TaxTMI 
TaxTMI 
TaxTMI 
2025 (4) TMI 1677
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....whether the suit was barred by limitation, and to complete it within a period of six months. 3. The genesis of the litigation traces back to a joint Hindu family consisting of Rangappa Gowdar and his sons, Dasappa Gowdar and Samiappan. Originally, the suit bearing O.S. No. 851 of 1965 [Hereinafter referred to as "the first suit"] had been filed by the wife and daughter of the said Samiappan viz., Sunderammal and Vennila, who are Respondent Nos. 6 and 7 herein, seeking maintenance against the said Samiappan and his father Rangappa Gowdar and brother Dasappa Gowdar. The suit came to be decreed on 26.08.1965 and the suit properties were attached for the maintenance amount in the execution proceedings initiated by the plaintiffs. During the pendency of the execution proceedings, the said Rangappa Gowdar and Dasappa Gowdar died and their legal heirs were brought on record. Through court auction, the suit 'A' schedule property was purchased by one Karivarada Gowdar and the sale was confirmed by issuing certificate dated 25.09.1970 in E.P. No. 424 of 1969 in O.S. No. 851 of 1965 by the Court of District Munsif, Coimbatore. Since the said Samiappan tried to encroach the suit 'A' sche....
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....s been amended. Vide order dated 21.10.2022 passed in Interlocutory Application No. 101397/2022, Respondent Nos. 4, 8, 9, 11, 14 and 18 to 21 have been deleted from the array of parties, since they are proforma parties, and they do not have any surviving interest in the suit property. Vide order dated 21.10.2022 passed in Interlocutory Application No. 101402/2022, the appellants have been exempted from the requirement of substituting the legal representatives of deceased Respondent Nos. 10 and 12. Despite the service of notice, none appeared on behalf of the other proforma respondents viz., Respondent Nos. 5 to 7, 13, 15, 16 and 17. Thus, Respondent Nos. 1 to 3 are the only contesting parties. 8. Heard the learned counsel for the appellants and the learned counsel for the contesting Respondent Nos. 1 to 3 and also perused the materials available on record. 9. The main contention of the learned counsel for the appellants is that Respondent Nos. 1 to 3 had been arrayed as respondents / judgment debtors in the execution proceedings initiated in O.S. No. 851 of 1965 and hence, they had the knowledge of the proceedings even prior to filing of th....
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....llowed the second appeal filed by Respondent Nos. 1 to 3 and remitted the matter to the trial Court for fresh trial, after framing the issue of limitation. According to the learned counsel, the said issue is a mixed question of fact and law; to decide the maintainability of the suit and without framing such question, the trial Court and the First Appellate Court ought not to have come to the conclusion that Respondent Nos. 1 to 3 are not entitled to the relief to set aside the decree passed in the first suit viz., O.S. No. 851 of 1965 and to partition the suit 'A' and 'C' schedule properties by metes and bounds in 12 equal parts and to allot the 5/12 shares to Respondent Nos. 1 to 3, and for a permanent injunction. In this regard, reliance was placed on the decision of this Court in Vaish Aggarwal Panchayat v. Inder Kumar & Others [(2020) 12 SCC 809]. 10.1. The learned counsel further submitted that the trial Court as well as the First Appellate Court without framing any issue, any pleadings, and without leading any evidence, rejected the relief sought by Respondent Nos. 1 to 3 as barred by limitation. Therefore, the High Court rightly rema....
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.... sub-section (1) of Section 100 says that the second appeal would be entertained by the High Court only if the High Court is satisfied that the case involves a substantial question of law. Sub-section (3) makes it obligatory upon the appellant to precisely state in memo of appeal the "substantial question of law" involved in the appeal. Sub-section (4) provides that where the High Court is satisfied that any substantial question of law is involved in the case, it shall formulate that question. In other words, once the High Court is satisfied after hearing the appellant or his counsel, as the case may be, that the appeal involves a substantial question of law, it has to formulate that question and then direct issuance of notice to the respondent of the memo of appeal along with the question of law framed by the High Court. Sub-section (5) provides that the appeal shall be heard only on the question formulated by the High Court under sub-section (4). In other words, the jurisdiction of the High Court to decide the second appeal is confined only to the question framed by the High Court under sub-section (4). The respondent, however, at the time of hearing of the appeal is given a righ....
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....inion, the following substantial question of law does arise as involved in the case and worth being heard by the High Court:- "Whether on the pleadings and the material brought on record by the defendant, the first appellate Court was right in holding that the case of adverse possession was made out by the defendant and the suit filed by the plaintiff was liable to be dismissed as barred by time under Article 65 of the Limitation Act, 1963, more so when such finding was arrived at in reversal of the findings of the trial Court?" 17. The appeal is allowed. The case is remitted back to the High Court for hearing and deciding the second appeal afresh. 18. We make it clear that we have not expressed any opinion either way on any of the issues arising for decision in the case. We also make it clear that our framing the question of law involved in the appeal shall not take away the jurisdiction of the High Court vesting in it under proviso to sub-section (5) of Section 100 of the C.P.C. to formulate any other question of law involved in the case The second appeal shall be decided by the High Court uninfluenced by any of the observations made hereinabove which have been made sole....
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....y the High Court only after assigning the reasons for framing such additional question of law at the time of hearing of the appeal". 22. We are clearly of the view that the proviso to sub-section (5) of Section 100 CPC is not intended to annul the other requirements of Section 100 and it cannot be laid down as a matter of rule that irrespective of the question(s) formulated, hearing of the second appeal is open for any other substantial question of law, even if not formulated earlier..." (iv) This Court pointing out the principle laid down in Surat Singh case, set aside the judgment of the High Court on the ground of violation of mandatory procedure prescribed under section 100 CPC, and remanded the matter to the High Court for deciding the appeal afresh on merits in accordance with law [Refer: Vijay Arjun Bhagat and others v. Nana Laxman Tapkire and others, (2018) 6 SCC 727]. (v) This Court in Ramakrishnan Kadinhipally & Ors. v. P.T. Karunakaran Nambiar [2023 SCC OnLine SC 323] criticized the High Court for remanding a case to the trial court without proper justification, especially when concurrent findings of fact existed. It reiterated that in second appeals under Sectio....
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....current findings of fact recorded by both the courts below. The High Court has mechanically remanded the suit, which is wholly impermissible. 13. Even the substantial questions of law framed by the High Court, while admitting the second appeal, which are reproduced herein above cannot be said to be as such substantial questions of law at all. The same are on questions of fact. Under the circumstances, the impugned judgment and order passed by the High Court quashing and setting aside the concurrent findings recorded by both the courts below, while exercising the powers under Section 100 CPC, is unsustainable. 14. In view of the above and for the reasons stated above, the present Appeal succeeds. The impugned judgment and order passed by the High Court is hereby quashed and set aside. The judgment and decree passed by the learned trial Court confirmed by the first Appellate Court is, hereby, ordered to be restored." 13. In the present case, evidently, the first suit viz., O.S. No. 851 of 1965 seeking maintenance was decreed on 26.08.1965 in favour of the plaintiffs / Respondent Nos. 6 and 7 herein. Consequently, the suit properties were attached for realizing the mainte....
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....p;1 to 3 are not entitled to any relief in the suit. On the pivotal issue of limitation, the trial court was of the view that the action has to be taken to set aside the decree within a period of three years, as per Article 59 of the Limitation Act, whereas the suit was filed after a period of seventeen years and hence, the relief sought by Respondent Nos. 1 to 3 to set aside the decree passed in the first suit was hit by the doctrine of limitation. The relevant paragraphs of the judgment passed by the trial Court are reproduced below for ready reference: "12. From the date of Ex. A1 about 17 years later, the relief which is sought for, to set aside the above said decree is hit by limitation is contended on the defendant's side. The defendants did not mention specifically in the written statement filed by them. If as per law a case is to filed within the stipulated period this court has the power to dismiss the case, and even though the counter argument is not made in this regard, the court has the power to dismiss the suit, as mentioned in the proviso of Section 3 of Limitation Act was appointed out by the Learned Counsel for the defendants. Therefore, considering the p....
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....cree is revealed through the copy of the order Ex. A2. Even the above said Dasappa Gowdar did not take any action to set aside the decree Ex. Al. Thereafter, after the demise of Dasappa Gowdar, in the execution proceedings, these plaintiffs were impleaded as legal heirs is revealed through Ex. B1. Therefore, the averment that the 3rd plaintiff is not aware of the above said Ex. Al decree and the proceedings thereafter, as mentioned in the plaint is not proved. Per contra, it is proved through the documents in this case, that the plaintiffs are aware of the above said proceedings. Therefore, I hold that the relief as prayed for by the Plaintiff to set aside the exparte Decree Ex. Al is hit by the doctrine of limitation..." 16. The First Appellate Court also, upon a thorough analysis, affirmed the judgment of the trial Court. Especially, with respect to the conclusion reached by the trial Court on the aspect of limitation, the First Appellate Court was of the opinion that the plaintiffs had slept over for 17 years and had chosen to come to the court violating the mandate under Section 59 of the Limitation Act and therefore, the suit was hopelessly barred by limitation as laid down ....
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....milies the eldest female member would be called as Thoddammal. No wonder Madammal being the oldest female member in the family of Dasappan has been so-called as Thoddammal. Further Ex. B-9 the returned cover would show that the postman has made and endorsement after enquiry that the addressee viz. Thoddammal, wife of Dasappan was out of Station. If Thoddammal was not the wife of Dasappan, the Postman would not have stated that Thoddammal wife of Dasappan has gone out. Further it is not the case of the Plaintiffs that any other wife was there for Dasappan. Therefore, accepting the explanation given by D.W.2 the Court comes to the conclusion that Madammal was called as Thoddammal also and that, therefore, it is false to say that Madammal was not aware of the proceedings taken by Sundarammal. Further when Rajamani and Santhamani were represented by Court guardian the court guardian could not have acted affectively unless Madammal gave proper instructions to contest the Execution proceeding taken by sundrammal. It is highly ridiculous to state that Madammal was totally out of picture. 21. The execution Court while executing the decree obtained in O.S. No. 851/65 has chosen to sell a....
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....to frame additional issue regarding limitation, let in evidence and decide the matter after giving due opportunity to both sides, within a period of six months. The relevant paragraphs of the High Court's judgment are extracted for ready reference: "10. In this regard, it is relevant to extract the issues framed by the trial Court as follows: 1) Whether the Plaintiff is entitled to the relief to the Judgement in O.S. 851/2005? 2) Whether the Plaintiffs are entitled to 5/12 Shares in suit 'A' and 'C' schedule properties? 3) Whether the Plaintiffs are entitled to the relied of permanent injunction as prayed in the plaint? 4) Whether the Plaintiffs have paid sufficient correct fees? 5) What other reliefs are the Plaintiffs entitled to? Though, the trial Court discussed in respect of the above issues and also about the question of limitation, dismissed the suit as the suit itself barred by limitation. 11. The first appellate Court also framed the points for consideration as follows: "1. Whether the plaintiffs are entitled to the relief of cancellation of the decree in O.S. No. 851/65 on the file of the District Munsif Court, Coimbatore? 2. W....
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....e first suit was decreed on 26.08.1965 and the auction purchaser got the suit 'A' schedule property on 22.12.1970 and thereafter, the appellants herein purchased the same from the subsequent purchaser by name R.S.Ramaswamy / Respondent No. 11; despite the fact that the decree and sale were within the knowledge of the Respondent Nos. 1 to 3, they have thwarted the right of the purchasers over the suit 'A' schedule property by filing second suit viz., O.S. No. 257 of 1982, that too, after a period of 17 years and the decision of the High Court remanding the matter to the trial Court for a fresh trial on the limitation aspect, without deciding the same on merits, by holding that a separate issue ought to have been framed is unsustainable and will certainly prolong the litigation without any useful purpose. 19. The object of framing an issue is to determine the material point of disputes between the parties, for the purpose of adjudication. Issues can be framed on a question of law or fact or a mixed question of law and fact. The decision on the issue settles the lis in favour of either of the parties. A distinct issue is to be formed when a material proposition of law ....
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....not only meant to destroy the rights of the parties but are meant to look to the parties who do not resort to the tactics but in general to seek remedy. It fixes the life span for legal injury suffered by the aggrieved person which has been enshrined in the maxim 'interest reipublicae ut sit finis litium' which means the Law of Limitation is for general welfare and that the period is to be put into litigation and not meant to destroy the rights of the person or parties who are seeking remedy. The idea with regards to this is that every legal remedy must be alive for a legislatively fixed period of time". 20. Limitation, as we generally know is a mixed question of fact and law. However, there is no hard and fast rule that every question of limitation is to be treated as a mixed question of fact and law. In cases, where the action is initiated after several years after the right to sue accrued, without any pleadings to explain the reasons for delay or as to when the fraud was discovered, the question of limitation is to be treated as a question of law. A recourse may be had to Order VI Rules 4 and 10 CPC, which mandates that specific particulars would have to be given in the pleadi....
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....om the evidence and the overall facts of the case, as pleaded by either party, and to render a finding on limitation where the question of limitation is to be treated as a question of law, since the Court cannot entertain frivolous or stale claims. It is also apropos to reiterate the settled position of law that a question of law can be raised at any stage. 21. We have in earlier paragraph discussed the object of framing the issues. We also held that there could be several points directly or indirectly connected with the main issue that has been framed. In such cases, when the larger issue that has been framed is wide enough to cover different points of disputes within it, there is no necessity to frame a specific issue on that aspect. Further, when the parties go to trial with the knowledge that a particular point is at lis, had full opportunity to let in evidence, they cannot later turn back to say that a specific issue was not framed. All that is required under law, is for the Court to render a finding on the particular fact or law in dispute, on the facts of the case. However, we make it clear that such evidence, in the absence of pleadings, cannot permit either of the parties....
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....of law troubles a judge's conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist Rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. ... Justice is the goal of jurisprudence -- processual, as much as substantive. 29. In State of Punjab v. Shamlal Murari [ MANU/SC/0494/1975 : (1976) 1 SCC 719 : 1976 SCC (L&S) 118] the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that: (SCC p. 720) "Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. In Ghanshyam Dass v. Dominion of India [MANU/SC/0006/1984 : (1984) 3 SCC 46] the Court reiterated the need for interpreting a part of the adjective law dealing with procedure....