Order on Board

14-10-2019

1. This petition has been brought for challenging the order dated

26.08.2019, passed by Principal Judge, Family Court, Korba, C.G. in Civil Suit No.71A/2017, by rejecting the application filed by the petitioner under Article 58 Schedule of Limitation Act read with Section 3 of the Constitution of India.

2. It is submitted by learned counsel for the petitioner that respondents have filed the Civil Suit praying for relief of declaration, that Respondent No.2 is illegitimate child of the petitioner. The birth year of the Respondent No.2 is 2008. Earlier an application was filed praying for grant of maintenance against the petitioner by the respondents in the year 2009, which was registered as Miscellaneous Criminal Case No.50/2009, that application was rejected by order dated 22.02.2012.

this order was challenged before this Court in Revision Petition No.179/2012, in which, by order dated 04.02.2013, this Court has dismissed the prayer of the respondents for conducting DNA test, to determine paternity of Respondent No.2. Thereafter, the respondents preferred a Special Leave to appeal before the Supreme Court of India, which has been dismissed on 31.05.2013. It is further submitted that in the back drop of these events, the petitioner again filed an application under Section 3 read with Article 58 of the Indian Limitation Act, before the Family Court, Korba, and the same has been dismissed by the impugned order. Placing reliance in the judgment of Supreme Court in Khatri Hotels Private Limited Vs. Union of India 1, it is submitted that Article 58 of the Schedule under Limitation Act, that there is specific provision that to obtain any other kind of declaration, the period of limitation is three years, since the date when right to sue accrues first. It is submitted that the paternity of Respondent No.2 has been disputed from the year 2009, when this petitioner has challenged the same, in his reply to the petitioner under Section 125 of the Cr.P.C. In the order dated 04.02.2013, this Court had clearly observed that in the revision petitioner/respondent in this case, can file a suit for declaration under Section 34 of the Specific Relief Act for getting relief of declaration regarding the status of Respondent No.2, as an illegitimate child. Despite that, the Civil Suit has been filed in the year 2017, and there is no reason to explain the delay, hence, it is prayed that this Court should exercise its jurisdiction of Article 227 of Constitution of India to interfere with the impugned order.

3. Learned Senior Counsel appearing on behalf of the Respondents submitted that no separate application can be filed under Section 3 read with Article 58 Schedule under the Indian Limitation Act or order 7 Rule

1 AIR 2011 SC 3590

11 Clause D of CPC, very clearly provides that where the suit appears from the statement in the plaint to be barred by any law, in that case, the application can be moved praying for rejection of plaint. The petitioner had already moved such application under order 7 Rule 11 of the CPC taking recourse of the same ground of the suit being barred by limitation. That application has been rejected by the Family Court vide order dated 04.09.2018, subsequent to which, the petitioner filed a Writ Petition before this Court, which was disposed of by order dated 05.10.2018, by restoring the application under order 7 Rule 11 of the CPC and directing the Family Court to re-consider on the same application. Subsequent to which, the learned Judge of Family Court has again considered the application of the petitioner and dismissed the same on 25.06.2019.

4. It is submitted by the learned Senior Counsel for the Respondents that there is mention of the rejection of applications filed by the petitioner under order 7 Rule 11 of the CPC, in the impugned order. Apart from that the petitioner has himself challenged the order dated 25.06.2019 by filing a Writ Petition 227 which is registered as WP227 No.585 of 2019 and pending