TMI Blog2022 (10) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... e restriction for initiating legal proceedings to seek the alleged legal right. In the said circumstances, the inevitable conclusion can only be that Article 136 got no application in the case on hand and as such the Appellants could not claim for a larger period of limitation of 12 years. The findings of the Trial Court with respect to preliminary issue of limitation are based on the relevant dates revealed from the pleadings of the Plaintiffs in the plaint itself. True that in the plaint it is repeatedly alleged that the relinquishment deed was obtained fraudulently by the 5th Respondent. However, conspicuously its date was not mentioned - it is very much clear from the plaint averments that the Relinquishment Deed is anterior to the date of letter of intimation to the 5th Respondent (08.03.1991) and obviously, the date of objection against the same was firstly preferred by deceased Nahar Singh viz., 05.04.1991. Evidently, the aforesaid two dates specifically mentioned in the plaint were taken into account by the Trial Court as also by the First Appellate Court and the High Court in the matter of consideration of the question whether the suit was barred by limitation. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on . Upon answering the same in the negative, in accordance with the said decision, the suit was dismissed as per judgment dated 13.05.2005. The Defendants challenged the said judgment and decree before the Court presided over by Shri Sukhdev Singh, Additional District Judge, Delhi, (hereinafter referred to as the 'First Appellate Court') in Civil Appeal No. 99/2005 and it dismissed the appeal and confirmed the judgment and decree of the Trial Court, as per judgment dated 08.12.2006. Thereupon, they took up the matter in second appeal before the High Court. As per the impugned judgment dated 25.08.2009 the High Court concurred with the findings and dismissed the appeal answering the question of law against the Appellants. Leave was granted in Special Leave Petition No. 34648 of 2009 filed against the stated judgment of the High Court and in this civil appeal, the Respondents were granted liberty to file counter affidavits. 2. We have heard the learned Counsel appearing for the Appellants and also the learned Counsel appearing for the respective Respondents. 3. At the outset, it is to be noted that the challenge in this appeal is against concurrent findings by three Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lternative plot was allotted by Respondent Nos. 1 to 4 in the exclusive name of Dhan Singh, upon his production of registered Relinquishment Deed, as per letter No. F-31(11)/8/87/L B/ALT/8226 dated 08.03.1991. The said letter dated 08.03.1991 to the 5th Respondent for allotment of an alternative residential plot in his name, based on the Relinquishment Deed issued by the other legal heirs in his favour, came to the notice of Shri Nahar Singh, who thereupon filed an objection on 05.04.1991, before Respondent Nos. 1-4 stating that alternative plot shall not be allotted in the exclusive name of Dhan Singh. Further, it was stated therein that the Relinquishment Deed produced before the Authorities was obtained fraudulently by Dhan Singh. Subsequently, Nahar Singh died on 14.05.1993. Thereupon, his widow and children stepped into his shoes. Furthermore, it is averred in the plaint that thereupon, the original Plaintiff No. 1 submitted similar representations to the Authorities in a bid to make them refrain from allotting the alternative plot in the exclusive name of the 5th Respondent. It is thereafter that they instituted Suit No. 410 of 2000, on 14.06.2000. All these averments are spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e? 9. As relates the first question bifold contentions have been raised by the Appellants. Limitation being a mixed question of law and facts, in view of the provisions Under Order XIV, Rule 2(2), the course adopted by the Trial Court and confirmed by the Appellate Court and the High Court, is absolutely impermissible in law, it is contended. If at all that preliminary issue was to be considered it ought to have been made Under Rule 11, Order VII, Code of Civil Procedure and then, subject to its outcome, at the worst, the plaint could have been rejected in terms of Clause (d) of Rule 11 of Order VII, Code of Civil Procedure, it is further contended. 10. The contentions raised in resistance on behalf of the 5th Respondent appears to be syllogistic. According to him, the foundational facts for determining the nature of Suit No. 410/2000 as declaratory suit and the starting point of limitation as relates a declaratory suit are available in the plaint averments themselves. The second proposition is that despite coming to know about the registered Relinquishment Deed dated 21.10.1985, the predecessor-in-interest of the Plaintiffs Shri Nahar Singh and/or the Plaintiffs did not reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of limitation Under Article 120 of the Limitation Act, 1908 and held that the 'right to sue' would accrue when the Defendant clearly and unequivocally threatened to infringe the right asserted by the Plaintiff in the suit. Further it was held that every threat to such a right would not amount to a clear and unequivocal threat to compel him to file a suit and whether any particular threat would give rise to a compulsory cause of action would depend on the question as to whether that threat effectively invades or jeopardise the said right. In case on further deliberation a consideration of the case on hand in the light of the above decisions became inevitable, then we will undertake such an exercise. 15. Now, we will consider the first question: 'whether the issue of limitation can be determined as a preliminary issue Under Order XIV, Rule 2, Code of Civil Procedure'. It is no longer res integra. In the decision in Mongin Realty and Build Well Private Limited v. Manik Sethi - 2022 SCC Online SC 156, even while holding that the course of action followed by the learned Trial Judge of directing the parties to address arguments on the issue of limitation as irregul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed and the question of law is dependent upon the outcome of the investigation of the facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of Code of Civil Procedure and post amendment in the year 1976. (Emphasis added) 16. In view of the legal position obtained from the decision in Nusli Neville Wadia's case (2020) 6 SCC 557 the following decisions also assume relevance. In the decision in National Insurance Co. Ltd. v. Rattani [(2009) 2 SCC 75] this Court held that an admission made in the pleadings by a party is admissible in evidence proprio vigore. Equally well settled is the principle of law that an admission made by a party in his pleadings is admissible against him proprio vigore (see the decisions in Ranganayakamma and Anr. v. K.S. Prakash (Dead) By LRs. and Ors. [(2008) 15 SCC 673] and Vimal Chand Gh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g recital from the Trial Court's judgment carrying plaint averments indicating the starting point of limitation and also findings on the preliminary issue: As per averments made in para 8 of the plaint Plaintiffs themselves have mentioned that their predecessor in interest alongwith Defendants Nos. 6 to 9 had executed relinquishment deed in favour of Defendant No. 5. Although they have also taken the plea that same was obtained Defendant No. 5 by playing fraud on the pretext of mutation of residential house in MCD records. Such averments made in the said para goes to show that Ld. Predecessor in interest of Plaintiffs was very well aware about the execution of registered release deed since date of its execution. Even if it be considered that Defendant No. 5 had played fraud upon predecessor in interest of Plaintiffs and the said fraud came to the knowledge of Sh. Nahar Singh through letter dated. 8.3.1991 then the period of limitation for seeking said relinquishment deed as null and void started the said date i.e. 8.3.1991. The reason being that Plaintiffs are seeking declaration to the effect that they are co-owners of the suit plot and Defendant No. 5 is not the exclusive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of representations with the departments. Hence, for all these reasons it is held that the present suit is barred by limitation. Accordingly, issue is decided against the Plaintiffs. 20. Before proceeding further with the above-mentioned issues and the findings returned, it is only proper to consider the contention of the Appellants regarding the applicability of Article 136 of the Limitation Act. According to us, the contention is jesuitical. A perusal of Article 136 of the Limitation Act would reveal the indubitable position that it applies only when an application for execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court is to be filed. (See the decision of this Court in Bikoba Deora Gaikwad and Ors. v. Hirabai Marutirao Ghorgare and Ors. (2008) 8 SCC 198. 21. In the instant such a stage for application of Article 136 of the Limitation Act had not reached and, in troth, the question involved is relatable only to the time restriction for initiating legal proceedings to seek the alleged legal right. In the said circumstances, the inevitable conclusion can only be that Article 136 got no application in the case on hand an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minary issue. Since we have already extracted the operative portion of the Trial Court judgment, we do not think it necessary to refer to its reasons and findings. 23. Coming to the judgment of the First Appellate Court whereby it dismissed the appeals of the Plaintiffs and confirmed the judgment and decree of the Trial Court it is evident that the various contentions raised by the Appellants therein were considered in detail by the First Appellate Court. The judgment would reveal that before the First Appellate Court, besides reiterating the contentions unsuccessfully raised before the Trial Court, the Appellants therein/the Plaintiffs had contended, relying on the decision in Narinder Kaur and Anr. v. Amar Jeet Singh Sethi and Anr. [2000 III A D (Delhi), 599], that Relinquishment Deeds do not relinquish the share of executant but would have only the effect of transferring the shares. Paragraph 17 of the judgment of the First Appellate Court would reveal that it correctly exposited the legal position that the question of limitation is to be considered not with reference to the validity of the Relinquishment Deed. In this context it is also to be noted that despite taking up a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it by the Plaintiffs which were extracted hereinbefore. Undoubtedly, the Plaintiffs sought for declarations in the manner referred above and thereby, made the nature of the suit as declaratory. This position is indisputable. It is true that the Trial Court though found the period of limitation as three years taking into account the nature of the reliefs it did not specifically mention the relevant provision in its judgment. There can be little doubt with respect to the position that misquoting or non-quoting of a provision by itself will not make an order bad so long as the relevant enabling provision is in existence and it was correctly applied though without specifically mentioning it. The High Court had only referred to the relevant, applicable provision under the Limitation Act upon considering the nature of the suit and the reliefs sought for, in the plaint. We do not find any perversity or illegality in the finding of the High Court for sustaining the concurrent findings with respect to the issue whether the suit was barred by limitation. 26. The relief sought for, in suit No. 410/2000 would reveal that the first prayer, which is the main prayer, is declaratory in nature. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
