SMT. ARIFA & ORS.versusABHIMAN APARTMENT COOPERATIVE HOUSING SOCIETY LTD. & ORS.

          [2025] 7 S.C.R. 1355 : 2025 INSC 875

              Smt. Arifa & Ors.
                     v.
Abhiman Apartment Cooperative Housing Society
                Ltd. & Ors.
         (Special Leave Petition (C) 18180 of 2025)
                           14 July 2025
      [K. Vinod Chandran and N.V. Anjaria, JJ.]


                     Issue for Consideration
Issue arose 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.

                            Headnotes†
Code of Civil Procedure, 1908 – s.11, Or.23 r.1 – Limitation
Act, 1963 – s.14 – Revival of cause of action – Res judicata –
Limitation – Non-joinder of necessary parties – Plaintiff,
entered into an agreement to sell the property to first
defendant – Execution of Power of Attorney-PoA in favour
of second defendant, secretary of the first defendant – PoA
cancelled before the execution of the sale deed in favour
of the first defendant – Plaintiff filed suit for permanent
injunction from alienating or disposing off the plot against
second defendant – Suit dismissed by the trial court and
first appellate court – High Court allowed the second
appeal– Appeal before this Court, wherein matter remanded
to the High Court – On remand, the High Court agreed with
the concurrent findings, dismissed the Second Appeal and
granted liberty to file a comprehensive suit for the reliefs
sought – Plaintiff then filed a fresh suit for declaration of
two sale deeds – Trial Court decreed the suit – In appeal,
the High Court set aside the decree and suit was dismissed
on the grounds of res judicata, limitation and non-joinder of
necessary parties – Interference with:
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    Held: Not called for – Liberty granted by the High Court in the
    second appeal was waste of time and effort; 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 – 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 – Issue now agitated was substantially in issue in the
    earlier suit and decided against the plaintiff, bringing in the rigor
    of s.11 – Findings in the impugned judgment regarding limitation
    and resjudicata agreed with – High Court’s observation that the
    suit is barred for reason of non-joinder of necessary parties, is
    agreed with. [Paras 9-11]

                                 List of Acts
    Code of Civil Procedure, 1908; Limitation Act, 1963.

                             List of Keywords
    Liberty to file fresh suit; Revive cause of action; Limitation;
    Resjudicata; Non-joinder of necessary parties; Cause of action;
    Cancellation of power of attorney; Execution of the sale deed;
    Suit for permanent injunction; Second appeal; Coercion and
    misrepresentation.

                            Case Arising From
    CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
    No. 18180 of 2025
    From the Judgment and Order dated 13.12.2023 of the High Court
    of Karnataka Circuit Bench at Dharwad in RFA No. 719 of 2015

                         Appearances for Parties
    Advs. for the Petitioners:
    Raghavendra Srivatsa, Sr. Adv., Prashant Gouder, D.L. Chidananda.
    Advs. for the Respondents:
    Sharanagouda Patil, Ms. Supreeta Sharanagouda.
[2025] 7 S.C.R.                                                      1357

                        Smt. Arifa & Ors. v.
     Abhiman Apartment Co operative Housing Society Ltd. & Ors.

                Judgment / Order of the Supreme Court

                                  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 petitioners
     herein admittedly entered into an agreement for sale of the suit
     scheduled property to the first 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.
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
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                        Supreme Court Reports


     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 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 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
[2025] 7 S.C.R.                                                       1359

                        Smt. Arifa & Ors. v.
     Abhiman Apartment Co operative Housing Society Ltd. & Ors.

     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 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.
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.

     Result of the case: Special leave petition dismissed.




     †
         Headnotes prepared by: Nidhi Jain