TaxTMI 
TaxTMI 
2018 (5) TMI 2149
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....the year 1954. Dr. S.N. Bhandari, entered into a settlement deed dated 08.03.1956 with one Dr. Raj Kumari Grover qua the subject property. As per the terms of this deed of settlement, they became owners of equal shares in the subject property. It was also resolved between them that the subject property shall go to her sons and in their absence to her daughters etc., on the re-marriage or death of Dr. Raj Kumari Grover. Subsequent to this deed of settlement, both Dr. S.N. Bhandari and Dr. Raj Kumari Grover became a couple by virtue of their marriage, solemnized on 17.03.1956. The said deed of settlement was confirmed by the Land & Development Officer, vide his letter No. LIV/9/10/206 dated 27.12.1965. Thereafter, on 15.02.1972, Dr. S.N. Bhandari relinquished his undivided share in the subject property in favour of his wife, namely, Dr. Ms. Raj Kumari Bhandari and the latter became full owner by virtue of the former's letter No. LIV/9/10/206 dated 06.05.1972. Dr. Ms. Raj Kumari Bhandari, mother of the parties, thereafter executed a Will dated 26.03.1979 bequeathing all her immovable and movable properties to her two sons and their families. During her lifetime, a family settlemen....
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....oncerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole." (emphasis supplied) It is further argued that the learned Single Judge has wrongly relied on the provisions of Article 58 of the Limitation Act which has no application in the facts of the present case. The relief sought, it is urged, is governed by Article 59 of the Limitation Act. It is further argued that from the impugned order, it is not clear whether it is a rejection of the plaint or dismissal of the suit. It is argued that both the connotations have different repercussions. A dismissal of the suit would bar the subsequent suit on the principles of res judicata, whereas there is no bar when the plaint is rejected under Order VII Rule 11 of Civil Procedure Code (hereinafter referred to as 'CPC'). The impugned judgment thus disregards the mandate of Section 26 and 27 of CPC and hence is not a judgment as stipulated under Section 33 of CPC, and no decree will follow. Reliance is placed upon the decision of this Court in Bright Enterprises Private Ltd. & Anr. Vs. MJ Bizcraft LLP & Anr., 2017 (236) DLT 295. It is prayed that the impugned order be set aside and the suit....
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....s a minor or a person of unsound mind, a statement to that affect; (e) the facts constituting the cause of action and when it arose; (f) the facts showing that the court has jurisdiction; (g) the relief which the plaintiff claims; (h) where the plaintiff has allowed a set off or relinquished a portion of his claim the amount so allowed or relinquished; and (i) a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits." (emphasis supplied) Every plaint therefore must contain the facts, showing cause of action and the date on which it arose. The suit is required to be filed within the period of limitation to sue on that cause of action. 10. Section 3 of the Limitation Act mandates that every suit which is not within the prescribed period of limitation shall be dismissed, even though limitation has not been set up as a defence. Section 3(1) is reproduced as under:- "3 Bar of Limitation. (1) Subject to the provisions contained in sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescrib....
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....ed" held as under:- "16. Order V Rule 1 CPC stipulates that when a suit has been 'duly instituted', a summons 'may' be issued to the defendant to appear and answer the claim and to file the written statement of his defence etc. It is clear that the provisions of Order V Rule 1(1) reflect the substantive provision contained in Section 27 CPC. 17. From the above and particularly upon examining the provisions of Section 27 and Order V Rule 1(1) CPC, it is evident that when a suit is regarded as having been 'duly instituted', a summons may be issued to the defendant. The use of the expression 'duly instituted' has to be seen in the context of the provisions of Orders VI and VII of the CPC.....". (emphasis supplied) 13. The stage for issuance of summons to the opposite party arises only when the Court is satisfied that the suit is 'duly instituted. A suit which is barred by limitation, or does not disclose any cause of action, i.e. if it is barred by provisions of Order VII Rule 11 of CPC or any other law cannot be said to be a suit which is duly instituted and Courts are not bound to issue summons in such cases and are within ....
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....o. 217/2017 filed by the appellant in which the impugned order was passed, she has sought following reliefs:- "(A) decree of declaration thereby declaring that Deed of Settlement dated 11.11.1980 registered as Document No. 529, Addl. Book No. I, Vol. No. 4422 on pages 48-49 dated 19.2.1981 in the office of Registering Authority, New Delhi, annulled, cancelled and superseded all acts, deeds made or performed between parties in pursuance to Will dated 26.03.1979. (B) decree of declaration thereby declaring that abovesaid Deed of Settlement dated 11.11.1980, upon not being acted upon and otherwise abandoned by defendants No. 1 and 2 in terms thereof, left estate of mother of parties (Smt. Raj Kumari Bhandari) open to succession in accordance with Section 15 of Hindu Succession Act, 1956, pending adjudication on deceased mother's last Will dated 25.05.2006 sub-Judice in Probate Case No. 324/2014 pending between parties. (C) decree of declaration thereby declaring plaintiffs share in estate of Smt. Raj Kumari Bhandari described in Schedule to the plaint in accordance with prayer made vide clause (B) above. (D) Decree of partition of suit property ....
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....as executed by her mother and it also bears her signatures as well as signatures of other siblings. In the absence of any pleadings to the contrary, the knowledge of execution of this deed therefore can be assigned to the date on which this deed was signed by the appellant i.e. 11.11.1980. 20. Even if we accept that the Article 59 of the Limitation Act governs the period of limitation in the case of appellant, the period of limitation is three years from the date when the facts entitling the plaintiff to have the instrument cancelled, first became known. It is the duty of the plaintiff under the law to place before the Court, the facts showing that the instrument came to be known to her on any other date than the date on which she put her signature on the instrument. Naturally by her own averments in the plaint, she was aware of this family settlement on the very date on which it was signed. Although, it is argued before us that she simply signed the instrument and was not aware about the contents of the deed but again there are no pleadings in her plaint to this effect. The plaint is totally silent about the date of knowledge. What, she had contended in the plaint is reproduced....
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....the Limitation Act, it is still required to be filed within three years from the date of knowledge of execution of this settlement deed qua the appellant. In the absence of any averments in the plaint to the contrary, the period of limitation naturally has to begun from the date when family settlement was executed and signed by the appellant, admittedly which date is 11.11.1980. 22. In the light of this settled proposition of law, the claim of the appellant that the period of limitation is to be reckoned from the date of cause of action i.e. when there arose "a need to challenge" the instrument, has no force in it. The period of limitation to challenge the instrument once start running does not stop. The plaint is bereft of any facts, showing as to why it should be reckoned from the date of alleged cause of action and not from the date of execution of the instrument. 23. It is not out of place to observe that at no stage the appellant in her petition has averred that the contents of a settlement deed dated 11.11.1980 were not within her knowledge on the date it was executed. The case laws relied upon by the appellant are not applicable on the facts and circumstances of this c....