THANKAMMA Vs. BHARATHI PILLAI

JUDGEMENT

(1.) PLAINTIFF is the appellant. She filed the suit for specific performance of an oral agreement by the first defendant to sell the plaintiff schedule property to her. The agreement was on 12-3-1978 for a consideration of Rs. 9000/- of which an amount of Rs. 1000/- was paid as advance though according to the first defendant the consideration was Rs. 10,000/ -. The plaintiff's case is that she was put in possession of the property, though this is not admitted by the first defendant. The first defendant endorsed in the application made by the plaintiff to the second defendant for loan that she was willing to sell the property to the plaintiff. The plaintiff who belongs to the Scheduled Caste community alleges that the agreement was to complete the sale as and when the to an she had applied for from the second defendant was sanctioned to her. A loan of Rs. 5000/- was sanctioned on 6-10-1979, but the first defendant was attempting to sell the property to strangers when the plaintiff filed the suit O. S. No. 28 of 1981 in the Munsiffs Court, haripad for an injunction restraining the first defendant from selling the property to any one other than the plaintiff. An order of temporary injunction ext. Al was-passed on 3-7-1981. This was challenged in appeal in the District court, Mavelikara by the first defendant. The District Court confirmed the order of injunction by the order Ext. B2 dated 30-11-1983. At the same time the court held that such an order of injunction could not be issued unconditionally, in view of the fact that the first defendant could not be restrained for ever from alienating the property to anyone other than the plaintiff. Such an indefinite restraint was not proper, and therefore the suit itself was prima facie not entertainable, as one merely for an injunction without a prayer for specific performance. PLAINTIFF had therefore to amend the plaint suitably. Therefore and while disposing of the appeal the learned district Judge made the injunction subject to the condition that the plaintiff amended the plaint suitably within two months from 16-2-1984 and took follow up action thereafter for prosecuting the suit for the decree that may be passed under the said amendment. Parties were directed to appear in the lower court on 16-2-1984. PLAINTIFF thereafter instituted the present suit O. S. No. 29 of 1984 on 16-2-1984 for a decree of specific performance of the agreement. So far as o. S. No. 28 of 1981 was concerned he sought leave to withdraw the said suit by filing Application Ext. A3 on 16-2-1984 which was allowed by the order Ext. A4 dated 19-7-1984 without prejudice to the new suit O. S. No. 29 of 1984 already instituted by the plaintiff.

(2.) THE first defendant denied the agreement as also the allegation that the plaintiff had been put in possession of the suit property thereunder. She also pointed out that she had as early as on 4-10-1979 withdrawn her expression of willingness to sell the property to the plaintiff vide Ext. B3 and therefore the suit was in any event barred by limitation, as it had not been filed within three years therefrom.

(3.) I shall extract sub-sections (1) and (3) of S. A-+ on which reliance is placed by counsel for the appellant. "14. Exclusion of time of proceeding bona fide in court without jurisdiction.- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. Notwithstanding anything contained in Rule 2 of order 23 of the Code of civil Procedure, 1908, the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted 'by the Court under Rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of defect in the jurisdiction of the Court or other cause of a like nature". From a reading of sub-section (1) it will be seen that the following ingredients have to concur for the sub-section to apply: - (a)the plaintiff must have been prosecuting another civil proceeding whether in a court of first instance or of appeal or revision, (b) it must be against the defendant, (c) it must have been prosecuted with due diligence, (d) that proceedings must relate to the same matter in issue, (e) that must have been prosecuted in good faith and (f) the court where the proceeding was pending was unable to entertain it for defect of jurisdiction or other cause of a like nature. One thing stands out amongst others, namely, that the court could not entertain the previous suit because of defect of jurisdiction or other cause of a like nature. If this ingredient is not established, S. 14 (1) is not attracted. The question is therefore whether the plaintiff has succeeded in establishing this ingredient to enable her to get the benefit of S. 14 (1 ).