Arifa vs Abhiman Apartment Coop. Housing Society Ltd.

2025 INSC 875 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (C) @ DIARY NO. 14976 of 2024 SMT. ARIFA & ORS. …PETITIONERS VERSUS

ABHIMAN APARTMENT CO OPERATIVE HOUSING SOCIETY LTD. & ORS. …RESPONDENTS

ORDER

1. The question arising in the above case is as to whether

the liberty granted to file a fresh suit by the High Court

would enable the party to revive a cause of action and

save limitation, so as to enable raking up all grounds

earlier raised and rejected by concurrent findings of the

trial court and the first appellate court, affirmed by the

High Court in Second Appeal.

2. We heard Mr. Raghavendra Srivatsa, Senior Advocate

appearing for the petitioners and Mr. Sharanagouda

Patil, Advocate appearing for respondent No.1.

3. The original plaintiff, the predecessor-in-interest of the Signature Not Verified

petitioners herein admittedly entered into an agreement Digitally signed by NARENDRA PRASAD Date: 2025.07.19 12:02:05 IST Reason:

for sale of the suit scheduled property to the first Page 1 of 8 SLP (C) @D. No.14976 of 2024 defendant, a Cooperative Society. It is also admitted that

a Power of Attorney (PoA) was executed in favour of the

second defendant, the Secretary of the first defendant. It

is alleged that the PoA was executed on coercion and

misrepresentation, which also stood cancelled before

the execution of the sale deed in favour of the first

defendant by the second defendant, by virtue of the PoA.

Admittedly, the plaintiff first filed a suit for permanent

injunction against the second defendant, impleaded in

his capacity as the Secretary of the Society, for a

permanent injunction from alienating or disposing off the

plots comprised in the suit scheduled property and from

making any constructions thereon. The said suit was

dismissed by the trial court confirmed by the First

Appellate Court against which the plaintiff approached

the High Court in the second appeal. The second appeal

stood allowed upon which the Society filed an SLP before

this Court in which leave was granted and the Civil

Appeal was allowed as per Annexure P/9, remanding the

matter to the High Court by Annexure P/10.

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4. The High Court on remand, dismissed the second appeal

finding no substantial question of law and also rejected

an amendment application to incorporate additional

reliefs of declaration of title and recovery of possession,

which applications were filed in the second appeal. The

High Court having agreed with the concurrent findings,

while dismissing the Second Appeal granted liberty to

file a comprehensive suit for the reliefs sought for,

including the proposed amendment.

5. Relying on the liberty granted, the plaintiff filed a fresh

suit for declaration of two sale deeds executed by second

defendant in favour of the first defendant as void ab initio

and declaration of the further sale of plots comprised in

the scheduled land by the first defendant in favour of the

defendant nos. 2-120 as illegal and invalid. The plaintiff

also sought possession of the property from defendant

nos. 1-120 and a permanent injunction restraining them

from interfering with the actual physical and peaceful

possession of the scheduled property by the plaintiff. The

said suit was decreed by the trial court and in first appeal

Page 3 of 8 SLP (C) @D. No.14976 of 2024 the judgment and decree were set aside, and the suit was

dismissed on the grounds of resjudicata, limitation and

non-joinder of necessary parties.

6. On the ground of resjudicata, we cannot but notice that

the High Court in the earlier round in Annexure P/10

judgment found that the plaintiff had executed two sale

agreements in favour of the first defendant and had put

the first defendant in possession of the scheduled land,

the conveyance having been effected subsequently by

the Secretary of the Society to the Society on the strength

of a PoA. The High Court approved the concurrent

finding that the notice of cancellation of the PoA was

never served on the Secretary of the Society. The

acknowledgement produced to prove its service was not

with respect to the notice of cancellation, since it was four

months later to the date in the notice of cancellation. It

was also found by all the three courts that sale deeds

were executed in favour of the allottees of the Society in

whose possession the plots were, who had constructed

residential buildings in the said lands: not impleaded in

Page 4 of 8 SLP (C) @D. No.14976 of 2024 the suit seeking permanent injunction. The additional

relief prayed through an amendment for declaration of

title and recovery of possession was hence rightly

rejected by the High Court. The second appeal was

dismissed finding no substantial question of law and by a

laconic observation, liberty as stated above was

reserved.

7. In the impugned judgment reversing the judgment and

decree of the trial court, the High Court has categorically

found that the suit was barred by limitation. The specific

averment regarding the cause of action, as stated in the

plaint was extracted, which was the date on which the

High Court had dismissed the second appeal and

reserved such liberty. The limitation would commence

from the date of execution of the agreements, the first two

of which were in the year 1998. Though the two sale

deeds in favour of the Society were thus executed, when

the first suit was pending, the plaintiff did nothing to

challenge the said conveyance. In the earlier suit the

defendant in the written statement had specifically

Page 5 of 8 SLP (C) @D. No.14976 of 2024 pleaded about the conveyances and the plaintiff

admitted his knowledge of all the conveyances while

verifying the ‘record of rights’. No cause of action can be

claimed on the liberty reserved, which is only on just

exceptions including limitation, which in any event has to

go by the period prescribed in the statute of limitation.

The High Court has further found that there can also be

no resort to Section 14 of the Limitation Act, since the suit

already laid was not before a wrong forum but was not

properly framed. Even when a suit is withdrawn with

leave of the Court to file a fresh suit, under Order 23 Rule

1 of the CPC limitation applies with full force as per Rule

2 of Order 23.

8. The presently filed suit had sought for declaration as null

and void, the conveyances in favour of the first

respondent Society and the subsequent conveyances

made to defendant nos. 2-120 as also recovery of

possession from the defendants and permanent

injunction as against the defendants from interference in

the enjoyment of the property.

Page 6 of 8 SLP (C) @D. No.14976 of 2024

9. The entire sub-stratum of the plaintiff’s case is built upon

the alleged coercion and misrepresentation in execution

of the PoA and subsequent cancellation effected, which

ground does not survive having been rejected

concurrently by three courts in the earlier proceeding,

clearly barring the present suit on the ground of

resjudicata. The issue now agitated was substantially in

issue in the earlier suit and decided against the plaintiff,

bringing in the rigor of Section 11 of the Civil Procedure

Code.

10. We perfectly agree with the findings in the impugned

judgment regarding limitation and resjudicata and

cannot but observe that the liberty granted by the High

Court in the second appeal was akin to flogging a dead

horse; which cannot give a fresh lease of life to either the

cause of action; to save limitation or the grounds on which

the declaration and consequential relief has been prayed

for in the present suit; which grounds were already

adjudicated in the earlier suit and found against the

plaintiff by three Courts.

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11. We also notice that the High Court has further observed

that the suit is barred for reason of non-joinder of

necessary parties, namely the Belgaum Urban

Development Authority and the Badminton Association

who were conceded certain extents of property for

forming a lay out and civic amenities; with roads to be

maintained by the former, and the establishment and

management of a Badminton Hall by the latter, which we

agree with.

12. We find absolutely no reason to interfere with the well-

considered judgment of the High Court which we affirm

while rejecting the Special Leave Petition.

13. Pending application(s), if any, shall stand disposed of.

………….……………………. J.

(K. VINOD CHANDRAN)

…………………………………J. (N.V. ANJARIA) NEW DELHI;

JULY 14, 2025.

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