Delhi District Court
Smt. Beerwati vs . Smt. Ghosan & Ors. on 19 January, 2016
Smt. Beerwati vs. Smt. Ghosan & Ors.
In the Court of Additional District Judge02, South District, Room No. 602,
Sixth Floor, Saket Courts Complex, New Delhi
In the matter of :
RCA No. 15/2015
Unique No. 02406C0333362015
Smt. Beerwati, W/o Late Balram,
R/o Village Asola, FatehpurBeri,
New Delhi.
...Appellant
Versus
1. Smt. Ghosan, W/o Late Srichand
2. Shri Rakesh, S/o Late Srichand
3. Shri Monu, S/o Late Srichand
4. Shri Sonu, S/o Late Srichand
All R/o - Village Asola, FatehpurBeri, New Delhi.
...Respondents
Date of filing of appeal : 14.10.2015
Date of Institution of appeal : 15.10.2015
Decision reserved on : 07.01.2016
Date of decision : 19.01.2016
RCA No. 15/2015 Page 1 of 13
Smt. Beerwati vs. Smt. Ghosan & Ors.
JUDGMENT
(on appeal under section 96 r/w Order XLI CPC arising from order dated 16.09.2015 of Court of Civil Judge02, South, New Delhi while rejecting the plaint) 1.1 (Introduction - to previous Suit No. 343/2011 Old No. 621/2009) - Shri Ram Swaroop was owner of property measuring 5 bigha 14 biswa of agricultural land, comprising Khasra No. 416 in the revenue estate of Village Asola, Delhi. He has three sons namely Balram (husband of appellant / plaintiff Smt. Beerwati), Sreeram / Srichand (who is husband of respondent / defendant no. 1 and father of respondents / defendants no. 2 to 4) and Raghubir Singh. After demise of Shri Ram Swaroop, all the three brothers mutually partitioned the said property, each of them got 1900 sq. yards area. Shri Raghubir's wife Smt. Kela, after death of Shri Raghubir, sold a piece of land measuring 350 sq. yards to Smt. Beerwati, out of share of Shri Raghubir and there was Civil Suit (No. 1281/2006) by Smt. Beerwati against Smt. Kela and others and there was statement of the parties.
Shri Sreeram's wife Smt. Ghosan, after death of Shri Sreeram, sold a plot measuring 400 sq. yards, out of 1900 sq. yards to Shri Balram on 05.09.2002 against consideration and he executed affidavit dated 05.09.2002, besides handing over of the possession to the said Shri Balram RCA No. 15/2015 Page 2 of 13 Smt. Beerwati vs. Smt. Ghosan & Ors.
visavis she also executed documents such as GPA, SPA, agreement to sell, possession letter, receipt, which were lost. In the month of April 2009, the said Smt. Ghosan and her three children brought the building material for making unauthorized construction in their plots and on 06.04.2009, they made attempt to raise illegal and unauthorized construction, the matter was reported to the police but no action was taken. Consequently, Shri Balram filed Civil Suit No. 621/2009 for permanent and mandatory injunction to restrain the said defendants from dispossessing Shri Balram from the property of 400 sq. yards (hereinafter referred as suit / appeal property) and to restrain them from making unauthorized construction visavis to demolish unauthorized construction in the adjacent plot to the suit property.
The said defendants (respondents no. 1 to 4 herein) opposed the suit by filing written statement dated 04.07.2009, while denying each and every averment, inclusive of sale of the property by Smt. Ghosan to Shri Balram or receipt of consideration amount or execution of affidavit or of other documents. They had also filed an application under order VII Rule 11 CPC. The Court of Civil Judge03, South, New Delhi, by order dated 14.02.2013, rejected the plaint by considering that as per Sl. No. 18 of Schedule I appended to the Delhi Reforms Act visavis the nature of suit of injunction, is in the jurisdiction of Revenue Assistant and not in the RCA No. 15/2015 Page 3 of 13 Smt. Beerwati vs. Smt. Ghosan & Ors.
jurisdiction of the Civil Court. After rejection of the plaint, Smt. Beerwati had filed another suit. As per parties, Shri Balram had died during the pending of the suit and Smt. Beerwati was brought on record as his LR. 1.2.1 (Introduction - of new Suit No. 745/2014 - Old No. 114/2013) - Then on 12.04.2013, Smt. Beerwati / appellant filed suit for declaration against Smt. Ghosan and her three children / respondents, to declare that affidavit dated 05.09.2002 was executed by Shri Srichand in favour of Shri Balram against consideration in respect of suit / appeal property and to declare that possession was handed over to the said Shri Balram at the time of execution of affidavit. The plaint narrates all the earlier aspects as well as paragraph of cause of action that it has arisen from the time when affidavit dated 05.09.2002 was executed and possession was handed over to Shri Balram, then on 08.04.2009, when former suit was filed by Shri Balram, then on 04.07.2009, written statement was filed by the respondents denying the execution of affidavit and lastly, on 14.02.2013, when the former plaint was rejected and then on 11.04.2013, a police report was lodged.
Whereas all these aspects were denied by the respondents, alike earlier plea that neither any document was executed nor the affidavit creates any right in favour of Shri Balram nor the affidavit demarcates any RCA No. 15/2015 Page 4 of 13 Smt. Beerwati vs. Smt. Ghosan & Ors.
portion in the property. The written statement also makes allegation against the appellant / plaintiff.
Thence, it result into formal issues and case came for evidence, Smt. Beerwati also entered into the witness box and she was cross examined on behalf of respondents.
1.2.2 During the pending of suit, the respondents filed an application under order VII Rule 11 CPC to reject the plaint, as it is barred by prescribed period of limitation visavis PW1 / plaintiff Smt. Beerwati admitted in her cross examination that she is not in possession of suit property by narrating that possession remained with her for a period of 4 years from the date of affidavit of 05.09.2002 and then it was possessed by respondent no. 2 Shri Rakesh. In addition, in the suit filed by Smt. Beerwati against Smt. Kela in 2006, the site plan filed by her, the possession of suit / appeal property has been shown with the respondents, consequently, not only the suit is false but also barred by limitation. Notice was given to appellant / plaintiff and she opposed the application by all counts that cause of action is still continuing and subsisting, particularly had the earlier suit being pending for permanent and mandatory injunction, the issue of declaration of affidavit could have been decided in that suit, otherwise rejection of the previous plaint also RCA No. 15/2015 Page 5 of 13 Smt. Beerwati vs. Smt. Ghosan & Ors.
makes out cause of action for filing the present suit and suit was filed on 12.04.2013 and it is within period of three years from the date of order of 14.02.2013. Otherwise it was a triable issue but no issue was raised in the written statement on the point of limitation and appellant / plaintiff requested to dismiss the application under order VII Rule 11 CPC.
However, the Court of Shri Vishal Pahuja, Civil Judge02, South, Saket, New Delhi (hereinafter referred as the Trial Court), by order dated 16.09.2015, accepted the contention of respondents, by holding that the period for limitation is to be calculated from 04.07.2009, the date of written statement whereby affidavit was denied and this second suit is barred by limitation and it was filed after 3½ years. The plaint was rejected [although, the Trial Court had not framed formal decree as per Section 2(2) CPC]. Now the said plaintiff came in appeal to assail the order dated 16.09.2015.
2.1 (Plea in Appeal) - The appellant requests, while reiterating the earlier record and proceedings, that the findings given by the Court are contrary to settled principle of law and Trial Court overlooked the issue of genuineness of affidavit, which was directly and substantially in issue in former suit of Shri Balram vs. Smt. Ghosan & Ors., otherwise this issue could not be pursued RCA No. 15/2015 Page 6 of 13 Smt. Beerwati vs. Smt. Ghosan & Ors.
separately because of legal bar under section 10 of CPC. There was no issue raised in the written statement (of latter suit) nor any formal issue on the point of limitation, therefore, the Trial Court erred in holding that the suit is barred by limitation; moreover, it is a mixed question of law and fact and as per Article 58 of Schedule of the Limitation Act, the period is to be commenced from the day right to apply accrues and the right has accrued on 14.02.2013 when the former suit was dismissed, therefore, the suit is within limitation. The Trial Court has wrongly miscalculated the period of limitation by misinterpreting the time of cause of action, therefore, the said order is liable to be set aside by providing an opportunity to the appellant to establish her case against the respondents.
2.2 (Arguments in support of Appeal) - Shri Amitesh Pandey, Ld. counsel for appellant requests that the said order is against the cannon of law as well as the facts on record. The former suit was based on affidavit of 05.09.2002, the same was to be adjudicated by the Court but the plaint was rejected and the appellant could not file any other suit once an issue of affidavit was pending in the said suit. Since the said plaint has been rejected, that is why, from the date of rejection of former suit, the appellant came with suit for declaration and it is within limitation. The right accrued on RCA No. 15/2015 Page 7 of 13 Smt. Beerwati vs. Smt. Ghosan & Ors.
14.02.2013 to file the present suit, particularly in the former suit, there was no finding on the affidavit dated 05.09.2002.
3. (Plea and Arguments of Respondents / Defendants) - The respondents through their Counsel Shri S.B. Sharma, Advocate opposed the appeal that the findings given by the Trial Court are based on material on record, which is also existing even in the record of appellant / plaintiff's plaint. There is no dispute that Article 58 of Schedule to the Limitation Act, 1963, prescribes period of three years to obtain declaration from the day when right to sue first accrues. As per appellant's plaint, paragraphs 15 to 17, the appellant claims that right accrued on 05.09.2002, then on 08.04.2009, and then on 04.07.2009 when respondents filed their written statement and denied the execution of affidavit dated 05.09.2002. Since it is to be seen when the right has accrued firstly and from that point of time, period of three years to be computed. The respondents responded and denied affidavit by way of written statement on 04.07.2009, the appellant has to compute the period from that day and by computing the period of three years, the time terminates on 03.07.2012, therefore, the suit was beyond the statutory period of three years and there is no flaw in the findings given by the Trial Court. Similar situation had arisen which was dealt by Hon'ble High RCA No. 15/2015 Page 8 of 13 Smt. Beerwati vs. Smt. Ghosan & Ors.
Court of Delhi in Saira Hafeez & Anr. vs. Praveen Rehman & Ors. FAO(OS) No. 303/2015 & CM No. 10923/2015 (decided on 23.11.2015) that the judgment / decree passed on 02.07.2005 was challenged by way of suit in the year 2014 and it was held that suit for declaration was beyond the period of three years and this analogy applies in the present case. Moreover, the statement of PW1 Smt. Beerwati, given during her statement also exposed falsehood of the suit, as in suit she, claimed possession of the suit / appeal property with her but in her cross examination, she clearly narrated that she is not in possession of the suit property but they remained in possession upto period of four years from the date of affidavit. Lastly, there is no bar to raise the plea of law at any stage of the suit and application under order VII Rule 11 CPC was rightly filed, it would not give any benefit to the appellant / plaintiff if there was no formal issue on the point of limitation nor it is a case involving mixed question of law and fact, since the material available on record is in the form of dates, spell out from the record. The appeal deserves dismissal.
FINDINGS 4.1 The contentions of both the sides are considered in the light of material on record and the statutory provisions of law. It does not need to RCA No. 15/2015 Page 9 of 13 Smt. Beerwati vs. Smt. Ghosan & Ors.
reiterate the matrix of the case, as factual position with regard to former suit and of latter suit with their outcome have already been introduced in paragraph 1, above.
Secondly, one of the point has been raised vehemently that for want of plea on point of limitation in the written statement of respondents or for want of formal issue, there was no occasion for the respondents to file application under order VII Rule 11 CPC. To seek answer to this question, it needs to reproduce relevant portion of Section 3 of the Limitation Act, 1963, which reads as : Section 3 - Bar of limitation
1. Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence . (underline supplied)
2. For the purposes of this Act
(a) a suit is instituted
(i) in any ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up the Court, when the claimant first send in his claim to the official liquidator;
(b) ...............
(c) ............... ! RCA No. 15/2015 Page 10 of 13 Smt. Beerwati vs. Smt. Ghosan & Ors.
Since, the provisions of Order VII Rule 11 CPC comprises one of the ground that if suit is barred by law, that plea may be taken in application under order VII Rule 11 CPC and Section 3(1) of the Limitation Act, 1963 also makes it clear that this point of law can be considered whether the limitation has been set up or not as a defence in the written statement. Therefore, for want of any plea in the written statement or filing of the application under order VII Rule 11 CPC raising such of the legal issue, would not bar to file the application. It also eliminate the plea of appellant that there was no formal issue on the point of limitation, as generally issues are framed on the basis of pleadings, documents, statement under order X Rule 2 CPC and submissions, if any and as appears, when the formal issues were framed by the Trial Court. Thus, certain points raised in the appeal with regard to want of pleading on the point of limitation or of formal issue, does not carry any weight. Thus, the objection with regard to stage of filing of application under order VII Rule 11 CPC or of raising point of legal bars stand disposed off and now the other aspects of appeal are taken. 4.2 By taking stock of facts and features of the case visavis findings of the Trial Court, for the following additional reasons, the appeal is dismissed, while confirming the findings of the Trial Court : RCA No. 15/2015 Page 11 of 13 Smt. Beerwati vs. Smt. Ghosan & Ors.
(I) there is no reason to perverse the findings that right to sue had accrued firstly on 04.07.2009 when the appellant / plaintiff was confronted with denial of affidavit in the written statement in former suit;
(II) if and when the plaint is returned under order VII Rule 10 CPC and the same is to be represented, the date of representing the plaint is to be treated the date of filing of plaint as fresh plaint. Similarly, in case the plaint is rejected under order VII Rule 11 CPC and plaintiff files fresh plaint in terms of Order VII Rule 13 CPC, the date of presentation of plaint is treated as a fresh plaint. In both the situations, the period for limitation is to be computed when plaints are presented. It is so apparent, from Section 3(1) of the Limitation Act, 1963, which has been reproduced hereinbefore; (III)in view of the settled position of law explained in (II), above, the appellant's plaint is to be treated as presented on 12.04.2013 and; (IV)the former suit was for permanent and mandatory injunction in respect of agricultural land and the latter suit was in respect of declaration in respect of affidavit dated 05.09.2002. As appears, the appellant / plaintiff has just a perception that affidavit dated 05.09.2002 was to be adjudicated as declaration in the former suit or because of bar of Section 10 CPC, she filed suit for declaration; whereas the relief claimed in both the suits are different.
Moreover, the clouds with regard to possession dispelled by the appellant / PW1's own deposition, stating that they remained in possession for a period of four years from the date of said affidavit, whereas, the latter suit was filed for declaration without any consequential relief of possession and the former suit was for permanent injunction on the pretext of possession with the appellant, whereas by computing four years from said date of 05.09.2002, around / after September 2006, the appellant was not in possession of the suit property. Although, in the present appeal, the merits of suit were not to be considered but the said aspect has been looked into that appellant was knowing that plea of respondent was hostile, from her own record, after four years from the date of said affidavit.
RCA No. 15/2015 Page 12 of 13 Smt. Beerwati vs. Smt. Ghosan & Ors.
Therefore, by computing the period of three years from 04.07.2009 and suit filed on 12.04.2013 is beyond the statutory period of three years as per Article 58 of Schedule appended to the Limitation Act, 1963. Although, appellant's own evidence suggest that after four years from 05.09.2002, viz. from the period 2006, she is not possession of the property, even that period also constitute cause of action but the appellant had not initiated any action.
5. Accordingly, the appeal stands disposed off. Both the parties will bear their own costs. Decree sheet be drawn accordingly. Copy of this judgment be sent along with the Trial Court record, with direction to the Trial Court to draw the decree forthwith as a compliance of Section 2(2) CPC.
File be consigned to record room.
Announced in the open Court today (Inder Jeet Singh) th Tuesday, 29 Pausa, Saka 1937 Addl. District Judge02 (South) Saket, New Delhi / 19.01.2016 RCA No. 15/2015 Page 13 of 13 Smt. Beerwati vs. Smt. Ghosan & Ors.
RCA No. 15/2015
19.01.2016
Present : Proxy counsel for appellant.
Proxy counsel for respondents no. 1 to 4.
Vide separate judgment announced today, the appeal stands disposed off. Both the parties will bear their own costs. Decree sheet be drawn accordingly. Copy of this judgment be sent along with the Trial Court record, with direction to the Trial Court to draw the decree forthwith as a compliance of Section 2(2) CPC.
File be consigned to record room.
(Inder Jeet Singh)
ADJ02 (South), Saket
N New Delhi /19.01.2016
RCA No. 15/2015 Page 14 of 13