Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.176 of 2012 ====================================================== Kag Devi, W/O Chhabi Lal Pandit @ Chhabila Pandit, R/O Village - Nayagaon Siriatola, P.S.- Parwatta, District - Munger, At present resident of Village - Panbara, P.S.- Pothia, District – Kishanganj. ....Defendant .... Petitioner/s Versus 1. Absar. 2. Tarique. 3. Md. Shahbaz. 4. Sahinoor. 5. Khoosnoor. All sons and daughters of late Manuddin. 6. Md. Nurul Hoda. 7. Md. Azad. 8. Md. Gulam Sarwar. 9. Md. Ismail. 10. Md. Bodda. All sons of Late Mofiluddin. All are R/O Village - Pocha Basti, P.O. Panbara, P.S. Pothia, District – Kishanganj. ....Plaintiffs .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Sidheshwari Prasad Singh, Sr. Advocate with Mr. Rakesh Kumar Sharma Mr. Gajendra Kumar Singh For the Opposite Party/s : Mr. Satish Kumar Sinha ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 6 26-04-2013
Legal Reasoning
Heard Mr. Sidheshwari Prasad Singh, learned senior counsel appearing for the petitioner and Mr. Satish Kumar Sinha, learned counsel appearing for the opposite parties. This civil revision application is directed against the order dated 7.7.2012 passed by the learned Sub-Judge-I, Kishanganj in Title Suit No.16 of 2010, whereby the learned court below has been pleased to reject the application filed on Patna High Court C.R. No.176 of 2012 (6) dt.26-04-2013 2 behalf of the petitioner under Order VII rule 11(d) of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) on sole ground that the objection raised on grounds of suit being barred by law of limitation being mixed issue of law and fact would be considered along with the other issues. The plaint has been placed on record by way of supplementary affidavit and the relief prayed by the plaintiffs is for declaration of their right, title and interest over the suit land and for confirmation of possession over the same and in the alternative for the restoration of the possession. The second prayer made in the suit is for declaration of deed no.4325 dated 17.7.1980 being an act of fraud and forgery and thus not binding upon the plaintiffs. Mr. Singh, learned senior counsel with reference to paragraphs 7 to 9 of the plaint has submitted that when the plaintiffs themselves have admitted to the knowledge of the deed dated 17.7.1980 on 1.6.2001 whereafter he has obtained a copy thereof and has also admitted to a proceeding initiated under section 144 of the Code of Criminal Procedure (hereinafter referred to as ‘the Cr.P.C.’) giving rise to Case No.313M of 2001 and section 145 Cr.P.C. proceeding bearing Case No.453M of 2001, yet the suit has been filed after a delay of nine years. Patna High Court C.R. No.176 of 2012 (6) dt.26-04-2013 3 Mr. Singh with reference to the provisions underlying Articles 56, 58 and 59 of the Limitation Act, 1963 has submitted that be it either a case of seeking declaration based on an instrument or for cancellation of the instrument on grounds of forgery or for seeking any other declaration, the period prescribed is three years from the date when the facts first became known to the person concerned. He thus submits that since the plaintiffs in paragraphs 7 to 9 of the plaint have themselves admitted to the knowledge regarding the sale-deed on 1.6.2001 and has also admitted to the knowledge of the proceedings under sections 144/145, Cr.P.C. which was initiated as back as in the year 2001, the suit being filed 9 years thereafter, certainly was hopelessly barred by limitation. It was thus submitted that the order of rejection is contrary to the statutory provisions as also the judicial pronouncements on this issue. Mr. Singh in support of his submission has relied upon a judgment of this Court reported in 2010(3) PLJR 162 (Lakhan Sao Vs. Parwati Devi). The plaintiffs have appeared through counsel, Mr. Satish Kumar Sinha. Mr. Sinha with reference to the order impugned submits that an issue of limitation being mixed issue of fact and law, there is no infirmity in the order impugned Patna High Court C.R. No.176 of 2012 (6) dt.26-04-2013 4 rejecting the objections on such grounds while holding that the same would be considered along with other issue. Mr. Sinha relied upon a judgment of the Supreme Court reported in (2006)5 SCC 638 (Ramesh B. Desai vs. Bipin Vadilal Mehta). True it is that an issue of limitation is normally relegated to be considered along with other issues during the course of trial but the said practice is not an absolute rule rather a rule of practice and each case has to be considered on its own merits. No doubt where the plaintiffs make out a case of gathering knowledge about a document within three years of filing of the suit they require an opportunity to establish the same by leading evidence in support thereof. In such circumstances, the better option would be to allow the plaintiffs to establish their claim during the course of trial. However, in case where the knowledge about a document is admitted by the plaintiffs in the plaint itself, the situation would be different since it would require adjudication by the learned trial court whether even in such admitted circumstance, the suit should continue. In fact, in cases of such kind where facts are admitted it would be in the interest of justice and to the benefit of the contesting parties that the issue of limitation is adjudicated by the trial court at the very threshold before it proceeds to Patna High Court C.R. No.176 of 2012 (6) dt.26-04-2013 5 adjudicate upon the other issues, if so required. As the matter is yet pending before the learned trial court, any observation by this Court on the rival contentions would prejudice the case of the either parties and thus this Court refrains from doing so. However, in view of the circumstances set forth the order impugned cannot be upheld and is accordingly set aside. The matter is remitted to the learned trial court with a direction to adjudicate upon the issue of limitation after framing of the issues and after giving opportunity to the contesting parties to establish their respective cases by leading their evidence in support and if in case the learned trial court upon such adjudication is of the opinion that the suit is maintainable, it shall proceed to adjudicate upon the other issues in accordance with law. This civil revision application is allowed. SKPathak/- (Jyoti Saran, J)