Delhi District Court
Smt. Sheela Rani vs Sh. Manish Kumar (Deceased) on 14 October, 2016
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI
RCA NO. 61309/16
In re:
1. Smt. Sheela Rani
W/o Sh. Tulsi Dass
R/o F-26, Shastri Nagar,
Delhi - 110 052
2. Sh. Tulsi Dass
S/o Late Sh. Sant Lal
Both R/o F-44B, Shastri Nagar,
Delhi - 110 052
................. Appellants
VERSUS
Sh. Manish Kumar (Deceased)
Through LRs
1. Smt. Veena Dhingra
W/o Late Sh. Manish Kumar
2. Ms. Jyoti Dhingra
D/o Late Sh. Manish Kumar
3. Gaurav Dhingra
S/o Late Sh. Manish Kumar
4. Himanshu Dhingra
S/o Late Sh. Manish Kumar
All R/o F-26, Shastri Nagar,
Delhi - 110 052
5. Ms. Deepa
D/o Late Sh. Manish Kumar
W/o Sh. Amit Kumar
R/o A-4/217, Paschim Vihar,
Delhi
............... Respondents
Date of institution of present appeal : 20.02.2016
Date of hearing arguments : 20.09.2016
Date of Judgment : 14.10.2016
RCA No. 61309/16 Sheela Rani Vs. Manish Kumar Page No. 1 of 9
Appeal against the judgment & decree dt. 22.01.2016
passed by Ld. Civil Judge
JUDGMENT
This judgment shall dispose of the appeal filed by the appellants herein against judgment and decree dated 22.01.2016 whereby Ld. Trial Court has decreed the suit of the plaintiff/respondent.
2. Brief facts of the case are that the plaintiff has filed the suit before Ld. Trial Court for declaration of sale deed as void and for permanent injunction restraining the defendant/appellant from creating any third party interest in any manner in respect of the shop measuring 5 X 30 on the ground floor of the property No. F-26 Shastri Nagar, Delhi on the ground that defendants/appellants on the pretext of getting executed a lease deed got executed a sale deed from the plaintiff. Defendant/appellant No. 2 is the brother of the plaintiff and defendant/appellant No. 1 is the wife of the said brother appellant No.1. Defendants/appellants contested the suit through WS claiming that the sale deed was executed validly and for good consideration. The plaintiff through replication reiterated his stand.
3. On the pleadings of the parties, Ld. Trial Court framed the following issues on 29.11.2010:-
1. Whether the suit is bad for mis-joinder and non-joinder of parties?
OPD
2. Whether the suit of plaintiff is not properly valued? OPD
3. Whether the suit of plaintiff is liable to be rejected u/O 7 Rule 11 CPC? OPD
4. Whether the plaintiff is entitled for the decree of declaration as prayed in the plaint? OPP
5. Whether the plaintiff is entitled for decree of permanent injunction as prayed in the plaint? OPP RCA No. 61309/16 Sheela Rani Vs. Manish Kumar Page No. 2 of 9
6. Relief.
4. In support of the case, the Plaintiff/respondents examined himself as PW-1 and Sh. Suman Kumar Singh from Trade & Tax Department as PW-2. The defendants/appellants examined themselves as DW-1 and DW-2.
5. During the pendency of the suit, plaintiff expired and his LRs were brought on record.
6. After going through the pleading, evidence and material available on record and hearing arguments on the part of the counsel for parties, Ld. Trial Court decreed the suit vide impugned judgment and decree dated 22.01.2016.
7. Aggrieved from the judgment and decree dated 22.01.2016 passed by Ld. Civil Judge, the defendants/appellants have challenged the impugned decree and judgment on the grounds that the Trial Court has not applied its judicial mind and without applying judicial mind passed the judgment/decree in the case. It has been further challenged on the ground that Manish Kumar/plaintiff expired in the course of proceedings and legal representative of deceased were taken on record by the Trial Court which were not mentioned in the title of cause so as to snatch legal rights of appellant for filing appeal as the appeal against deceased could not be file and summon of appellate court could not serve upon the deceased; the judgment and decree is bad in the eyes of law and without the facts and law; the Trial Court failed to determine that the suit is filed while concealing the facts, and suit was not maintainable; the citations quoted in judgment and decree do not relate to facts and law of the case of the plaintiff; the issues were not according to law; the Trial Court failed to decided that the suit was bad for misjoinder and non joinder of parties; the Ld. Trial Court failed to decide that the plaint had no cause of action and was liable to rejected under Order 7 Rule 11 CPC as the case was filed at belated stage and without RCA No. 61309/16 Sheela Rani Vs. Manish Kumar Page No. 3 of 9 limitation; the Trial Court failed to appreciate that the case was filed to harass the appellants without demanding Possession of suit property by the plaintiff as he had already received the payment before executing the Sale Deed; the case law cited by the Trial Court was for possession and thus not sustainable as the suit was not for possession; the Ld. Trial Court failed to appreciate that the sale deed in any manner could not be executed without consideration; Ld. Trial Court failed to appreciate that the Sub-Registrar asked Sh. Manish Kumar for payment and Sh. Manish Kumar replied that he had already received Rs.70,000/- as full and final sale consideration and the Sub-Registrar after verifying from Manish Kumar Registered the sale deed; the Trial Court without applying judicial mind not given the opportunity to call further witnesses as per list of witnesses, so as to help the plaintiff and whole record of Trial Court itself shows opportunities were for plaintiff and not for defendants. Hence the judgment and decree is liable to be set aside.
8. Arguments heard. Pleadings, evidence and material as available on the trial court record, impugned judgment and grounds of appeal perused.
9. Ld. Counsel for the appellant has contended that since the liberty to file suit afresh on the same cause of action was granted to the plaintiff/respondent subject to payment of cost of Rs. 3,000/- but plaintiff/respondent filed the present suit without making the payment/tendering of the cost. Therefore, the present suit is not properly instituted suit in the eyes of law, therefore, the Ld. Trial Court should not have proceeded with the trial till the time payment was made and since despite opportunity payment was not made therefore suit was liable to be rejected. Per contra it has been contended by Ld. Counsel for the plaintiff/respondent that the said cost was received by the appellant subsequently and therefore no fault could be found with institution of the present suit on the aforesaid ground.
10. Perusal of the record shows that vide order dated 22.07.2014, Ld. RCA No. 61309/16 Sheela Rani Vs. Manish Kumar Page No. 4 of 9 Trial Court has partly adjusted the cost against the cost imposed on the appellants and plaintiff/respondent was further burdened with cost of Rs.1,000/- and after adjustment of cost imposed on the either party, plaintiff/respondent was required to make payment of cost of Rs. 2,000/- within 30 days after which proceeding would be continued further. The order dated 22.07.2014 was not challenged by the plaintiff/respondent and therefore to that extent the objection raised by the appellant is not sustainable.
11. There is nothing on record which would show that order dt 22.07.2014 was complied with by the plaintiff but at the same time there is nothing on record to infer that it was not complied with particularly in view of the fact order dated 22.07.2014 was clear to the effect that plaintiff would pay the cost within 30 days from the said order after which defendant's evidence would be recorded. On the next which was after 30 days of the order dated 22.07.2014 appellants/defendants proceeded with evidence which means that cost was received by the appellant/defendants otherwise they would not have proceeded or must have pressed upon the same at any stage before the trial. Since the fact of payment of cost was not recorded appellant/defendants taking advantage of the same are trying to assail the institution of the suit. Even if cost was not paid, appellant/defendants having not insisted upon the payment of cost at the trial stage can be said to have waived the payment of cost. Thus no fault could be found with the institution of the suit on account of non-payment of cost subject to payment of which earlier suit was withdrawn with liberty to file afresh on the same cause of action.
12. The next contention of the appellant which is worth noting is that suit for declaration without the relief of possession was not maintainable and the Ld. Trial Court decreed the suit in favour of the respondent/plaintiff without the said relief. The Ld. Counsel for the respondent has supported the judgment submitting that the appellants/defendants have not raised this objection before the Trial Court and therefore they could not be permitted to raise this issue for the RCA No. 61309/16 Sheela Rani Vs. Manish Kumar Page No. 5 of 9 first time before the Appellate Court. It has been submitted that even otherwise plaintiff being in possession of the suit property was not required to seek the relief of possession.
13. Perusal of the written statement filed by the appellants/defendants confirms that no objection was raised about the maintainability of the suit for want of relief of possession in view of Section 34 of Specific Relief Act. There is no specif plea that appellants/defendants were in possession of the suit property. Ld. Counsel for the appellant has drawn the attention of the court to Para 5 on reply on merits of the written statement to contend that appellants have specifically pleaded that respondent/plaintiff was wanting to take back the shop from appellant no. 1 so that appellant no. 2 could not run shop. Appellant has also drawn the attention of the court to the second page of Examination-in-Chief Ex. DW-1/A wherein appellant no. 1 as DW-1 deposed that since the day of purchase she was in possession of the shop and her husband was running shop.
14. Perusal of Para 5 of reply on merit of the written statement do not specifically gives the impression that appellants were in possession of the suit property. It is not understanable as to what was the hitch in specifically pleading that suit shop was not in possession of the plaintiff/respondent or was in their possession. Hence, once it has not come on record specifically from the side of the defendants/appellant that defendants were in possession of the suit property, therefore, the evidence led by DW-1 on this aspect cannot be read. It is the settled preposition of law that one cannot lead evidence unless he plead. Accordingly, in these circumstances, it was not necessary for the plaintiff to seek the relief of possession. Although it is equally true that even plaintiff was also silent about the possession but since plaintiff has not asked for possession, the necessary inference is that plaintiff must be in possession of the suit property. If plaintiff was not in possession of the suit property then it was incumbent duty of the appellant/defendant to allege this fact and prove the same by way of evidence so as to none-suit the plaintiff/respondent.
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15. In the entire grounds of appeal no challenge has been made to the finding of the Trial Court about the fraud played by the defendants in getting the sale deed executed in place of lease deed. Trial Court has quoted the testimonies of respective witnesses particularly of the plaintiff with regard to the fraud practiced by appellants/defendants upon respondent/plaintiff in getting the sale deed executed under the garb of lease deed but appellants/defendants have not cross-examined the witnesses of the plaintiff on the material point of fraud. In fact even no suggestion was also given that no fraud was played.
16. It is settled principle of law that if a witness is not cross examine on the material point he depose, then the testimony of said witness on the said material point is deemed to have been admitted by the opposite party. Exactly same has happened in the present case. Since no cross-examination of plaintiff has taken place on the point of fraud nor even any suggestion was given to him that he (defendant) appeared before the Sub-Registrar who asked him about the execution of sale deed and after which he (sub-registrar) registered the sale deed. In these circumstances, when the testimony of PW-1 has gone un-impeached no fault could be found with the Trial Court in returning the findings in favour of respondent/plaintiff on the aspect of fraud.
17. Next contention of the appellant is that suit was time barred and therefore Ld Trial Court should not have decreed the suit. Respondent/plaintiff has countered the said submission saying that objection with regard to limitation was not taken before the Trial Court and question of limitation being mixed question of law and fact was required to be raised and proved by way of evidence, hence it is contended that there is no ground to interfere with the impugned judgment and decree on the ground of limitation.
18. In the present case sale deed is of 13.12.2005 and present suit was filed on 17.02.2010 almost little over four years. In the cause of action RCA No. 61309/16 Sheela Rani Vs. Manish Kumar Page No. 7 of 9 paragraphs it has been pleaded by the plaintiff/respondent that cause of action arose on 13.12.2005 on which date the sale deed was executed and it again arose on 01.09.2008 when plaintiff approached the defendants and asked them to get cancelled the sale deed as the same was got executed on false representation. Under Article 58 of schedule to the Limitation Act, suit for declaration is to be filed within three years from the date of first accrual of cause of action. Even if limitation is computed in terms of Article 59 of the Schedule to Limitation Act, it has to be counted from the date when facts entitling the plaintiff to have the instrument canceled or set aside first became known to him. In both the article, there is use of word "first" which means that limitation will begin to run from the first day when the cause of action arose and shall not get extended by subsequent conduct of defendant.
19. In the present case, plaintiff himself pleaded that cause of action arose on 13.12.2005 when the sale deed was executed under the garb of lease deed and therefore limitation began to run from the said date and hence the suit for the relief of declaration should have been filed by 13.12.2008. In case of fraud, limitation begins to run from the date of discovery of fraud. In the plaint, plaintiff has not specifically pleaded as to when he came to know about the fraud played by appellants/defendants. But by mentioning in the plaint that cause of action arose on 13.12.2005 when the sale deed was executed, plaintiff's limitation to file the present suit as per plaintiff himself began to run from the said date. It is worthwhile to note that earlier suit filed by plaintiff only against defendant No.1 was allowed to be withdrawn on the application filed by plaintiff submitting that plaintiff failed to mention the date of cause of action and the court noting the said formal defect allowed the plaintiff to withdraw the same with liberty to file afresh. This means that plaintiff was conscious of the fact that he was required to mention when cause of action arose and after having been conscious of the said fact mentioned that cause of action arose on the 13.12.2005 when the sale deed was executed. This fact having been mentioned in the plaint was no longer mixed with facts requiring evidence. In the present case in the circumstance RCA No. 61309/16 Sheela Rani Vs. Manish Kumar Page No. 8 of 9 noted above, question of limitation is not mixed with facts and being purely admitted fact on the part of plaintiff, can be raised and considered at the appellate stage. Under Section 3 of the Limitation Act, it is the duty of the court to see that no suit is filed beyond the period of limitation prescribed by the Act even if limitation is not set up as a defence. Ld. Trial Court here overlooked the apparently time barred suit as the suit was barred by limitation on 17.02.2010 when the present suit was instituted.
19 In view of the above discussion, appeal is accepted and allowed, impugned judgment and decree is set aside and suit of the plaintiff/respondent is hereby dismissed.
20 Appellate decree sheet be prepared accordingly. Parties to bear their own cost of appeal.
21 TCR be sent back with copy of this judgment placed on it.
22. Appeal file be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announced in open Court ADJ-13(Central)/THC
(Judgment contains 9 pages) Delhi/14.10.2016
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