TaxTMI 
TaxTMI 
TaxTMI 
2013 (1) TMI 752
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.... rent stipulated in the lease-deed with the result that the appellant-lessor issued notices dated 12th December, 1975 and 17th July, 1976 calling upon the lessee to pay the outstanding amount with interest and stating that the lease of the plot in question shall stand determined under Clause 4 thereof and possession of the demised premises taken over by the appellant-Port Trust in case the needful is not done. 4. In response to the notices aforementioned the lessee by communication dated 18th November, 1976 requested the appellant-Port Trust to permit her to resell the plots for a symbolic consideration and to obtain the refund of the instalment amount already paid to the Port 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....
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.... days before the filing of the suit when defendant-lessee had through her representative asked the plaintiff to vacate the suit plot which demand was in breach of the sale agreement between the parties. Apprehending dispossession from the plot in question plaintiff-respondent No.1 sought a decree for injunction against respondent No.2. The appellant-Port Trust, it is noteworthy, was not impleaded as a party to the suit which too was dismissed for non- prosecution on 15th March, 2002. 8. Five years later and pending disposal of the second suit mentioned above, a third suit being Suit No.77 of 1996 was filed by respondent No.1 this time asking for a declaration and permanent 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 te....
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....ts below and could not be made a basis for holding the termination to be unauthorised or invalid. Alternatively, he submitted that the termination order had been passed as early as in the year 1977 whereas the suit in question was filed in the year 1996 after a lapse of nearly 18 years. The possession of the plot was also taken over on 14th December, 1978 which fact was acknowledged unequivocally by the lessee in her letter dated 22nd February, 1979. That being so, any suit aimed at challenging the validity of the termination or assailing validity of the process by which the possession was taken over from the lessee should have been filed within a period of six months 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....
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.... take over. The first Appellate Court instead held that the termination of the lease was not valid inasmuch as no notice regarding termination in terms of Sections 106 and 111(g) of the Transfer of Property Act, 1882 had been proved and served upon the lessee nor was it proved that the person who signed notice Exhibit 47 and who took over possession in terms of panchnama enclosed with Exhibit 49 had been authorised by the Kandla Port Trust, the lessor, to do so. The conclusions drawn by the first Appellate Court were summarised in paragraph 59 of its judgment in the following words: "59. In view of what is stated in foregoing paras of this judgment this Court 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 aut....
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....sion too legally vested in the lessor, growth of wild bushes and grass notwithstanding. We need not delve any further on this aspect for we are of the view that there could be no better evidence to prove that the lessee had been dispossessed from the plot in question than her own admission contained in her communication dated 22nd February, 1979 addressed to the Senior Estate Manager of the appellant-Trust. The letter may at this stage be extracted in extenso: "Dear Sir, I am in receipt of your letter No. ES/LL/723/63/9180 dated 20th December 1978 informing that the Assistant Estate Manager has taken over the plot No. 30 Sector 8. Please note, you have 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, ....
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....it Period of Time from which Limitation period begins to run | |58. |To obtain any other |Three years |When the right to sue| | |declaration. | |first accrues. | 18. The expression right to sue has not been defined. But the same has on numerous occasions fallen for interpretation before the Courts. In State of Punjab & Ors. V. Gurdev Singh (1991) 4 SCC 1, the expression was explained as under : The words "right to sue" ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must 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....
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....sue" and "accrued". This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued." (emphasis supplied) 21. The right to sue in the present case first accrued to the lessee on 13th December, 1978 when in terms of order dated 8th August, 1977 the lease in favour of the lessee was terminated. A suit for declaration 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 dispo....
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....Court observed: "19. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the Petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may 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:....