TMI Blog2013 (1) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... uant to the termination of the lease deed in terms of panchnama dated 14th December, 1978. Whether the suit for declaration to the effect that the termination of the lease was invalid and that the lease continued to subsist could be filed more than 17 years after the termination had taken place - Held that:- Court was dealing with proceedings arising under Article 226 of the Constitution, exercise of powers whereunder is discretionary but then grant of declaratory relief under the Specific Relief Act is also discretionary in nature. A Civil Court can and may in appropriate cases refuse a declaratory decree for good and valid reasons which dissuade the Court from exercising its discretionary jurisdiction. Merely because the suit is within time is no reason for the Court to grant a declaration. Suffice it to say that filing of a suit for declaration was in the circumstances essential for the plaintiffs. That is precisely why the plaintiffs brought a suit no matter beyond the period of limitation prescribed for the purpose. Such a suit was neither unnecessary nor a futility for the plaintiff’s right to remain in possession depended upon whether the lease was subsisting or stood ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Trust. The letter sought to justify the default in the payment of arrears on the ground of an untimely demise of her husband, resulting in cancellation of expansion programme including any further acquisition of land by the lessee. 5. Failure of the lessee to remit the outstanding instalment amount culminated in the termination of the lease by the appellant-Port Trust in terms of an order dated 8th August, 1977 w.e.f. 13th December, 1978. A panchnama prepared on 14th December, 1978 evidenced the takeover of possession of the plot in question by the appellant-Port Trust, copy whereof was forwarded even to the lessee along with a certificate that the possession had been taken over by the Assistant Estate Manager of the appellant-Port Trust under his letter dated 20th December, 1978. 6. On receipt of the letter aforementioned the lessee by her letter dated 22nd February, 1979 requested the appellant-Port Trust to refund the amount and in case a refund could not be made, to return the possession of the plot to her. One year and four months after the issue of the said letter the lessee-respondent No.2 herein filed Civil Suit No.152 of 1980 in the Court of Civil Judge, Gandhidham ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anent injunction in which the plaintiff for the first time questioned the termination of the lease by the appellant-Port Trust. A declaration that the said lease was still subsisting with an injunction restraining the defendant-appellant in this appeal and its employees from acting in any manner injurious to the title and the possession of the plaintiff over the disputed land was prayed for. Plaintiff s case in this suit was that he had purchased the plot in question from Smt. Pushpa Pramod Shah in the year 1991 in terms of a transfer deed registered with the concerned Sub-Registrar at Gandhidham and that he had based on the said transfer asked for transfer of the lease rights which request had been declined by the appellant-Port Trust in the year 1994. It was further alleged that he had come to know about the purported cancellation of the lease in favour of Smt. Pushpa Pramod Shah and the purported takeover of the possession of the plot from her which was according to him both fraudulent and invalid in the eyes of law. 9. The suit was contested by the appellant-Port Trust on several grounds giving rise to as many as seven issues framed by the trial Court for determination. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onths from the date the cause of action accrued to the lessee in terms of Section 120 of the Major Port Trust Act. At any rate, such a suit could be filed, at best within three years from the date the cause of action accrued to the lessee. Neither the lessee nor her transferee who came on the scene long after the termination order had been passed and the possession taken over could question the validity of the termination of the lease or demand protection of their possession in the light of a clear and unequivocal admission made by the lessee in her letter dated 22nd February, 1979 that the possession of the plot in question stood taken over from her. The courts below have, in that view, committed a mistake in holding that the suit was within time. 12. Mr. Ahmadi, counsel appearing for the respondent, on the other hand, submitted that the courts below had recorded a concurrent finding of fact that the lessee continued to be in possession of the suit property even after the termination of the lease which finding of fact could not be assailed nor was there any legal impediment for the plaintiff transferee or the original lessee who too was joined as a plaintiff in the year 1999 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt come to the following conclusions: - 1. The appellant/original defendant has failed to prove the service of notice terminating the lease as required under Section 111(g) and 106 of the Transfer of Property Act upon the lessee i.e. the Respondent No. 2/original plaintiff No. 2. 2. The defendant/the present appellant failed to prove that the person who signed the notice Ex. 47 and the person who is alleged to have made re-entry on the suit plot and signed Ex.49 and panchnama produced along with Ex. 49 were specifically authorised by Kandla Port Trust i.e. the lessor and the Chairman of Kandla Port Trust. 3. The lease dated 14/12/1966 is not legally and validly determined by the lessor hence, it is subsisting till date and alive, and the lessee Smt. Pushapaben Shah i.e. the respondent No. 2 is entitled to hold and enjoy the suit plot No. 30 sector No. 8. 15. In the second appeal filed by the appellant, the High Court was of the view that the matter was concluded by concurrent findings of fact regarding the validity of the termination of the lease and the authority of those who purported to have brought about such a termination. The question whether the possession of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not informed me to be present on 4 PM on 14.12.1978 at the site of the aforesaid plot and your letter No. ES/LL/723/63/6248 dated 8th August 1977 said to have been sent to me has not yet been received and hence you do not have the authority to re- enter the plot. As you have taken the possession of the plot, you are now requested to kindly refund all the amounts forthwith otherwise you may return back the possession of plot to me. If I do not hear anything from you within seven days from the date of receipt of this letter, appropriate legal proceedings will be adopted against you, holding you entirely responsible for the cost of consequences thereof. Yours faithfully, Sd/- P.P. Shah (Smt. Pushpa P. Shah) (emphasis supplied) 16. The genuineness of the above document was not disputed by learned counsel for the respondents. All that was argued was that the admission regarding the dispossession of the lessee had been made in circumstances that (a) cannot constitute an admission and (b) absolve the lessee, the maker, of its binding effect. The husband of the lessee having passed away, the letter in question was written in a state of shock and distress and any admission made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. 19. Similarly in Daya Singh Anr. V. Gurdev Singh (dead) by LRs. Ors. (2010) 2 SCC 194 the position was re-stated as follows: 13. Let us, therefore, consider whether the suit was barred by limitation in view of Article 58 of the Act in the background of the facts stated in the plaint itself. Part III of the Schedule which has prescribed the period of limitation relates to suits concerning declarations. Article 58 of the Act clearly says that to obtain any other declaration, the limitation would be three years from the date when the right to sue first accrues. 14. In support of the contention that the suit was filed within the period of limitation, the learned Senior Counsel appearing for the appellant-plaintiffs before us submitted that there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. In support of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the termination of the lease was invalid hence ineffective for any reason including the reason that the person on whose orders the same was terminated had no authority to do so, could have been instituted by the lessee on 14th of December 1978. For any such suit it was not necessary that the lessee was dispossessed from the leased property as dispossession was different from termination of the lease. But even assuming that the right to sue did not fully accrue till the date the lessee was dispossessed of the plot in question, such a dispossession having taken place on 14th of December, 1978, the lessee ought to have filed the suit within three years of 15th December, 1978 so as to be within the time stipulated under Article 58 extracted above. The suit in the instant case was, however, instituted in the year 1996 i.e. after nearly eighteen years later and was, therefore, clearly barred by limitation. The Courts below fell in error in holding that the suit was within time and decreeing the same in whole or in part. 22. Mr. Ahmadi next argued that the termination of the lease being illegal and non est in law, the plaintiff-respondents could ignore the same, and so long as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be so for another purpose or another person. 24. To the same effect is the decision of this Court in Pune Municipal Corporation v. State of Maharashtra and Ors (2007) 5 SCC 211, where this Court discussed the need for determination of invalidity of an order for public purposes: 36. It is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. As Prof. Wade states: The principle must be equally true even where the 'brand of invalidity' is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the Court . He further states: The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken over pursuant to the order of termination of the lease in question. 27. In the light of what we have said above, we consider it unnecessary to examine the question whether the suit in question was barred by Section 120 of the Major Ports Act which stipulates a much shorter period of limitation of six months. We also consider it unnecessary to examine whether the suit filed by the original plaintiff-transferee of the lessee was barred by the principle of constructive res judicata or Order II, Rule 2 of the Code of Civil Procedure, 1908 in view of the fact that the first suit filed by the lessee in the year 1980 for permanent prohibitory injunction could and ought to have raised the question of validity of the termination of the lease as the termination of the lease had by that time taken place. So also the question whether the transferee, who had not been recognised by the Port Trust, could institute a suit against the Port Trust so as to challenge the termination of the lease in favour of his vendor also need not be examined. All that we need mention is that the addition of the lessee as a co-plaintiff in the suit also came as late as in the year 1999 when the original pl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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