Kishore Kumar Prasad, J. - (1.) In this appeal, the Order No. 27 dated 12.2.2002 passed by Shri A. Mukherjee learned Judge, 10th Bench, City Civil Court Calcutta, in title Suit No. 1398 of 1998 is assailed by the appellants. The appellants herein had filed the aforesaid suit for declaration that the sale deed executed by the defendant No. 1 in respect of the suit premised is null and void, for a further declaration that the sale deed dated 29.11.1997 be delivered up and cancelled and permanent injunction. By the impugned order, issue No. 1 was taken up as preliminary issue by the learned Trial Judge on the date of peremptory hearing of the case and the said issue was about the maintainability of the suit. The learned Trial Judge after hearing the learned lawyer appearing for the parties had dismissed the aforesaid suit on the ground that it was not maintainable.
(2.) Even though the learned Counsel for the respondents-has not cared to put in appearance on the date of hearing the instant appeal before this Court despite service, we have heard the learned Counsel appearing for the appellants and gone through the records carefully.
(3.) Learned Counsel for the appellants contended that after the amendment of Civil Procedure Code, the provision of Order 14 Rule 2 has undergone a change and under the amended provision of Order 14 Rule 2 Sub- rule(2), the said issue could not have been decided by the learned Trial Judge as preliminary issue when the said issue was an issue involving mixed question of fact and law required to be decided on merits along with other issues in the suit. Learned Counsel for the appellants also contended that after the amendment of the provision of Order 14 Rule 2 of the Code of Civil Procedure, further limitation have been imposed and an issue involving question of law should be tried as preliminary issue only after the condition indicated in Sub-rule (2) of Order 14 of Rule 2 are fulfilled. Placing reliance on the principles laid down by the Full Bench of Madras High Court in the case of Muppudathi Pillai v. Krishnaswami Pillai & Ors., AIR 1960 Madras page 1, learned Counsel for the appellants lastly contended that the learned Trial Court erred in holding that in view of Section 34 of the Specific Relief Act, the appellants not being a party to the deed is precluded from making a decree for cancellation of sale deed executed by and between the respondent Nos. 1 and 2. Learned Counsel laid stress on the observations of the aforesaid Full Bench decision in paragraphs 13,14 and 15 which are quoted herein below: - "(13) Whitley Stokes in the Anglo Indian Codes, Vol. 1, dealing with Ch. V of the Specific Relief Act states at page 984 as follows: - "Chapter V declares that any person against whom a written instrument is void or voidable, who has reasonable apprehension that if left outstanding it may cause him serious injury may obtain an adjudication that it is void or voidable and an order that it be delivered up and cancelled. The relief extends to a forged instrument, and also to one originally valid but which has subsequently become forged. The chapter applies to cases nor infrequent in India, where a party gets possession of a document, on which he might not indeed be able to found a claim in a Court of justice, but which might give him such prima facie right against the other as would expose him to vexatious demands and litigation." The learned author points out that Section 89 of the Specific Relief Act was taken for the most part from the Draft New York Civil Code, Articles 1906 and 1908. That principle has been set out in story on Equity Jurisprudence, English Edn. 1920 in Article 694 thus: " It is obvious that the jurisdiction, exercised in cases of this sort, is founded upon the administration of a protective or preventive justice. If, therefore, the instrument was void for matter apparent upon the face of it, there was no call to exercise the jurisdiction, with the possible exception of instruments forming a cloud upon the title to land. The party is relieved upon the principle, as it is technically called quia time, a that is, for fear that such agreements, securities, deeds, or other instruments may be vexatiously or injuriously used against him, when the evidence to impeach them may be lost, or that they may now throw a cloud or suspicion over his title or interest. The provisions of Section 39 make it clear that three conditions are requisite for the exercise of the jurisdiction to cancel an instrument: (1) the instrument is void or voidable against the plaintiff; (2) plaintiff may reasonably apprehend serious injury by the instrument being left outstanding; (3) in the circumstances of the case the Court considers it proper to grant this relief of preventive justice. On the third aspect of the question the English and American authorities hold that where the document is void on its face the Court would not exercise its jurisdiction while it would if it were not so apparent. In India it is a matter entirely for the discretion of the Court. "(14) The question that has to be considered depends on the first and second conditions set out above. As the principle is one of potential mischief, by the document remaining outstanding, it stands to reason the executant of the document should be either the plaintiff or a person who can in certain circumstances bind him. It is only then it could be said that the instrument is voidable by or void against him. The second aspect of the matter emphasises that principle. For there can be no apprehension if a mere third party, asserting hostile title creates a document. Thus relief under Section 39 would be granted only in respect of an instrument likely to affect the title of the plaintiff and not of an instrument executed by a stranger to that title". "(15) Let us take an example of a trespasser purporting to convey the property in his own right and not in the right of the owner. In such a case a mere cancellation of the document would not remove the cloud occasioned by the assertion of a hostile title, as such a document even if cancelled would not remove the assertion of the hostile title. In that case it would be the title that has got to be judicially adjudicated and declared, and mere cancellation of an instrument would not achieve the object. Section 42 of the Specific Relief Act would apply to such a case. The remedy under Section 39 is to remove a cloud upon the title, by removing a potential danger but it does not envisage an adjudication between competing title". That can relate only to instruments executed or purported to be executed by a party or by any person who can bind him in certain circumstances. It is only in such cases that it can be said there is a cloud on his title and an apprehension that if the instrument is left outstanding it may be a source of danger. Such cases may arise in the following circumstances: A party executing the document, or a principal in respect of a document executed by his agent, or a minor in respect of a document executed by his guardian de jure or de facto, a reversioner in respect of a document executed by the holder of the anterior limited estate a real owner in respect of a document executed by the benamidar etc. This right has also been recognised in respect of forged instruments which could be cancelled by a party on whose behalf it is purported to be executed. In all these cases there is no question of a document by a stranger to the title. The title is the same. But in the case of a person asserting hostile title, the source or claim of title is different. It cannot be said to be void against the plaintiff as the term void or voidable implies that but for the vitiating factor it would be binding on him, that is, he was a party to the contract.";