Delhi District Court
Rca5/09 vs Rajesh Is Not Applicable. The Citation ... on 1 May, 2010
IN THE COURT OF SH. AJAY GOEL: SCJ CUM RC(CENTRAL)
RCA5/09
Sh. Rajesh Sharma
Adopted Son of Late Smt. Vidya Wati
w/o Late Sh. Madan Mohan Sharma
r/o 10/25, Yogmaya Mandir
Mehrauli, New Delhi
Also At
House no. 1868, Gali Takht Wali
Kucha Khayali Ram,
Sita Ram Bazar
Delhi110006
.............. Caveator
VERSUS
Smt. Sarla Devi
w/o Late Sh. Radhey Mohan Lal Sharma
r/o House No. 1869, Gali Takht Wali
Kucha Khayali Ram,
Sita Ram Bazar, Delhi6 .................... NonCaveator
Date of filing: 1.12.09
Date of assignment to this court: 1.12.09
Date of arguments:1.5.10
Date of decision:1.5.10
JUDGMENT
Vide this judgment I shall dispose off the appeal filed against the order dated 16.9.09 passed by Ld. Civil Judge whereby the application u/o 7 Rule 11 CPC filed RCA5/09 Page1/3 by the defendant was allowed and suit was held to be beyond limitation. In the suit out of which present appeal has arisen the plaintiff/appellant has sought to get the adoption of defendant as null and void. The adoption deed was executed in 1985 and the fact of adoption came in the knowledge of appellant in 1996 during the probate proceedings filed by the plaintiff when the defendant claimed himself to be adopted son of Smt. Vidhyawati. The Ld. Trial Court has held that suit should have been filed within three years of the knowledge and as the suit has now been filed in year 2009 after a lapse of 13 years then the suit is time barred. This finding has been assailed on the ground that court should have given the opportunity to lead the evidence to the parties to prove the averments and adoption was registered late, hence the adoption has no legal entity. I have given thoughtful consideration to the submissions made by the appellant. It is made clear that even though none of the parties have raised the question of limitation but still it is the bounden duty of the court to see the question of limitation. The Section 3 of Limitation Act is clear on this aspect. The appellant has not denied that he has come to know regarding the existence of adoption deed in 1996. Article 57 of Limitation Act has recognised the period of three years in which the declaration can be sought to the effect that the adoption is invalid and limitation starts from the date of knowledge of the plaintiff. The argument of the appellant that in the records maintained by the defendant he has given the name of his natural father, is of no help to the appellant because when he has lost the right to challenge the adoption he cannot raise further questions. The defendant for his limited purposes might have used name of his natural father but that question cannot be decided in these proceedings as it was not within the domain of the concerned Civil Judge to given findings on this aspect. The Cl. for appellant has argued that technicalities should not come in the way of RCA5/09 Page2/3 dispensation of justice but the question here involved is not of technicality but rather of the interpretation of the law, when valuable right has been accrued in favour of the respondent by lapse of time. Hence in these circumstances the citation AIR 1998 SC 1827 Srinath Vs. Rajesh is not applicable. The citation AIR 2008 SC 363 C. Natrajan Vs. Ashim Bhai relied upon by appellant is also of no consequence because there the Hon'ble Supreme Court had to interpret the Article 58 and 65 of Limitation Act but here in the present case the interpretation of Article 57 is required. The citation Madhusudan Dass Vs. Naraini Bai 1983(1)SCC page 35 is also of no help. In the citation supra it was held by Hon'ble Supreme Court that burden and onus of proof is on the person who alleges adoption but herein adoption is already held to be time barred. Hence there is no question of any proving or disproving the same. Thus on all counts the argument of ld. Cl. for appellant fails and rejected. There is no infirmity or illegality in the order of Ld. Trial Court which has been passed correctly after appreciating the facts and interpretating the law correctly. Appeal has no force and the same is hereby dismissed. Trial court record be sent back alongwith copy of this judgment. Appeal file be consigned to record room.
Announced in open court (Ajay Goel) on 1.5.10 SCJ cum RC(Central)/Delhi RCA5/09 Page3/3