[2008] 6 S.C.R. 653

KAMLESH BABU AND ORS.

LAJPAT RA! SHARMA AND ORS.

(Civil Appeal No. 2815 of 2008)

APRIL 16, 2008 B

[A.K. MATHUR AND ALTAMAS KABIR, JJ.]

Limitation Act, 1963 - s. 3(1) and Art. 59 - Property mutated in favour of Appellants on basis of registered Will - Respondent No. 1 filed suit for declaration that the said Will c was procured by practicing fraud - Although, all issues in the suit decided against Respondent No. 1 and the suit dismissed, Trial Court a/so held that the suit was barred by limitation - First Appellate Court reversed the judgment of Trial Court without deciding the question of limitation - High Court D affirmed the judgment of First Appellate Court, again without .. deciding the question relating to /imitation - On appeal, held: In the instant case, defence of limitation was set up in the written statement, though no issue was framed in that regard - However, wh; m Trial Court came to a finding that the suit was E barred by limitation, it was the duty of First Appellate Court and also of High Court to go into the said question and to decide the same before reversing the judgment of Trial Court on the various issues framed in the suit- Even though various issues were decided in favour of Respondent No. 1 both by the First Appellate Court and the High Court, the same were F .. of no avail since the suit continued to remain barred under Art. 59 of the Limitation Act- Judgment bf High Court set aside

- Suit remanded to First Appellate Court to decide the limited question as to whether the suit was barred by limitation as found by Trial Court - Code of Civil Procedure, 1908 - Or. 7, r.11 (d).

Property was mutated in favour of the Appellants on basis of a registered Will. Respondent No.1 filed suit for declaration that the said Will had been procured by

653 H

A practicing fraud. Although, all the issues in the suit were decided against Respondent No.1 and the suit was dismissed, in addition, the Trial Court also held that the suit was barred by limitation under Article 59 of the Limitation Act, 1963. The First Appellate Court reversed B the judgment of Trial Court without deciding the question of limitation. High Court affirmed the judgment of the First Appellate Court.

In appeal to this Court, it was submitted on behalf of the Appellant that both the First Appellate Court and the C High Court erred in reversing the judgment of the Trial

Court without deciding the question relating to limitation and on that ground alone their judgments were liable to be set aside.

D Allowing the appeal, the Court

HELD: 1.1. S.3(1) of the Limitation Act, 1963 casts a duty upon the Court to dismiss a suit or an appeal or an application, if made after the prescribed period, although, limitation is not set up as a defence. Apart from s.3(1) of E the Limitation Act, even Order 7 Rule 11 (d) of the Code of

Civil Procedure casts a mandate upon the Court to reject a plaint where the suit appears from the statement in the plaint to be barred by any law, in this case by the law of limitation. [Paras 17, 21] [660-A, B; 661-8, C]

F 1.2. In the instant case, defence of limitation was set up in the written statement though no issue was framed in that regard. However, when the Trial Court had in terms of the mandate of s.3(1) come to a finding that the suit was barred by limitation, it was the duty of the First G Appellate Court and also of the High Court to go into the said question and to decide the same before reversing the judgment of the Trial Court on the various issues framed in the suit. Even though the various issues were decided in favour of the plaintiff-Respondent No.1 both H by the First Appellate Court and the High Court, the same

KAMLESH BABU AND ORS. v. LAJPAT RAI SHARMA 655

AND ORS.

were of no avail since the suit continued to remain A barred under Article 59 of the Limitation Act, 1963. [Para 18] [660-B, C, D]

1.3. The submission of the Respondents that the plea of limitation not having been taken before the appellate

B forums, the same could not be taken before this Court in proceedings under Article 136 of the Constitution on the ground that the question of limitation was a mixed question of law and fact, stands nullified by the fact that the suit continued to remain barred by limitation after the decisions of the appellate Courts since such finding c of the Trial Court had not been set aside either in the first appeal or by the High Court in second appeal. [Para

19] [660-E, F]

1.4. The judgment and decree of the High Court is D, set aside and the suit remanded to the First Appellate Court to decide the limited question as to whether the suit was barred by limitation as found by the Trial Court. If the suit is found to be so barred, the appeal is to be dismissed.

If the suit is not found to be time-barred, the decision of E the First Appellate Court on the other issues shall not be disturbed. [Para 22] [661-F, G]

State of Punjab v. Darshan Singh (2004) 1 SCC 328; Balasaria Construction {P) Ltd. v. Hanuman Seva Trust and Ors. (2006) 5 SCC 658; Name Rama Murthy v. Ravula F ..

Somasundram and Ors. (2005) 6 SCC 614 and Lachhmi Sewak Sahu v. Ram Rup Sahu & Ors. AIR (1944) Privy Council 24 - referred to.

CIVILAPPELLATE JURISDICTION : Civil Appeal No. 2815 of 2008.

From the final Judgment and Order dated 06.02.2006 of the High Court of Judicature at Allahabad in Second Appeal No. 2281 of 1983.

S.B. Sanyal, Naresh Kaushik, Salish Dayanandan, Manish H

A Kaushik and Lalita Kaushik for the Appellants.

Rachana Srivastava for the Respondents.

The Judgment of the Court was delivered by

ALTAMAS KABIR, J. 1. Leave granted.

2. This appeal involves a dispute between the parties who are related to each other, having a common ancestor. The dispute involves a registered Will dated 5th August, 1972, executed in favour of the appellants by one Brijlal (deceased), C who had four sons. Except for his youngest son, Onkar Prasad, all the other sons were allegedly separated from him and were staying separately. Brijlal was staying with Onkar Prasad and excluding the descendants of his other children executed the said Will dated 5th August, 1972, in favour of his grand-children through Onkar Prasad. Brijlal died on 5th November, 1976, and D on the basis of the Will executed by him, the appellants moved an application for mutation of the bequeathed properties in their names. The respondent No. 1, who is one of the grand-sons of the testator through another son, Shanti Swarup, also filed an application for mutation, which was rejected. An appeal preferred E therefrom was also dismissed. On 29th April, 1977, the Tehsildar

passed an order for mutation of the properties in the name of the appellants on the basis of the aforesaid Will dated 5th August, 1972.

3. On 2nd January, 1978, the respondent No.1 herein filed F a suit for declaration that the registered Will dated 5th August, 1972, had been procured by practising fraud. The suit was duly contested by the appellants herein by filing written statement.

On the basis of the pleadings, in order to arrive at a decision in

G the suit, the following issues were framed: -

(i) Whether the Will dated 5th August, 1972 executed by

Brijlal, in favour of defendants 2 to 6 is forged and not binding upon the plaintiff?

(ii) Whether the plaintiff is entitled to get possession on H the disputed property of his share?

(iii) Whether the suit was undervalued and the court fee A paid is insufficient?

(iv) Whether Brijlal had got a right to execute the Will of his property?

(v) Whether Brijlal was the exclusive owner of the B disputed property?

(vi) To what relief, if any, is the plaintiff entitled?

4. All the aforesaid issues were decided against the plaintiff and the suit was dismissed by the Trial Court. While c deciding issue No. 6, The Trial Court also held that the suit was barred under Article 59 of the Limitation Act, 1963, because the plaintiff had failed to prove that the Will was not within the knowledge of the plaintiff within three years of the filing of the suit.

5. Aggrieved by the decision in the suit, the plaintiffrespondent No. 1 herein, preferred an appeal before the Civil Judge, Aligarh, which was allowed and the judgment of the Trial Court was reversed without deciding the question of limitation which had been decided against the plaintiff-respondent No.1 E and in favour of the defendants-appellants herein.

6. The defendants-appellants herein filed a second appeal before the Allahabad High Court on 3rd October, 1983, and the same was also dismissed on 61h February, 2006, affirming the judgment and order of the Appellate Court.

7. In this appeal, the main point which was urged on behalf of the appellant is that although all the issues in the suit were decided against the plaintiff-respondent No.1 by the Trial Court, in addition, the Trial Court had also held that the suit was barred G by limitation. It was submitted that while reversing the judgment of the Trial Court, the First Appellate Court had neither gone into the question of limitation nor reversed the finding that the suit was barred by limitation under Article 59 of the Limitation Act. While affirming the judgment of the First Appellate Court, H

A even the High Court appears to have lost sight of the said finding.

8. Appearing in support of the appeal, Mr. S.B. Sanyal, learned senior advocate, submitted that both the First Appellate Court and the High Court erred in reversing the judgment of the Trial Court without deciding the question relating to limitation 8 and that the judgment both of the High Court as well as of the First Appellate Court were liable to be set aside on such ground alone.

9. Appearing for the respondents, Ms. Rachana c Srivastava, learned advocate, firstly submitted that the question now being raised on behalf of the appellants had not been raised on their behalf either before the First Appellate Court or before the High Court, which, therefore, had no opportunity to consider the same. Not having raised the said question before the First

0 Appellate Court and the High Court, the appellants were not entitled to raise the same in this appeal.

10. Ms. Srivastava also submitted that even before the Trial Court no specific issue had been framed regarding limitation and the purported finding of the Trial Court in respect E thereof was in the nature of an observation made in passing.

11. In support of her submissions, learned counsel referred and relied upon the decision of this Court in State of Punjab vs.

Darshan Singh [2004 (1) SCC 328] wherein while considering the lim[ts of the Court's powers under Section 152 of the Civil F Procedure Code, this Court had occasion to consider whether a new plea in respect of which no specific issue had been framed could be raised in second appeal or in a special leave petition before this Court. Ms. Srivastava submitted that this Court had categorically held that despite a plea with regard to limitation G having been taken in the written statement, no specific issue had been framed in respect thereof, and no such plea having been taken before the High Court, this Court could not go into the said question in proceedings under Article 136 of the Constitution. Ms. Srivastava urged that apart from the above, H the issue of limitation being a mixed question of law and fact,

such a plea could not be raised before this Court under Article A 136 of the Constitution if not taken earlier. In support of her second submission, Ms. Srivastava relied upon a decision of this Court in Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust and Ors. [2006 (5) SCC 658] wherein it had been held that a suit could not be dismissed under Order 7 Rule 11(d) of the Code B of Civil Procedure in the absence of proper pleadings relating to limitation, particularly when the question of limitation is a mixed question of law and fact and on a mere reading of the plaint the suit could not be held to be barred by limitation.

12. A similar view was taken by this Court in Narne Rama C Murthy vs. Ravula Somasundram and Ors. [2005 (6) SCC 614] where also the question of limitation was an inextricably mixed question of law and fact and the bar of limitation could not be decided without considering the related facts giving rise to such question. o

13. Ms. Srivastava urged that in this appeal, the situation was no different and the plea of limitation now sought to be taken, being a mixed question of law and fact, the same cannot be allowed to be raised in view of the aforesaid decisions of this Court.

14. Having considered the submissions made on behalf of the respective parties, the decisions cited by them and the relevant law on the subject, we are unable to accept Ms.

Srivastava's submissions mainly on two counts.

15. Firstly, the facts disclosed clearly indicate that neither the First Appellate Court nor the High Court took notice of Section 3(1) of the Limitation Act, 1963, which reads as follows:-

"3. Bar of limitation. - (1) Subject to the provisions contained in Sections 4 to 24 (in-:lusive), every suit G instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation had not been set up as a defence."

16. Even in the decision of this Court in Darshan Singh's case (supra) the said provision does not appear to have been H

A brought to the notice of the Hon'ble Judges who decided the matter.

17. It is well settled that Section 3(1) of the Limitation Act casts a duty upon the court to dismiss a suit or an appeal or an application, if made after the prescribed period, although, B limitation is not set up as a defence.

18. In the instant case, such a defence has been set up in the written statement though no issue was framed in that regard.

However, when the Trial Court had in terms of the mandate of C Section 3(1) come to a finding that the suit was barred by limitation, it was the duty of the First Appellate Court and also of the High Court to go into the said question and to decide the same before reversing the judgment of the Trial Court on the various issues framed in the suit. Even though the various issues were decided in favour of the plaintiff both by the First Appellate D Court and the High Court, the same were of no avail since the

suit continued to remain barred under Article 59 of the Limitation Act, 1963.

19. Ms. Srivastava's submission that the plea of limitation E not having been taken before the appellate forums, the same could not be taken before this Court in proceedings under Article 136 of the Constitution on the ground that the question of limitation was a mixed question of law and fact, stands nullified by the fact that the suit continued to remain barred by limitation after the decisions of the appellate Courts since such finding of F the Trial Court had not been set aside either in the first appeal or by the High Court in second appeal.

20. It is quite obvious that this aspect of the matter had not been looked into either by the First Appellate Court or by the G High Court, nor was it raised on behalf of the appellants herein.

The question, therefore, which remains to be decided is whether such a plea can now be taken in the special leave proceedings.

21. It is no doubt true, as was pointed out by this Court in the case of Balasaria Construction (P) Ltd. (supra) and also in H Name Rama Murthy's case (supra), that if the plea of limitation

KAMLESH BABU AND ORS. v. LAJPAT RAI SHARMA 661

AND ORS. [ALTAMAS KABIR,.J.]

is a mixed question of law and fact, the same cannot be raised A at the appellate stage. We have no problem with the said proposition of law. What we are concerned with is whether the said proposition is applicable to the facts of this case. In this case the plea of limitation had been raised in the written statement and though no specific issue was framed in respect B thereof, a decision was given thereupon by the learned Trial Court. Apart from Section 3(1) of the Limitation Act, even Order 7 Rule 11 (d) of the Code of Civil Procedure casts a mandate upon the court to reject a plaint where the suit appears from the. statement in the plaint to be barred by any law, in this case by the law of limitation. Further, as far back as in 1943, the Privy C Council in the case of LaChhmi Sewak Sahu vs. Ram Rup Sahu & Ors. [AIR 1944 Privy Council 24] held that a point of limitation is prima facie admissible even in the court of last resort, although it had not been taken in the lower courts.

22. The reasoning behind the said proposition is that certain questions relating to the jurisdiction of a Court, including limitation, goes to the very root of the Court's jurisdiction to entertain and decide a matter, as otherwise, the decision rendered without jurisdiction will be a nullity. However, we are E not required to elaborate on the said proposition, inasmuch as, in the instant case such a plea had been raised and decided by the Trial Court but was not reversed by the First Appellate Court or the High Court while reversing the decision of the Trial Court on the issues framed in the suit. We, therefore, have no hesitation in setting aside the judgment and decree of the High Court and F to remand the suit to the First Appellate Court to decide the limited question as to whether the suit was barred by limitation as found by the Trial Court. Needless to say, if the suit is found to be so barred, the appeal is to be dismissed. If the suit is not found to be time-barred, the decision of the First Appellate Court G on the other issues shall not be disturbed.

The appeal is accordingly allowed, but there will be no order as to costs.

B.B.B Appeal allowed H