NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4017 OF 2003

Raghbinder Singh                                            ….Appellant

Versus

Bant Kaur & Ors.                                    ….Respondents

JUDGMENT

AFTAB ALAM, J.  

1. Bant  Kaur,  the  widow  of  Lal  Singh  and  Sukhwinder  Singh  and  

Paramjit  Kaur,  his  son and daughter  respectively  filed  a  suit  (No.877 of  

December 20, 1994) in the court of Civil  Judge (Junior Division), Dhuri,  

claiming a sum of Rs.2,00,000.00 (rupees two lakhs only) as damages from  

Jang Singh and his two sons Raghbinder Singh and Jinder Singh (Harjinder  

Singh) who, according to them, had killed Lal Singh in an occurrence that  

took  place  at  village  Kumbherwal  (P.S.  Ranike),  Tehsil  Dhuri,  District  

Sangrur, Punjab, on August 7, 1994 at 11:30am. The trial court by judgment  

and order dated March 7, 1998 found and held that the defendant nos.1& 2

murdered Lal Singh over property dispute and they were, therefore, liable to  

compensate the plaintiffs for the loss of their dependency and mental agony  

suffered by them. The trial court then calculated the compensation payable  

to the plaintiffs and arrived at the sum of Rs.2,40,000.00 (rupees two lakhs  

forty thousand only). However, since the plaintiffs had claimed the lower  

sum of Rs.2,00,000.00 (rupees two lakhs only), it decreed the suit for that  

amount.  The  two defendants,  Jang  Singh  and  Raghbinder  Singh,  against  

whom the suit was decreed, took the matter in appeal (Civil Appeal No.43 of  

April 17, 1998). But the District Judge, Sangrur, dismissed the appeal by  

judgment and order  dated July 27,  2000 without  any modification in the  

decree passed by the trial court. The two defendants then carried the matter  

to the High Court in second appeal (RSA No.4562 of 2000). The High Court  

dismissed  the  second appeal  by  a  brief  order  dated,  December  18,  2000  

observing that no case was made out for any interference in second appeal.  

Raghbinder Singh, alone, then brought up this matter in appeal by grant of  

special leave, impleading his father defendant no.1 before the trial court as  

proforma respondent no.4.  

2. It  appears  that  the  civil  proceedings  for  damages  instituted  by  the  

widow and the children of the deceased moved much faster than the criminal  

proceedings against the three accused (defendants in the civil proceedings)  

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on the charge of committing murder of Lal Singh. And this seems to have  

provided to the appellant the first ground to challenge the judgments and  

orders passed against him by the courts. It was contended before this Court  

that both, the district judge and the High Court had dismissed the appellant’s  

first  appeal  and the second appeal  respectively  even while  their  criminal  

appeal against the judgment and order of their conviction and sentence was  

pending before the High Court. As a matter of fact, even on May 5, 2003  

when  this  Court  granted  special  leave  for  filing  the  present  appeal,  the  

appellant’s criminal appeal was pending before the High Court.

3. In order to get the position clarified, we called for a report from the  

Punjab and Haryana High Court, Chandigarh. The report is received and it is  

now on the record of the case.

4. From the report received from the High Court and the other materials  

on record it is evident that at the conclusion of the trial, Harjinder Singh, one  

of  the  three  accused  (defendant  no.3  in  the  suit  from which  the  present  

appeal arises) was acquitted but the other two accused, namely, Jang Singh  

and Raghbinder Singh (defendants 1 and 2) were convicted under section  

302 read with section 34 of the Penal Code for committing the murder of Lal  

Singh and sentenced to undergo life imprisonment and a fine of Rs.1,000.00  

each (and in default of payment of fine to undergo rigorous imprisonment  

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for  six  months)  vide  judgment  and order  dated  August  17,  1996  by  the  

Sessions Judge, Sangrur. Against the judgment of the trial court, Jang Singh  

and  Raghbinder  Singh  preferred  appeal  (Criminal  Appeal  No.449-DB of  

1996) before the High Court. The State too went up in the appeal (Criminal  

Appeal No.228-DBA of 1997) against the trial court judgment insofar as it  

acquitted the third accused, Harjinder Singh. A division bench of the High  

Court by judgment and order dated November 20, 2004 dismissed both the  

appeals,  thus,  maintaining  the  conviction  and  sentence  awarded  to  the  

appellant and Jang Singh by the trial court. Against the judgment of the High  

Court, the appellant and Jang Singh came before this Court in SLP (Crl.)  

No.4500 of  2005.  It  was  dismissed  in  limine by  order  dated August  18,  

2005. The aforesaid developments, after the filing of the present appeal, take  

away the objection raised on behalf of the appellant.  

5. However,  Mr.  Rishi  Malhotra,  counsel  appearing  for  the  appellant  

submitted that the suit, when it was filed was quite premature and the defect  

was such that it could not be cured by any developments after the filing of  

the suit. Learned counsel stated that the occurrence took place on August 7,  

1994 and the suit was filed on December 20, 1994 when even the charge  

sheet might not have been filed. The date on which the suit was filed, the  

culpability of the defendants was yet to be judged in a criminal trial and,  

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therefore, the suit, according to him, was premature. The judgment in the  

criminal  trial  was  pronounced  on  August  17,  1996  and,  in  the  criminal  

appeal, by the High Court on November 20, 2004. Their SLP was dismissed  

by this Court on August 18, 2005. Mr. Malhotra contended that all these  

developments  would  not  cure  the  defect  in  the  suit  which  was  not  

maintainable on the date it was filed.  

6. At this  stage,  it  may be said to the credit  of Mr.  Malhotra that he  

himself brought to our notice a decision of this Court in Vithalbhai (P) Ltd.  

v. Union Bank of India, (2005) 4 SCC 315. The decision in Vithalbhai arose  

from a suit for eviction that was instituted even before the expiry of the lease  

by efflux of time within the meaning of clause (a) of section 111 of the  

Transfer  of Property Act,  1882.  But in that case,  this  Court exhaustively  

considered the issue of a suit being premature and its consequences, and in  

paragraph  22 of  the  judgment  summarized  its  conclusions,  which  are  as  

under:

“22. We may now briefly sum up the correct position of law  which is as follows:

A suit of a civil nature disclosing a cause of action even if filed  before the date on which the plaintiff became actually entitled  to sue and claim the relief founded on such cause of action is  not to be necessarily dismissed for such reason. The question of  suit being premature does not go to the root of jurisdiction of  the court; the court entertaining such a suit and passing decree  

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therein is not acting without jurisdiction but it is in the judicial  discretion of the court to grant decree or not. The court would  examine whether any irreparable prejudice was caused to the  defendant on account of the suit having been filed a little before  the date  on which the plaintiff's  entitlement to relief  became  due and whether by granting the relief in such suit a manifest  injustice  would  be  caused  to  the  defendant.  Taking  into  consideration the explanation offered by the plaintiff for filing  the suit before the date of maturity of cause of action, the court  may deny the plaintiff his costs or may make such other order  adjusting equities and satisfying the ends of justice as it may  deem  fit  in  its  discretion.  The  conduct  of  the  parties  and  unmerited advantage to the plaintiff or disadvantage amounting  to prejudice to the defendant, if any, would be relevant factors.  A plea as to non-maintainability of the suit on the ground of its  being premature  should be promptly  raised  by the  defendant  and pressed for decision. It will equally be the responsibility of  the court to examine and promptly dispose of such a plea. The  plea may not be permitted to be raised at a belated stage of the  suit.  However,  the  court  shall  not  exercise  its  discretion  in  favour of decreeing a premature suit in the following cases : (i)  when  there  is  a  mandatory  bar  created  by  a  statute  which  disables  the  plaintiff  from  filing  the  suit  on  or  before  a  particular date or the occurrence of a particular event; (ii) when  the institution of the suit before the lapse of a particular time or  occurrence  of  a  particular  event  would  have  the  effect  of  defeating  a  public  policy  or  public  purpose;  (iii)  if  such  premature  institution  renders  the  presentation  itself  patently  void and the invalidity is incurable such as when it goes to the  root  of  the  court's  jurisdiction;  and (iv)  where  the  lis  is  not  confined to parties alone and affects and involves persons other  than those  arrayed  as parties,  such as  in  an election petition  which affects and involves the entire constituency. (See Samar  Singh v.  Kedar Nath.) One more category of suits which may  be added to the above,  is:  where leave of the court  or  some  authority  is  mandatorily  required  to  be  obtained  before  the  institution of the suit and was not so obtained. ”

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7. Thus,  the decision in  Vithalbhai is  a  complete  answer to the point  

raised by Mr. Malhotra.  

8. No other point was raised for our consideration.

9. We find no merit in the appeal and the same is dismissed, but with no  

order as to costs.  

……………………………..J (AFTAB ALAM)  

………………………………J (R.M. LODHA)   

New Delhi, September 22, 2010

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