JUDGMENT

Veena Birbal, J.

CM No. 12631/2011 (condonation of delay)

There is delay of 30 days in filing this appeal. In view of the reasoning given, delay is condoned.

The application stands disposed of.

RSA 112/2011

1. By way of this regular second appeal under Section 100 of Code of Civil Procedure, challenge has been made to the impugned judgment dated 18.01.2011 passed by the ld. lower appellate court in RCA No. 18/2010 whereby the impugned judgment dated 07.05.2005 passed by the ld. Civil Judge in Suit No. 43/2004 has been upheld.

2. The relevant facts for disposal of present appeal are as under:

The appellant was the plaintiff before the ld. Civil Judge. He had filed a suit for recovery of Rs.2,16,700/- against the respondent/defendant. His case was that his father Sh. Sri Niwas Goel was a tenant of respondent/defendant in respect of one shop in premises no. 27/81, Gali no.7, Pandav Road, Vishwas Nagar, Delhi. His father had died on 26.12.1996. It was alleged that taking advantage of the same, the respondent/defendant broke open the locks of the tenanted shop and committed theft of the goods belonging to the father of the plaintiff/appellant. The plaintiff/appellant had lodged FIR No. 179/1997 under Section 453/380 IPC against the respondent/defendant in police station Vivek Vihar. It was alleged that the goods were worth Rs. 1,40,000/-. The appellant/plaintiff had submitted list of goods before the Police as well as in the trial court. In the criminal case, the respondent/defendant was held guilty vide judgment dated 06.01.2000 and was sentenced to SI for three months for the offence under Section 453 IPC and also SI for three months for the offence under Section 380 IPC. After his conviction, the appellant/plaintiff served a legal notice dated 13.03.2000 calling upon the respondent/defendant to return the goods or in the alternative pay the price of the goods worth Rs. 1,40,000/- along with interest. Despite service of notice respondent/defendant had failed to return the goods. Accordingly, appellant/plaintiff filed the aforesaid recovery suit.

3. The respondent/defendant had contested the suit by filing a detailed written statement wherein he had taken the stand that the possession of the tenanted shop was handed over on 08.10.1995 by the father of the appellant/plaintiff of his own free will and there was no question of breaking open the locks of the shop or theft of goods as is alleged and the suit filed was without any cause of action. Some preliminary objections were also taken in the written statement. Thereafter, replication was filed by the appellant/plaintiff. The ld. trial court framed in all nine issues. The issue no.5 was framed on the question of limitation. The ld. Civil Judge on the basis of evidence on record held that the theft in question was allegedly committed on 10/11.01.1997 and as per Article 68 of Schedule of the Limitation Act, 1963, the limitation of three years is provided for filing the suit and as the suit was filed on 29.04.2000, there was delay of 3 months and 18 days in filing the suit, as such, dismissed the suit on the ground of limitation. The findings on other issues were also given but before the first appellate court only the issue of limitation was pressed.

4. On the basis of evidence on record, the ld. ADJ also observed that in cross-examination the appellant/plaintiff himself had stated that he came to know of the breaking open of locks on 10.11.1997 as such the limitation would start from the said date. Accordingly, the suit was barred by limitation.

5. The ld. counsel for the appellant has argued that the limitation would start from the date of conviction of the respondent/defendant and not from the date of breaking open of locks of the shop, as is taken by both the courts below as such the finding of courts below on the issue of limitation is wrong.

6. On the other hand, learned counsel for respondent/defendant has argued that no substantial question of law arises