IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.353 of 2004. Date of Decision: 9th November, 2011. _______________________________________________________ Smt. Sunita Devi and others ..Appellants. Versus Shri Prem Singh and another ..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants: Mr. Ramakant Sharma, Advocate. For respondent No.1: Mr. Himmat Negi, Advocate, vice Mr. Ajay Sharma, Advocate. ____________________________________________________ SURINDER SINGH, J (Oral). The learned trial Court dismissed the suit of the plaintiffs bearing No.74 of 1994, whereby they sought declaration against the contesting defendant Prem Singh with respect to the land comprised in Khata No.170 min, Khatauni No.489 min, Khasra No.1119/1, measuring 0-04-66 as Gair Mumkin Abadi, in the Missal Hakiat for the year 1983-84, situated in Tika and Mauza Danni, Tehsil Nurpur, District Kangra. 2. As per the case of the plaintiffs, the Gair Mumkin abadi land was jointly owned and possessed by them except one shop which was owned and possessed Whether reporters of the Local papers are allowed to see the judgment? - 2 - by the defendant, with a consequential relief of injunction. 3. The respondent denied the case of the appellants in toto and took up the preliminary points of maintainability and also questioned the locus-standi of the appellants to file the suit. In addition, the point of estoppel was taken. 4. The parties were on the following issues: (1) Whether the plaintiffs are the owners in joint possession of the suit property as alleged? OPP. (2) Whether the sale deed dated 29.3.1988 executed by Shri Ram Rattan in favour of the defendant is illegal, null and void? OPP. (3) Whether the suit is not maintainable, as alleged? OPD. (4) Whether the plaintiffs have no locus-standi to file the present suit? OPD. (5) Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD. (6) Relief. 5. In fact the plaintiffs had filed a similar suit earlier qua the suit land bearing No.172 of 1989, against the respondent which was withdrawn on 4.11.1983 in appeal before the learned District Judge with permission to file afresh on the same cause of action, thereafter the present suit was filed. 6. The learned trial Court considered the provisions of XXIII Rule 2 of the Code of Civil Procedure, in short to be called as ‘the Code’, which provides that in - 3 - any fresh suit instituted on permission so granted, the plaintiffs shall be bound by the law of limitation in the same manner as if the first suit had not been instituted thus, the plaintiffs/appellants were to ensure that the institution of the second suit within limitation which had already started to run on 2.4.1989, as per cause of action pleaded in the earlier suit. Though the respondent did not take up the point of limitation, but the learned trial Court noticed that Articles 58 and 113 of the Limitation Act provide the time limit of three years when the right to sue first accrued to the plaintiffs. The learned trial Court counted from 2.4.1989, thus the second suit on the same cause of action should have been filed up to April, 1992 whereas it was filed on 15.2.1994, i.e. approximately two years after limitation of three years had already expired. Against the background having barred by limitation, the suit filed by the plaintiffs/appellants was dismissed and the issues framed were left undecided. 7. The appellants felt aggrieved by the impugned judgment as such filed the Civil Appeal No. 110-N/2001 before the learned District Judge which, came-up for hearing before the learned Additional District Judge (1) Kangra at Dharamshala which was also dismissed on the ground that the impugned judgment of the learned trial Court was not a “decree” within the - 4 - meaning of Section 2 (2) of the Code, therefore, the appeal under Section 96 of the Code was held not maintainable. 8. This Court at the time of admission, in addition to the substantial questions of law appended with the appeal framed following questions of law:- “Whether the dismissal of the suit by the trial Court as barred by time would amount to a decree or not, and whether it would be appealable to the first appellate Court?” 9. In my opinion, the substantial questions of law appended to the appeal do not arise at all for the reason that if the suit filed by the plaintiffs is not within limitation even though no objection with respect to the limitation has been raised by the opposite party, Court can dismiss the suit after hearing the parties even at its threshold. 10. In the instant case, the moot question for decision is whether the impugned judgment of the learned trial Court falls within the definition of a “decree”. The word decree has been defined in Section 2(2) of the Code as under: “(i) There should be an adjudication. (ii) The adjudication should determine the rights of parties regarding the matter in controversy. (iii) The adjudication should be in a suit and the adjudication should be formal and conclusive so far as that court is concerned.” - 5 - 11. In addition, Mangluram Dewangan v. Surendra Singh and others, JT 2011 (12) SC 6, the Apex Court has added one more element to it that the adjudication should be one from which an appeal does not lie as an appeal from an order (under Section 104 and Order 43 Rule 1 of the Code) nor should it be an order dismissing the suit for default. 12. In the definition aforesaid, some orders which otherwise do not constitute “decree” are also included and certain orders which constitute “decree” have been excluded from it. The learned first appellate Court rightly observed that merely because there exists some order captioned as decree drawn up, even in the form of decree, it would not make such an order a “decree” unless the order satisfies the requirement of Section 2 (2) as defined in the Code. 13. Certainly, if by an order only the question of limitation is decided, would not fall within the definition of a ‘decree’ as it does not result in conclusive determination of the rights of the parties with regard to all or any matter in controversy in a suit so as to come within the definition of a “decree”. While deciding the question of limitation, the Court cannot touch the merits of the case set up by the parties to the lis so as to be treated as a mater in controversy in any suit. Of course, - 6 - the bar of limitation is threshold bar to be invoked even suo-motu by a Court under Section 3 of the Limitation Act, as a result of which for determination of rights of parties agitated in the suit, there remains no scope when the bar operates. Thus, the order holding suit is bared by time cannot partake the character of a “decree” irrespective of the fact that a formal decree sheet has been drawn-up. When judgment on which the decree is passed or the decree itself does not determine the substantive rights of the parties, the order cannot be held to be a “decree”. 14. The impugned judgment passed by the learned trial Court though a decree-sheet has been prepared, does not satisfy the essential ingredients of a “decree” as defined under the Code. 15. After examining the matter carefully I consider that if a Court passes a purely formal order qua limitation, which is a fait accompli, such an order, though virtually disposing of the suit, does not adjudicate upon any rights and cannot be treated as a “decree”. An order of this nature, as stated above, merely records the bar of limitation, which has already taken place and does not contain any decision arrived at by the Court. 16. Order XXIII Rule 2 of the Code clearly provides that in any fresh suit instituted on permission so granted, - 7 - the plaintiff shall be bound by law of limitation in the same manner as if the first suit had not been instituted. In the previous suit, the cause of action accrued on 2.4.1989, whereas in the second suit the cause of action is pleaded to have accrued on 10.2.1994. Since the cause of action had accrued to the plaintiffs on 2.4.1989, then the limitation to file the suit would commence from the date mentioned in the previous suit. Any cause of action alleged to have been accrued thereafter will not extend the period of limitation to gain limitation so as to enable the plaintiffs to file the suit on the earlier cause of action. 17. For the aforesaid reasons, in my considered opinion, the dismissal of the suit by the learned trial Court on the ground of limitation would not amount to a “decree”, as such, not appealable to the first appellate Court. However, the plaintiffs are not debarred to seek any other remedy, if available under the law. 18. No other point urged or addressed before me. 19. I do not find any error in the impugned judgment passed by the learned first appellate Court, as such the appeal is without any merit and the same is dismissed. November 9, 2011. (Surinder Singh), (rc) Judge.