Code of Civil Procedure, 1908 – s.11 – Res judicata – Rights of co-defendants – The title suit no.9/89 of the plaintiff-appellant was decreed by the Court of the first instance – In appeal, the First appellate Court reversed the decree on the ground that the suit was hit by the principle of res judicata in view of an earlier suit no.8/64 instituted by M wherein the plaintiff-appellant was defendant no.2 – The second appeal was dismissed on the ground that it did not state any substantial question of law – Propriety: Held: The lis in the previous suit i.e. Suit No.8/64 was regarding ownership and entitlement of M over the entire 5.38 acres of land of village Ramgarh qua the Cantonment Board, Ramgarh; the plaintiff-appellant and other defendants in the said suit; whereas the controversy in the present suit is quite distinct with regard to only 0.30 acres of the suit land vis-à-vis the plaintiff-appellant and the Cantonment Board, Ramgarh – The suit, as filed by M claiming right, title and interest over 5.38 acres of land of village Ramgarh was dismissed simpliciter without adjudication of any rights of the plaintiff-appellant over the suit land vis-à-vis the Cantonment Board, Ramgarh – It is a settled law that the principle of res judicata is applicable not only between the plaintiff and the defendants but also between the co-defendants – In applying the principle of res judicata between the co-defendants, primarily three conditions are necessary to be fulfilled, namely, (i) there must be a conflict of interest between the co-defendants; (ii) there is necessity to decide the said conflict in order to give relief to plaintiff; and (iii) there is final decision adjudicating the said conflict – In the instant case, there was no conflict of interest between the co-defendants in the earlier Suit No. 8 of 64 inasmuch as the plaintiff-appellant was independently claiming rights over 0.30 acres of suit land whereas the Cantonment Board, Ramgarh was claiming rights over 2.55 acres of the land which formed part of the Estate of R without asserting that the land settled in its favour is the same as claimed by plaintiff-appellant or that there was any encroachment upon the land settled in its favour – M was claiming the entire Estate of 5.38 acres of land and her claim was defeated as she was unable to prove the grant of the said land in her favour with no specific finding by the court regarding the claims set up by the codefendants, the inter se dispute of the co-defendants as raised in the present suit never came to be adjudicated – In view of the facts and circumstances, the principle of res judicata is not attracted – As far as claim of the plaintiff-appellant is concerned, the plaintiff-appellant by sufficient evidence has proved the settlement of the suit land by the R in his favour – It stands proved by the Amin report (Exh.8) dated 15.04.1942 20 and the Hukumnama (Exh.9) dated 07.04.1943 as well as the Rent receipt (Exh.6, 6/A and 7) – The order of the Additional Collector, Hazaribagh dated 07.01.1963 (Exh.16) directing realization of rent from the plaintiff-appellant also confirms the above settlement and its subsequent approval by the State on enhancement of rent – All these documents have not been confronted by the other side – The fact that the name of the plaintiff-appellant was also mutated in the revenue records proves it beyond doubt, in the absence of any contrary evidence that he is in possession of the suit land. [Paras 20, 21, 23, 25, 33]

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[2024] 7 S.C.R. 29 : 2024 INSC 467

Har Narayan Tewari (D) Thr. Lrs. v. Cantonment Board, Ramgarh Cantonment & Ors.

(Civil Appeal No. 8829 of 2010)

08 July 2024

[Abhay S. Oka and Pankaj Mithal,* JJ.]

Issue for Consideration

Whether the present suit (claiming title and possession over the suit land) as filed by the plaintiff-appellant was barred under Section 11 CPC on principle of res judicata inasmuch as there was no adjudication of the rights of the co-defendants (including appellant) in the previous suit with regard to the suit land and the issue therein was not directly or indirectly and substantially the same as in the present suit.

Headnotes

Code of Civil Procedure, 1908 – s.11 – Res judicata – Rights of co-defendants – The title suit no.9/89 of the plaintiff-appellant was decreed by the Court of the first instance – In appeal, the First appellate Court reversed the decree on the ground that the suit was hit by the principle of res judicata in view of an earlier suit no.8/64 instituted by M wherein the plaintiff-appellant was defendant no.2 – The second appeal was dismissed on the ground that it did not state any substantial question of law – Propriety:

Held: The lis in the previous suit i.e. Suit No.8/64 was regarding ownership and entitlement of M over the entire 5.38 acres of land of village Ramgarh qua the Cantonment Board, Ramgarh; the plaintiff-appellant and other defendants in the said suit; whereas the controversy in the present suit is quite distinct with regard to only 0.30 acres of the suit land vis-à-vis the plaintiff-appellant and the Cantonment Board, Ramgarh – The suit, as filed by M claiming right, title and interest over 5.38 acres of land of village Ramgarh was dismissed simpliciter without adjudication of any rights of the plaintiff-appellant over the suit land vis-à-vis the Cantonment Board, Ramgarh – It is a settled law that the principle of res judicata is applicable not only between the plaintiff and the defendants but also between the co-defendants – In applying the principle of res judicata between the co-defendants, primarily three conditions are necessary to be fulfilled, namely, (i) there must be a conflict of interest between the co-defendants; (ii) there is necessity to decide the said conflict in order to give relief to plaintiff; and (iii) there is final decision adjudicating the said conflict – In the instant case, there was no conflict of interest between the co-defendants in the earlier Suit No. 8 of 64 inasmuch as the plaintiff-appellant was independently claiming rights over 0.30 acres of suit land whereas the Cantonment Board, Ramgarh was claiming rights over 2.55 acres of the land which formed part of the Estate of R without asserting that the land settled in its favour is the same as claimed by plaintiff-appellant or that there was any encroachment upon the land settled in its favour – M was claiming the entire Estate of 5.38 acres of land and her claim was defeated as she was unable to prove the grant of the said land in her favour with no specific finding by the court regarding the claims set up by the codefendants, the inter se dispute of the co-defendants as raised in the present suit never came to be adjudicated – In view of the facts and circumstances, the principle of res judicata is not attracted – As far as claim of the plaintiff-appellant is concerned, the plaintiff-appellant by sufficient evidence has proved the settlement of the suit land by the R in his favour – It stands proved by the Amin report (Exh.8) dated 15.04.1942 20 and the Hukumnama (Exh.9) dated 07.04.1943 as well as the Rent receipt (Exh.6, 6/A and 7) – The order of the Additional Collector, Hazaribagh dated 07.01.1963 (Exh.16) directing realization of rent from the plaintiff-appellant also confirms the above settlement and its subsequent approval by the State on enhancement of rent – All these documents have not been confronted by the other side – The fact that the name of the plaintiff-appellant was also mutated in the revenue records proves it beyond doubt, in the absence of any contrary evidence that he is in possession of the suit land. [Paras 20, 21, 23, 25, 33]

Case Law Cited

Govindammal (Dead) by Legal Representatives and Ors. v. Vaidiyanathan and Ors. [2018] 11 SCR 1092 : (2019) 17 SCC 433 – referred to.

List of Acts

Code of Civil Procedure, 1908.

List of Keywords

Principle of res judicata; Section 11 of Code of Civil Procedure, 1908; Rights of co-defendants; Claim of right, title, interest; Conflict of interest between the co-defendants.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8829 of 2010

From the Judgment and Order dated 01.04.2009 of the High Court of Jharkhand at Ranchi in SA No.266 of 2006

Appearances for Parties

Manoj Goel, Sr. Adv., Mrs. Smriti Prasad, Vinayak Goel, Mrs. S. Gupta, Shuvodeep Roy, Advs. for the Appellants.

Manoj Swarup, Sr. Adv., Ms. Madhurima Tatia, Adv. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Pankaj Mithal, J.

1.Shri Manoj Goel, learned senior counsel for the appellants and Shri Manoj Swarup, learned senior counsel for the respondents were heard.

2.The Title Suit No.9/89 of the plaintiff-appellant (Har Narayan Tewari) was decreed on 16.03.2000 by the court of first instance. In an appeal by the Cantonment Board, Ramgarh, the said decree was reversed by the First Appellate Court vide judgment and order dated 28.06.2006; basically on the ground that the suit was hit by principle of res judicata in view of the decision in the earlier Title Suit No.8/64 instituted by Maharani Lalita Rajya Lakshmi1 (wife of Raja Bahadur Kamakshya Narayan Singh2) wherein the plaintiff-appellant was defendant No.32 and the Cantonment Board, Ramgarh was the main contesting defendant. The Second Appeal preferred by the plaintiff-appellant to the High Court was dismissed on 01.04.2009 simply stating that it does not raise any substantial question of law.

3.Aggrieved by the judgment and order of the High Court dated 01.04.2009 dismissing the appeal; the plaintiff-appellant has preferred this appeal and has also assailed the judgment and order dated 28.06.2006 of the First Appellate Court alleging that his suit was not barred by res judicata and that he has validly acquired title and possession over the disputed land.

4.The plaintiff-appellant had filed the above referred Title Suit No.9/89 for declaration of his title over the properties mentioned in Schedule ‘A’ of the plaint with structures and buildings standing thereon and for confirmation of his possession over the same. In the alternative, a prayer was made that in case the plaintiff-appellant was not found in possession of the said property, the Cantonment Board, Ramgarh, or any person claiming through it, be evicted and he be put in possession with the further direction that they be restrained by a decree of permanent injunction from dispossessing the plaintiff-appellant from the said property in future.

5.According to Schedule ‘A’ of the plaint, the dispute is about two pieces of land: First, land measuring 0.12 acres out of 2.04 acres of Plot No.432; and secondly land measuring 0.18 acres out of 0.66 acres of Plot No.438 both situate in village Ramgarh, within the Cantonment Board, Ramgarh with boundaries as described in the Schedule. In short, the dispute in the suit is only regarding 0.12 acres of Plot No.432 and 0.18 acres of Plot No.438 i.e. total of 0.30 acres of the above two plots and the structures existing thereon.

6.The plaintiff-appellant is claiming title and possession over the suit land alleging that the Raja, the proprietor of the village, had settled the aforesaid land measuring 0.30 acres of the land comprising of Plot Nos.432 and 438 in his favour in the year 1942.

7.The case of the plaintiff-appellant was that village Ramgarh was the part of the Estate of Raja. It was under the management of the Court of Wards and was released in Raja’s favour in the year 1937. During the period of its management by the Court of Wards, its manager acquired 5.38 acres of additional land comprised in various plots including Plot Nos.432 and 438 in proceedings bearing Case No.1/1926-27 and came in possession thereof.

8.The Raja in the year 1942 made a permanent raiyati settlement of the suit land in favour of the plaintiff-appellant and also delivered its possession to him on payment of rent and salami of Rs.2,000/-. After vesting of the Estate of Ramgarh in the State of Bihar, the name of the plaintiff-appellant was mutated upon enhancement of rent @ Rs.2/- per decimal by an order dated 04.01.1963 of the Additional Collector, Ramgarh passed in Case No.115/62-63 (Exh.13). The plaintiff-appellant had constructed certain structures on the said land which have been let out to various persons, all of whom are defendants in the suit.

9.Upon the establishment of the Cantonment Board, Ramgarh, the ex-proprietor Raja handed over 2.55 acres of land (excluding the suit land) with the dispensary building etc. to the Cantonment Board temporarily. The Cantonment Board, as such, never came in possession of more than 2.55 acres of land that too which was other than the land settled and occupied by the plaintiff-appellant.

10.In 1964, Maharani, the wife of the Raja, instituted a Title Suit No.8/64, inter alia, for declaration of her title over 5.38 acres of the land of the village including 0.30 acres land of the plaintiff-appellant. The aforesaid claim was made on the basis of the maintenance grant allegedly made by the Raja in her favour.

11.The aforesaid suit was contested by the plaintiff-appellant by filing a written statement and claiming 0.30 acres land on the basis of raiyati rights granted by the Raja in the year 1942. The Cantonment Board, Ramgarh, claimed distinct rights in different portions of the land to the extent of 2.55 acres only, comprising of dispensary building and quarters of the doctors on the basis of possessory rights granted by the Raja.

12.In the aforesaid case, Maharani entered into a compromise with several defendants including the plaintiff-appellant (who was defendant No.32 in the said suit). According to the said compromise, Maharani admitted the possession of the plaintiff-appellant over the suit land to the extent of 0.30 acres in Plot Nos.432 and 438 and it was agreed that she will have no concern with the same and that the plaintiff-appellant will remain in exclusive possession of it. The Cantonment Board, Ramgarh did not object to it or challenge the compromise.

13.In the said suit, as many as nine issues were framed including the maintainability of the suit and about the right, title and possession of Maharani. The suit of the Maharani was dismissed vide judgment and order dated 31.03.1984, primarily on the ground that it was not maintainable as the State of Bihar being a necessary party, was not made a party and that Maharani had not entered into the witness box to prove her case. She as such, was not found to be the owner in possession of the land claimed by her. The court in dismissing the suit clearly mentioned that the parties who have entered into the compromise with Maharani will not have any right on the basis of the compromise deed as she herself has failed to prove her independent rights over the land claimed by her.

14.The second appeal filed by the plaintiff-appellant was dismissed by the High Court as it failed to raise any substantial question of law, which is mandatory for entertaining an appeal under Section 100 of the Code of Civil Procedure. Therefore, the first point which arises for consideration herein is - whether in the facts and circumstances of the case, any substantial question of law was involved in the second appeal.

15.The submission is that the plaintiff-appellant was non-suited by the First Appellate Court, on the ground that his suit was barred by res judicata. One of the essential conditions for the applicability of principle of res judicata as enshrined under Section 11 of the CPC is that the issue in the earlier suit and the subsequent suit ought to be directly and substantially the same. In the earlier Suit No. 8/64 instituted by Maharani, her claim was that she is the lawful owner of the entire 5.38 acre of land of Village Ramgarh, on the basis of the maintenance grant made in her favour by the Raja. In the said suit, the plaintiff-appellant was defendant no. 32 and the Cantonment Board, Ramgarh was defendant No. 1. The claim set up by Maharani was not accepted and ex-facie there was no adjudication regarding the rights of the co-defendants over the suit land viz 0.30 acres of land of plot Nos. 432 and 438 as claimed by the plaintiff-appellant in the present suit. The limited issue therein was whether the Maharani had acquired any right in the above entire property on the basis of maintenance in grant alleged to be executed by the Raja in her favour. There was no issue as to whether the suit land as claimed by the plaintiff-appellant belonged to him or was settled or not settled in his favour as claimed. Thus, in the facts and circumstances of the case, a clear substantial question of law as to whether the present suit as filed by the plaintiff-appellant was barred under Section 11 CPC on principle of res judicata inasmuch as there was no adjudication of the rights of the co-defendants in the previous suit with regard to the suit land and the issue therein was not directly or indirectly and substantially the same as in the present suit.

16.In view of the above, we are of the opinion that the High Court manifestly erred in dismissing the second appeal in limine on the ground that there was no substantial question of law involved therein.

17.As stated earlier, the substantial question of law arising in the second appeal was - Whether the suit as setup by the plaintiff-appellant was barred by principle of res judicata in view of the decision in the earlier Suit No. 8 of 64 wherein rights of the co-defendants in respect of the suit land were never adjudicated and non-acceptance of the claim of Maharani was not sufficient so as to decide the rights of the co-defendants.

18.There are no factual disputes which may require consideration of any evidence so as to answer the above substantial question of law. Therefore, we consider it appropriate to decide the above substantial question of law ourselves instead of leaving it for the High Court to adjudicate it.

19.It is an admitted position that the suit land i.e., portions of plot Nos. 432 and 438 were part of the Estate of Raja who had acquired about 5.38 acres of additional land of village Ramgarh. Maharani had claimed title over the entire aforesaid land of village Ramgarh but her claim was not accepted by the court in her Title Suit No.8/64. It means that she was unable to establish her right, title and interest over the said land on the basis of the alleged maintenance grant made in her favour by the Raja, but it does not mean that the suit land was not settled by the Raja in favour of the plaintiff-appellant or that the suit land had come to be settled with Cantonment Board, Ramgarh in any manner.

20.The lis in the previous suit i.e. Suit No.8/64 was regarding ownership and entitlement of Maharani over the entire 5.38 acres of land of village Ramgarh qua the Cantonment Board, Ramgarh; the plaintiff-appellant and other defendants in the said suit; whereas the controversy in the present suit is quite distinct with regard to only 0.30 acres of the suit land vis-à-vis the plaintiff-appellant and the Cantonment Board, Ramgarh.

21.The judgment and order of the previous suit which is final and conclusive, in no specific terms adjudicates upon the right, title and interest of either of the plaintiff-appellant or of the Cantonment Board, Ramgarh with regard to the suit land. In the said suit, there was no issue with regard to the right, title and possession of either the plaintiff-appellant or of the Cantonment Board, Ramgarh and no finding in this connection was returned by the court in dismissing the said suit. In simple words, the suit, as filed by Maharani claiming right, title and interest over 5.38 acres of land of village Ramgarh was dismissed simpliciter without adjudication of any rights of the plaintiff-appellant over the suit land vis-à-vis the Cantonment Board, Ramgarh.

22.It may also be pertinent to point out that the Cantonment Board, Ramgarh throughout had claimed rights over 2.55 acres of land of village Ramgarh and not in respect of the entire 5.38 acres of land which was additionally acquired by the Raja. It is also not the case of the Cantonment Board, Ramgarh that the land which was temporarily settled in its favour by the Raja has been occupied by the plaintiff-appellant or that the plaintiff-appellant is claiming rights over the land which was settled in its favour. In other words, the land belonged to the Raja, part of which was settled in favour of the plaintiff-appellant to the extent of 0.30 acres of plot Nos. 432 and 438, whereas, another piece of land measuring 2.55 acres with certain structures but certainly excluding the suit land was settled in favour of Cantonment Board, Ramgarh. The right of the plaintiff-appellant to claim the suit land or the right of the Cantonment Board over the 2.55 acres of land settled in its favour never came to be adjudicated in previous Title Suit No. 8 of 64.

23.The general policy behind the principle of res judicata as enshrined under Section 11 CPC is to avoid parties to litigate on the same issue which has already been adjudicated upon and settled. This is in consonance with the public policy so as to bring to an end the conflict of interest on the same issue between the same parties. One of the basic essential ingredients for applying the principle of res judicata, as stated earlier also, is that the matter which is directly and substantially in issue in the previous litigation ought not to be permitted to be raised and adjudicated upon in the subsequent suit. It is a settled law that the principle of res judicata is applicable not only between the plaintiff and the defendants but also between the co-defendants. In applying the principle of res judicata between the co-defendants, primarily three conditions are necessary to be fulfilled, namely, (i) there must be a conflict of interest between the co-defendants; (ii) there is necessity to decide the said conflict in order to give relief to plaintiff; and (iii) there is final decision adjudicating the said conflict. Once all these conditions are satisfied, the principle of res judicata can be applied inter se the co-defendants.

24.In context with the above settled principle, though reference can be made to several decisions starting from that of Privy Council, but we consider it appropriate to refer to only one of the latest decisions on the point rendered by this Court in the case of Govindammal (Dead) by Legal Representatives and Ors. vs. Vaidiyanathan and Ors.3, wherein after considering all previous decisions regarding application of principle of res judicata between co-defendants, this Court culled out the above three conditions for applying the same.

25.In the light of the above legal position, we find that there was no conflict of interest between the co-defendants in the earlier Suit No. 8 of 64 inasmuch as the plaintiff-appellant was independently claiming rights over 0.30 acres of suit land whereas the Cantonment Board, Ramgarh was claiming rights over 2.55 acres of the land which formed part of the Estate of Raja without asserting that the land settled in its favour is the same as claimed by plaintiff-appellant or that there was any encroachment upon the land settled in its favour. Even assuming that there was some inter se conflicts between the co-defendants with regard to the suit land, the adjudication of the said conflict was not necessary for granting any relief to Maharani who was the plaintiff in the suit. Since she was claiming the entire Estate of 5.38 acres of land and her claim was defeated as she was unable to prove the grant of the said land in her favour with no specific finding by the court regarding the claims set up by the co-defendants, the inter se dispute of the co-defendants as raised in the present suit never came to be adjudicated. Thus, none of the conditions as laid down in Govindammal (supra) between co-defendants stood fulfilled for applying res judicata. In view of the aforesaid facts and circumstances, we are of the opinion that the principle of res judicata would not be attracted as the issue in the present suit was neither directly or indirectly in issue in the previous suit and there was no conflict of interest between the co-defendants in the said previous suit which if any never came to be adjudicated upon. Accordingly, the suit as filed by the plaintiff-appellant claiming title over the suit land against the Cantonment Board, Ramgarh is not barred under Section 11 CPC.

26.Having said so, we proceed to examine the respective claims of the parties on merits, treating the suit as maintainable and not barred by res judicata.

27.The plaintiff-appellant has set up his claim over the suit land as described in Schedule ‘A’ to the plaint. The said schedule mentions 0.12 acres of land of plot No.432 and 0.18 acres of land of plot No.438 totaling 0.30 acres of land situate in village Ramgarh. There is no dispute that during the said period the Estate of the Raja was under the management of Court of Wards, its manager had acquired 5.38 acres of additional land including the suit land and the same was added to the Estate of the Raja. In the year 1942, the Raja had settled the aforesaid land in favour of the plaintiff-appellant on 18.10.1942. It was followed by Hukumnama dated 07.04.1943 (Exh.9) which confirmed the above settlement.

28.The above settlement was confirmed by the Additional Collector, Hazaribagh on enhancement of rent @ Rs.2/- per decimal some time in the year 1963 and had started realizing rent from the plaintiff-appellant accordingly.

29.There is no dispute by any person claiming rights under the Raja that the aforesaid land was not so settled in favour of the plaintiff-appellant. The Maharani had claimed the entire 5.38 acres of land on the basis of the maintenance grant executed by Raja in her favour but her aforesaid claim was not accepted. The Cantonment Board, Ramgarh on the other hand had staked its claim only in respect of 2.55 acres of land forming part of 5.38 acres of the land but has nowhere claimed any right, title and interest over the suit land as claimed by the plaintiff-appellant. The Cantonment Board only on the basis of the judgment and order dated 16.03.2000 passed in Title Suit No.8/64 alleges that it has been recognized to be the owner of the entire 5.38 acres of land by adverse possession and, therefore, the plaintiff-appellant has no subsisting right in the suit land. The Cantonment Board further contends that the entire 5.38 acres of land was leased out by the Raja on 02.06.1931 for a period of 15 years to the Dublin University Mission and, therefore, no part of it could have been settled by him in favour of the plaintiff-appellant in the year 1942.

30.In respect to the second aspect as raised on behalf of the Cantonment Board, it is necessary to note that no material or evidence was adduced by the Cantonment Board to establish that the entire 5.38 acres of land was transferred by way of lease to Dublin University Mission; not even any oral evidence was adduced to prove such a transfer restricting the right of the Raja to settle the land in favour of the plaintiff-appellant. Even otherwise assuming there was such a lease, it would have expired in June 1946 on completion of 15 year period in which case the settlement of 1942 and the Hukumnama of 1943 being valid would revive and continue in favour of the plaintiff-appellant, more particularly with its confirmation by the Additional Collector and mutation in 1963.

31.In context with the first contention that in Title Suit No.8/64, possession of the Cantonment Board over the entire 5.38 acres was accepted by adverse possession, it would be pertinent to note that on perusal of the said judgment and order and decree would reveal that the court of first instance in the said suit has not given any finding with regard to the claim to the plaintiff-appellant (who was defendant No.32 in the said suit) nor with regard to the claim set up by the Cantonment Board. It is misconceived to contend that the said judgment and order accepts the title of the Cantonment Board by adverse possession on the entire 5.38 acres of land. In the said suit, the Cantonment Board had claimed rights only in respect of the part of the aforesaid 5.38 acres of land to the extent of 2.55 acres and, therefore, any observation of the trial court regarding adverse possession of the Cantonment Board would be deemed to be in respect of the claim as set up by the Cantonment Board and would not be construed to be in connection with the entire 5.38 acres of land so as to include the land of the plaintiff-appellant.

32.The written statement of the Cantonment Board itself as filed in Title Suit No.8/64 (Exh.12) makes it abundantly clear that upon the establishment of the Cantonment Board as a temporary measure in the year 1941, the Raja on being approached permitted it on 06.11.1941 to use 2.55 acres of land consisting of the dispensary building and other structures along with adjoining land to be used by the Cantonment Board for a period of six months which was extended up to 31.12.1943. There was no other settlement of any land in favour of the Cantonment Board and the Cantonment Board was in permissive possession of only 2.55 acres of land out of the 5.38 acres of the entire land of village Ramgarh. The land settled in favour of the plaintiff-appellant and that in favour of the Cantonment Board by the Raja were distinct and as such there was no apparent conflict between them.

33.The plaintiff-appellant by sufficient evidence has proved the settlement of the suit land by the Raja in his favour. It stands proved by the Amin report (Exh.8) dated 15.04.1942 and the Hukumnama (Exh.9) dated 07.04.1943 as well as the Rent receipt (Exh.6, 6/A and 7). The order of the Additional Collector, Hazaribagh dated 07.01.1963 (Exh.16) directing realization of rent from the plaintiff-appellant also confirms the above settlement and its subsequent approval by the State on enhancement of rent. All these documents have not been confronted by the other side. The fact that the name of the plaintiff-appellant was also mutated in the revenue records proves it beyond doubt, in the absence of any contrary evidence that he is in possession of the suit land. It may also be worth noting that in the earlier suit, the Cantonment Board has accepted that the plaintiff-appellant has been realizing rent of the shops existing over the suit land from the tenants.

34.In view of the aforesaid overwhelming unconfronted evidence, the First Appellate Court manifestly erred in reversing the finding of the court of first instance that the plaintiff-appellant is in settled possession of the suit land and he has successfully proved his ownership rights over the same.

35.Accordingly, the judgment and order of the High Court dated 01.04.2009 and that of the First Appellate Court dated 28.06.2006 are hereby set aside and the judgment and order dated 16.03.2000 passed by the trial court is restored decreeing the title suit of the plaintiff-appellant but with no order as to costs.

36.The appeal is allowed.

Result of the case: Appeal allowed.

1 Hereinafter referred to as “Maharani”

2 Hereinafter referred to as “Raja”

3 [2018] 11 SCR 1092 : (2019) 17 SCC 433

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Specific performance – Suit for specific performance of the agreement of sale – Alternative prayer for refund of the advance sale consideration of Rs.18,00,000/- by defendant no.1 was made which was allowed by Trial Court – High Court allowing the appeal filed by the defendant no.1 modified the decree and allowed the plaintiff to recover only Rs.3,00,000/- with interest – Correctness: Held: Both the Courts below found that payment of Rs.3,00,000/- on the date of agreement was duly proved in the evidence of PW-1 and PW-3 – The bone of contention between the parties was the payment of additional advance consideration of Rs.15,00,000/- as evidenced by exhibit A-1(a) endorsement – Considering the entire evidence, the plaintiff has proved payment of advance sale consideration of Rs. 3,00,000/- at the time of execution of the agreement – However, the case of the plaintiff as to the subsequent payment of Rs.15,00,000/- was not established by positive evidence as rightly held by High Court – No substance in the appeal. [Paras 11-13]

 Whether the plaintiff proved payment of Rs. 3,00,000/- initially and another sum of Rs.15,00,000/- totalling to Rs.18,00,000/- to the defendant no.1.

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[2024] 7 S.C.R. 22 : 2024 INSC 463

R. Radhakrishna Prasad v. Swaminathan & Anr.

(Civil Appeal No. 910 of 2024)

08 July 2024

[Vikram Nath and Prashant Kumar Mishra,* JJ.]

Issue for Consideration

Appellant-plaintiff filed suit for specific performance of the agreement of sale and in the alternative prayed for refund of the advance sale consideration of Rs.18,00,000/- (initial advance sale consideration of Rs. 3,00,000/- and additional sum of Rs. 15,00,000/), mesne profits etc. with interest. Trial Court denied specific performance however, directed the defendant no.1 to refund Rs.18,00,000/- to the plaintiff with interest. High Court modified the decree and allowed the plaintiff to recover only Rs.3,00,000/- with interest. Whether the plaintiff proved payment of Rs. 3,00,000/- initially and another sum of Rs.15,00,000/- totalling to Rs.18,00,000/- to the defendant no.1.

Headnotes

Specific performance – Suit for specific performance of the agreement of sale – Alternative prayer for refund of the advance sale consideration of Rs.18,00,000/- by defendant no.1 was made which was allowed by Trial Court – High Court allowing the appeal filed by the defendant no.1 modified the decree and allowed the plaintiff to recover only Rs.3,00,000/- with interest – Correctness:

Held: Both the Courts below found that payment of Rs.3,00,000/- on the date of agreement was duly proved in the evidence of PW-1 and PW-3 – The bone of contention between the parties was the payment of additional advance consideration of Rs.15,00,000/- as evidenced by exhibit A-1(a) endorsement – Considering the entire evidence, the plaintiff has proved payment of advance sale consideration of Rs. 3,00,000/- at the time of execution of the agreement – However, the case of the plaintiff as to the subsequent payment of Rs.15,00,000/- was not established by positive evidence as rightly held by High Court – No substance in the appeal. [Paras 11-13]

List of Acts

Specific Relief Act, 1963.

List of Keywords

Specific performance; Suit for specific performance of the agreement of sale; Balance sale consideration; Ready and willing to pay; Advance sale consideration; Alternative prayer for refund of advance sale consideration; Specific relief of the agreement of sale declined;Specific performance denied; Decree for refund of money.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal No.910 of 2024

From the Judgment and Order dated 23.06.2011 of the High Court of Kerala at Ernakulam in RFA No.25 of 2010

Appearances for Parties

V.Chitambaresh, Sr. Adv., K. Rajeev, Ms. Niveditha R. Menon, Bijo Mjoy, Advs. for the Appellant.

Zulfiker Ali P. S, Adv. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Prashant Kumar Mishra, J.

This appeal would call in question the Judgment and decree of the High Court of Kerala by which the High Court has allowed the appeal preferred by the defendant no. 1 and modified the decree passed by the Trial Court whereby, in a suit for specific performance, the Trial Court had directed the defendant no. 1 to refund a sum of Rs. 18,00,000/- (Rs. Eighteen Lakhs only) to the plaintiff. Under the impugned Judgment, the High Court has allowed the plaintiff to recover only a sum of Rs. 3,00,000/- (Rs. Three Lakhs only) with 12% interest per annum from the date of suit till realisation from the defendant no. 1.

2.Briefly stated, the facts of the case are that the appellant/plaintiff preferred a suit for specific performance of the agreement dated 26.03.1998 whereunder the parties entered into an agreement for sale of the suit property over which the defendant no. 1 had a right by virtue of Partition Deed no. 2304/81 and Sale Deed nos. 759/93 & 1586/93 of the S.R.O. Chengannur. The defendant no. 1 agreed to sell the said property to the plaintiff for a sale consideration of Rs. 30,00,000/- (Thirty Lakhs only) and to handover the vacant possession of the suit property to the plaintiff within 06 months from the date of agreement. He received an advance sale consideration of Rs. 3,00,000/- (Three Lakhs only) from the plaintiff and also handed over the title deeds and encumbrance certificate to the plaintiff. The defendant no. 1 had availed of a loan from the defendant no. 2 - Bank by way of creating an equitable mortgage on deposit of his title deeds. Therefore, to clear the said liabilities, the defendant no. 1 received an additional amount of Rs. 15,00,000/- (Fifteen Lakhs only) from the plaintiff between the period from 26.03.1998 and 12.09.1998 and extended the period of the agreement for one year from 12.09.1998. The plaintiff averred in the suit that he was always ready and willing to pay the balance sale consideration as per the agreement but due to the laches on the part of the defendant no. 1, the sale deed could not be executed in time. In spite of repeated requests, the defendant no. 1 did not execute the sale deed, therefore, the suit was preferred. The plaintiff claimed for specific performance of the agreement and in the alternative prayed for refund of the advance sale consideration of Rs. 18,00,000/- (Eighteen Lakhs only), mesne profits etc. together with interest and other incidental expenses. No relief was sought from the defendant no. 2.

3.The defendant no. 1 contested the suit by denying the whole transaction. He denied having any acquaintance with the plaintiff as also the execution of the agreement. He also stated that he is only a co-owner of the suit property which would fetch value of more than Rs. 1,00,00,000/- (One Crore only). Thus, according to the defendant no. 1, the plaintiff has raised a false claim on the basis of a non-existing agreement. It is also stated in the written statement that there were financial transactions between one K.K. Vijayadharan Pillai and defendant no. 1 during which the said K.K. Vijayadharan Pillai obtained his signatures on blank papers and cheques from him and his wife. He has also initiated criminal prosecutions and instituted civil suit against defendant no. 1. The present suit is one of such instances. Thus, he denied any privity of contract between himself and the plaintiff. The suit has been instituted under the influence of K.K Vijayadharan Pillai on the strength of some forged and fabricated documents. The defendant no. 2 - Bank did not appear despite receiving summons and was thus proceeded exparte.

4.Before the Trial Court, the plaintiff examined three witnesses and exhibited documents A1 to A8 whereas, on his side, defendant no. 1 examined two witnesses and exhibited two documents B1 and B2.

5.Basing on the undisputed facts that the agreement bears the signatures of defendant no. 1, the Trial Court found that the agreement was executed by the defendant no. 1 and the two witnesses of the agreement namely, K.K. Vijayadharan Pillai (PW-2) and Jose P. George (PW-3) having supported the plaintiff’s case, the agreement is not forged or fabricated. The Trial Court also considered the documentary evidence as contained in exhibit A-1 to A-8 to conclude that the suit notice was duly served on the defendant no. 1 and that he was ready with the sale consideration amount for the execution of the sale deed as reflected in the document exhibit A-7. Therefore, the plaintiff is entitled to a decree for specific performance. This finding was also found supported by the evidence of PW-2 who was examined as a witness to the agreement and the endorsement exhibit A-1(a) and has proved that the documents were exhibited in his presence and the defendant no. 1 had put his signatures on the documents. Similar is the case with the other witness PW-3 – Jose P. George. The Trial Court also considered the evidence of DW-1, a practicing advocate who issued exhibit B-2 notice on the defendant no. 1. However, this witness has been disbelieved by the Trial Court. The defendant no. 1 examined himself as DW-2 who admitted his ownership in the suit property. He maintained his stand that K.K. Vijayadharan Pillai had obtained his signatures on blank papers and blank cheque leaves and the same has been misused to create forged agreement. However, the Trial Court upon consideration of the equitable principles on which a decree for specific performance is granted, was convinced with the case of defendant no. 1 that the suit property would fetch more value than the sale consideration mentioned in the agreement, therefore, considering the principles under Section 20 of the Specific Relief Act, 1963, the Trial Court denied specific performance and, in the alternative, directed the defendant no. 1 to repay the advance sale consideration of Rs. 18,00,000/- (Eighteen Lakhs only) together with interest at the rate of 12% per annum to the plaintiff.

6.Feeling aggrieved by the decree for refund of money passed by the Trial Court, the defendant no. 1 preferred R.F.A. No. 25 of 2010 in the High Court, and the another Ex. F.A. No. 6 of 2011 was preferred by a claimant who had set up a claim over the property of the defendant no. 1, which had been brought to sell in execution to satisfy the decree passed by the Trial Court. The claimant was the advocate who appeared for the defendant no. 1 in the execution proceedings, and his claim was dismissed. Aggrieved thereby, he preferred the said appeal i.e. Ex. F.A. 6 of 2011.

7.Under the impugned judgement of the High Court, the appeal preferred by the defendant no. 1 has been allowed in part, modifying the decree and allowing the plaintiff to recover only a sum of Rs. 3,00,000/- (Three Lakhs only) with 12% interest per annum from the date of suit till realisation from the defendant no. 1 and at the same time rejecting the claim petition of the claimant who was the appellant in Ex. F.A. No. 6 of 2011.

8.In this Civil Appeal, we are concerned with the appeal preferred by the plaintiff who alone has approached this Court. The claimant in Ex. F.A. No. 6 of 2011 is not before us, therefore, the said part of the judgment has attained finality.

9.It is also to notice that in so far as the declining of the specific relief of the agreement of sale, there is no further challenge from the plaintiff by preferring First Appeal before the High Court. Therefore, the same has become final and we are only concerned with the refund part of the relief allowed in favour of the plaintiff by the Trial Court and modified by the High Court.

10.We have heard the learned counsel for the parties and perused the material papers available on record of the Civil Appeal as also the copy of the agreement which was made part of the record in course of hearing.

11.Since the defendant no. 1 has not preferred any appeal before this Court challenging the findings of the First Appellate Court that the execution of the agreement is proved, we are not considering the said issue. The material issue to be decided in this appeal is whether the plaintiff has proved payment of Rs. 3,00,000/- (Three Lakhs only) initially and another sum of Rs. 15,00,000/- (Fifteen Lakhs only) totalling to Rs. 18,00,000/- (Eighteen Lakhs only) to the defendant no. 1. Both the Courts below have found that payment of Rs. 3,00,000/- (Three Lakhs only) on the date of agreement has been duly proved in the evidence of PW-1 and PW-3. The bone of contention between the parties is the payment of additional advance consideration of Rs. 15,00,000/- (Fifteen Lakhs only) as evidenced by exhibit A-1(a) endorsement. On this aspect, the only evidence is that of the plaintiff himself without any corroboration from any other witness. The High Court has noted that PW-1 would state that stamp receipts had been collected whenever such subsequent payment were made but none of the stamp receipts were produced. We have perused the xerox copy of the document which was made available to us at the time of hearing. The document would show that the witness PW-2 had signed just below that endorsement and only thereafter, the signature of the defendant no. 1 is seen subscribed. Ordinarily, in any agreement witnessing payment of money, the party signs first and the witness(s) puts his signature(s) below that endorsement. However, in the case in hand, the witness has signed just below that endorsement and only thereafter, the defendant no. 1 is seen subscribing to the endorsement. In the suit notice exhibit B-1 also, there is no mention of payment of a definite sum paid as advance sale consideration nor existence of any endorsement has been mentioned therein. The amount of Rs. 15,00,000/- (Fifteen Lakhs only) so received subsequent to exhibit A-1 agreement of sale, as stated in the second notice and also in the plaint and so reflected in exhibit A-1(a) endorsement is not stated in exhibit B-1 suit notice. There is no reason why payment of such substantial amount of Rs. 15,00,000/- (Fifteen Lakhs only) would be missing in the suit notice. The only possible reason for this could be that the advocate who prepared the notice was not apprised of this fact. If such was the case, plaintiff’s statement in Court, without any further corroboration, is not believable and the High Court has rightly found that the case of the plaintiff as to the subsequent payment of Rs. 15,00,000/- (Fifteen Lakhs only) is not established by positive evidence.

12.We have considered the entire evidence to examine the correctness of the findings recorded by the High Court and we fail to persuade ourselves to reach to any other conclusion than the one reached by the High Court holding that the plaintiff has proved payment of advance sale consideration of Rs. 3,00,000/- (Three Lakhs only) at the time of execution of the agreement.

13.In view of the foregoing, we find no substance in this appeal which deserves to be and is hereby dismissed.

14.The parties shall bear their own costs.

Result of the case: Appeal dismissed.

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Penal Code, 1860 – s. 376(2)(n) and s.506 – Prosecution case that appellant had committed rape on the prosecutrix on the false promise of marriage and threatening to make public her photographs – Trial Court framed charges u/s.376(2)(n) and s.506 of IPC – A criminal revision filed against the said order was dismissed by the High Court – Correctness: Held: From a perusal and comparison of the two statements of the prosecutrix, one before the police u/s. 161 Cr.P.C. and the other u/s. 164 Cr.P.C., that too recorded within a span of 24 hours, what is noticeable is that not only are the statements contradictory in themselves, those are contradictory to each other as well – The fact that the appellant had lodged the FIR two years after the alleged incident is itself suggestive of the consensual nature of the relationship which had gone sour – There were also talks between the parties and their family members regarding marriage, the same did not fructify leading to lodging of FIR – The act of the prosecutrix having bath under the waterfall and changing her clothes thereafter in the company of the appellant virtually rules out any threat or coercion by the appellant on the prosecurtix – The mobile phone of the appellant or the photographs allegedly taken by the appellant were not recovered or seized – The jewellery allegedly given by the prosecutrix to the appellant has not been seized – A stamp paper dated 07.07.2017 wherein appellant expressed his desire to marry the prosecutrix has also not been seized – In the absence of such materials, it is impossible for the prosecution to prove the charges of rape and intimidation against the appellant – Compelling the appellant to face the criminal trial on these materials would be nothing but an abuse of the process of the Court. [Paras 16, 17, 18, 24] Penal Code, 1860 – s.90 – Consent to be given under fear or misconception – Misconception of fact – Discussed.

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[2024] 7 S.C.R. 8 : 2024 INSC 481

Shiv Pratap Singh Rana v. State of Madhya Pradesh & Anr.

(Criminal Appeal No. 1552 of 2023)

08 July 2024

[Abhay S. Oka and Ujjal Bhuyan,* JJ.]

Issue for Consideration

The prosecutrix had lodged an FIR u/s. 376(2)(n) and s.506 of IPC on 06.09.2018 against the appellant. The charges u/s. 376(2)(n) and s.506 of IPC were framed against the appellant and the application for discharge filed by the appellant was rejected.

Headnotes

Penal Code, 1860 – s. 376(2)(n) and s.506 – Prosecution case that appellant had committed rape on the prosecutrix on the false promise of marriage and threatening to make public her photographs – Trial Court framed charges u/s.376(2)(n) and s.506 of IPC – A criminal revision filed against the said order was dismissed by the High Court – Correctness:

Held: From a perusal and comparison of the two statements of the prosecutrix, one before the police u/s. 161 Cr.P.C. and the other u/s. 164 Cr.P.C., that too recorded within a span of 24 hours, what is noticeable is that not only are the statements contradictory in themselves, those are contradictory to each other as well – The fact that the appellant had lodged the FIR two years after the alleged incident is itself suggestive of the consensual nature of the relationship which had gone sour – There were also talks between the parties and their family members regarding marriage, the same did not fructify leading to lodging of FIR – The act of the prosecutrix having bath under the waterfall and changing her clothes thereafter in the company of the appellant virtually rules out any threat or coercion by the appellant on the prosecurtix – The mobile phone of the appellant or the photographs allegedly taken by the appellant were not recovered or seized – The jewellery allegedly given by the prosecutrix to the appellant has not been seized – A stamp paper dated 07.07.2017 wherein appellant expressed his desire to marry the prosecutrix has also not been seized – In the absence of such materials, it is impossible for the prosecution to prove the charges of rape and intimidation against the appellant – Compelling the appellant to face the criminal trial on these materials would be nothing but an abuse of the process of the Court. [Paras 16, 17, 18, 24]

Penal Code, 1860 – s.90 – Consent to be given under fear or misconception – Misconception of fact – Discussed.

Case Law Cited

Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra [2018] 13 SCR 920 : (2019) 18 SCC 191; Pramod Suryabhan Pawar v. State of Maharashtra [2019] 11 SCR 423 : (2019) 9 SCC 608 – relied on.

List of Acts

Penal Code, 1860; Code of Criminal Procedure, 1973.

List of Keywords

Rape; Section 376(2)(n) of Penal Code, 1860; Section 90 of Penal Code, 1860; Commission of rape on false pretext of marriage; Contradiction in statements; Delay in filing FIR; Consensual relationship gone sour; Threat; Coercion; Consent to be given under fear or misconception; Misconception of fact.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1552 of 2023

From the Judgment and Order dated 03.10.2019 of the High Court of M.P. at Gwalior in CRR No. 2288 of 2019

Appearances for Parties

Abhinav Ramkrishna, Amit Lahoti, Ms. Anjali Chauhan, Ms. Samina Thakura, Advs. for the Appellant.

Harmeet Ruprah, D.A.G., Yashraj Singh Bundela, Surjeet Singh, Mrs. Pratima Singh, Chanakya Baruah, Abhijeet Singh, Ms. Chitrangda Rastravara, Anirudh Singh, Aishwary Mishra, Dhananjai Shekhwat, Dashrath Singh, Ms. Anjali Sexena, Gp. Capt. Karan Singh Bhati, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Ujjal Bhuyan, J.

This criminal appeal by special leave is directed against the judgment and order dated 03.10.2019 passed by the High Court of Madhya Pradesh at Gwalior (the ‘High Court’ hereinafter) dismissing Criminal Revision No. 2288 of 2019 filed by the appellant. The aforesaid criminal revision petition was filed by the appellant before the High Court assailing the order dated 24.04.2019 passed by the Xth Additional Sessions Judge, Gwalior (‘Sessions Judge’ hereinafter) in Sessions Trial No. 505 of 2018 whereby charges under Section 376(2)(n) and 506 of the Indian Penal Code, 1860 (IPC) were framed against the appellant and the application for discharge filed by the appellant was rejected.

2.The case of the prosecution is that the prosecutrix had lodged a first information report (FIR) on 06.09.2018 alleging that in the year 2016, the accused (appellant herein) used to show photographs of hers and telling her to come to Gwalior with him otherwise her photographs would be uploaded on Whatsapp. It was due to fear that she came to Gwalior alongwith the appellant by train from Dabra. One boy from Anupam Nagar came to the railway station to receive her. On his motorbike, the prosecutrix and the appellant went to Anupam Nagar city centre where the appellant was living in rented premises. There, the appellant forcefully committed wrongful act on her. Thereafter, the appellant forcefully took the signature of the prosecutrix on an affidavit. It was mentioned in the affidavit that the prosecutrix would live with the appellant for life. After that she came to Dabra with the appellant and went home. Appellant used to tell her again and again about having a relationship. He told her that he would marry her after the marriage of his brother. But after the marriage of his brother when the prosecutrix broached the topic of marriage, the appellant told her that his brother had received Rs. 15 lakhs in marriage; if her family would give Rs. 15 lakhs then only he would marry her, otherwise not. Her parents went to the residence of the appellant with a marriage proposal but his family members turned out the proposal. In the FIR, it was alleged that the appellant while having relationship with the prosecutrix took money from her on various occasions totalling Rs. 90,000/-; besides jewellery were also taken. When the appellant started threatening the prosecutrix, she filed the FIR before the Vishwavidhyalaya Police Station, District Gwalior.

3.The FIR was registered as Crime No. 401 of 2018 under Sections 376 and 506 IPC.

4.Police carried out the investigation during the course of which statement of the prosecutrix under Section 161 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was recorded on 11.09.2018. That apart, statement of the prosecutrix was also recorded on 12.09.2018 under Section 164 Cr.P.C. On completion of the investigation, chargesheet was filed against the appellant under Sections 376 and 506 of IPC.

5.Appellant filed an application under Section 227 Cr.P.C. before the Sessions Judge seeking his discharge. By the order dated 24.04.2019, the Sessions Judge took the view that prima-facie the chargesheet discloses sufficient evidence to frame charge against the appellant. In such circumstances, the accused (appellant) could not be discharged from the trial for the offences under Sections 376 and 506 of IPC. Consequently, the application filed by the appellant under Section 227 Cr.P.C. was dismissed.

6.Aggrieved by the aforesaid order of the Sessions Judge, appellant filed a criminal revision petition under Section 397 Cr.P.C. The said petition was registered as Criminal Revision No. 2288 of 2019. By the judgment and order dated 03.10.2019, the High Court took the view that trial needs to be conducted for unearthing the truth and that no case for interference was made out. Consequently, the criminal revision petition was dismissed.

7.Assailing the aforesaid decision of the High Court, appellant preferred Special Leave Petition (Criminal) No. 11671 of 2019 before this Court. By order dated 07.01.2020, this Court issued notice and passed an interim order staying further proceedings in Sessions Trial No. 505 of 2018 pending before the Sessions Judge. Subsequently by order dated 12.05.2023, this Court granted leave and directed continuance of the interim order during the pendency of the criminal appeal, which came to be registered as Criminal Appeal No. 1552 of 2023.

8.Learned counsel for the appellant submits that the relationship between the appellant and the prosecutrix was purely consensual. Therefore, there is no question of any offence committed by the appellant either under Section 376 IPC or under Section 506 IPC. A bare reading of the FIR and the chargesheet would go to show that there is no criminal element involved in the case. Therefore, it would be contrary to the principles of justice if the appellant is made to suffer the ordeal of a long-drawn criminal trial and in the process suffer ignominy which would have irreparable consequences. This aspect of the matter was overlooked by the Sessions Judge as well as by the High Court. He, therefore, seeks quashing of the orders passed by the Sessions Judge and the High Court and further to quash the proceedings in Sessions Trial No. 505 of 2018 pending before the Sessions Judge.

9.Learned counsel for respondent No. 1 on the other hand submits that on the information of the prosecutrix, police registered FIR under Sections 376 and 506 IPC against the accused (appellant). Police investigated the case and collected materials. Having considered the medical records, statement of the prosecutrix under Section 164 Cr.P.C. and other corroborating materials, a report under Section 173 Cr.P.C. was filed to prosecute the accused (appellant) under the aforesaid provisions of IPC.

9.1.Learned counsel further submitted that there were sufficient materials for the learned Sessions Judge to frame charges against the appellant. It is trite law that at the stage of framing charge, a full-fledged trial is not required. The court is required to take a prima-facie view based on the materials available on record as to whether the case is fit to stand trial. Trial court found sufficient material to frame charge against the appellant. The High Court while exercising revisional jurisdiction, examined the case in detail and found no merit in the application of the appellant. Appellant had committed rape on the prosecutrix on the false promise of marriage and threatening to make public her photographs. Thus, it is a fit case which comes within the ambit of the definition of rape under Section 375 IPC. Inducing a woman to have a sexual relationship on the basis of false promise of marriage would be rape within the meaning of Section 375 IPC. At this stage, the prosecution case is supported by the statement of the prosecutrix recorded under Section 164 Cr.PC. and other corroborating material. It is not a case where the trial should be nipped in the bud. At least a triable case is made out where the appellant would have all the opportunity to defend himself to prove his innocence. He, therefore, submits that no case is made out for interference by this Court in the impugned order of the High Court and the appeal is liable to be dismissed.

10.After narrating the factual matrix, learned counsel for respondent No. 2 (prosecutrix) submits that appellant took advantage of the friendly nature of the prosecutrix in the context of appellant being the friend of her younger brother. Taking advantage of her vulnerability, appellant took private photographs of hers when she was changing her clothes after taking bath near a temple compound which they had visited together. Appellant later on showed such pictures to the prosecutrix and blackmailed her to indulge in a physical relationship with him. He threatened her that if she refused his demand, he would upload her private pictures on social media and also show them to her father. It is under such circumstances that the prosecutrix travelled with the appellant to Gwalior where he forced himself upon her in his tenanted premises. He asserts that compelling the prosecutrix to have intercourse with the appellant under the fear that he would leak her photographs would be in essence a consent vitiated by coercion. Such a consent is no consent at all. It is a clear case which would come within the ambit of the definition of rape.

10.1.To pacify the prosecutrix and to keep on exploiting her physically and mentally, appellant swore an affidavit on 28.09.2016 stating therein that he loved the prosecutrix and would take care of her under all circumstances. According to learned counsel, the physical relationship between the two was on the basis of consent of the prosecutrix which was obtained under ‘misconception of fact’ on the false promise of marriage. Intention of the appellant was quite clear. He deceived the prosecutrix on the pretext of marriage to have and maintain a physical relationship.

10.2.He submitted that appellant had obtained a stamp paper dated 07.07.2017 wherein he expressed his desire to marry the prosecutrix. According to learned counsel for respondent No. 2 i.e. the prosecutrix, that was done with the malafide intention of procuring financial support for his ‘purported’ business investment from her because of which respondent No. 2 had handed over various articles to the appellant amounting to Rs. 90,000/-.

10.3.Though respondent No. 2 continuously requested the appellant to solemnize their marriage but on one pretext or the other, the appellant evaded the same. At the same time he continued to physically exploit her. Initially, he had assured the prosecutrix that he would marry her after the marriage of his elder brother. But his malafide intention became obvious when he raised a demand of Rs. 15 lakhs saying that such amount was received by his elder brother in marriage.

10.4.In the course of his submissions, learned counsel also relied upon Section 90 IPC to buttress the point that consent of the prosecutrix was obtained on a ‘misconception of fact’.

11.In response to a query of the Court, learned counsel for the State, i.e., respondent No. 1 submitted on instructions that neither the photographs nor the mobile phone of the appellant have been seized. He also admits that the affidavit dated 28.09.2016 and the stamp paper dated 07.07.2017 have also not been seized. No jewellery as alleged by the prosecutrix to have been given to the appellant by her has been recovered or seized from the appellant.

12.Submissions made by learned counsel for the parties have received the due consideration of the Court.

13.At the outset, let us examine the statement of the prosecutrix made before the police. In her statement under Section 161 Cr.P.C., the prosecutrix stated that appellant was not only a friend of her younger brother Mukul Rana but also a distant brother of her brother-in-law Shailendra Rana. Appellant used to run a competition coaching centre at Dabra, which the prosecutrix used to attend alongwith her brother Mukul during the years 2015 and 2016. On the recommendation of the appellant, prosecutrix got a job of receptionist in a company. In the year 2016, appellant disclosed his affection towards the prosecutrix which was turned down by her on the ground that he was not only younger to her but also friend of her younger brother Mukul. However, they became friends. She stated that on one Monday in the month of Savan of that year, appellant took her to a forest outside Kitore village ahead of Gijorra where there was a temple of Doodhkho Shankar Ji. There she took bath in the waterfall. Later on, appellant showed her the photographs which he had taken while she was changing her clothes in the temple. Though the prosecutrix told the appellant to delete the photographs, he did not do so. Thereafter, he started blackmailing her by showing her the photographs because of which the prosecutrix stated that she had left the coaching centre and the job. Notwithstanding the same, appellant continued to threaten her by saying that the photographs would be made viral and that those would be shown to her father. It was because of such threatening that she went with the appellant by train from Dabra to Gwalior. On reaching Gwalior, he took her to one place at Anoopam Nagar where he forcefully made physical relationship with her. The place was taken on rent by a friend of the appellant Nitin Nagariya. On 28.09.2016, appellant obtained a stamp paper where he put his as well as the signature of the prosecutrix. It was mentioned in the stamp paper that he would support her throughout her life. According to the prosecutrix, she told the appellant many a times to marry her but on one pretext or the other, he evaded the proposal. Later on, he said that he would marry her after the marriage of his brother Jaideep. Prosecutrix stated that she had given the appellant money on several occasions after withdrawing from bank. On 16.06.2017, prosecutrix gave the appellant a cheque of Rs. 10,000/- of her mother. Appellant also stated that he had left the coaching centre and wanted to do business of his own and then his family members would be ready for marriage. On 07.07.2018, appellant had given the prosecutrix one e-stamp in his name wherein it was mentioned that he would marry her and on his assurance on 22.11.2017, prosecutrix took the pendant of the mangalsootra of her sister and gave it to the appellant. She went with the appellant to the bank where he mortgaged the pendant of the mangalsootra and took loan of Rs. 8,000/-. She further helped him in obtaining loan of Rs. 5,000/-. Later on, when she broached the topic of marriage since marriage of his brother had taken place on 18.04.2018, appellant told the prosecutrix that his brother had received Rs. 15 lacs in marriage; therefore, if she paid Rs. 15 lacs, he would marry her. However, when her family members talked with the family members of the appellant at his house, they refused. Though in the meeting of relatives, appellant was ordered to return the jewellery and money to the prosecutrix and also to marry her, he refused to do so. It was thereafter that she lodged the FIR on 05.09.2018.

14.Let us now examine the statement of the prosecutrix dated 12.09.2018 made under Section 164 Cr.P.C.

15.In her statement recorded under Section 164 Cr.P.C., prosecutrix stated that the incident was of the year 2016, in the month of Savan. However, as two years had elapsed, she could not remember the date. She used to go to coaching class along with the appellant, who was a distant brother of her jijaji. The coaching class used to be held in the house of cousin brother of the appellant. One day, the appellant told the prosecutrix that a post of receptionist was vacant in the office in which she could work. Thereafter, he expressed his affection towards her which she turned down on the ground that the appellant was the friend of her younger brother and was also younger to her. After a few days, in the month of Savan, appellant took the prosecutrix to a temple near his village where she took bath under a water fall. Appellant took her photographs while prosecutrix was bathing. After 5/6 days, when she went to the coaching class, appellant showed her the photographs. He also expressed his desire of marrying her but the prosecutrix refused such proposal of the appellant. At that time, the appellant told her that if she continued to refuse his proposal, he would send the photographs to her father.

15.1.After a few days, appellant took her to Anupam Nagar of Gwalior, where his friend Nitin was residing in a rented premise. There the appellant forced himself upon the prosecutrix and when she refused, then he made physical relation with her without her consent. On her request to delete the photographs, the appellant told her that he would do so only if she agreed to marry him. Thereafter, he dropped the prosecutrix at Dabra and continued with the physical relationship with her. On 28.09.2016, appellant gave a stamp paper to the prosecutrix stating that he would support her throughout her life. On 16.06.2017, appellant demanded money from the prosecutrix, pursuant to which she gave him a cheque of her mother amounting to Rs.10,000/-. Again on 07.07.2017, appellant gave a stamp paper to the prosecutrix seeking her consent for marriage. Next when he asked for more money, prosecutrix gave him jewellery of her mother and sister as she was not having any money. Appellant mortgaged the jewellery in a bank against which he withdrew some money. Thereafter, she stated that when she withdrew money from the bank to meet the demands of the appellant, her family members came to know about the relationship.

15.2.Appellant told her before the marriage of his elder brother in April, 2018, that her family members should not come to his place till the marriage of his brother was over. After the marriage was over, he told her that his brother had received Rs.15 lacs in marriage and asked her whether her family members would be in a position to furnish such an amount. After the marriage of his brother, family members of the prosecutrix went to the house of the appellant in the month of June, 2018 but found his family members to be evasive on the question of marriage. Though people of the community told the appellant and his family members to return the jewellery and also to marry the prosecutrix, they did not do so. Thereafter, appellant switched off his mobile phone and disappeared from Dabra. Brother of the appellant told the prosecutrix that if she complained before the police, she would be killed and that her brother would be implicated in a false case. It was thereafter that she lodged the FIR on 05.09.2018.

16.From a perusal and comparison of the two statements of the prosecutrix, one before the police under Section 161 Cr.P.C. and the other under Section 164 Cr.P.C., that too recorded within a span of 24 hours, what is noticeable is that not only are the statements contradictory in themselves, those are contradictory to each other as well. The fact that the appellant had lodged the FIR two years after the alleged incident is itself suggestive of the consensual nature of the relationship which had gone sour. It is inconceivable that the prosecutrix, who was about 22 years of age at the time of the alleged incident, would accompany the appellant to a temple if she was being threatened by the appellant. She was a major and, therefore, fully conscious of the consequences of her own actions. It is not the case of the prosecutrix that the appellant had forced her to have bath under the waterfall and thereafter took her photographs. The act of the prosecutrix having bath under the waterfall and changing her clothes thereafter in the company of the appellant virtually rules out any threat or coercion by the appellant on the prosecurtix.

17.In the course of the hearing, the Bench had put a pointed query to learned counsel for the State as to whether the mobile phone of the appellant or the photographs allegedly taken by the appellant of the prosecutrix while she was bathing and changing clothes were recovered to which the reply on instructions was that those were neither recovered nor seized. Further, the stamp paper dated 28.09.2016 as well as the cheque dated 16.06.2017 have not been seized. The jewellery allegedly given by the prosecutrix to the appellant has also not been seized. The stamp paper dated 07.07.2017 has not been seized. In the absence of such materials, it would be virtually impossible for the prosecution to prove the charges of rape and intimidation against the appellant.

18.We have carefully gone through the definition of rape provided under Section 375 IPC. We have also gone through the provisions of Section 376(2)(n) IPC, which deals with the offence of rape committed repeatedly on the same woman. Section 375 IPC defines ‘rape’ by a man if he does any of the acts in terms of clauses (a) to (d) under the seven descriptions mentioned therein. As per the second description, a man commits rape if he does any of the acts as mentioned in clauses (a) to (d) without the consent of the woman. Consent has been defined in Explanation 2 to mean an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. However, the proviso thereto clarifies that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

19.Having regard to the above and in the overall conspectus of the case, we are of the view that the physical relationship between the prosecutrix and the appellant cannot be said to be against her will and without her consent. On the basis of the available materials, no case of rape or of criminal intimidation is made out.

20.Learned counsel for the respondents had placed considerable reliance on the provisions of Section 90 IPC, particularly on the expression “under a misconception of fact”. Section 90 IPC reads thus:

“90. Consent known to be given under fear or misconception.—

A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or

Consent of insane person.— if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child.— unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.”

21.Section 90 IPC says that a consent is not such a consent as it is intended by any section of IPC, if the consent is given by a person under the fear of injury or under a misconception of fact.

22.In Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra, (2019) 18 SCC 191, this Court after examining Section 90 of the IPC held as follows:

“Thus, section 90 though does not define “consent”, but describes what is not “consent”. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. Consent for the purpose of section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances.”

23.This Court also examined the interplay between Section 375 IPC and Section 90 IPC in the context of consent in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra, (2019) 9 SCC 608, and held that consent with respect to Section 375 IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action (or inaction), consents to such action. After deliberating upon the various case laws, this Court summed up the legal position as under:

“To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.”

24.Learned counsel for respondents had relied heavily on the expression “misconception of fact”. However, according to us, there is no misconception of fact here. Right from the inception, it is the case of the prosecution that while the appellant was insisting on having a relationship with the prosecutrix, the later had turned down the same on the ground that appellant was the friend of her younger brother and a distant relative of her jijaji. That apart, according to the prosecutrix, the appellant was younger to her. Nonetheless, the prosecutrix had accompanied the appellant to a temple, where she had voluntarily taken bath under a waterfall. Her allegation that appellant had surreptitiously taken photographs of her while she was bathing and later on changing clothes and was blackmailing her with such photographs remain unfounded in the absence of seizure of such photographs or the mobile phone on which such photographs were taken by the appellant. If, indeed, she was under some kind of threat from the appellant, it defies any logic, when the prosecutrix accompanied the appellant to Gwalior from Dabra, a journey which they had made together by train. On reaching Gwalior, she accompanied the appellant on a scooter to a rented premises at Anupam Nagar, where she alleged that appellant had forced himself upon her. But she did not raise any alarm or hue and cry at any point of time. Rather, she returned back to Dabra alongwith the appellant. The relationship did not terminate there. It continued even thereafter. It is the case of the prosecutrix herself that at one point of time the family members of the two had met to discuss about their marriage but nothing final could be reached regarding their marriage. It was only thereafter that the FIR was lodged. As already pointed out above, neither the affidavit nor stamp papers have been recovered or seized by the police; so also the jewellery. The alleged cheque of the prosecutrix’s mother given to the appellant or the bank statement to indicate transfer of such money have not been gathered by the police. In the absence of such materials, the entire sub-stratum of the prosecutrix’s case collapses. Thus, there is hardly any possibility of conviction of the appellant. As a matter of fact, it is not even a case which can stand trial. It appears to be a case of a consensual relationship which had gone sour leading to lodging of FIR. In the circumstances, Court is of the view that compelling the appellant to face the criminal trial on these materials would be nothing but an abuse of the process of the Court, result of the trial being a foregone conclusion.

25.From the factual matrix of the case, the following relevant features can be culled out:

(i)the relationship between the appellant and the prosecutrix was of a consensual nature;

(ii)the parties were in a relationship for a period of almost two years; and

(iii)though there were talks between the parties and their family members regarding marriage, the same did not fructify leading to lodging of FIR.

26.That being the position and having regard to the facts and circumstances of the case, we are of the view that it would be in the interest of justice if the proceedings are terminated at this stage itself. Consequently, impugned order of the High Court dated 03.10.2019 and the order of the Sessions Judge dated 24.04.2019 are hereby set aside and quashed.

27.Resultantly, proceedings in Sessions Trial No. 505/2018, pending before the 10th Additional Sessions Judge, Gwalior, are hereby quashed.

28.Consequently, the appeal is allowed.

Result of the case: Appeal allowed.

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Arbitration and Conciliation Act, 1996 – s. 34 – Application for setting aside arbitral awards – Period of limitation for filing petition u/s. 34 – On facts, petition u/s. 34 filed by the appellant challenging the arbitral award – Dismissed by the High Court, holding that it was not filed within the period specified under sub-section (3) of s. 34 – Correctness: Held: Period of limitation for filing a petition u/s. 34 will have to be reckoned from the day when the appellants received the award, i.e. 30th June 2022 – In view of s. 12(1) of the Limitation Act, the day from which the limitation period is to be reckoned must be excluded, as such 30th June 2022 will have to be excluded while computing the limitation period – Thus, in effect, the period of limitation, started running on 1st July 2022 – Period of limitation is of three months and not ninety days – Thus, from the starting point of 1st July 2022, the last day of the period of three months would be 30th September 2022 – Pooja vacation started on 1st October 2022 – Three months provided by way of limitation expired a day before the commencement of the pooja vacation – Furthermore, the prescribed period within the meaning of s. 4 of the Limitation Act ended on 30th September 2022 – Thus, the appellants are not entitled to take benefit of s. 4 – As per the proviso to sub-section (3) of s. 34, the period of limitation could have been extended by a maximum period of 30 days – Maximum period of 30 days expired on 30th October 2022 – Petition was filed on 31st October 2022 – Thus, the High Court was right in holding that the petition u/s. 34 was not filed within the period specified under sub-section (3) of s. 34 of the Act. [Paras 6, 7, 10,11]

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[2024] 7 S.C.R. 1 : 2024 INSC 477

The State of West Bengal represented through the Secretary & Ors. v. Rajpath Contractors and Engineers Ltd.

(Civil Appeal No. 7426 of 2023)

08 July 2024

[Abhay S. Oka* and Pankaj Mithal, JJ.]

Issue for Consideration

Issue arose as regards correctness of the order passed by the High Court dismissing the petition u/s. 34 of the Arbitration and Conciliation Act, holding that it was not filed within the period specified under sub-section (3) of s. 34 of the Act.

Headnotes

Arbitration and Conciliation Act, 1996 – s. 34 – Application for setting aside arbitral awards – Period of limitation for filing petition u/s. 34 – On facts, petition u/s. 34 filed by the appellant challenging the arbitral award – Dismissed by the High Court, holding that it was not filed within the period specified under sub-section (3) of s. 34 – Correctness:

Held: Period of limitation for filing a petition u/s. 34 will have to be reckoned from the day when the appellants received the award, i.e. 30th June 2022 – In view of s. 12(1) of the Limitation Act, the day from which the limitation period is to be reckoned must be excluded, as such 30th June 2022 will have to be excluded while computing the limitation period – Thus, in effect, the period of limitation, started running on 1st July 2022 – Period of limitation is of three months and not ninety days – Thus, from the starting point of 1st July 2022, the last day of the period of three months would be 30th September 2022 – Pooja vacation started on 1st October 2022 – Three months provided by way of limitation expired a day before the commencement of the pooja vacation – Furthermore, the prescribed period within the meaning of s. 4 of the Limitation Act ended on 30th September 2022 – Thus, the appellants are not entitled to take benefit of s. 4 – As per the proviso to sub-section (3) of s. 34, the period of limitation could have been extended by a maximum period of 30 days – Maximum period of 30 days expired on 30th October 2022 – Petition was filed on 31st October 2022 – Thus, the High Court was right in holding that the petition u/s. 34 was not filed within the period specified under sub-section (3) of s. 34 of the Act. [Paras 6, 7, 10,11]

Case Law Cited

State of Himachal Pradesh and Another v. Himachal Techno Engineers and Another [2010] 8 SCR 1025 : (2010) 12 SCC 210; Assam Urban Water Supply & Sewerage Board v. Subash Projects & Mktg. Ltd. [2012] 1 SCR 403 : (2012) 2 SCC 624; Union of India v. Popular Construction Co. [2001] Supp. 3 SCR 619 : (2001) 8 SCC 470 – referred to.

List of Acts

Arbitration and Conciliation Act, 1996; Limitation Act of 1963; Constitution of India; General Clauses Act, 1897.

List of Keywords

Arbitral awards; Period of limitation; Limitation period to be reckoned.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal No.7426 of 2023

From the Judgment and Order dated 04.05.2023 of the High Court of Calcutta in AP No. 737 of 2022

Appearances for Parties

Ms. Madhumita Bhattacharjee, Ms. Urmila Kar Purkayasthe, Ms. Srija Choudhury, Advs. for the Appellants.

Saurav Agrawal, Priyankar Saha, Sarad Kumar Singhania, Mrs. Rashmi Singhania, Anshuman Choudhary, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Abhay S. Oka, J.

FACTUAL ASPECTS

1.The first appellant – the State of West Bengal appointed the respondent as a contractor for the construction of a bridge. As there was a dispute between the parties, the respondent invoked the arbitration clause in the contract, and a sole arbitrator was appointed. On 30th June 2022, the Arbitral Tribunal passed an award directing the appellants to pay a sum of Rs.2,11,67,054.00 (Two Crores Eleven Lakhs Sixty-Seven Thousand Fifty-Four Rupees Only) to the respondent with interest thereon, as directed. The counter-claim made by the appellants was dismissed. The appellants received a copy of the award on the same day. The High Court of Judicature at Calcutta was closed for pooja vacation from 1st October 2022 to 30th October 2022 (both days inclusive). On 31st October 2022, the appellants filed a petition under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, ‘the Arbitration Act’) to challenge the award. By the impugned order dated 4th May 2023, the High Court dismissed the petition under Section 34 of the Arbitration Act filed by the appellants on the ground of bar of limitation. The High Court held that the period of limitation for filing a petition under Section 34 expired on 30th September 2022. Therefore, the appellants are not entitled to the benefit of Section 4 of the Limitation Act of 1963 (for short, ‘the Limitation Act’).

2.Being aggrieved by the view taken by the High Court, the appellants are in this appeal. We may note here that under the impugned judgment, the High Court granted a certificate to prefer an appeal before this Court by exercising powers under Article 133 (1) and Article 134(A)(a) of the Constitution of India.

SUBMISSIONS

3.The learned counsel appearing for the appellants submitted that as the period of limitation for filing a petition under Section 34 of the Arbitration Act ought to have been calculated from 1st July 2022, the prescribed period of limitation ended on 1st October 2022, which was the first day of pooja vacation. Therefore, the petition under Section 34 of the Arbitration Act filed immediately after the re-opening of the Court on 31st October 2022 must be held to be within limitation. The learned counsel relied upon Section 9 of the General Clauses Act, 1897 (for short, ‘the General Clauses Act’). The learned counsel also submitted that the petition could not be e-filed in pooja vacation as the relevant e-filing notification provided for e-filing of only urgent matters during the vacations. The learned counsel relied upon a decision of this Court in the case of State of Himachal Pradesh and Another v. Himachal Techno Engineers and Another1.

4.The learned counsel appearing for the respondent supported the findings recorded by the High Court. He submitted that in any event, the benefit of Section 4 of the Limitation Act is available only if the proceedings are filed within the prescribed period of limitation, which will be three months in this case in terms of Section 34(3) of the Arbitration Act. The learned counsel relied upon a decision made by this court in the case of Assam Urban Water Supply & Sewerage Board v Subash Projects & Mktg. Ltd.2. He also invited our attention to a decision of this Court in the case of Union of India v. Popular Construction Company 3. He submitted that, as held by this Court in the said decision, the applicability of Section 5 of the Limitation Act is excluded in view of the language used in the proviso to sub-section (3) of Section 34.

OUR VIEW

5.The facts are undisputed. The award made by the Arbitral Tribunal on 30th June 2022 was served upon the appellant on the same day. Between 1st October 2022 and 30th October 2022 (both days inclusive), the High Court was closed for pooja vacation. The petition under Section 34 of the Arbitration Act was filed on 31st October 2022.

6.The period of limitation for filing a petition under Section 34 of the Arbitration Act is governed by sub-section (3) of Section 34. Sub-section (3) of Section 34 reads thus:

“(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:

Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.”

7.As per Section 12(1) of the Limitation Act, the day from which the limitation period is to be reckoned must be excluded. In this case, the period of limitation for filing a petition under Section 34 will have to be reckoned from 30th June 2022, when the appellants received the award. In view of Section 12(1) of the Limitation Act, 30th June 2022 will have to be excluded while computing the limitation period. Thus, in effect, the period of limitation, in the facts of the case, started running on 1st July 2022. The period of limitation is of three months and not ninety days. Therefore, from the starting point of 1st July 2022, the last day of the period of three months would be 30th September 2022. As noted earlier, the pooja vacation started on 1st October 2022.

8.We may note here that Section 43 of the Arbitration Act provides that the Limitation Act shall apply to the arbitrations as it applies to proceedings in the Court. We may note here that the consistent view taken by this Court right from the decision in the case of Union of India v. Popular Construction Co.3 is that given the language used in proviso to sub-section (3) of Section 34 of the Arbitration Act, the applicability of Section 5 of the Limitation Act to the petition under Section 34 of the Arbitration Act has been excluded.

9.Now, we proceed to consider whether the appellant will be entitled to the benefit of Section 4 of the Limitation Act. Section 4 of the Limitation Act reads thus:

“4. Expiry of prescribed period when court is closed.—Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court re-opens.

Explanation.—A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.”

(underline supplied)

The meaning of “the prescribed period” is no longer res integra. In the case of Assam Urban Water Supply & Sewerage Board v. Subash Projects & Mktg. Ltd.2, in paragraphs nos. 13 and 14, the law has been laid down on the subject. The said paragraphs read thus:

“13. The crucial words in Section 4 of the 1963 Act are “prescribed period”. What is the meaning of these words?

14. Section 2(j) of the 1963 Act defines:

“2. (j) ‘period of limitation’ [which] means the period of limitation prescribed for any suit, appeal or application by the Schedule, and ‘prescribed period’ means the period of limitation computed in accordance with the provisions of this Act;

Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside an arbitral award is three months. The period of 30 days mentioned in the proviso that follows sub-section (3) of Section 34 of the 1996 Act is not the “period of limitation” and, therefore, not the “prescribed period” for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the 1996 Act being not the “period of limitation” or, in other words, the “prescribed period”, in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case.”

(underline supplied)

Even in this case, this Court was dealing with the period of limitation for preferring a petition under Section 34 of the Arbitration Act. We may note that the decision in the case of State of Himachal Pradesh and Another v. Himachal Techno Engineers and Another 1 which is relied upon by the appellant, follows the aforesaid decision.

10.In the facts of the case in hand, the three months provided by way of limitation expired a day before the commencement of the pooja vacation, which commenced on 1st October 2022. Thus, the prescribed period within the meaning of Section 4 of the Limitation Act ended on 30th September 2022. Therefore, the appellants were not entitled to take benefit of Section 4 of the Limitation Act. As per the proviso to sub-section (3) of Section 34, the period of limitation could have been extended by a maximum period of 30 days. The maximum period of 30 days expired on 30th October 2022. As noted earlier, the petition was filed on 31st October 2022.

11.Thus, looking from the angle, the High Court was right in holding that the petition filed by the appellants under Section 34 of the Arbitration Act was not filed within the period specified under sub-section (3) of Section 34. Hence, we find no merit in the appeal, and it is, accordingly, dismissed.

Result of the case: Appeal Dismissed.

1 [2010] 8 SCR 1025 : (2010) 12 SCC 210

2 [2012] 1 SCR 403 : (2012) 2 SCC 624

3 [2001] Supp. 3 SCR 619 : (2001) 8 SCC 470

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