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High Court Of Delhi
GURBUX KAUR - Appellant
Versus
HARI SINGH - Respondent
Suit 2392 of 1996
Decided On : 03/13/2003
Held :
A Written Statement has been filed in which a preliminary objection has been raised to the effect that the suit is barred by limitation. Two applications under Order VII Rule 11(d) read with Section 151 of the Code of Civil Procedure have also been filed by the Defendants for the rejection of the plaint on the same ground. By these Orders I propose to decide the question of whether the suits are liable to be dismissed as being barred by time. According to Article 65 of the Schedule to the Limitation Act the prescribed period within which a suit for possession must be filed is twelve years and time from which this period begins to run is from when the possession of the Defendant becomes adverse to the Plaintiff. It is the Plaintiffs own case that they were out of possession of the properties when Smt. Gurbux Kaur filed her Objections in the probate case on 15.3.1976. It should have been made clear to her at least on that date that the Defendants had presented a case of possession hostile or adverse to her.
Suits are dismissed as having been filed beyond the period of prescribed period under the Limitation Act.
Limitation Act, 1963 - Section 14(1) — Exclusion of time of proceeding bona fide in court without jurisdiction — In most cases, the person seeking to avail of the exclusion of time would have to be the Plaintiff in the previous action as well as the current action — Probate proceedings would have no application to suits for possession or rendition of accounts — Beneifts under Section 14(1) denied — Suits dismissed.
The use of the word "plaintiff" in Sub-section (2) of Section 14 of the Limitation Act can lead to two situations. Firstly, that the Plaintiff seeking the enlargement of time need not be a plaintiff in the other civil proceedings which it has been prosecuting with due diligence. Secondly, it can be predicated that the Plaintiff in both the actions must be one and the same person who seeks to avail of the latitude contained in Section 14(1) of the Limitation Act. In my opinion the word "plaintiff" must be governed by the concept of the prosecution of a legal action In partition suits thereforee, where all the parties are co-sharers, the Defendant may well respond to the role of a Plaintiff. However, if in partition suit one or any of the Defendants sets up a case of exclusive ownership, and in order to perfect this title, such Defendant must file a suit for possession, he would not be entitled to the protection of Section 24(1) of the Limitation Act. It would be the rarest case that the Defendant in the previously dismissed suit would be in a position to claim the benefit of an extension of time corresponding to the pendency of that action. In most cases, thereforee, the person seeking to avail of the exclusion of time would have to be the Plaintiff in the previous action as well as the current action. That the person seeking to avail of the benefit of Section 14(1) of the Limitation Act must be the Plaintiff in both actions is also borne out from the fact that the previous action ought to have been dismissed from a defect of jurisdiction or other cause of a like nature which results in such an action becoming non-entertainable by a Court. This is not what has transpired in the present case since the probate proceedings had been dismissed on merits. However, had such proceedings been defeated for any jurisdictional reasons the benefit would still not inure to a Defendant in those proceedings. Quite obviously the Defendants as well as the subject matter of the two suits would also have to be the same. thereforee, since probate proceedings have only a limited scope of enquiry as explained, it would have no application to suits for possession or rendition of accounts pertaining to the firm.
( 1 ) IN Suit No. 2392 of 1996 the Plaintiff is the daughter of late Sardar Kundan Singh who died on 17. 8. 1981 and in Suit No. 2418 of 1996 the Plaintiff is the daughter of late Sardar Polo Singh who is stated to have died on 4. 11. 1997. The parties are cousins of each other. The prayer in Suit No. 2392/96 is for the passing of a decree declaring the dissolution of the sundry partnership firm, in which Plaintiff s father was a partner, for the rendition of accounts thereof, and for possession of immovable properties in which Plaintiff s father held a share. In Suit No. 2418/96 the prayers are essentially the same and so far as the facts are concerned the difference is that the claim is in respect of the estate of Sardar Polo Singh.
( 2 ) IT appears that the Defendants herein had fired the first salvo in the shape of probate petitions in which they had propounded Wills allegedly executed by late Sardar Kundan Singh and late Sardar Polo Singh in their favour. These probate petitions came to be dismissed by K. Ramamoorthy, J. by a common Judgment dated 6. 8. 1996. It is the uncontroverted case of the parties that it is the Defendants who were in possession of the immovable properties as well as the assets of the erstwhile partnership in which late Sardar Kundan Singh and late Sardar Polo Singh were partners, to the exclusion of the Plaintiffs
( 3 ) A Written Statement has been filed in which a preliminary objection has been raised to the effect that the suit is barred by limitation. Two applications under Order VII Rule 11 (d) read with Section 151 of the Code of Civil Procedure have also been filed by the Defendants for the rejection of the plaint on the same ground. By these Orders I propose to decide the question of whether the suits are liable to be dismissed as being barred by time.
( 4 ) THE contention of Mr. P. K. Seth, learned counsel appearing on behalf of Plaintiffs, is that Order VII Rule 11 Code of Civil Procedure cannot be invoked by the Defendants in the circumstances of the case. It is his contention that the suit must be allowed to run its full course and only thereafter can a final decision be properly taken on this issue. Mr. Seth further contends, drawing support from Prakash Shukla v. State and Others. AIR 1999 Raj 102, that in view of the language of this Rule only the averments in the plaint can be looked into, and if so done the applications must be rejected. I find no merit in this contention for the simple reason that the statements in the plaints specifically mention that the cause of action arose to the Plaintiff on the deaths of late Sardar Kundan Singh and late Sardar Polo Singh, the respective fathers of the Plaintiffs on 17. 8. 1971 and 4. 11. 1977. Mr. Adarsh Dial, learned counsel appearing on behalf of Defendants, has founded his argument on these very statements. Although I am of the view that in deciding a contention raised under Order VII Rule 11 (d) CPC, either in the Written Statement or by way of a separate application, the Court is not expected to pursue a pedantic approach while reading the plaint in order to arrive at the conclusion of whether the action is barred by limitation or not; instead a holistic approach has to be taken. In T. Arivandandam v. T. V. Satyapal and Another, (1977) 4 SCC 467, Justice Krishna Iyer had directed that if on a reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, the Court should exercise its power under Order VII of the Code of Civil Procedure. In that case the plaint was rejected by the Apex Court. This view was recommended by the Apex Court in Azhar Hussain v. Rajiv Gandhi, 1986 (Supp) SCC 315, ITC Limited v. Debts Recovery Appellate Tribunal and Others, (1998) 2 SCC 70 and Samar Singh v. Kedar Nath Alias K. N. Singh and Others, 1987 (Supp) SCC 663. The Hon ble Supreme Court did not perceive any obstacle in the path of the rejection of a suit even though Issues had been framed
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