IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of case Writ Petition No. 724 of 2008 (M/S) Smt. Neelam Kumari & another. …….. Petitioners Versus U.P. Financial Corporation. …….. Respondent Mr. Vipul Sharma, Advocate for the petitioners. Mr. H.M. Bhatia, Advocate holding brief of Mr. Naresh Pant, Advocate for the respondent. Date of Judgment: 11.07.2008 A.F.R. (Approved for Reporting) Not Approved fro Reporting Date: 11.07.2008 Initials of Judge None: Bench Reader will attach this at the top of first page of the judgment when it is put up before the judge for signature. IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 724 of 2008 (M/S) Smt. Neelam Kumari & another. ……. Petitioners Versus U.P. Financial Corporation. ……… Respondent Mr. Vipul Sharma, Advocate for the petitioners. Mr. H.M. Bhatia, Advocate holding brief of Mr. Naresh pant, Advocate for the respondent. Hon’ble V.K. Gupta, C.J. With the consent of the learned counsel for the parties, this writ petition is being disposed of today at the motion hearing stage. It is a very peculiar case, where the respondent / plaintiff, by itself and through its counsel, as well as the learned court below have exhibited and demonstrated their total ignorance of law as far as the applicability of Section 5 Limitation Act is concerned. Actually, the learned court below has gone a step further by not only wrongly applying Section 5, but also allowing the plaintiff’s prayer for condonation of the delay without issuing any notice to the defendants in the suit. The respondent is a Financial Corporation under the State Financial Corporations Act, 1951. It filed a suit for declaration and injunction against the petitioners herein for setting aside a sale deed executed on 29th December, 1993 and for consequential relief of permanent injunction restraining the petitioners from selling, transferring etc. the property in question. The suit was filed in the month of March, 2007. Even though the sale deed, sought to be declared illegal, null and void etc., was executed on 29th December, 1993, in the plaint, the plaintiff / respondent made an averment that it was in the month of August, 2006 that it learnt about the execution of the aforesaid sale deed on 29th December, 1993. The premise of the suit, therefore, was the alleged knowledge by the plaintiff / respondent about the aforesaid sale deed having been acquired in the year 2006. In para 20 of the plaint, an averment with respect to he accrual of cause of action also stated that the plaintiff came to know about the sale and transfer of the property, through the sale deed dated 29th December, 1993, in the month of September, 2006. Article 58 of the Schedule to the Limitation Act, which admittedly is the relevant Article applicable to this case, prescribes a period of three years for obtaining a declaration. The period of three years starts running from the time “when the right to sue first accrues”. A plain reading of Article 58 (supra) leaves no one in any manner of doubt that the limitation to file a suit for declaration for declaring a sale deed null and void does not start per se from the date of execution or registration of the sale deed, but actually it starts from the date when the plaintiff obtains the knowledge about this fact. Whether, in fact, the averments regarding the plaintiff having acquired the knowledge in August-September, 2006 is correct or not or whether it is false or true, is a pure question of fact, which the plaintiff has to prove in the suit. Since the sale deed in question, admittedly, was executed and registered in the year 1993, very heavy onus lies upon the plaintiff to prove that the knowledge about its execution etc. was acquired by it in August-September, 2006. The burden of proof in this respect squarely lies upon the plaintiff. Even though the burden squarely lies upon the plaintiff, in view of the averments made in the plaint about the knowledge allegedly having been acquired in the year 2006, the plaintiff’s suit, on the face of it, cannot be held to be ‘time- barred’. Whether ultimately it is held to be ‘time-barred’ or not, depending upon the evidence which will be led, shall be decided by the court in due course, at the stage of final disposal of the suit. This of course shall be based upon the appreciation of the evidence, especially the evidence adduced by the plaintiff about the knowledge having been acquired by it within three years prior to the presentation of the suit. This is one aspect of the matter. Section 5 of the Limitation Act, 1963 reads thus: “5. Extension of prescribed period in certain cases. – Any appeal any application, other than an application under any of the provisions of Order XXI of the Code of Civil procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that the had sufficient cause for not preferring the appeal or making the application within such period.” On its plain reading, this Section does not apply to suits. It applies only to appeals or applications. Whether the plaintiff or its counsel wrongly invoked Section 5 for condonation of the delay despite the aforesaid averments in the plaint, is for the plaintiff or its counsel to ponder over. But the learned trial court ought to have known that Section 5 Limitation Act is not applicable to suits. Yet it received and entertained the application under Section 5 for condonation of the delay in filing the suit and, not only that, it condoned the delay also ex parte, without issuing any notice to the defendants in the suit. Irrespective of the fact that Section 5 Limitation Act is not applicable to suit, as far as the law of limitation is concerned, if a matter, on the own showing of the party filing the matter in the court, is time-barred, a right accrues in favour of the opposite party in that matter in having that matter dismissed as time-barred and, therefore, if such a matte is accompanied by an application for condonation of the delay, because of the fact that a right has already accrued in favour of the opposite party about the dismissal of the matter as being time- barred, delay can never be condoned without issuing notice to the opposite party in the delay condonation application. It is absolutely impermissible in law to condone the delay in any such matter ex parte without issuing notice to the opposite party and without affording him an opportunity of hearing. A valuable right vested in the opposite party is taken away by condoning the delay in his absence. This well established principle of law also ought to have been known to the learned court below. On both the counts, the learned court below has exhibited its lack of knowledge, understanding as well as perception. For the foregoing reasons, the impugned order is set aside. Based upon the observations made in this judgment, it is held that the suit, in the present form without any application under Section 5 Limitation Act, is maintainable but subject to the fact of the plaintiff having acquired the knowledge in the year 2006 being proved by the plaintiff. The application under Section 5 of the Limitation Act is hereby rejected as being not maintainable. In the light of aforesaid observations, it is ordered that an explanation be called from the Presiding Officer of the learned trial court, which shall be put up on the administrative side for appropriate action. The writ petition is allowed. No order as to costs. The parties, through their counsel, are directed to appear in the trial court on 12th August, 2008. (V.K. Gupta, C.J.) 11.07.2008 G