[ENTITY] vs. [ENTITY] & Others IN THE COURT OF SH. AJAY PANDEY, ADDL. DISTRICT JUDGE05, ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW DELHI In the matter of RCA No. 21/14 Case ID No. 02406C0[SECTION]68012014 [ENTITY] S/o Late Sh. [ENTITY] R/o F2/6, Malviya Nagar, New Delhi110017. Appellant Versus 1. [ENTITY] Ministry of Home Affairs Office of the Settlement Commissioner Department of Rehabilitation Settlement Wing, NDCC II Building 2nd Floor, Jai Singh Road, New Delhi Through: Its Secretary 2. [ENTITY] New Delhi. [SECTION]. [ENTITY] (Since Deceased) Through Legal Heirs: (i) [ENTITY] W/o Late Sh. [ENTITY] (ii) [ENTITY] (iii) [ENTITY] (iv) [ENTITY] All S/o Late Sh. [ENTITY] RCA No.21/14 Page 1 of 12 [ENTITY] vs. [ENTITY] & Others R/o E6/[SECTION], Malviya Nagar, New Delhi110017. Respondents Date of Institution : 24.12.2014 Date of reserving the Judgment : Oral Date of pronouncement : 25.0[SECTION].2015 Decision : Dismissed APPEAL AGAINST THE ORDER/JUDGMENT DATED 18.11.2014 PASSED BY MS. [ENTITY], LD. SENIOR CIVIL JUDGE (SOUTH), SAKET COURTS, NEW DELHI, IN SUIT NO.17[SECTION]/2012 TITILED AS '[PRECEDENT]
1. This is an appeal preferred against the order dated 18.11.2014 passed by Learned Senior Civil JudgecumRent Controller (South).
2. Vide impugned order, Learned Senior Civil Judge, rejected the plaint in the suit filed by the appellant/plaintiff holding that same is prima facie barred by the law of limitation.
[SECTION]. Facts giving rise to the passing of the impugned order are that on 12.09.2012, appellant/plaintiff filed a suit for declaration and cancellation of lease deed and conveyance deed dated [SECTION]0.04.1965 duly registered with the SubRegistrar, Delhi, as Document No.[SECTION]82[SECTION], Addl. Book No.I, Vol. No. 1[SECTION][SECTION]4 Pages 97 to 99 registered on 10.06.1965 and document No.[SECTION]824, Addl. Book No.I, Vol. No.1[SECTION][SECTION]4 Pages 100 to 101, on 10.06.1965 respectively in the individual name of Sh. [ENTITY].
[ENTITY] vs. [ENTITY] & Others
4. It was interalia stated in the plaint that Sh. [ENTITY], uncle of the plaintiff had lodged a claim before the Claims Officer of Defendant No.1 and 2 as Karta of the Joint Hindu Family under the provisions of [ACT]. further, it is averred that allotment was made to Sh. [ENTITY] in the capacity of Karta of Joint Hindu Family. It is further stated that the name of the plaintiff, who was son of one of the coparceners of Joint Hindu Family namely Sh. [ENTITY] was ordered to be impleaded in place of his father in the claim proceedings. Thereafter, defendants No.1 and 2 executed a lease and conveyance deed dated [SECTION]0.04.1965 duly registered in the individual name of Sh. [ENTITY] as Karta of Joint Hindu Family. It has further been stated that plaintiff is one of the attesting witnesses in lease deed and conveyance deed but was under the bona fide impression that the said deeds were in favour of Sh. [ENTITY] as Karta of Joint Hindu Family. However, when after [ENTITY]'s death, one Sh. [ENTITY] applied for mutation in his favour, the plaintiff came to know that these were in individual name of Late Sh. [ENTITY]. Further, the plaintiff has also filed a civil suit titled "[ENTITY] v. Sh. [ENTITY] & [ENTITY]"
for partition in the year 2007 which is also pending disposal and that he could procure the certified copies of office orders/proceedings of defendants No.1 & 2 only in April, 2007.
5. Thereafter, plaintiff filed RTI applications dated 08.10.2008 and 11.10.2008 with the defendant No.2, to which evasive replies were given by defendant No.2. Plaintiff also sent various letters to [ENTITY] vs. [ENTITY] & Others defendant No.2 but to no avail. Hence, the present suit.
6. On 04.09.201[SECTION], following issues were framed in the suit:
1. Whether the suit of the plaintiff qua defendants no.1 & 2 is not maintainable for want of service of notice U/[SECTION] [ACT], as alleged? OPD1 & 2.
2. Whether the suit is hit by the provisions of [ACT], as alleged? OPD1 & 2.
[SECTION]. Whether the plaintiff's claim of having succeeded to the estate of Joint Hindu Family is misconceived, there being no such Joint Hindu Family at the relevant time, as alleged? OPD[SECTION].
4. Whether the plaintiff's suit is not barred by virtue of principles of estoppel, waiver and acquiescence? OPP
5. Whether this Court has no jurisdiction to try and entertain the suit by virtue of [SECTION] of the [ACT]?
6. Whether the present suit is liable to be valued at market price of the property for the purpose of Court fee and jurisdiction, as alleged? OPD[SECTION].
7. Whether the suit is barred under [SECTION] & [SECTION] [ACT] in view of the filing of other suit bearing no.0[SECTION]/2007, as alleged? OPD[SECTION].
8. Whether the plaintiff is entitled for the relief of Declaration as prayed? OPP.
9. Whether the plaintiff is entitled for the decree of Cancellation as prayed? OPP.
10. Relief.
7. Issue No.5 was treated as preliminary issue as the trial court [ENTITY] vs. [ENTITY] & Others was of the opinion that no evidence was required for decision of that issue at that stage.
8. Vide order dated 1[SECTION].0[SECTION].2014, Learned Trial Court granted an opportunity to the parties for arguments on the point of law qua issues No.2 & 4.
9. Hence, it can be said that issues No.2 & 4 were also treated as preliminary issues.
10. Vide impugned order, Learned Trial Court decided the issues No.2 and 4 against the plaintiff and rejected the plaint being barred under the law of limitation.
11. Learned Sh. [ENTITY] has assailed the order of Learned Trial Court submitting that the question of limitation cannot be treated as preliminary issue. He submits that there are catena of judgments, according to which limitation is mixed question of facts and law and it is improper to dismiss or reject the plaint purely on the question of limitation without affording the parties an opportunity to lead evidence.
12. Learned Sh. [ENTITY] has relied upon the judgment of [PRECEDENT] and paragraph 8 is emphasized, which reads as under:
"8. After hearing counsel for the parties, going through the plaint, application under [SECTION] [ACT] and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of [ENTITY] vs. [ENTITY] & Others limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under [SECTION] of the [ACT]."
1[SECTION]. Learned Sh. [ENTITY] further relied upon the judgment of [PRECEDENT]. Emphasized paragraphs No.14 & 16 read as under:
"14. The principle underlying [SECTION] is no different. We will refer here to a recent decision of this Court rendered in [PRECEDENT] where it was held as under in para 10 of the report: "10. [SECTION] speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under [SECTION] [ACT]. [SECTION] applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force."
[ENTITY] vs. [ENTITY] & Others It was emphasized in para 25 of the reports that the statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of [SECTION] [ACT]. The principle is, therefore, well settled that in order to examine whether the plaint is barred by any law, as contemplated by [SECTION] [ACT], the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence.
Applying the said principle, the plea raised by the contesting respondents that the Company Petition was barred by limitation has to be examined by looking into the averment made in the Company Petition alone and any affidavit filed in reply to the Company Petition or the contents of the affidavit filed in support of Company Application No.11[SECTION] of 1995 filed by the respondent seeking dismissal of the Company Petition cannot at all be looked into.
16. A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in [SECTION] [ACT] would also include the ground that it is barred by law of limitation has been recently considered by a two Judge Bench of this Court to which one of us was a member ([ENTITY] J.) in Civil Appeal No.45[SECTION]9 of [ENTITY] vs. [ENTITY] & Others 200[SECTION] ([PRECEDENT] decided on 08.11.2005 and it was held: "After hearing counsel for the parties, going through the plaint, application under [SECTION] [ACT] and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence.
Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time."
This principle would be equally applicable to a Company Petition. Therefore, unless it becomes apparent from the reading of the Company Petition that the same is barred by limitation the petition cannot be rejected under [SECTION] [ACT]."
14. The court has considered the arguments of Learned Sh.
[ENTITY] and has also gone through the judgments relied upon by him.
15. It is rightly submitted by Learned Sh. [ENTITY] that while deciding a preliminary issue or bar under [SECTION] [ACT], the court cannot go into the mixed question of facts and law. It is further rightly submitted by him that only the averment in the plaint can be considered either while deciding the preliminary issue without evidence or considering rejection of plaint under [SECTION] [ACT].
[ENTITY] vs. [ENTITY] & Others
16. Learned Sh. [ENTITY], however, fails to point out that in the impugned order dated 18.11.2014, Learned Trial court has considered any disputed fact beyond the pleadings of plaintiff/appellant.
17. In the plaint, it is mentioned by plaintiff that he was an attesting witness to the lease deed and conveyance deed dated [SECTION]0.04.1965, but the plaintiff has not specifically mentioned as to when he got to know that the said documents were exclusively in favour of Late Sh. [ENTITY].
18. Along with plaint a number of documents were filed by plaintiff. These documents include the communications to the [ENTITY], defendant No.2. In the letter dated 08.10.2008, plaintiff has mentioned "As per documents this property is allotted to Shri [ENTITY] as a Karta of Joint Hindu Family, but Lease Deed and Conveyance Deed executed in individual name as Shri [ENTITY] instead of Shri [ENTITY] and Others or Shri [ENTITY] as a Karta of Joint Hindu Family, which have no relevance of Joint Hindu Family. It may please be informed to undersigned on what basis these documents were executed only in the name of Shri [ENTITY], whereas we were also claimants there."
19. Hence, even if for the sake of arguments, it is presumed that at the time of attestation of lease deed and conveyance deed, as witness, the plaintiff was not aware of the contents of same, at least he was well aware that the lease deed and conveyance deed existed in favour of Sh. [ENTITY] before writing of letter dated 08.10.2008.
[ENTITY] vs. [ENTITY] & Others
20. It was the duty of the plaintiff to specifically state and mention as to how the suit is within limitation period. It was for the plaintiff to disclose when he got to know that the lease deed and conveyance deed existed in favour of Sh. [ENTITY]. Even otherwise there is abundant material on record to reflect that the plaintiff was well aware of this fact before 08.10.2008. The present suit was filed by him on 12.09.2012. Learned Trial Court has already observed that limitation period for filing the suit was [SECTION] years.
21. The judgment relied upon by Learned counsel for plaintiff are not applicable in the facts and circumstances of the present case. [PRECEDENT] (Supra) was passed in the peculiar facts and circumstances of the case. The complete reading of the judgment clears that plaint in that suit was not barred by limitation by Ex Facie reading of the same. In the present case Ex Facie reading of the plaint and document filed by plaintiff clarifies that the suit is barred by limitation. The court need not to go into the defence or disputed question of facts. Similarly the other judgments relied upon by Learned Sh. [ENTITY] were passed in different set of facts and circumstances and in none of these cases, suit was barred by limitation by a bare reading of plaint and documents filed by plaintiff.
22. While arriving into the conclusion that the suit was barred by limitation, Learned Trial Court has not referred or considered the facts or the pleadings beyond the plaint or the documents [ENTITY] vs. [ENTITY] & Others relied upon by the plaintiff in his plaint. From an Ex Facie reading, the plaint appears to be barred by limitation, [SECTION] of the [ACT] become immediately applicable, which reads as follows:
[SECTION]: Bar of limitation. (1) Subject to the provisions contained in [SECTION], every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence."
2[SECTION]. Bare reading of this Section clears that it is obligatory upon the court to dismiss the suits barred by limitation even if no defence about the same has been raised by the defendant.
24. Hon'ble Supreme Court in [PRECEDENT] AIR 1964 S.C. 1[SECTION][SECTION]6 has held that [SECTION] is peremptory and it is the duty of the Court not to proceed with a suit, appeal or application if it is made beyond the prescribed period of limitation, irrespective of the fact whether the plea of limitation has been set up in defence or not. The section is mandatory and has to be obeyed in full. The Court has no choice in the matter. If any of the provisions contained in [SECTION] inclusive are inapplicable the mandatory provisions of [SECTION] are attracted with the result that the Court is bound to dismiss a suit which, on the face of it, appears to be barred by time.
25. Learned Sh. [ENTITY] then submits that there was even no application under [SECTION] [ACT] before the Learned Trial [ENTITY] vs. [ENTITY] & Others Court.
26. This argument of Learned Sh. [ENTITY] has already become irrelevant in view of the ratio laid down by Hon'ble Supreme Court in [PRECEDENT] (Supra) as it is obligatory upon the court to proceed with the suit only when the same is not hit by The [ACT] by bare reading of the plaint as a whole.
27. In view of the aforesaid discussion, the court is of the opinion that appeal is liable to be dismissed and order dated 18.11.2014 is upheld.
28. File be consigned to record room. Trial Court Record be sent back.
Announced in the open (AJAY PANDEY) Court on 25.0[SECTION].2015 ADJ05 (SOUTH DISTRICT) (Judgment contains 12 pages) SAKET COURTS, NEW DELHI