Shingara Singh and Another Vs. State of Bihar - Court Judgment

SooperKanoon Citationsooperkanoon.com/1127589
CourtPunjab and Haryana High Court
Decided OnFeb-10-2014
AppellantShingara Singh and Another
RespondentState of Bihar
Excerpt:
civil revision no.517 of 2011 1 in the high court of punjab and haryana at chandigarh 206 civil revision no.517 of 2011 date of decision: 10.2.2014 shingara singh and another ......petitioners versus joginder singh and others .......respondents coram: hon'ble mrs.justice sabina present: mr.rakesh gupta, advocate for the petitioners.none for respondent no.1. mr.r.s.monga, advocate for respondents no.4 and 5. **** sabina, j. this petition has been filed by the petitioners challenging order dated 18.12.2010 (annexure p-1).whereby, written statement filed by dilbag singh-defendant no.5 has been ordered to be treated as a separate claim. learned counsel for the petitioners has submitted that the petitioners had filed suit for specific performance of agreement to sell dated 16.5.2005. at that time, dilbag singh had failed to join as a plaintiff and was arrayed as defendant no.5. application moved by defendant no.5 for being transposed as plaintiff was dismissed by the trial court. however, vide the impugned order, the trial court has devi anita 2014.02.19 10:31 i am approving this document chandigarh civil revision no.517 of 2011 2 erred in ordering that the written statement filed by defendant no.5 be treated as a separate claim parallel to the plaintiffs. in support of his arguments, learned counsel has placed reliance on the decision of the apex court in rohit singh and others versus state of bihar (now state of jharkhand) and others 2007 (1) rcr (civil) 674, wherein, it has been held as under:- “18. normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. but, it appears to us that a counter- claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co-defendants in the suit. but a counter-claim directed solely against the co.defendants cannot be maintained. by filing a counter- claim the litigation cannot be converted into some sort of an inter-pleader suit. here, defendants 3 to 17 had no claim as against the plaintiff except that they were denying the right put forward by the plaintiff and the validity of the document relied on by the plaintiff and were asserting a right in themselves. they had no case even that the plaintiff was trying to interfere with their claimed possession. their whole case was directed against defendants 1 and 2 in the suit and they were trying to put forward a claim as against the state and were challenging the claim of the state that the land involved was a notified devi anita forest in the possession of the state. such a counter- 2014.02.19 10:31 i am approving this document chandigarh civil revision no.517 of 2011 3 claim, in our view, should not have been entertained by the trial court.”. learned counsel has further placed reliance on the decision of this court in manphool and others versus surja ram and others air1978 pb and haryana 216, wherein, it has been held as under:- “8. mr.bahl has referred me to paragraph 25 of the rattigan's digest of customary law wherein it is stated that though all collateral heirs succeed together and not to the exclusion of each other but the right of collaterals to succeed is not a single individual one so as to give each collateral a right of action for the whole estate and has argued that the filing of the suit by one of the collaterals could not save limitation of the suit for the others.once again, it is not necessary to deal with that proposition for the purpose of disposing of this revision petition. in judging the plausibility of prima facie chances of success of the defendant--respondents in the suit of their being transposed as plaintiffs, i can only take into account if their suit, even if filed on the date on which nathu had filed the suit, would be patently barred by time. the argument of mr.bahl is that whereas the plaintiff sought to bring the suit within time on account of his minority, no such consideration applies to the defendant--respondents and, therefore, even if they had filed a suit in january, devi anita 1973, for questioning the adoption of september, 1930, or 2014.02.19 10:31 i am approving this document chandigarh civil revision no.517 of 2011 4 the gift of december, 1954, the same would have been prima facie barred by time. the only reply which mr.nagpal, the learned counsel for the respondents, could give to this argument is that the question of litigation can and should be decided only if and after transposition is allowed. for this proposition, he relies on the judgment of the calcutta high court in moniruddin ahmed v. sarat chandra roy, ilr (1949) 1 cal 85. it has no doubt been observed in the division bench judgment of the calcutta high court in moniruddin ahmed's case (supra) that the court's power to add a party and its duty to dismiss the suit against the added party on the ground of limitation are two different questions and that the question of limitation is not to be considered at the time of adding or transposing a party, but should be decided after the parties have been added or transposed. there is no doubt that sub--section (2) of s. 21 of the limitation act is a mere exception to the law contained in sub--section (1) of that section. that would not, however, bring a suit by a transposed plaintiff within time on the date on which the original plaintiff instituted the suit. it appears that the observations of the calcutta high court are based on the peculiar facts of that case and are in any case at variance with the law laid down by the division bench of this court in arjan singh's case (air1975punj & har 184)(supra).devi anita i, therefore, hold, following the division bench judgment 2014.02.19 10:31 i am approving this document chandigarh civil revision no.517 of 2011 5 of this court, that no order of transposition as a plaintiff or addition of a new plaintiff should ordinarily be passes where it is prima facie patent that if the newly added party or the transposed plaintiff had originally filed the suit on the date when the suit in question was in fact filed, it would have been doubtlessly barred by time. on the merits of the question of limitation the only argument which mr.nagpal has been able to advance is based on the observations of their lordships of the supreme court in giani ram v. ramji lal, air1969sc1144 wherein it has been held that under the customary law of punjab a declaratory decree obtained by the reversionary heirs in an action to set aside the alienation of ancestral property ensures in favour of all persons who ultimately take the estate on the death of the alienor. the argument of the learned counsel for the respondents is that a decree of the hissar court dismissing the suit of puran against bajrang and others amounts to the grant of a declaration about the adoption being a nullity which enures for the benefit of the defendant-respondents. i am unable to agree with this contention on the simple ground that no declaration has been granted by the hissar court at all and, therefore, the question of any declaration enuring for the benefit of one or the other of the reversioners does not arise on the facts of the instant case. there is good devi anita deal of difference between the grant of declaration on the 2014.02.19 10:31 i am approving this document chandigarh civil revision no.517 of 2011 6 one hand and the dismissal of a suit for possession based on an adoption on the other hand. mr.balraj bahl has also laid stress on the fact that though part of the claim was dismissed, partial decree was passed by the hissar court in that very suit in favour of puran based on the same adoption. be that as it may, nothing stated in the judgment of the supreme court in giani ram's case appears to me to lead to the conclusion that, if the respondents, who are now contesting the petition, had filed a suit in january, 1973, for the relief which was claimed by nathu, the same would have been within time. on that ground alone, i hold that the defendant-- applicants have no prima facie case entitling them to be transposed as plaintiffs. even otherwise their applications for transposition do not appear to me to be bona fide. they had kept quiet from january, 1975 to october, 1975. it was only after the plaintiff and the contesting defendant to the suit had come to an amicable settlement and had filed a compromise in court that the applications for transposition were made. it appears that a see-saw battle had been going on between the plaintiff and the non- contesting defendants to the suit inter se in which the poor contesting defendants were the victims.”. learned counsel for respondent nos.4 and 5, on the other hand, has opposed the petition and has submitted that case of devi anita the plaintiffs as well as respondent no.5 was on similar footing and 2014.02.19 10:31 i am approving this document chandigarh civil revision no.517 of 2011 7 the written statement filed by him was liable to be treated as a separate claim. in support of his arguments, learned counsel has placed reliance on the decision of the apex court in mukesh kumar and others versus col.harbans waraiah and others air2000supreme court 172, wherein, it has been held as under:- 6. specific performance of a contract can be enforced by any party to the contract. if there are more parties than one specific performance of a contract cannot be decreed in the absence of some of the parties to the contract. if some of the parties entitled to the benefit of the contract are not willing to be arrayed as plaintiffs they should be impleaded as defendants. section 23(a) of the specific relief act (now section 22) covers such a case. in nirmala bala dasi v, suddarsan jana air1980cl 258, it is held that one of the co-promises may sue for specific performance making the other co-promises as defendants. judgment can be given in favour of the persons interested whether they are joined as plaintiffs or as defendants. (see: monghibai v. cooverji umersr.air1939pc170, in a case where property was agreed to be transferred to three co-promises and all the three filed a suit for specific performance of the contract but only one of them came to witness box in support of the claim, it has been held that the other two co-promises would also be entitled to a decree of specific performance. in the devi anita case of co-contracted it is not necessary that all of them 2014.02.19 10:31 i am approving this document chandigarh civil revision no.517 of 2011 8 should be ranged on the same side for obtaining specific performance. it is sufficient if all of them are before the court. (see: jagdeo singh v, bisambhar, air (1937) nagpur 186).but where a single contract is to convey a land to several persons and the contract is not indivisible some of the joint contractees cannot seek specific performance if the other contractees do not want that relief.”. in the present case, plaintiffs have filed suit for specific performance of agreement to sell in question. it is averred in the plaint that respondent no.5 had failed to join the plaintiffs and had been impleaded as defendant no.5. respondent no.5 had filed the application for being transposed as a plaintiff on 28.11.2007. vide order dated 17.3.2008 (annexure p-10).the said application was withdrawn by respondent no.5-defendant no.5. thereafter, respondent no.5 moved another application on 18.10.2010 that he be transposed as a plaintiff. the trial court dismissed the application moved by respondent no.5 for being transposed as a plaintiff vide the impugned order. however, the claim of respondent no.5-defendant no.5 could not have been treated as a separate claim parallel to the plaintiffs as there is no provision in the cpc for treating the written statement by one of the defendants as parallel claim with the plaintiffs. there is a provision in cpc allowing the defendant to claim a counter claim against the plaintiffs. however, there is no provision allowing the defendant to devi anita have a parallel claim with the plaintiffs. the judgment relied upon by 2014.02.19 10:31 i am approving this document chandigarh civil revision no.517 of 2011 9 learned counsel for respondent nos.4 and 5 fails to advance the case of the said respondent as it was based on different facts. accordingly, this petition is allowed. impugned order dated 18.12.2010 (annexure p-1).whereby, written statement filed by dilbag singh- respondent no.5 was ordered to be treated as a separate claim parallel to the plaintiffs is set aside. (sabina) judge february 10, 2014 anita devi anita 2014.02.19 10:31 i am approving this document chandigarh
Judgment:

Civil Revision No.517 of 2011 1 In the High Court of Punjab and Haryana at Chandigarh 206 Civil Revision No.517 of 2011 Date of decision: 10.2.2014 Shingara Singh and another ......petitioners Versus Joginder Singh and others .......Respondents CORAM: HON'BLE MRS.JUSTICE SABINA Present: Mr.Rakesh Gupta, Advocate for the petitioneRs.None for respondent No.1.

Mr.R.S.Monga, Advocate for respondents No.4 and 5.

**** SABINA, J.

This petition has been filed by the petitioners challenging order dated 18.12.2010 (Annexure P-1).whereby, written statement filed by Dilbag Singh-defendant No.5 has been ordered to be treated as a separate claim.

Learned counsel for the petitioners has submitted that the petitioners had filed suit for specific performance of agreement to sell dated 16.5.2005.

At that time, Dilbag Singh had failed to join as a plaintiff and was arrayed as defendant No.5.

Application moved by defendant No.5 for being transposed as plaintiff was dismissed by the trial Court.

However, vide the impugned order, the trial Court has Devi Anita 2014.02.19 10:31 I am approving this document Chandigarh Civil Revision No.517 of 2011 2 erred in ordering that the written statement filed by defendant No.5 be treated as a separate claim parallel to the plaintiffs.

In support of his arguments, learned counsel has placed reliance on the decision of the Apex Court in Rohit Singh and others versus State of Bihar (now State of Jharkhand) and others 2007 (1) RCR (Civil) 674, wherein, it has been held as under:- “18.

Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made.

But, it appears to us that a counter- claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co-defendants in the suit.

But a counter-claim directed solely against the Co.defendants cannot be maintained.

By filing a counter- claim the litigation cannot be converted into some sort of an inter-pleader suit.

Here, defendants 3 to 17 had no claim as against the plaintiff except that they were denying the right put forward by the plaintiff and the validity of the document relied on by the plaintiff and were asserting a right in themselves.

They had no case even that the plaintiff was trying to interfere with their claimed possession.

Their whole case was directed against defendants 1 and 2 in the suit and they were trying to put forward a claim as against the State and were challenging the claim of the State that the land involved was a notified Devi Anita forest in the possession of the State.

Such a counter- 2014.02.19 10:31 I am approving this document Chandigarh Civil Revision No.517 of 2011 3 claim, in our view, should not have been entertained by the trial court.”

.

Learned counsel has further placed reliance on the decision of this Court in Manphool and others versus Surja Ram and others AIR1978 Pb and Haryana 216, wherein, it has been held as under:- “8.

Mr.Bahl has referred me to paragraph 25 of the Rattigan's Digest of Customary Law wherein it is stated that though all collateral heirs succeed together and not to the exclusion of each other but the right of collaterals to succeed is not a single individual one so as to give each collateral a right of action for the whole estate and has argued that the filing of the suit by one of the collaterals could not save limitation of the suit for the otheRs.Once again, it is not necessary to deal with that proposition for the purpose of disposing of this revision petition.

In judging the plausibility of prima facie chances of success of the defendant--respondents in the suit of their being transposed as plaintiffs, I can only take into account if their suit, even if filed on the date on which Nathu had filed the suit, would be patently barred by time.

The argument of Mr.Bahl is that whereas the plaintiff sought to bring the suit within time on account of his minority, no such consideration applies to the defendant--respondents and, therefore, even if they had filed a suit in January, Devi Anita 1973, for questioning the adoption of September, 1930, or 2014.02.19 10:31 I am approving this document Chandigarh Civil Revision No.517 of 2011 4 the gift of December, 1954, the same would have been prima facie barred by time.

The only reply which Mr.Nagpal, the learned counsel for the respondents, could give to this argument is that the question of litigation can and should be decided only if and after transposition is allowed.

For this proposition, he relies on the judgment of the Calcutta High Court in Moniruddin Ahmed v.

Sarat Chandra Roy, ILR (1949) 1 Cal 85.

It has no doubt been observed in the Division Bench judgment of the Calcutta High Court in Moniruddin Ahmed's case (supra) that the Court's power to add a party and its duty to dismiss the suit against the added party on the ground of limitation are two different questions and that the question of limitation is not to be considered at the time of adding or transposing a party, but should be decided after the parties have been added or transposed.

There is no doubt that sub--section (2) of S.

21 of the Limitation Act is a mere exception to the law contained in sub--section (1) of that section.

That would not, however, bring a suit by a transposed plaintiff within time on the date on which the original plaintiff instituted the suit.

It appears that the observations of the Calcutta High Court are based on the peculiar facts of that case and are in any case at variance with the law laid down by the Division Bench of this Court in Arjan Singh's case (AIR1975Punj & Har 184)(supra).Devi Anita I, therefore, hold, following the Division Bench Judgment 2014.02.19 10:31 I am approving this document Chandigarh Civil Revision No.517 of 2011 5 of this court, that no order of transposition as a plaintiff or addition of a new plaintiff should ordinarily be passes where it is prima facie patent that if the newly added party or the transposed plaintiff had originally filed the suit on the date when the suit in question was in fact filed, it would have been doubtlessly barred by time.

On the merits of the question of limitation the only argument which Mr.Nagpal has been able to advance is based on the observations of their Lordships of the Supreme Court in Giani Ram v.

Ramji Lal, AIR1969SC1144 wherein it has been held that under the customary law of Punjab a declaratory decree obtained by the reversionary heirs in an action to set aside the alienation of ancestral property ensures in favour of all persons who ultimately take the estate on the death of the alienor.

The argument of the learned counsel for the respondents is that a decree of the Hissar Court dismissing the suit of Puran against Bajrang and others amounts to the grant of a declaration about the adoption being a nullity which enures for the benefit of the defendant-respondents.

I am unable to agree with this contention on the simple ground that no declaration has been granted by the Hissar Court at all and, therefore, the question of any declaration enuring for the benefit of one or the other of the reversioners does not arise on the facts of the instant case.

There is good Devi Anita deal of difference between the grant of declaration on the 2014.02.19 10:31 I am approving this document Chandigarh Civil Revision No.517 of 2011 6 one hand and the dismissal of a suit for possession based on an adoption on the other hand.

Mr.Balraj Bahl has also laid stress on the fact that though part of the claim was dismissed, partial decree was passed by the Hissar Court in that very suit in favour of Puran based on the same adoption.

Be that as it may, nothing stated in the judgment of the Supreme Court in Giani Ram's case appears to me to lead to the conclusion that, if the respondents, who are now contesting the petition, had filed a suit in January, 1973, for the relief which was claimed by Nathu, the same would have been within time.

On that ground alone, I hold that the defendant-- applicants have no prima facie case entitling them to be transposed as plaintiffs.

Even otherwise their applications for transposition do not appear to me to be bona fide.

They had kept quiet from January, 1975 to October, 1975.

It was only after the plaintiff and the contesting defendant to the suit had come to an amicable settlement and had filed a compromise in Court that the applications for transposition were made.

It appears that a see-saw battle had been going on between the plaintiff and the non- contesting defendants to the suit inter se in which the poor contesting defendants were the victims.”

.

Learned counsel for respondent Nos.4 and 5, on the other hand, has opposed the petition and has submitted that case of Devi Anita the plaintiffs as well as respondent No.5 was on similar footing and 2014.02.19 10:31 I am approving this document Chandigarh Civil Revision No.517 of 2011 7 the written statement filed by him was liable to be treated as a separate claim.

In support of his arguments, learned counsel has placed reliance on the decision of the Apex Court in Mukesh Kumar and others versus Col.Harbans Waraiah and others AIR2000Supreme Court 172, wherein, it has been held as under:- 6.

Specific performance of a contract can be enforced by any party to the contract.

If there are more parties than one specific performance of a contract cannot be decreed in the absence of some of the parties to the contract.

If some of the parties entitled to the benefit of the contract are not willing to be arrayed as plaintiffs they should be impleaded as defendants.

Section 23(a) of the Specific Relief Act (now Section 22) covers such a case.

In Nirmala Bala Dasi v, Suddarsan Jana AIR1980Cl 258, it is held that one of the co-promises may sue for specific performance making the other co-promises as defendants.

Judgment can be given in favour of the persons interested whether they are joined as plaintiffs or as defendants.

(See: Monghibai v.

Cooverji UmerSr.AIR1939PC170, In a case where property was agreed to be transferred to three co-promises and all the three filed a suit for specific performance of the contract but only one of them came to witness box in support of the claim, it has been held that the other two co-promises would also be entitled to a decree of specific performance.

In the Devi Anita case of co-contracted it is not necessary that all of them 2014.02.19 10:31 I am approving this document Chandigarh Civil Revision No.517 of 2011 8 should be ranged on the same side for obtaining specific performance.

It is sufficient if all of them are before the court.

(See: Jagdeo Singh v, Bisambhar, AIR (1937) Nagpur 186).But where a single contract is to convey a land to several persons and the contract is not indivisible some of the joint contractees cannot seek specific performance if the other contractees do not want that relief.”

.

In the present case, plaintiffs have filed suit for specific performance of agreement to sell in question.

It is averred in the plaint that respondent No.5 had failed to join the plaintiffs and had been impleaded as defendant No.5.

Respondent No.5 had filed the application for being transposed as a plaintiff on 28.11.2007.

Vide order dated 17.3.2008 (Annexure P-10).the said application was withdrawn by respondent No.5-defendant No.5.

Thereafter, respondent No.5 moved another application on 18.10.2010 that he be transposed as a plaintiff.

The trial Court dismissed the application moved by respondent No.5 for being transposed as a plaintiff vide the impugned order.

However, the claim of respondent No.5-defendant No.5 could not have been treated as a separate claim parallel to the plaintiffs as there is no provision in the CPC for treating the written statement by one of the defendants as parallel claim with the plaintiffs.

There is a provision in CPC allowing the defendant to claim a counter claim against the plaintiffs.

However, there is no provision allowing the defendant to Devi Anita have a parallel claim with the plaintiffs.

The judgment relied upon by 2014.02.19 10:31 I am approving this document Chandigarh Civil Revision No.517 of 2011 9 learned counsel for respondent Nos.4 and 5 fails to advance the case of the said respondent as it was based on different facts.

Accordingly, this petition is allowed.

Impugned order dated 18.12.2010 (Annexure P-1).whereby, written statement filed by Dilbag Singh- respondent No.5 was ordered to be treated as a separate claim parallel to the plaintiffs is set aside.

(SABINA) JUDGE February 10, 2014 anita Devi Anita 2014.02.19 10:31 I am approving this document Chandigarh