Limitation--Framing of Issue--Trial Court failed to frame a specific issue, would not debar appellate Court from holding the suit to have been filed beyond limitation

AMOL RATTAN SINGH, J.

1. This is the second appeal of the plaintiff who instituted a suit seeking a declaration to the effect that the order passed by the Administrator, New Mandi Township, Haryana, on 01.03.1972, as regards Plot No.32 situate in Mandi Adampur, Tehsil and District Hisar, is an order that is illegal, null and void and therefore not binding on the rights of the plaintiff. She also sought the consequential relief of permanent injunction against her dispossession from the plot in dispute.

2. As per the appellant-plaintiff (hereinafter to be referred to as the plaintiff), on 16.01.1968 the aforesaid plot was auctioned, with her having purchased it for a sum of Rs.4000/-, of which Rs.1000/- was paid by her, with the remaining amount to be paid in three installments. It was further contended that the possession of the plot had been given to her and that she continued to remain in such possession. However, allegedly without any notice issued to her as was required, the allotment was cancelled vide the aforesaid order, which consequently was contended to be illegal, null and void and not binding on her rights.

It was still further contended that she came to know of the order only at the time of the subsequent auction of the plot on 22.01.1983 (such knowledge allegedly obtained through the newspaper), after which she approached the defendant State but with no success.

3. Notice having been issued in the suit (instituted on 01.02.1983), the respondent-defendant State of Haryana (hereinafter to be referred to as the defendant), appeared and filed a written statement taking preliminary objections on want of notice under Section 80 of the Code of Civil Procedure, lack of jurisdiction of the civil court to entertain the suit, its maintainability, lack of cause of action, the suit being pre-mature and the plaintiff being estopped by her own act and conduct from filing the suit. It was further contended that possession of the plot had already been taken by the State through its Naib Tehsildar on 22.03.1972. The aforesaid preliminary objections apart, on the merits of the case set up by the plaintiff, the defendant admitted the allotment of the plot to the plaintiff but thereafter averred that the plaintiff having failed to make the payment of the remaining installments, despite notices issued to her, the impugned order dated 01.03.1972 was passed and possession of the plot was taken.

4. A replication having been filed by the plaintiff, denying the contents of the written statement and reiterating those of her plaint, the following issues were framed by the learned trial court:-

“1. Whether order dated 1.3.72 regarding plot No.2 of Administrator, New Mandi Township, Haryana, Chandigarh is against law, wrong, illegal, without jurisdiction, if so to what effect? OPP

2. Whether the plaintiff is owner in possession of plot in dispute? OPP

3. Whether no notice was served upon plaintiff on depositing residuary amount in lump-sum? OPP

4. Whether the suit is bad for non-issue of notice u/s 80 CPC? OPD

5 Whether the civil court has got no jurisdiction to try the present dispute? OPD

6 Whether the suit is not maintainable in the present form? OPD

7 Whether plaintiff has got no cause of action? OPD

8 Whether the suit of the plaintiff is pre-mature, if so its effect? OPD

9 Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD

10 Relief.”

5. In support of her case, the plaintiff examined her husband and attorney, Om Parkash, as PW1 and closed her evidence, the defendant State on the other hand not having examined any witness.

6. Despite the above, the learned trial court, in its short first judgment dated 29.11.1988, held that other than examining PW1 the plaintiff had not even placed on file a copy of the order under challenge, nor had adduced any evidence on file for a “glimpse of the order under challenge”, and therefore, even though the order itself was not disputed by the defendant, the suit had to be