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2025 Supreme(HP) 1120
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
SANDEEP SHARMA, J.
Tejinder Singh - Petitioner
Versus
Govinder Singh And Others - Respondents
CMPMO No.135 of 2025
Decided On : 26-09-2025
For the Petitioner:Mr. R.L. Sood, Sr. Advocate, with Mr. Arjun Lall, Advocate.
For the Respondent:Mr. Deepak Gupta, Advocate
Transposition of defendant as plaintiff deems suit instituted on original date per Section 21(2) Limitation Act; limitation from closed subsequent suit irrelevant for Order 7 Rule 11(d) rejection; proceeds on original pleadings from advanced stage.
Headnote:(A) Limitation Act, 1963 - Sections 3, 21(2) - CPC - Order 7 Rule 11(d), Order 1 Rule 10(2), Section 10, Section 151, Order 9 Rule 9 - Constitution of India - Article 227 - Challenge to order dismissing application for rejection of plaint in revived suit - Earlier suit filed post-majority not barred by limitation; subsequent suit closed pursuant to Supreme Court order transposing original defendant as sole plaintiff - Suit proceeds on original pleadings from stage of cross-examination of defendant - Limitation issue framed in closed subsequent suit rendered redundant - Transposition deems suit instituted on original filing date; plaint not liable to rejection under Order 7 Rule 11(d) even if subsequent suit barred - Mixed question of limitation not determinable summarily without evidence. (Paras 14, 15, 16, 22, 23, 25)
(B) CPC - Order 1 Rule 10 - Transposition - Ensures justice not defeated by procedural technicalities; defendant with right to relief transposed as plaintiff upon original plaintiff's non-prosecution - No addition to subject matter; limited to original plaint averments. (Paras 25, 27)
(C) Limitation - Plea under Order 7 Rule 11(d) - Determinable from plaint averments alone; rejected if ex facie barred, but not where mixed question of law and fact requires evidence or factual adjudication. (Paras 22, 23, 24)
Facts of the case:
Original suit seeking declaration against family settlement and relinquishment deed, partition and possession filed by son post-attaining majority. Subsequent identical suit by father stayed under Section 10 CPC. Original suit dismissed in default during defendant's cross-examination; restoration withdrawn. Father's revival application allowed; challenged up to Supreme Court. Supreme Court revived original suit, transposed father as sole plaintiff, closed subsequent suit, directing proceedings from pre-default stage with all issues open.
Findings of Court:
Application for rejection of plaint dismissed; suit to proceed on original pleadings; limitation plea to be adjudicated on evidence in ongoing suit.
Issues: Whether plaint in revived original suit rejectable under Order 7 Rule 11(d) read with Section 3 Limitation Act on ground of limitation issue from closed subsequent suit; applicability of Section 21(2) post-transposition.
Ratio Decidendi: Transposed plaintiff bound by original suit's date and pleadings per Section 21(2); closed subsequent suit's limitation issue irrelevant; rejection under Order 7 Rule 11(d) impermissible for non-ex facie barred plaint involving mixed facts requiring trial; Supreme Court order mandates proceeding from advanced stage without fresh limitation framing based on closed suit. Result : Petition dismissed.
| Table of Content |
|---|
| 1. procedural history of parallel family suits and revivals (Para 1 , 2 , 3 , 4 , 5 , 7) |
| 2. plaint rejection application under limitation dismissed (Para 8 , 9 , 10) |
| 3. arguments on limitation post apex court transposition (Para 11 , 12 , 13) |
| 4. closed suit limitation irrelevant to revived suit (Para 14 , 15 , 16) |
| 5. revived suit proceeds from prior stage with original pleadings (Para 17 , 18 , 19 , 20 , 21) |
| 6. s.21(2) deems transposed plaintiff original filer; petition dismissed (Para 22 , 23 , 24 , 25 , 26 , 27 , 28) |
JUDGMENT :
Sandeep Sharma, J.
Instant petition filed under Article 227 of the Constitution of India lays challenge to order dated 25.03.2025 passed by learned Additional District Judge-I, Shimla in Civil Suit No.8-S/1 of 2014/1997, whereby an application having been filed by the petitioner under Section 3 of the Limitation Act read with Order 7 Rule 11(d) and Section 151 CPC, praying therein for rejection of plaint, came to be dismissed.
2. For having bird’s eye view, facts relevant for adjudication of the case at hand, as emerge from the pleadings adduced on record by respective parties are that one Mr. Pravir Singh son of Mr. Govinder Singh (respondent No.1) filed Civil Suit No.41/1997 in the High Court of Himachal Pradesh against petitioner/applicant/defendant No.1-Mr. Tejinder Singh (hereinafter referred to as “the applicant”) along with four other persons, including Mr. Govinder Singh i.e. non-applicant/respondent No.1 (hereinafter referred to as “the non- applicant”) claiming therein that he has interest in the alleged Joint Hindu Family property, but his interest was not properly protected by his father Mr. Govinder Singh at the time when family settlements of March 1982 and deed of relinquishment dated 07.05.1987 was executed by his grandfather S.B. Sarup Singh. In afore suit, he precisely prayed for decree for declaration that aforementioned family settlement of 1982 and relinquishment deed dated 07.05.1987 are not binding upon him. He also prayed for partition and possession of one 1/6th of the suit property. Since suit was filed by above named Mr. Pravir Singh, after his having attained the age of majority, same was not barred by limitation.
3. After six years of filing of afore suit bearing Civil Suit No.41 of 1997, non-applicant/respondent No.1-Mr. Govinder Singh, who happens to be father of Mr. Pravir Singh, instituted second Civil Suit No.31 of 2003 in the High Court of Himachal Pradesh qua the same property with identical reliefs. In aforementioned subsequent Civil Suit filed by Mr. Govinder Singh, issues were framed by the High Court of Himachal Pradesh on 29.09.2004. One of the issue i.e. issue No.6 was with regard to limitation i.e. “Whether the suit is barred by limitation, as alleged? If yes, what is its effect? OPD”.
4. Since in both the suits, almost similar reliefs were claimed and contesting parties were also same, learned Single Judge of this Court, while deciding the application under Section 10 of the CPC passed order dated 02.01.2007, thereby staying subsequent suit filed by non-applicant/respondent No.1-Mr. Govinder Singh, until the adjudication of earlier suit, instituted by Mr. Pravir Singh. Afore order passed by the learned Single Judge was laid challenge before the Division Bench of this Court, which vide order dated 07.05.2015 passed in LPA No.6 of 2007, upheld the aforesaid order of learned Single Judge by holding that learned Single Judge has discussed all the facts and exercised caution by providing that the parties, including the plaintiff i.e. Sardar Govinder Singh, are at liberty to raise all pleas in the earlier suit (Annexure P-2).
5. Subsequently, on account of change in pecuniary jurisdiction, first Civil Suit No.41 of 1997 was transferred to the Court of learned Civil Judge (Sr. Division), Shimla, whereas second/later Civil Suit No.31 of 2003 was transferred to the Court of learned Additional District Judge, Shimla. Earlier Civil Suit No.41 of 1997 was
