Delhi District Court
Ritu Saini And Others vs Maya Devi And Others on 7 October, 2023
In The Court of Sh. Sanatan Prasad,
Additional District Judge-02, (East),
Karkardooma Courts, Delhi.
CNR NO. DLET01-006270-2020
RCA No. 37/2020
In the matter of :-
1. Ritu Saini W/o Lt. Sh. Yashpal Saini,
2. Harpreet Saini S/o Lt. Sh. Yashpal Saini,
3. Supreet Saini S/o Lt. Sh. Yashpal Saini,
All R/o B-88, Gali No.15,
Mandawali Fazalpur,
Delhi-110092.
.....Appellants.
Versus
1. Smt. Maya Devi W/o Sh. Mam Raj Saini,
2. Sh. Mam Raj Saini (since Deceased and all the LRs are
stated to be on record),
3. Sh. Ravinder Singh (Billa) S/o Sh. Mam Raj Saini,
4. Sh. Charanjit Singh (Tony) S/o Sh. Mam Raj Saini,
3&4 sons of Sh. Mam Raj Saini,
All R/o 11/4, St. No.2, Old Gobindpura,
Parwana Road, Delhi,
5. Smt. Narinder Kaur, (Bholi),
D/o Sh. Mam Raj Saini,
R/o B-4/59, Sector-18, Rohini,
Delhi.
.....Respondents.
RCA No. 37/2020
Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.1 of 29
Date of institution : 07.11.2020
Date of reserving order : 07.10.2023
Date of decision : 07.10.2023
Present : Sh. Sanjeev Bhardwaj, Ld. Counsel for the
appellants.
None for the respondents.
JUDGMENT
1. This is an appeal, directed against, the impugned Order and decree, dated 30.09.2020, passed by the court of Ms. Niti Phutela, the then Ld. ASCJ-cum-JSCC-cum-Guardian Judge, East, KKD Courts, Delhi, vide which, the Ld. Trial Court, while deciding the preliminary issue No.6, had dismissed the suit No. 1236/2018 of the then plaintiffs/present appellants brought for declaration, permanent and mandatory injunction, while, rejecting the plaint of the plaintiffs under Order, VII Rule 11 (d), CPC.
2. Feeling aggrieved with the impugned order and decree, dated 30.09.2020, the present appellants/the then plaintiffs have filed the present appeal.
RCA No. 37/2020Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.2 of 293. Notice of the appeal was issued to the respondents and the respondent No.3, Sh. Ravinder Singh, put his appearance, and had stated that respondent No.3 is also representing all other respondents, as recorded by the Ld. Predecessor of this Court, vide order, dated 06.02.2021, whereby, it was also recorded in the said order that respondent No.2, Sh. Mam Raj, has expired on 04.12.2020, and Ld. Counsel for the appellants also submitted that there was no need to file any application for impleadment of LRs, as all the LRs are already on record. Certified copy of the impugned order dated 30.09.2020 was also filed by the appellants. The respondents have not made appearance through a counsel and as such, there is no vakalatnama on record for them, nor, they have filed any reply to the memorandum of appeal in the matter.
4. Record of the trial court is also requisitioned and perused.
5. The appellants have mounted their challenge to the impugned order and decree, dated 30.09.2020. It also appears that there is no cross-appeal/objections, made by the respondents and the only challenge, qua the conclusions/findings has been made, in the present appeal, RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.3 of 29regarding the issue No.6, to the effect, "Whether the suit of the plaintiff is barred by law of limitation? OPD", on the grounds, firstly, that the Ld. Court, below, failed to appreciate that the right to sue, of the appellants for seeking relief for declaration is very much maintainable from 23.01.2018 i.e. the date when the present respondent no.1 withdrew the probate petition, filed by her, before the Hon'ble High Court of Delhi, in respect of 'Will', dated 15.03.2012. Secondly, Ld. Trial Court has, erroneously, rejected the plaint filed by the appellants, ignoring that the suit for declaration filed by the appellants was very much maintainable, and was within the period of limitation as the right to sue, to the present appellants, against the present respondents accrued from 23.01.2018 onwards, as a fresh cause of action accrued after the respondent No.1 withdrew the probate petition, and prior to that the subject matter in issue was sub-judice before the Hon'ble High Court of Delhi, and as such the suit for declaration was not maintainable till adjudication of the probate petition as the same would have been barred under Section 10, CPC. Thirdly, it is submitted that Ld. Trial Court failed to appreciate that Article 113, of the Limitation Act, was applicable in a case prescribing limitation for any suit for which no period of limitation is provided, elsewhere, in the RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.4 of 29schedule, for three years from the date when the right to sue accrues, and a declaratory suit without a prayer for possession is governed by the said Article. Consequently, appellants have prayed for setting aside the impugned order and decree, dated 30.09.2022 and allowing the present appeal.
6. It appears that the Ld. Court below, had decided, preliminary issues No.4 and 5, in favour of the then plaintiffs and present appellants, but decided the issue No.6 against them and the findings on the issue No.6, read as under :-
" (6) Whether the suit of the plaintiff is barred by law of limitation? OPD The onus to prove the said issue was upon defendant. It is the case of defendant that plaintiff had knowledge regarding the Will dt. 15.03.2012 executed by Lt.
Sh. Yashpal Saini at the time of filing of WS by the defendants herein who were also the defendants in the previously instituted suit bearing no. 18/2013. The record pertaining to the said case has been filed by defendants. Order dt 20.02.2013 reflects that the WS was filed on the court record. Hence, from the said date the period of limitation started running and plaintiff had to seek the relief RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.5 of 29of declaration of the said Will being null and void within 3 years from the date of knowledge of the said Will. However, plaintiffs slept over their rights. They waited till withdrawal of the probate petition by the defendants which was pending in the Hon'ble High Court of Delhi and was withdrawn on 23.01.2018.
The present suit has been filed in the present Court on 19.12.2018. This shows that the period of limitation which was continuing from 20.02.2013 had lapsed on 19.02.2016 but no steps were taken by plaintiff for filing the suit for declaration as null and void within the limitation period. Pendency of probate proceedings is no ground for extension of the limitation as the probate proceedings are on completely different footing and have no bearing on the validity/invalidity of the Will which is under question.
Thus, as the present suit has been filed clearly beyond the limitation period of three years from the date of knowledge regarding the Will i.e. since 20.02.2013, the present prayer of plaintiff for declaration of the Will being null and void is barred by law of limitation. Hence, the relief which has been sought in prayer clause no. a, i.e. of declaration of will as null and void is time barred and cannot be granted to the plaintiff. Thus, the present issue is RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.6 of 29decided in favour of defendants and against the plaintiffs.
As far as relief of permanent injunction is sought, in respect to the same already the previously instituted suit bearing CS no. 18/2013 was decreed in respect to one property as mentioned above. However, as plaintiff has mentioned in the present case also that plaintiff no.1 is joint owner in respect to the property bearing no. C-24, Rani Garden, Shastri Nagar, measuring 25 Sq yards, therefore there is even requirement of seeking partition in respect to the said properties but the said relief has not been sought. These were also the observation of Ld. Civil Judge in civil suit bearing no. 18/2013.
Moreover, even if the above said fact of non-
claiming of the relief of partition is ignored, then also in absence of relief of declaration merely simpliciter suit for injunction will not be maintainable as plaintiff will be required to prove her title in respect to the suit property which cannot be granted in absence of seeking declaration of Will. Hence, even the relief of permanent injunction cannot be granted to her.
As far as relief of mandatory injunction is concerned, in respect to the same as per Section 7 of Specific Relief Act, there is a provision for recovery of RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.7 of 29specific movable property. The title documents which plaintiff has prayed for returning of the same by defendants in the form of mandatory injunction are specific movable properties. Therefore, for the same, appropriate remedy available with her was for seeking recovery of the said documents and to value the suit as per value of the property i.e. the documents which has not been done in the present case. Therefore under the garb of relief of injunction, plaintiff is asking for recovery of specific movable property. As per Section 41(h) of Specific Relief Act, if equally efficacious remedy is available with plaintiff, the same has to be exercised which has not been done, hence, the relief of mandatory injunction is also not maintainable.
Thus, this Court is of the view the relief of declaration is time barred and other reliefs are not maintainable. Thus, all the reliefs which are sought cannot be granted....."
7. At the very outset, I have considered the situation and it is clear to me that generally, the question of limitation, though, termed as a mixed question of law and facts, yet, in view of the law, laid down, by the Hon'ble Supreme Court, in Civil Appeal No. 2960/2019, arising out in SLP (C), No. RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.8 of 2920068/2013, DOD 13.03.2019, and further, in Civil Appeal No. 10834/2010, DOD 29.09.2022; 2022 Live Law (SC) 810 the issue of limitation can be treated as a preliminary issue and consequently, a plaint can be rejected under the provisions of Order VII Rule 11 (d), CPC, resulting in dismissal of the suit.
8. Sh. Sanjeev Bhardwaj, Ld. Counsel for the present appellants/the then plaintiffs has argued that the suit, filed before the Ld. Trial Court, was not barred by law of limitation, as the time spent in proceedings, in Test Case No. 14/2013, is to be excluded in view of the provisions of Section 14 of the Limitation Act, 1963, as the appellants had bonafidely with due diligence prosecuted their defence, as the respondents, therein, by filing the reply/objections in the Test Case No. 14/2013, and filing the suit for declaration, permanent and mandatory injunctions, by them, during the pendency of the Probate Petition, was not possible as the appellants were legally disabled to file the civil suit, in question, in view of the orders, dated 18.02.2013 & 05.10.2016, and further, till withdrawal of the probate petition by the respondent No.1, on 23.01.2018, the date, when right to sue accrues to the appellants qua the suit in RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.9 of 29question. Ld. Counsel for the appellants has also argued that the suit of the appellants is not barred by law of limitation as the appellants are entitled to the benefit enshrined under Section 15 of the Limitation Act, 1963, which also protects and provides for the exclusion of the time during which proceedings are suspended and Section 15 would apply even to the cases where the institution of the suit is stayed by necessary implication of the order passed or injunction issued to the previous litigation. Again, it is argued by the Ld. Counsel that in view of orders, dated 18.02.2013 & 05.10.2016, passed by the Hon'ble High Court in the probate petition, the relief of declaration could have not been sought as the matter was sub-judice qua the title as held by the Ld. Civil Judge, in CS No. 18/23, vide judgement, dated 05.12.2013. Consequently, the Ld. Counsel has argued that suit of the appellants is not barred by law of limitation as during the pendency of the Probate Case before the Hon'ble High Court of Delhi, the appellants were incapable to file the suit for declaration, permanent & mandatory injunction as the matter in issue in respect of the same properties were sub- judice before the Hon'ble High Court and the decision of probate case on the question of proof of 'Will' would have had direct impact on the suit of declaration, permanent & RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.10 of 29mandatory injunction and would have operated as res- judicata in the subsequent proceedings.
9. In order to support his contentions/arguments, Ld. Counsel for the appellants has relied upon the judgements mentioned as below: -
(1) Mohinder Singh (D) Thr. LR's Vs. Paramjit Singh & Ors, 2018 (5) SCC 698.
(2) M/s Consolidated Engineering Enterprises Vs. The Principal Secretary, Irrigation Department & Ors, 2008 (7) SCC 169.
(3) Basdeo Prasad Khemka Vs. Union of India, AIR 1978 Calcutta 100.
(4) Jain & Brothers Vs. State of Chhattisgarh, DOD 04.05.2018, in First Appeal No. 41/2018.
(5) Shesh Nath Singh & Ors. Vs. Baidyabati Sheoraphuli Cooperative Bank Ltd, DOD 22.11.2019, in Company Appeal (AT) (Insolvency) No. 672/2019, by National Company Law Appellate Tribunal, New Delhi.
(6) Raj Kumar Dey & Ors Vs. Tarapada Dey & Ors, AIR 1987 SC 2195.
(7) Veeramuthu Vs. Puttalayee, 1997 (2) CTC 245.
RCA No. 37/2020Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.11 of 2910. On the other hand, neither arguments were advanced nor written arguments were filed, to rebut the contentions of the present appellants, on behalf of the present respondents in the matter.
11. I have heard Ld. counsels for the appellants in detail and perused the record and also perused the written arguments submitted on behalf of the appellants.
12. Now coming to the mainstay of this appeal i.e. Issue No.6, 'Whether the suit of the plaintiff is barred by law of limitation', and the onus to prove the same also lied upon the defendants, (respondents herein), like aforementioned issues No.4 and 5. ld. Trial Court had observed that the present suit has been filed, clearly, beyond the limitation period of three years from the date of 'the knowledge', regarding the 'Will' i.e. since 20.02.2013, thus, the prayer of the appellants for declaration of the 'Will' being null and void is barred by limitation. On this aspect, it is argued by the Ld. Counsel for the appellants that Ld. Trial Court has committed a grave mistake, while, calculating the period of limitation to file the present suit as three years, from the date i.e. 20.02.2013, when the defendants, (respondents, herein), filed their W/S RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.12 of 29on record, in the suit bearing No. 18/2023, and thereby the limitation period to file the present suit had elapsed on 19.02.2016, whereas, the present suit has been filed on 19.12.2018 only. However, the Ld. Court below has failed to consider the period from 18.02.2013 to 05.10.2016, whereby the Hon'ble High Court had granted interim stay, vide order, dated 18.02.2013, in I.A. No. 2741/2013, in Test Case No. 14/2013, in respect of probate petition filed by the respondent No.1, to the proceedings pending before the Ld. Trial Court in CS No. 18/23, and thereafter, confirmed the said stay proceedings, vide order, dated 05.10.2016, till disposal of the said Test Case proceedings. Thereafter, Hon'ble High Court of Delhi, vide its order, dated 23.01.2018, disposed off the said petition as dismissed as withdrawn. Consequently, it is contended by the Ld. Counsel for the appellants that the Ld. Trial Court has failed to consider the period from 18.02.2013 till 23.01.2018, during which period, the proceedings in the CS No. 18/23 were stayed by the Hon'ble High Court. Thus, the right to file the present suit accrued to the then plaintiffs, (appellants, herein), on and from 23.01.2018, and thereby, the present suit has been filed by the appellants i.e. on 19.12.2018, is within the period of limitation of three years from that day. In this regard, ld. Counsel for the appellants RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.13 of 29has relied upon Sections 14 & 15 of the Limitation Act, 1963, and relevant judgements therefor, as mentioned above, for exclusion of period spent in previous proceedings as well as stay of proceedings in the previous suit.
13. The question on the point of limitation is sometimes a pure question of law, and also a mixed question of law and facts, however, at the very outset, in the paragraph No.7 of this judgement, I have made it clear that the question of limitation can be seen as a preliminary issue also, when it can be decided without the aid of evidence and then it becomes purely a question of law, if, it, possibly, can be decided on that count alone. Now, this Court deems it fit to analyze the submissions of the Ld. Counsel for the appellants on the basis of legal proposition qua the Sections 14 and 15 of the Limitation Act, 1963.
14. The relevant portion/(s), of Sections 14 and 15 of the Limitation Act, read as under: -
"Section 14--Exclusion of time of proceeding bona fide in Court without jurisdiction--
(1) In computing the period of limitation for any suit, the time during which the plaintiff has been prosecuting with due RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.Page No.14 of 29
diligence another civil proceeding, whether in a court of first instance or of the appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant......
(3) ....."
"Section 15--Exclusion of time in certain other cases (1) In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
(2) In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.RCA No. 37/2020
Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.15 of 29Explanation--.....
(3) .....
(4) ....
(5) ...."
15. A bare perusal of the Section 14 of the Limitation Act, 1963, shows that said section will be applicable to a plaintiff or an applicant, that the time taken shall be excluded, when he/she has been prosecuting with due diligence and in good faith, another civil proceedings, whether in a Court of first instance or of the appeal or revision, against the defendant, which is unable to entertain the same for defect of jurisdiction or other cause of like nature.
16. Sh. Bhardwaj, Ld. Counsel for the appellants, has strenuously, tried to show me that the present appellants/the then plaintiffs before the Ld. Trial Court and the then respondent No.1, in the Test Case No.14/2013, were clearly, pursuing their defence in the Probate proceedings/Test Case No. 14/2013 and they did file their reply/objections in that case on 16.05.2013, itself, which was the first day of hearing after the issuance of notices in that case, vide order, dated 18.02.2013. He also submits that the present appellants/the RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.16 of 29respondents, therein, vigorously, pursued the matter till the time of withdrawal of the Test Case No. 14/2013 and further, the proceedings in that case remained stayed from 18.02.2013 to 23.01.2018. His further submission is that the appellants, in the instant case, first of all, were neither the plaintiffs nor applicants, in the Test Case No. 14/13, qua Probate of 'Will', dated 15.03.2012, pending before the Hon'ble High Court of Delhi, and therefore, they did not have any driving hand/say in that proceedings and had to follow up those proceedings, according to the 'Tenor' of that case in consonance with law and abiding by the orders passed by the Hon'ble High Court, as entailed, therein.
17. It is to be noted that it is not the case of the present appellants that the Hon'ble High Court of Delhi had jurisdictional defect in entertaining the said probate petition/test case or the proceedings suffered or would have had suffered for other causes of like nature qua the suit for declaration in respect of the impugned 'Will', seeking it as null & void, hence, non-est. In this regard, it is relevant to mention the decision of Hon'ble Supreme Court of India, in case titled, as Deena, (dead), through LRs Vs. Bharat Singh, (dead) Through LRs & Ors, (2002) 6 SCC 336 : 2002 SCC, RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.17 of 29Online SC 668, wherein para 15 of the judgement is reproduced as under: -
"15. The other expressions relevant to be construed in this regard are "defect of jurisdiction" and "or other cause of a like nature". The expression "defect of jurisdiction" on a plain reading means the Court must lack jurisdiction to entertain the suit or proceeding. The circumstances in which or the grounds on which, lack of jurisdiction of the Court may be found are not enumerated in the section. This is to be kept in mind that there is a distinction between granting permission to the plaintiff to withdraw the suit with leave to file fresh suit for the same relief under Order XXIII rule 1 and exclusion of the period of pendency of that suit for the purpose of computation of limitation in the subsequent suit under Section 14 of the Limitation Act. The words "or other cause of like nature" are to be construed ejusdem generis with the words make it impossible for the Court to entertain the suit or application and to decide it on merits. Obviously, Section 14 will have no application in a case where the suit is dismissed after adjudication on its merits and not because the Court was unable to entertain it";
Therefore, Section 14 of the Act of 1963 has no relevance in the present context, and is not of any help to the present appellants. Consequently, in view of the above, the Section 14 of the Limitation Act does not bring any accolade to the RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.Page No.18 of 29
submissions made by Ld. Counsel for the appellants for exclusion of the period of time taken in the proceedings, held in the Test Case No. 14/2013. Similarly, the other judgements relied upon by the Ld. Counsel for the appellants also do not support their cause in the instant appeal.
18. Sh. Bhardwaj has urged to take into account the period, during which the interim order passed by the Hon'ble High Court, in Test Case No. 14/2013, operative from 18.02.2013 to 23.01.2018, as the time spent bonafidely, and pleaded for exclusion of the same as the period when the injunction order was in force. However, both the Sections, i.e., 14 & 15 of the Limitation Act, 1963, have their scope worked out as per their tenor and mandate and, therefore, the plea on the ground of mistaken belief cannot be considered within the scope of these sections, which clearly requires good faith and due diligence qua section 14 and a clear injunction order qua section 15 of the Act.
19. So far as, the Section 15 of the Limitation Act, 1963, is concerned, only Sub-section (1) of Section 15, of the Act is relevant to be discussed, if applicable, to the present issue in question. Said Sub-section, clearly, mentions its applicability RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.19 of 29in computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, and the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. Thus, a plain reading of this section reveals that this Section requires an order of injunction, which stays the institution of the suit, and therefore, in the cases falling under Section 15 of the Limitation Act, the party instituting a suit would by such institution be in contempt of Court, but, there was no such stay against institution of a suit by the Hon'ble High Court, vide its orders, dated 18.02.2013 and 05.10.2016, whereby the Hon'ble High Court had only granted status quo in respect of the properties involved in the 'Will', in the Test Case No. 14/2013, inasmuch as, the order dated 18.02.2013 only directed the parties/respondents/non-applicants to maintain status quo in respect of the properties held in the name of the deceased, Sh. Yashpal Saini, mentioned in the 'Will', dated 15.03.2012 till further orders and later on that direction stood confirmed vide order, dated 05.10.2016 till the disposal of the Probate Petition, subject to the variation, at the instance of the either of the parties and, ultimately, it RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.20 of 29lapsed or became infructuous on withdrawal of the Probate proceedings on 23.01.2018.
20. However, after analyzing the findings, returned on the preliminary issue No.6, by the Ld. Trial Court, I am of the view that the Ld. Court below, could not appreciate the accrual of material cause of action or time when the right to sue first accrued, and its time, to the present appellants, to file the suit dismissed by the Ld. Court below. It appears that Article 58 of the Limitation Act, 1963, provides a period of three years to obtain any other declaration, from the date when right to sue first accrues, similarly, Article 113 also provides a period of three years for any suit for which no period of limitation is provided elsewhere in the Schedule. Consequently, the contention of the Ld. Counsel for the appellants, therefore, appears to be baseless as the relief of declaration is to be governed by Article 58 and not Article 113, of the Limitation Act, 1963, though, of little consequence, as far as period of limitation of three years is concerned, albeit, it still leaves out the question of the point of time, when the right to sue first accrues.
21. Here, I need to repel the contention made by the Ld. RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.21 of 29Counsel for the present appellants/the then plaintiffs that the plaintiffs were barred by the provisions of Section 34 of the Specific Relief Act, 1963, as they would have had not been able to seek declaration, earlier, qua the impugned 'Will', dated 15.03.2012, executed by deceased Sh. Yashpal Saini, in view of the Proviso, thereto, barring grant of declaration where the present appellants/the then plaintiffs were not being able to seek further relief, than a mere declaration of title and made to omitting the further relief of injunctions, in view of the operating 'Status quo', order between 18.02.2013 to 23.01.2018, inasmuch, as it was an order for maintaining status quo only and not an order of injunction, in terms of Section 41 (a), of the Act, though, technically. Moreover, this contention also falls flat, if, viewed in true and reverse sense, because, then, the then plaintiffs/present appellants would have not had been able to seek relief of injunctions and, thus, the proviso could have not had created the so called bar, if at all, inasmuch, as the then plaintiffs/present appellants would have had been able to seek the relief of mere declaration, as such.
22. This brings me to view and analyze, the expression, "the right to sue first accrues", which relates to the point of time, RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.22 of 29when a claimant/suitor can lay his claim purposedly, meaningfully, and effectively, towards a specific cause of action and it is also the point of time, wherefrom the limitation period begins to run and therefore, becomes unstoppable, once, it starts. In Kandaswami Pillai Vs. Maniswamy Mudaliar, (1931), 35 LW 350 and also in, Md. Umar Vs. Md. Ibrahim, AIR 1933, Lah, 270, it was clearly laid down that the question when exactly the right to sue accrues would depend on the facts of the particular case. It is, also, clear to me that while dwelling on the issue No.6, the Ld. Court below could not appreciate, in right earnest, the implications, emanating from the above expression, relating to the peculiar facts and circumstances, emerging and obtaining in the present case, before it, nor it could comprehend the position of a suit, if filed, under those circumstances, vis-a-vis the expression, as above.
23. By now, it is established that the present suit, before the ld. Court below, was filed on 19.12.2018, further, the existence of the 'Will', executed by the deceased, Sh. Yashpal Saini, dated 15.03.2012, came to the knowledge of the present appellants as the defence was set up by the defendants, therein, before the Court concerned, as they were RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.23 of 29also the defendants, in the previously instituted suit, bearing No. 18/2013, and therefore, ld. Court below concluded that the "supposed" right to sue, first accrued before the naked eyes of the present appellants/the then plaintiffs, on 20.02.2013, as it found from the order, dated 20.02.2013, reflecting that the written statement was filed on the court record, in the suit No. 18/2013, however, it is also, now, established that on 18.02.2013, itself, the 'Probate Petition' in Test Case No. 14/2013 was already, pending before the Hon'ble High Court, and the present appellants were arrayed therein, as respondents, and they were directed to maintain status quo, as already, referred. The present appellants/respondents, therein, filed their reply/ objections, in the 'Probate Proceedings', on 16.05.2013 and contested the petition, duly, and vigorously as claimed by Sh. Bhardwaj and being reflected through the copies of the orders, passed by the Hon'ble High Court, in the said Testamentary Petition.
24. Sh. Sanjeev Bhardwaj, Ld. Counsel for the appellants/then plaintiffs, has, in totality, contended that there was no clear right to sue, available to the present appellants/the then plaintiffs, even on 20.02.2013, when the written statement was filed, in CS No. 18/2013, and the RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.24 of 29defendants, therein, set up their defence on the strength of the 'Will' as the appellants were legally incapable to file the suit qua the 'Will' for declaration, permanent and mandatory injunction as the matter in issue, in respect of the same properties were sub-judice before the Hon'ble High Court and the decision of the Probate case on the question of proof of 'Will' would have/had direct impact on the suit of declaration, permanent and mandatory injunction and would have operated as res-judicate in the subsequent proceedings, and I find considerable substance in this submission, inasmuch, as, if, there were clear right to sue qua the 'Will', seeking declaration, impugning the same, as null and void, hence, non-est, then, the provisions of Section 10 CPC, would have had squarely applied to such a suit for declaration as well as injunctions, as the same would have been, squarely, covered under that provisions, for the reasons that the matter in issue, per-force, directly and substantially, would have been the same and even the parties litigating were also the same under same title and, therefore, the second suit was either to be stayed, and or, though, it may have been tried with the same Court or with a Court having coordinate or competent jurisdiction, and both the Courts would have had had jurisdiction to grant the relief claimed as the earlier RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.25 of 29suit/Test Case was pending in India only, and in such a proceedings/eventuality, the Test Case would have had precedence of proceeding first, and if adjudicated on merits, a decision either declaring the 'Will' as authentic or to say probated, and therefore, to be acted upon and administered, or in the dismissal of the Test Case, which would have had a serious impact, in the first case, for the limited findings, would have had operated as res-judicata, declaring the 'Will' as authentic or probated to say, though, for a limited purposes, granting the petitioner, therein, right of acting or administering the 'Will', on the one hand and with an order of injunction/status quo or at-least resulting in non- interference qua the subject matter of the 'Will' and its administration, brought upon by the grant of probate certificate or Letters of Administration qua the 'Will', operating only against the present appellants/the then plaintiffs in the subsequent suit, on the other, and further, the relief of mandatory injunction, having been bogged down, altogether, in effect, and thus, precluding the adjudication of the very relief of declaration, sought qua the 'Will' as being non-est. However, in the latter case, the dismissal of the Test Case would have resulted in the proceeding with the suit for declaration and under such circumstances, the present RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.26 of 29appellants/the then plaintiffs, though, could have had filed the suit for declaration as well as injunctions, as above, but that would have been a truncated, contingent, speculative, non-invasive, porous and thus, a distracted plain vanilla action, to which, the plaintiffs, therein, would have had no driving rights/say, rather, such suit was to be governed by the dictates of the petitioner, therein, till the pendency of the Test Case, and also in accordance with law, and orders passed by the Hon'ble High Court, in the Test Case and as such, I am of the considered opinion that there was no substantial right to sue as it did not accrue fully, to the present appellants/the then plaintiffs and as such it cannot fall within the expression, "when right to sue first accrues", for the reasons that an accrual of right cannot be emasculated or empty by its very concept, inasmuch as, a self effacing right is only a farce and defeating itself and as such it is no right at all and my this conclusion also finds support from the maxim, "Ubi jus, ibi remedium," meaning thereby, where there is a right, there is a remedy, and in the peculiar facts and circumstances of the present case, there was only a nominal right first accrued on 20.02.2013 and the material right/cause of action accrued only after the withdrawal of the probate petition on 23.01.2018, when the clear and corresponding remedy also RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.27 of 29accrued and available to the present appellants/the then plaintiffs, and as such, there was no material cause of action/right to be pursued on 20.02.2013, and accordingly, a clear meaningful and purposeful right to sue, first accrued only at the moment, when the probate petition, in the Test Case, was disposed off, by recording its withdrawal under the peculiar facts and circumstances, obtaining in the instant case, and thereupon, to my mind, the right to sue first accrued only then to the present appellants/the then plaintiffs, within the meaning of Article 58 of the Limitation Act, 1963, i.e. only on 23.01.2018 and calculating in this manner, from the date of withdrawal of the Test Case No. 14/2013, on 23.01.2018, a period of limitation of three years begins to run from that date, only, admittedly, the present suit was filed on 19.12.2018 before the Ld. Court below, and thus, filed within the period of limitation, and accordingly, the suit was not barred by limitation, and as such, the impugned judgement and Decree/order is vitiated by the grave illegality/material irregularity, as discussed, herein above, and as such is liable to be set-aside.
25. In view of above discussion, the impugned order and decree, dated 30.09.2020 is, hereby, set-aside with no order RCA No. 37/2020 Ritu Saini & Ors Vs. Maya Devi & Ors.
Page No.28 of 29as to costs, and the matter is remanded back to the Ld. Court below for adjudication, in accordance with law. Parties are directed to appear before the Ld. Trial Court, concerned, on 27.10.2023 at 2.00pm. A copy of this order be sent along with TCR. Decree sheet be prepared, accordingly. Appeal file be cosigned to Record Room.
Announced in the open Court on 07.10.2023.
( Sanatan Prasad ) Additional District Judge-02 (East)/KKD/Delhi.
RCA No. 37/2020Ritu Saini & Ors Vs. Maya Devi & Ors.
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