JUDGMENT

Hon'ble Lok Pal Singh, J.

By means of present writ petition, moved under Article 227 of the Constitution of India, the petitioner is seeking writ in the nature of certiorari for quashing the orders dated 10.07.2014 and 19.11.2014 (contained as Annexure nos. 3 and 5 to the writ petition) and also to condone the delay in filing the Suit no. 9 of 2013, Arvind Kumar vs Ashwani and others.

2. Brief facts of the case are that the petitioner/plaintiff instituted a suit no. 09 of 2010, Arvind Kumar vs Ashwani Kumar and others, in the court of Civil Judge (Jr. Div.), Roorkee, Haridwar, for cancellation of sale deed dated 19.05.1986, executed by Naresh Chand (respondent no. 3) father of the petitioner in favour of respondents/defendant nos. 1 and 2. The suit was instituted on 29.01.2010. Along with the suit, the petitioner/plaintiff filed application under Section 5 of the Limitation Act for condoning the delay in filing the suit. Learned trial court by order dated 10.07.2014 recorded the finding that the plaintiff/petitioner has filed the suit with the averments that he was not aware of the sale deed and he came to know for the first time on 04.01.2010 that in place of his father sale deed has been executed in favour of the respondents /defendant nos. 1 and 2. It was also averred that defendant nos. 1 and 2 are mafia persons and they succeeded to get the sale deed executed in their favour in the name of the father (respondent no. 2) of the plaintiff /petitioner. Plaintiff had prayed that since the knowledge of execution of sale deed dated 19.05.1986 came into the notice of petitioner/plaintiff for the first time on 04.01.2010, therefore, the suit be treated within

time by giving the benefit of Section 5 of the Limitation Act. Learned trial court rejected the application holding that the provisions of Section 5 of the Limitation Act will not apply in institution of suit, which has become time barred. Feeling aggrieved, the petitioner/plaintiff preferred civil revision before learned Addl. District Judge, Roorkee. Learned revisional court by order dated 19.11.2014, affirmed the order dated 10.07.2014 passed by the trial court and dismissed the revision. Still feeling aggrieved, the petitioner has preferred this writ petition under Article 227 of the Constitution of India.

3. I have heard learned counsel for the parties and perused the material available on record.

4. Learned counsel for the petitioner would submit that delay condonation application was filed in a precautionary manner. In fact, the suit filed by the petitioner/plaintiff was well within time as it was filed within three years from the date of knowledge when the plaintiff came to know that a forged sale deed has been executed in favour of respondent nos. 1 and 2. Learned counsel would further submit that at the time of admission of the writ petition, co-ordinate Bench of this Court has observed while placing reliance on the proviso of Order 7 Rule 6 of CPC that the trial court should have considered the provisions contained in Section 17 of the Limitation Act read with Order 7 Rule 6 CPC and the plaint should have been treated within time, and if by mistake an application for condonation of delay has been filed, the same should not be taken into consideration.

5. Learned counsel for the petitioner would further submit that in view of Section 17 of the Limitation Act as the sale deed is obtained by fraud, and the suit has been filed within a period of three years from the date of knowledge, therefore, in view of the provisions contained in Section 17 read with Order 7 Rule 6 of CPC, the court below should have treated the suit instituted by the petitioner/plaintiff well within time and if, by mistake, an application for condonation of delay was filed, the same ought to have been considered only as it has been filed ignorantly by the petitioner.

6. The provisions contained in Section 3 are extracted here-in-below:

3. Bar of limitation.—(1) Subject to the provisions contained