Please sign up to view Summary. The plaintiff has filed a suit on 19th September, praying, inter alia, for the following reliefs: The oral agreement was followed by notes being prepared on the said agreement on May 3, and then again on 15th October, One month after the note of discussion dated October, the entire Mangla Hat was gutted by fire.
Thereafter, within four days the property was requisitioned by the Government of West Bengal. The said requisition proceeding was challenged by the plaintiffs by filing a writ petition as they were at that stage interested to purchase the property.
Mimanis on May 16, were successful in setting aside the order of requisition. The said order was challenged before the Division Bench. The appeal was disposed of on 17th June, affirming the order of the learned Single Judge.
Mimanis claim was based on allaged agreement for sale and Daws claimed possession on the basis of their ownership. Daws refused to execute conveyance in favour of the Mimanis. In the said proceeding an application for injunction was filed. The trial court refused to pass any such order. In an appeal preferred in this Court, the Honble Division Bench passed a conditional order of injunction on February 12, which reads: After and only after the appellants deposit of Rs.
The Special Leave Petition was disposed of by an order dated 5th April, with the modification that the defendants may not construct any building or structure on the suit land so as to alter the nature of the land. The other directions of the Honble Division Bench, however, remained unaltered. The relevant observations of the Honble Supreme Court are: While, therefore, we do not intend to interfere with the impugned order of the High Court, except insofar as it relates to the permission to the owner to build any structure on the land, we direct that the defendants may not construct any building or structure on the suit land so as to alter the nature of the land.
We direct the learned City Civil Judge, Howrah to dispose of the suit on priority basis within six months from today and if for any reason it is not possible, it must be deposed of within one year. The defendants undertake to file the written statement within two weeks from today. We make it clear that this direction of ours regarding injuncting the defendants from raising any structure would remain operative till the disposal of the suit and not thereafter.
During the pendency of the aforesaid suit Pranab Chand Deb died and the defendant nos. In that suit a terms of settlement was filed by which the Daws had agreed to convey their respective shares in the said property in favour of the assignees of the defendant no. The said assignees were brought on record in the said proceeding and necessary amendments were carried out in the cause title. Eight individual deeds of conveyance were executed in favour of the defendant nos.
The plaintiffs after being aware of such transfers, filed an application for leave to intervene and for setting aside of the said decree. The plaintiffs lost both before the learned Single Bench and the Division Bench. The sum and substance of the orders by which the said application was dismissed appears to be that since the plaintiffs are not the parties to the suit, they cannot apply for setting aside of the decree inasmuch as in a suit for specific performance, the plaintiffs cannot be added as by addition of the plaintiffs it would convert the suit for specific performance into the suit for title and possession.
Being aggrieved by the aforesaid orders, the plaintiffs prepared a Special Leave Petition. The special leave petition was disposed of on 18th April, with the following observations: After some arguments, learned senior counsel appearing for the petitioners sought permission to withdraw the special leave petition with liberty to file a suit.
He may do so, in accordance with law. Thereafter this suit has been instituted The plaintiffs construed this order as a liberty to file a suit and in paragraph 59 have made the following averments: The plaintiffs on being advised ventilated their grievances with regard to the decree dated 28th July, and the eight several Deeds of Conveyance pursuant thereto before this Honble Court by filing an application in the said suit being C.
The plaintiffs had filed the application being G. Against such dismissal an appeal was preferred being A. The appeal so preferred was disposed of by an order dated 18th April, Against such order a Special Leave Petition was filed which was withdrawn on 24th January, which liberty to file a suit and as such no part of the plaintiffs claim is barred by limitation.
The order of the Supreme Court has been construed differently by the learned counsel representing the respective parties to suit their purposes and to their advantage.
While the applicant defendant contended that the said order would not save limitation, the learned counsel representing the plaintiffs submit that there are sufficient indications in the order to the contrary.
In any event, there are enough materials to justify the filing of the suit at this stage. The plaintiffs cannot be held remediless. On behalf of the plaintiffs it is submitted that by reason of the order of the Division Bench dated 12th February, and the subsequent order of the Honble Supreme Court dated 5th April, , Daws were restrained from parting with possession of the said Mangla Hat property comprising of cottahs or any part thereof, or entering into any agreement for sale in regard thereof, or any part thereof.
Admittedly, the Daws have entered into an agreement with the nominees of the defendant no. The Daws with full knowledge of the said order made the transfer. It is however not necessary at this stage to decide the rights of the respective parties but being reminded of the well established principle that fraud vitiates everything and the Court can annul a decree, if obtained by fraud.
The pleadings of the plaintiffs have to be read as a whole and in a meaningful manner to find out if the suit is otherwise barred by limitation. The plaintiffs have proceeded on the basis that its remedy would lie by filing an intervention application in the suit filed by the defendant no. Under Section 14 of the Limitation Act , the plaintiff is entitled to execution of time if it is established that the plaintiff has been prosecuting with due diligence another civil proceeding against the defendant where the proceeding relates to the same matter in issue and is prosecuting in good faith in a court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it.
Much emphasis has been laid on the phrase defect of jurisdiction or other cause of a like nature to argue that in the instant case, the Courts have held that it had the jurisdiction and the Court had refused to entertain the plea of the plaintiffs on merits and, accordingly, Section 14 1 of the Limitation Act, cannot be availed of.
Board of Revenue, U. Moreover, there is no pleading to that effect. In order to appreciate the said argument, it is necessary to refer to the orders passed in the earlier proceedings.
The learned Single Judge dismissed the intervention application filed by the plaintiffs with the following observation: It is nobodys case that the suit was filed conclusively. The only case, which the petitioners make out that the compromise, was fraudulently obtained, is that the said compromise violates the order passed by the Honble Division Bench and thereafter affirmed by the Honble Supreme Court.
Curiously enough the petitioners have not taken any steps against anyone for alleged violation of order of Court. I do not say that for that reason alone, the petitioners are not entitled to maintain this application, but however, the conduct of the parties certainly becomes material while deciding the disputes involved herein. It is an admitted position that there was no order of injunction operating against the plaintiffs.
The terms of settlement filed before this Court clearly records that the possession was handed over to the plaintiffs long before passing of the order of injunction. This statement has been seriously disputed on behalf of the petitioners. It is contended that in other proceedings in affidavits the Daws have stated that they are in possession. In any view of the matter, these are question, which cannot be decided on affidavit evidences.
But apart from anything, the most important question, which arises here, is whether this application can at all be entertained. Though it has been very strenuously argued on behalf of the petitioners that a decree for specific performance is preliminary in nature, I am of the opinion that a decree for specific performance is to be treated as a preliminary decree as between parties to the suit.
A suit for specific performance cannot be equated with a suit for partition, which contemplates two sets of decree one preliminary and another final. The preliminary decree is passed to ascertain the shares of the co- sharers and the final decree is passed for actual physical partition after ascertainment of the sharers of the co-sharers.
In the suit for specific performance when a decree is passed there are certain mutual rights and obligations cast upon the plaintiffs and the defendants inasmuch as a plaintiff is required to pay the balance consideration money and the defendant is required to execute the conveyance in favour of the plaintiff. The Division Bench of this Court dismissed the appeal with the following observation: In the case of Kasturi supra the Apex Court was of the view, a third party could not be a necessary party in a suit for specific performance and.