TaxTMI 
TaxTMI 
2025 (4) TMI 1677
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....o conduct the trial afresh on the aspect of 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....
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....ntatives have been brought on record and accordingly, the cause title has 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....
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....earned counsel for Respondent Nos. 1 to 3 submitted that the High Court rightly allowed 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 Res....
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....al on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]" Thus, 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 ....
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....e of the appellant previously by the High Court Registry or the court and yet the appellant had persisted in his default. That was not done. In our opinion, 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 ques....
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....s the power of the High Court to hear the appeal on any other substantial question of law which was not initially framed by the High Court under sub-section (4). However, this power can be exercised by 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 [202....
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....Order 41 Rule 23, 23A and 25 of the CPC. No findings are recorded by the High Court that the case falls within Order 41 Rule 23, 23A and 25 of the CPC and the matter is required to be remanded to the learned trial Court on setting aside the concurrent 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....
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....was in mental distress following her husband's death and that they were in continuous possession of the suit properties. 15. The trial court, after a comprehensive examination of the evidence, both oral and documentary, concluded that Respondent Nos. 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 ....
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....ntiff to prove that the relief prayed for to set aside the decree was filed within the stipulated time. Only through Dasappa Gowdar, the plaintiffs claim the right over the suit A and C schedule properties. As already stated by me the above said Dasappa Gowdar is aware of the Ex. Al decree 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 th....
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....Execution Proceedings on the demise of Rangae Gowder apart from his wife 1st Defendant having been impleaded as a party to the suit. The plaintiffs and Defendants 1 to 3 were aware of the proceedings taken by Sundarammal and Vennila. 19. D.W.2 in his cross-examination would state that in their families 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 co....
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.... observing that both the Courts failed to frame any issue in respect of the limitation, though held that the suit was barred by limitation. Accordingly, the High Court allowed the second appeal by setting aside the judgments passed by the Courts below and remitted the matter to the trial Court for a fresh trial with a direction 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 ....
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....once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed and finally decided on merits in accordance with the procedure laid down under section 100 CPC. The High Court, has failed to decide the substantial framed at the time of admission and went to decide, only the additional substantial question of law, framed at the time of hearing. The 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....
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....shes the right, it affects substantive right while that which purely pertains to the commencement of action without touching the right is said to be procedural". (ii) N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123] "that the Limitation Act is based upon public policy which is used for fixing a life span of a legal remedy for the purpose of general welfare. It has been pointed out that the Law of Limitation are 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 limitatio....
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....he necessary provision of the Limitation Act or in determining which provision of the Limitation Act applies, the subordinate court comes to an erroneous decision, it is open to the court in revision to interfere with that conclusion as that conclusion led the court to assume or not to assume the jurisdiction to proceed with the determination of that matter." In cases, where the pleadings are silent, then it becomes the duty of the Court to ascertain from 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....
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....e dispensation. Unless compelled by express and specific language of the statute, the provisions of Code of Civil Procedure or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar [MANU/SC/0028/1975 : (1975) 1 SCC 774] are pertinent: (SCC p. 777, paras 5-6) The mortality of justice at the hands 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 approac....
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....hen all materials were available before it. 23. As already indicated above, the concurrent findings of the Courts below were sought to be challenged before the High Court. It is a general rule that High Court will not interfere with the concurrent findings of the Courts below. In the present case, both the trial Court and the First Appellate Court, after detailed analysis of the oral and documentary evidence let-in by the parties, categorically held that the suit was hopelessly barred by limitation. We also find that the evidence produced would abundantly make it clear that Dasappa Gowdar and thereafter, Respondent Nos. 1 to 3 were well aware of the earlier proceedings and the decree passed in the first suit. The auction purchaser's title was confirmed by court orders, and subsequent transfers were properly registered and recorded. Therefore, Respondent Nos. 1 to 3, who have knowingly slept over their right to challenge the sale and allowed further rights to flow, cannot later question the sale of larger extent of share in an unpartitioned property. We also do not find any plausible reasons for delay. It is reiterated at this juncture that limitation is a matter of....