R. S. A. No. 1043 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1043 of 2011 Date of Decision : May 09, 2011 Nisha and another .... Appellants Vs. Ram Saran Dass and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Vineet Chaudhary, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : Plaintiffs, who are wife and minor son of Sudhir Kumar (since deceased), have filed the instant second appeal having remained unsuccessful in both the courts below. Plaintiffs/appellants alleged that their predecessor Sudhir Kumar was carrying on business under the name and style of Atul Cloth House, Kalka. He died on 08.03.1994. Thereafter, defendants misappropriated his properties including the assets of the aforesaid business. Defendants are father, brother, cousin and uncles of Sudhir Kumar. Defendants did not pay anything to the plaintiffs for their R. S. A. No. 1043 of 2011 2 maintenance nor towards their share in the aforesaid business. Plaintiffs filed petition under the Hindu Adoptions and Maintenance Act seeking maintenance and accordingly, they were awarded maintenance by the Court, but the same has also not been paid to the plaintiffs. On these averments, plaintiffs sought rendition of accounts of the aforesaid business of Atul Cloth House – now known as M/s Suresh Kumar Arvind Kumar. The plaintiffs also sought final decree of their share. Defendants admitted the relationship of plaintiffs with Sudhir Kumar and with the defendants. Other plaint averments were broadly denied. It was pleaded that name of the cloth business firm was M/s Suresh Kumar Arvind Kumar and not Atul Cloth House. Sudhir Kumar was partner in the said firm to the extent of 40%. He had invested Rs.1100/- in the firm. At the time of his death, the said amount had grown to Rs.9,138/- as on 31.03.1994. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Panchkula, vide judgment and decree dated 02.09.2008, dismissed the plaintiffs' suit as time barred. First appeal preferred by the plaintiffs has been dismissed by learned District Judge, Panchkula, vide judgment and decree dated 16.10.2010. Feeling aggrieved, plaintiffs have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. R. S. A. No. 1043 of 2011 3 Plaintiffs' predecessor Sudhir Kumar, who was partner in the firm in question, died on 08.03.1994 and cause of action to file suit arose immediately on his death because the firm automatically stood dissolved on his death. The suit was, however, filed on 03.05.2000 i.e. after expiry of more than six years after the death of Sudhir Kumar. Consequently, the suit has been righty held to be barred by limitation by the courts below. Learned counsel for the appellants could not advance any meaningful argument to depict that the suit is within limitation. Learned counsel for the appellants, however, contended that there was no issue regarding bar of limitation. The contention does not come to the rescue of the appellants because Section 3 of the Limitation Act stipulates that a suit, if filed after expiry of limitation period, shall be dismissed as such, even if defence of bar of limitation is not raised by the defendant in the written statement. Secondly, if the suit is prima facie time barred, it is for the plaintiff to plead and prove as to how the suit is within limitation. In the instant case, as per averments of the plaintiffs themselves, the suit is barred by limitation. The plaintiffs have not pleaded anything to depict that the suit is within limitation. For the reasons aforesaid, I find no merit in the instant second appeal. Courts below have rightly non-suited the plaintiffs on the ground of bar of limitation. The suit is patently time barred as per averments of plaintiffs themselves. Consequently, no interference is required with R. S. A. No. 1043 of 2011 4 concurrent finding recorded by the courts below that the suit is barred by limitation. No question of law, much less substantial question of law, arises for adjudication in the instant second appeal. Accordingly, the appeal being devoid of any merit, is dismissed in limine. May 09, 2011 ( L. N. MITTAL ) monika JUDGE