TMI Blog2013 (10) TMI 1557X X X X Extracts X X X X X X X X Extracts X X X X ..... 1993 by which possession of Flat No. 4115, C-4, FF, Vasant Kunj, New Delhi was handed over by defendant No. 1-DDA to defendant No. 2 as illegal, null and void, a decree of possession for the said flat against the defendants and a decree of permanent injunction against the defendants pertaining to the said flat. 3. The brief facts which have led to the filing of the present suit as stated in the plaint are that a self-financing scheme was floated by defendant No. 1 in 1982. The plaintiff got herself registered on 10.06.1982. She was declared successful in the bid held on 31.12.1987 and defendant No. 1 sent a demand-cum-allotment letter at her address at 472, Chitla Gate, Chawri Bazar, Delhi. It is stated that thereafter, the plaintiff lost original papers relating to the said flat including the demand letter. Hence, the plaintiff lodged a complaint with P.S. Jama Masjid on 17.01.1990. A request was made on 19.01.1990 to DDA for issuance of demand-cum-allotment letter. On 05.03.1991 a draw of lots was held and the plaintiff was allotted the suit property. She further claims that she did not receive the demand letter of the 5th and final instalment. 4. It is further alleged that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh it is not stated by the plaintiff, that the plaintiff sold the flat in question to defendant No. 2 for valid consideration and executed an agreement to sell on 14.02.1990 and other documents. The said defendant No. 2 thereafter sold the flat in 1993 to defendant No. 3. Defendant No. 3, thereafter, is stated to have sold the property to defendant No. 4 in 1996. It is stated that on account of the fact that defendants No. 2 and 3 have received the full consideration, non has been appearing on their behalf. Learned senior counsel has also relied upon various para's of the plaint and various documents filed by the plaintiff along with the plaint to show that the claim of the plaintiff is on the face of it barred by limitation. Reliance is placed on legal notice dated 19.07.1993 issued by Sh. C.P. Wig, Advocate on behalf of the plaintiff issued to the DDA pointing out that defendant No. 2-A.S. Thandi is misusing the power of attorney and calling upon defendant No. 1-DDA to desist from entertaining the claim of any person in respect of the suit property. Reference is also made to letter dated 30.09.1993 written by the plaintiff to defendant No. 1-DDA submitting documents including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first accrues i.e.: (i) Khatri Hotels Private Ltd. Anr. Vs. Union of India and Anr., 2011 (10) Scale 190; (ii) Sanjeev Kalra vs. Jyoti Kalra Ors. in CS(OS) 2777/2012 dated 18.10.2012; (iii) Hardesh Ores Pvt. Ltd. Vs. M/s. Hede and Company, 2007(7) SCALE 348; (iv) Tilak Raj Bhagat vs. Ranjit Kaur, 159 (2009) DLT 470. He submits that indisputably in 1996 and prior thereto, the plaintiff was fully aware that defendant No. 2 had taken possession of the suit property from DDA. She was aware that defendant No. 2 had sold the flat to defendant No. 3 and that defendant No. 3 had applied for conversion of the flat to freehold. In view thereof she was obliged, in terms of Article 58 of the Schedule 1 of the Limitation Act, to take steps within three years from the said period. The present suit now filed in 2011 is hopelessly barred by limitation on the face of it. Hence, he submits that in terms of Order 7 Rule 11, the present suit is barred by law. He submits that this application is liable to be allowed and the suit is liable to be dismissed. 8. In contrast, learned counsel for the plaintiff has strongly urged that the admitted fact is that the original file of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9. Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extent such time would cause grave injustice to the plaintiff. 11. Hence according to the said provision of Order 7 Rule 11(d), in case a suit is barred by law, the same is liable to be dismissed. 12. Reference may now be had to Entry 58 and 59 of Schedule 1 of the Limitation Act and Section 3 of the Limitation Act which read as follows:- Section 3(1) of the Limitation Act reads as follows: 3. Bar of limitation. - (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rose in favour of the plaintiff or when the plaintiff had knowledge about the execution of documents in favour of defendant No. 2. This enquiry has to be made keeping in view the legal position that when considering an application under Order 7 Rule 11 CPC, the court can only look at the averments in the plaint and the accompanying documents. In Tilak Raj Bhagat vs. Ranjit Kaur (supra) this court held as follows:- 6. It may be worthwhile to mention here that while considering an application under Order 7 Rule 11 CPC, the Court has to look at the averments made in the plaint by taking the same as correct on its face value as also the documents filed in support thereof. Neither defence of the defendant nor averments made in the application have to be given any weightage. Plaint has to be read as a whole together with the documents filed by the plaintiff. To the same effect are the judgments of the Division Bench of this Court in the case of Indian City Properties Ltd. Vs. Vimla Singh 198(2013) DLT 432 and in the case of Inspiration Clothes U vs. Collby International Ltd., 88 (2000) DLT 769. 15. The Hon'ble Supreme Court in the case of Hardesh Ores Pvt. Ltd v. M/s. Hede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in the absence of the plaintiff's husband. Para 10 of the plaint reads as follows: 10. That when the fraud played by the defendant No. 2 came to light, the plaintiff got cancelled the said Deed of Attorney which alongwith other documents were got signed fraudulently in the absence of the plaintiff's husband by playing fraud. 18. In para 12 of the plaint, the plaintiff claims that defendant No. 1-DDA was informed by the plaintiff through a letter dated 31.03.1989 that no other person should get benefit. It is also stated in the plaint that on 30.09.1993 a letter was sent by the plaintiff to defendant No. 1 enclosing the revocation deed and photocopy of a complaint filed with the police with a request to defendant No. 1 to desist from entertaining any claim of any person with respect to the suit property. It is further averred in para 15 of the plaint that a legal notice was got served on defendant No. 1. 19. Similarly, in para 20 of the plaint, it is stated that the defendants in collusion and connivance with each other got forged further documents showing that the plaintiff had sold the flat to defendant No. 2 by the forged documents, i.e., GPA and Agreement to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid letter reads as follows:- This office has received an application from Sh. Tejender Singh Gujral for conversion from lease hold to free hold in r/o. Above mentioned flat purchased by him from Sh. Ajit Singh Thandi on the basis of the G.P.A. and agreement to sell executed by Sh. Thandi on your behalf. On perusal of the allotment file of the above noted flat, it has been noticed that the G.P.A. executed by you in favour of Sh. Thandi has been revoked by you after which he was not empowered to utilise the powers delegated by you through the said G.P.A. You are requested to clarify the factual within 15 days from the date of receipt of this letter. Hence in August, 1995 the plaintiff was aware that defendant No. 2 had sold the flat in question to defendant No. 3. 24. Reference may be had to letter dated 13.06.1996 written by DDA to the plaintiff and filed by the plaintiff, relevant portion of which reads as follows:- ... I am directed to state that on Sh. Tejinder Singh Gujral in the capacity of your attorney of the above said flat has also applied for conversion in the name of Sh. Tejinder Singh Gujaral and Mrs. Amar Kaur Gujaral vide their application No. 114243 dt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is atleast a clear and unequivocal threat to infringe that right. Therefore, the mere existence of an adverse entry into the revenue record cannot give rise to cause of action. Hence while computing limitation for a suit for declaration, the plaintiff has to assert a right and there has to be infringement of the said right or a threat to infringe that right by the defendant. In the present case, the plaintiff has asserted her rights in the suit property claiming that defendants No. 2 and 3 are threatening her rights. Admittedly, defendants No. 2 and 3 have infringed her rights. All this has taken place in 1993-1996. 27. A bare reading of the plaint and the accompany documents shows that the suit is barred by Section 3 of the Limitation Act. In view of the above, I hold that the present claim of the plaintiff on the face of it is barred by limitation. 28. One may also keep in mind that the only Decree of Declaration sought by the plaintiff in the plaint pertains to a declaration that letter dated 30.03.1993 by which possession of the suit property was handed over to defendants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 12. The averments in paragraph 12 of the plaint concerning the mutation proceedings before the revenue authorities did not furnish any fresh cause of action for the suit and they appear to have been made as a camouflage to get over the bar of limitation. The dispute of mutation in the revenue court between the parties arose only on the basis of registered sale deed dated 5.5.1953. The orders passed by Tehsildar/Assistant Commissioner did not furnish any independent or fresh cause of action to seek declaration of the sale deed of 5.5.53 to be merely a loan transaction. The foundation of suit does not seem to be the adverse orders passed by revenue courts or authorities in mutation proceedings. The foundation of suit is clearly the registered sale deed of 1953 which is alleged to be a loan transaction and the alleged oral agreement of reconveyance of the property on return of borrowed amount. .... 14. After examining the pleadings of the plaint as discussed above, we are clearly of the opinion that by clever drafting of the plaint the civil suit which is hopelessly barred for seeking avoidance of registered sale deed of 5.5.1953, has been instituted by taking recourse to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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