TaxTMI 
TaxTMI 
2022 (10) TMI 627
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.... issue of law and that it warrants postponement of settlement of other issues until after that issue has been determined and to deal with the suit in accordance with the decision on that issue. Accordingly, the Trial Court framed a preliminary question as to "whether the Suit is within the limitation". Upon answering the same in the negative, in accordance with the said decision, the suit was dismissed as per judgment dated 13.05.2005. The Defendants challenged the said judgment and decree before the Court presided over by Shri Sukhdev Singh, Additional District Judge, Delhi, (hereinafter referred to as the 'First Appellate Court') in Civil Appeal No. 99/2005 and it dismissed the appeal and confirmed the judgment and decree of the Trial Court, as per judgment dated 08.12.2006. Thereupon, they took up the matter in second appeal before the High Court. As per the impugned judgment dated 25.08.2009 the High Court concurred with the findings and dismissed the appeal answering the question of law against the Appellants. Leave was granted in Special Leave Petition No. 34648 of 2009 filed against the stated judgment of the High Court and in this civil appeal, the Respondents were ....
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....four daughters-Smt. Shakuntala Devi, Smt. Krishna Devi, Smt. Parvati Devi and Smt. Santhosh. Later, the widow of Shri Rama Nand also died. As per the policy, whereunder the land was acquired, the bhumidar was entitled to allotment of alternative residential plot in lieu of the acquired land. Later, the alternative plot was allotted by Respondent Nos. 1 to 4 in the exclusive name of Dhan Singh, upon his production of registered Relinquishment Deed, as per letter No. F-31(11)/8/87/L&B/ALT/8226 dated 08.03.1991. The said letter dated 08.03.1991 to the 5th Respondent for allotment of an alternative residential plot in his name, based on the Relinquishment Deed issued by the other legal heirs in his favour, came to the notice of Shri Nahar Singh, who thereupon filed an objection on 05.04.1991, before Respondent Nos. 1-4 stating that alternative plot shall not be allotted in the exclusive name of Dhan Singh. Further, it was stated therein that the Relinquishment Deed produced before the Authorities was obtained fraudulently by Dhan Singh. Subsequently, Nahar Singh died on 14.05.1993. Thereupon, his widow and children stepped into his shoes. Furthermore, it is averred in the plaint that t....
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....sic 1963) (for short 'The Act'), as contended by the Appellant and in the facts and circumstances obtained in this case? (c) Whether Article 17 or Article 65 of the Act got any application, as contended by the Appellants, in view of the plaint averments, in case Article 136 of the Act is found inapplicable? 9. As relates the first question bifold contentions have been raised by the Appellants. Limitation being a mixed question of law and facts, in view of the provisions Under Order XIV, Rule 2(2), the course adopted by the Trial Court and confirmed by the Appellate Court and the High Court, is absolutely impermissible in law, it is contended. If at all that preliminary issue was to be considered it ought to have been made Under Rule 11, Order VII, Code of Civil Procedure and then, subject to its outcome, at the worst, the plaint could have been rejected in terms of Clause (d) of Rule 11 of Order VII, Code of Civil Procedure, it is further contended. 10. The contentions raised in resistance on behalf of the 5th Respondent appears to be syllogistic. According to him, the foundational facts for determining the nature of Suit No. 410/2000 as declaratory suit and ....
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....o cause of action and it would accrue only when right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right. 14. In Mst. Rukhmabai's case 1960 (2) SCR 253, involving question of limitation in a suit for declaration of a deed as sham, this Court considered the question of limitation Under Article 120 of the Limitation Act, 1908 and held that the 'right to sue' would accrue when the Defendant clearly and unequivocally threatened to infringe the right asserted by the Plaintiff in the suit. Further it was held that every threat to such a right would not amount to a clear and unequivocal threat to compel him to file a suit and whether any particular threat would give rise to a compulsory cause of action would depend on the question as to whether that threat effectively invades or jeopardise the said right. In case on further deliberation a consideration of the case on hand in the light of the above decisions became inevitable, then we will undertake such an exercise. 15. Now, we will consider the first question: 'whether the issue of limitation can be determined as a preliminary issue Under Order XIV, Rule 2, Code ....
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.... case, question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue Under Order 14 Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made Under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed and the question of law is dependent upon the outcome of the investigation of the facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of Code of Civil Procedure and post amendment in the year 1976. (Emphasis added) 16. In view of the legal position obtained from the decision in Nusli Neville Wadia's case (2020) 6 SCC 557 the following decisions also assume relevance. In the decision in National Insurance Co. Ltd. v. Rattani [(2009) 2 SCC 75] this Court held that an admission m....
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....returned by the Trial Court on the stated preliminary issue of limitation, with a view to answer the question as to whether the impugned judgment confirming the First Appellate Court which, in turn, confirmed the judgment and decree of the Trial Court, requires intervention. In that regard it is only apposite to refer to the following recital from the Trial Court's judgment carrying plaint averments indicating the starting point of limitation and also findings on the preliminary issue: As per averments made in para 8 of the plaint Plaintiffs themselves have mentioned that their predecessor in interest alongwith Defendants Nos. 6 to 9 had executed relinquishment deed in favour of Defendant No. 5. Although they have also taken the plea that same was obtained Defendant No. 5 by playing fraud on the pretext of mutation of residential house in MCD records. Such averments made in the said para goes to show that Ld. Predecessor in interest of Plaintiffs was very well aware about the execution of registered release deed since date of its execution. Even if it be considered that Defendant No. 5 had played fraud upon predecessor in interest of Plaintiffs and the said fraud came ....
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....g all these period is without any merit as mere sending representations on behalf of Plaintiffs with authorities cannot extend period of limitation. The Plaintiffs slept over their right during the whole period of limitation and therefore they cannot be permitted to plead that the present suit is within the period of limitation due to sending of representations with the departments. Hence, for all these reasons it is held that the present suit is barred by limitation. Accordingly, issue is decided against the Plaintiffs. 20. Before proceeding further with the above-mentioned issues and the findings returned, it is only proper to consider the contention of the Appellants regarding the applicability of Article 136 of the Limitation Act. According to us, the contention is jesuitical. A perusal of Article 136 of the Limitation Act would reveal the indubitable position that it applies only when an application for execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court is to be filed. (See the decision of this Court in Bikoba Deora Gaikwad and Ors. v. Hirabai Marutirao Ghorgare and Ors. (2008) 8 SCC 198. 21. In the instant such a st....
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.... of consideration by the Trial Court which ultimately resulted in dismissal of suit No. 410/2000 would reveal, as stated hereinbefore, that it had determined the preliminary issue regarding the period of limitation with reference to the averments in the plaint. The dismissal of the suit was in accordance with the decision on the said preliminary issue. Since we have already extracted the operative portion of the Trial Court judgment, we do not think it necessary to refer to its reasons and findings. 23. Coming to the judgment of the First Appellate Court whereby it dismissed the appeals of the Plaintiffs and confirmed the judgment and decree of the Trial Court it is evident that the various contentions raised by the Appellants therein were considered in detail by the First Appellate Court. The judgment would reveal that before the First Appellate Court, besides reiterating the contentions unsuccessfully raised before the Trial Court, the Appellants therein/the Plaintiffs had contended, relying on the decision in Narinder Kaur and Anr. v. Amar Jeet Singh Sethi and Anr. [2000 III A D (Delhi), 599], that Relinquishment Deeds do not relinquish the share of executant but would have o....
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....ion, reckoning the nature of the suit as declaratory. 25. The challenge against the impugned judgment of the High Court is that it wrongly applied Article 58 of the Limitation Act while confirming the concurrent decisions of the First Appellate Court and the Trial Court. In this context, it is relevant to note the prayers made in the suit by the Plaintiffs which were extracted hereinbefore. Undoubtedly, the Plaintiffs sought for declarations in the manner referred above and thereby, made the nature of the suit as declaratory. This position is indisputable. It is true that the Trial Court though found the period of limitation as three years taking into account the nature of the reliefs it did not specifically mention the relevant provision in its judgment. There can be little doubt with respect to the position that misquoting or non-quoting of a provision by itself will not make an order bad so long as the relevant enabling provision is in existence and it was correctly applied though without specifically mentioning it. The High Court had only referred to the relevant, applicable provision under the Limitation Act upon considering the nature of the suit and the reliefs sought for....