintiff had to move heaven and earth to get copies thereof. Those documents secured, plaintiff had to contact a tax expert to find out a possible reason for the antedating. If due allowance is given for ascertainment of the complete set of facts, plaintiff's suit instituted even on 21-9-1973 would be within time. That would be so even if the starting point is taken at 12-2-1971. The last article that could be used for computation of limitation would be Article 113. This is a residuary article and under it time begins to run when the right to sue secures. Once again the starting point would be 12-2-1971, when Ex. J was first sought to be used against plaintiff and the issue of limitation would be in plaintiff favour.
34. Having regard to time-ticker commencing from 12-2-1971, plaintiff does not need to take the support of sections 14 and 15(2) of the Limitation Act. But to give completeness to the judgment the issue of limitation will also have to be considered as if time began to run from 23-2-1970 i.e. the date of Ex. J's registration. Plaintiff's suit had to be preceded by notices prescribed by section 164 of the M.C.S. Act and section 80 C.P.C. having regard to defendant 1 being a co-operative society and defendant 2 being a public servant in his capacity as a Court appointed Receiver. Both the sections preclude a suit unless preceded by a notice and then only by the suit being instituted two months after the service of the notice. Such notices were sent on 20-1-1973. A total of two months would be plaintiff's entitlement for computation of limitation. The Court's leave to sue the receiver was not a condition precedent. Leave of course was a requirement of the suit's tenability. Section 15(2) speaks not merely of consent being a requirement of the suit. It extends limitation where the law requires previous consent or sanction. Therefore, time spent on obtaining leave to sue defendant 2 in his capacity as a receiver i.e. 16-2-1973 to 13-3-1973 is not excludible. Plaintiff is entitled to a total extension of two months under section 15(2). The terminus quo would be 23-4-1973. If plaintiff is entitled to the benefit of section 14, the suit is within limitation as though it was commenced on 27-3-1973. The period therefrom and upto 21-9-1973 would be excludible. And whether or not section 14 is attracted, has been the subject of an intense debate between parties.
35. Shortly stated, plaintiff has to establish that prior to the representation of the plaint in this Court on 21-9-1973, he had been prosecuting with due diligence another civil proceeding (suit filed in City Court) and that the same was being so prosecuted in good faith. Plaintiff contends that he was so doing and has examined advocate Sorabjee to so establish. The latter testifies that in a conference held prior to the suit's institution some decisions were looked into. These indicated that a claim like the present one was not susceptible of a monetary valuation, that therefore it had to be given a notional valuation of Rs. 300/-, for that reason the same had to be instituted in the Court of the lowest grade competent to try it vide section 15 C.P.C. and that Court was the City Court. Defendant 1's cross-examination is directed at showing that the statutory change brought in by an amendment of the Bombay Court Fees Act, 1959 was not taken into consideration. This non-consideration eliminated the facet of good faith which facet was of vital significance vide section 14 Limitation Act. 'Good faith' is negatively defined in section 2(h) of the Limitation Act and the positive side thereof is that any act to merit the seal of 'good faith' must be that which is done with due care and attention. Defendant 1 goes further and contends that the suit was deliberately lodged in the City Court so as to seek its transfer to this Court and then get it tried before the 1970 suit. Plaintiff did move an application to get the suit transferred from the City Court to this Court and also a direction that it be heard prior in point of time vis-a-vis the 1970 suit. Strategy in the conduct of litigation has been made into a fine art. Using courts to attend all manner of dubious ends is a menace of long standing. In recent years, this menace has attained alarming proportions. We cannot close our eyes to the obvious and go on repeating the old cliche of people flocking courts to obtain relief, only for genuine grievances. At the same time one has to beware of the tendency to suspect conspiracies and devious designs in every book and corner. The answer to the theory of hidden designs behind filing the suit initially in the City Court lies in asking the simple question as to why that forum could have been chosen, assuming that plaintiff had the object ascribed to him? Defendant I does not alleged that plaintiff chose the City Court as he wanted to avoid paying the Court-fees payable, had a proper valuation been made at the very inception. Next, filing the 1973 suit in this Court and seeking precedence therefor over the 1970 suit, was not something that could not be done here also. If such a prayer could be made to a Judge of this Court taking up applications under section 24 C.P.C., the same prayer could be also addressed to a Judge taking up long causes on the Original Side of this Court. The only explanation surviving is mistaken advice of Counsel. Whether such advice in the initial choice of forum is excusable having regard to the requirements of section 14 Limitation Act is the subject of a host of decisions and the conflict therein makes it another of the vexed questions that have arisen in this suit. Apart from plaintiff having examined the Senior Counsel responsible for steering the suit in the initial stages, the choice of the City Court met with the provisional approval of Judge Guttal (as he then was). Hajarnavis, J., did not consider the choice of the City Court so obviously flawed as to obviate a decision by the trial Court on this aspect of the matter. Thirdly, Judge Suresh (as he then was) did not consider the choice of the City Court as being inspired by oblique motives of patently flawed. The original valuation clause would have passed muster, but for the insertion of section 6(iv)(ha) in the Bombay Court Fees Act, 1959 vide Mah. Act 9 of 1970. This indeed is the finding of Judge Suresh. Ignorance of law is no excuse is of course trite law; but not fully correct. Section 14 Limitation Act is the realisation of even law having to recognise human fallibility. The definition of 'good faith' in the Limitation Act has departed from the ordinary connotation of this expression, which connotation equates it to honesty of purpose. But the 'due care and attention' contemplated by the Limitation Act definition cannot be given too sharp an edge. For if that were the expectation, section 14 would be redundant. Lawyers are professionals in what appears to them, not to speak of to laymen, a maze in semantics. Getting a degree in law and a sanad to practice as lawyers equips them;--but in a rudimentary sense. The creases and wrinkles in every professional at the start of his career, need to be ironed out. This ironing, in so far as lawyers are concerned, comes from burning midnight oil and practical work. A part of former entails poring over enactments, commentaries and law reports. And keeping abreast of the churnings of the legislative machine is by itself a superhuman task. Accessibility to the material which amends an existing enactment is no easy task. Setting too exacting a standard for lawyers will reduce the legal perform to a tribe of bibliographers. Yes, due care and attention cannot cover a plea of negligence to cover up total inattention to the matter brought by a client or joining hands with litigant actuated by devious motivations. As said earlier, due care and attention cannot be more than that care and attention which is expected from a run-of-the mill professional with average capacity and a reasonable dedication to his client's causes. A surfeit of precedents has been presented by the rivals and some of these will how be noticed.
36. The many cases on what may be loosely described as analogous provisions in the Limitation Act and the C.P.C. may be referred to as they are a repeat of the approach advocated for consideration of pleas under section 14 Limitation Act. As long back as 1895, a Division Bench of this Court had occasion to consider the application of a phrased-alike of section 14 in the Limitation Act of 1877 (Act 15 of 1877) in Ram Rayji Jambhakar v. Pralhaddas Subkarn, I.L.R. 20 Bom. 123. The Court held that an error of law in the filing of the suit at Cawnpore though 'stupid' was an accountable blunder. Ignorance of law, ill-advice of a Pleader did not necessarily or prima facie establish a want of good faith. The Supreme Court in the State of West Bengal v. Howrah Municipality, : [1972]2SCR874a , while dealing with a case under section 8 of the Limitation Act held that a party acting on the wrong advice of his Legal Advisor could not be held to be guilty of negligence so as to disentitle it from pleading the sufficient cause required by that section. In Rafeq v. Munshilal, : [1981]3SCR509 , the Court went much beyond when it observed that inaction, deliberation omission or misdemeanour of the litigant's own Advocate was excusable vis-a-vis restoration of his appeal dismissed in default. Munshi Ram v. Raghubir Chand, , (Mt. Ram Patil v. Phool Singh)43, : AIR1932All377 and Concord of India Ins. Co. v. Nirmala Devi, : [1979]118ITR507(SC) , are all on the same lines. Krishna Iyer, J.'s exposition of the law in the case reported in Church of South Indian Trust Association on by its Attorney v. State of Kerala, A.I.R. 1972 Ker 211, brings out the core issue in cases where mistaken legal advice is cited as an extenuating factor. Says the learned Judge :
'It is always a question whether the mistake was bona fide or was merely a device to cover ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way.'
It is the 'underhand way' that is highlighted in decisions relied upon by defendant 1 e.g. Ramchandra v. Mt. Bibi Khodaijatmal Kuba, : AIR1945Pat369 and Des Raj v. Ram Singh, A.I.R. 1960 J&K; 130, both cases of gross-under valuation of the claim , Brijmohandas v. Sadashiv, : AIR1940Bom5 and Surendra Nath v. Official Liquidator, : AIR1961Ori57 are cases where a wrong forum was intentionally or wilfully chosen for the prosecution of the first civil proceeding. Rabindranath v. Sivakami, : AIR1972SC730 is a case where the plea of due care and attention was negatived in the face of an obstinate and perverse refusal to implead a necessary party in the first proceeding. The differences in under valuations attracting section 14 and those under valuations which are outside the pale of section 14, is a subject considered at great length in Subhanand v. Bindeshwar, A.I.R. 1959 Pat 359. The short answer is that such niceties are a mystery to a lay litigant, who should not be penalised for his legal adviser erring in the choice of the valuation clause found to be on the wrong side of the divide. Madhav Rao v. Ram Krishna, : [1959]1SCR564 , if clearly distinguishable on facts. It is a case where plaintiff came to grief by exhibiting an up pity ness in that, though a layman, he tried to profess himself as proficient in law 'as a Senior Counsel' (See P. 770). A laymen trampling into the quagmire of jurisdiction- pecuniary, territorial or subject wise is playing with fire and certainly cannot seek the aid of section 14 Limitation Act in the second round. The facts here are very different. Plaintiff for all his meticulousness and determination to get even with defendant 1 and 2, did not arrogate the conduct of the suit to himself. His lawyers had no reason to choose the City Court over this Court for the initial institution of the suit. The initial lodgment passed the test of a provisional judicial scrutiny. The statutory change in the Bombay Court Fees Act, 1959 may have been overlooked-- a common enough lapse in these times of legislative plentifulness. It is not possible to see any duplicity, gross negligence or deviousness of any nature to deny plaintiff the benefit of section 14 Limitation Act. Therefore, even if the date of registration of Ex. J be taken as the starting point, the suit would be within limitation as plaintiff would be entitled to an exclusion of the time spent in the prosecution of the suit in the City Court.
37. The last question that remains is the nature of relief that plaintiff is entitled to. There is no question of cancellation of Ex. J as defendant 1 has been absolved of the charge of being privy to defendant 2's design to evade the properly payable tax on capital gains. Ex. J in so far as it seeks to violate the rights secured by the owners and beneficiaries of Maneckabad has to be declared as ineffective to so do. Plaintiff will get costs of this suit from defendants 1 and 2 as there is no reason to deviate from the normal rule of costs following the event. Defendant have to be left to bear their own costs. Therefore the decree--
Declared that Ex. J is inoperative and of no effect to the extent it expressly or by implication seeks to whittle down the rights, the owners and beneficiaries of Maneckabad (inclusive of plaintiff) have under Ex. B. Copies of the two conveyance to be annexed herewith. Defendants 1 and 2 shall pay the costs of the plaintiff. These defendants, as also the remaining ones, shall bear their own costs- those of the trustee defendants 5 and 6, to come out of the trust funds. Let a copy of that part of the judgment which deals with defendants 2's evasion of proper tax on capital gains, be sent to the Commissioner of Income Tax, Bombay for such action as may be deemed necessary.