Himachal Pradesh High Court
Reserved On: 15.09.2025 vs Govinder Singh And Others on 26 September, 2025
Author: Sandeep Sharma
Bench: Sandeep Sharma
2025:HHC:33715
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.135 of 2025
Reserved on: 15.09.2025
.
Date of Decision: 26.09.2025
__________________________________________________________
Tejinder Singh .......Petitioner
Versus
Govinder Singh and Others ....Respondents
__________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner: Mr. R.L. Sood, Sr. Advocate, with Mr. Arjun
Lall, Advocate.
For the Respondents: Mr. Deepak Gupta, Advocate, for respondent
No.1.
__________________________________________________________
Sandeep Sharma, Judge:
Instant petition filed under Article 227 of the Constitution of India lays challenge to order dated 25.03.2025 passed by learned Additional District Judge-I, Shimla in Civil Suit No.8-S/1 of 2014/1997, whereby an application having been filed by the petitioner under Section 3 of the Limitation Act read with Order 7 Rule 11(d) and Section 151 CPC, praying therein for rejection of plaint, came to be dismissed.
2. For having bird's eye view, facts relevant for adjudication of the case at hand, as emerge from the pleadings adduced on record by respective parties are that one Mr. Pravir Singh son of Mr. Govinder Singh (respondent No.1) filed Civil Suit No.41/1997 in the High Court of Himachal Pradesh against petitioner/applicant/defendant No.1-Mr. Tejinder Singh (hereinafter referred to as "the applicant") along with 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 26/09/2025 21:46:10 :::CIS2025:HHC:33715 -2- four other persons, including Mr. Govinder Singh i.e. non-applicant/respondent No.1 (hereinafter referred to as "the non-
.
applicant") claiming therein that he has interest in the alleged Joint Hindu Family property, but his interest was not properly protected by his father Mr. Govinder Singh at the time when family settlements of March 1982 and deed of relinquishment dated 07.05.1987 was executed by his grandfather S.B. Sarup Singh. In afore suit, he precisely prayed for decree for declaration that aforementioned family settlement of 1982 and relinquishment deed dated 07.05.1987 are not binding upon him. He also prayed for partition and possession of one 1/6th of the suit property.
Since suit was filed by above named Mr. Pravir Singh, after his having attained the age of majority, same was not barred by limitation.
3. After six years of filing of afore suit bearing Civil Suit No.41 of 1997, non-applicant/respondent No.1-Mr. Govinder Singh, who happens to be father of Mr. Pravir Singh, instituted second Civil Suit No.31 of 2003 in the High Court of Himachal Pradesh qua the same property with identical reliefs. In aforementioned subsequent Civil Suit filed by Mr. Govinder Singh, issues were framed by the High Court of Himachal Pradesh on 29.09.2004. One of the issue i.e. issue No.6 was with regard to limitation i.e. "Whether the suit is barred by limitation, as alleged? If yes, what is its effect? OPD".
4. Since in both the suits, almost similar reliefs were claimed and contesting parties were also same, learned Single Judge of this ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -3- Court, while deciding the application under Section 10 of the CPC passed order dated 02.01.2007, thereby staying subsequent suit filed by .
non-applicant/respondent No.1-Mr. Govinder Singh, until the adjudication of earlier suit, instituted by Mr. Pravir Singh. Afore order passed by the learned Single Judge was laid challenge before the Division Bench of this Court, which vide order dated 07.05.2015 passed in LPA No.6 of 2007, upheld the aforesaid order of learned Single Judge by holding that learned Single Judge has discussed all the facts and exercised caution by providing that the parties, including the plaintiff i.e. Sardar Govinder Singh, are at liberty to raise all pleas in the earlier suit (Annexure P-2).
5. Subsequently, on account of change in pecuniary jurisdiction, first Civil Suit No.41 of 1997 was transferred to the Court of learned Civil Judge (Sr. Division), Shimla, whereas second/later Civil Suit No.31 of 2003 was transferred to the Court of learned Additional District Judge, Shimla. Earlier Civil Suit No.41 of 1997 was dismissed in default by the Court of learned Additional District Judge vide order dated 09.05.2019, whereafter Mr. Pravir Singh (original plaintiff and son of Mr. Govinder Singh) preferred an application bearing CMP No.158-S/6/2019, under Order 9 Rule 9 of CPC, seeking therein restoration of the suit, however, fact remains that on 07.04.2023, above named Mr. Pravir Singh made a statement that he does not wish to pursue the application and accordingly the same was dismissed as withdrawn vide order dated 07.04.2023.
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6. Since afore suit bearing No.41 of 1997 was dismissed in totality, non-applicant-Mr. Govinder Singh filed an application for revival .
of his suit bearing No.31 of 2003, which at one stage was stayed by the High Court of Himachal Pradesh (Annexure P-2). Application filed at the behest of Mr. Govinder Singh was contested by the applicant/petitioner-
original defendant, however, learned Civil Judge (Sr. Division) allowed the application filed by Mr. Govinder Singh and revived the suit on the premise that earlier/first Civil Suit No.41 of 1997 was not decided on merits and as such, dismissal thereof would not operate as res judicata.
Afore order of revival was laid challenge by the applicant/petitioner before this Court by way of CMPMO No.279 of 2020. Vide order dated 26.05.2023, this Court rejected the application and held that on account of dismissal of suit of Mr. Pravir Singh for non-prosecution, the principles of res judicata would not apply and as such there was no bar for the revival of suit filed by Mr. Govinder Singh.
7. In the afore background, applicant-petitioner/original defendant No.1 filed a Civil Appeal No.10525 of 2024 (arising out of SLP No(C) No.789 of 2024) in the Hon'ble Apex Court, laying therein challenge to order dated 26.05.2023 passed by this Court. Hon'ble Apex Court passed an order dated 09.09.2024 (Annexure P-3) thereby upholding the dismissal of earlier Civil Suit No.41 of 1997 filed by Mr. Pravir Singh, but same time, with a view to balance the equities between the parties, ordered the revival of first Civil Suit No.41 of 1997 (filed by ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -5- Mr. Pravir Singh) by transposing non-applicant/respondent No.1-Mr. Govinder Singh as plaintiff, but while passing aforesaid order, Hon'ble .
Apex Court reiterated the observations made by the Division Bench of this Court that all issues are left open.
7. After passing of aforesaid order dated 09.09.2024 (Annexure P-3) by the Hon'ble Apex Court, Mr. Pravir Singh filed an application bearing CMA No.1171 of 2024, praying therein for revival of suit bearing No.41 of 1997 as a co-plaintiff along with his father Mr. Govinder Singh, however, vide order dated 15.01.2025, learned Court below partly allowed the application, holding therein that pursuant to order of the Hon'ble Apex Court, Mr. Govinder Singh has a right to continue with the present suit as the sole plaintiff and Mr. Pravir Singh could not claim any such right.
8. Before Court below, before whom Civil Suit No.41 of 1997 was filed i.e. learned Additional District Judge-I, Shimla, could proceed with the matter, applicant/petitioner filed an application under Section 3 of the Limitation Act, read with Order 7 Rule 11(d) and Section 151 CPC, for rejection of plaint (Annexure P-4 Colly) averring therein that Mr. Govinder Singh-non-applicant/respondent No.1 i.e. father of Mr. Pravir Singh had filed another suit bearing No.31 of 2003 before the High Court, relating to the same property and claiming the same relief, after six years of filing of suit bearing No.41 of 1997 filed by him. In the said Civil Suit filed by Mr. Govinder Singh, issues were framed on 29.09.2004 ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -6- by the High Court of Himachal Pradesh and one of the issue i.e. issue No.6 goes to the root of the case of Mr. Govinder Singh. It is further .
submitted that though Mr. Pravir Singh moved an application bearing CMA No.1171 of 2024, praying therein to continue as "plaintiff with his father Govinder Singh", but such prayer of him was disallowed vide order dated 15.01.2025 passed by the learned Court below, as a result thereof, Mr. Govinder Singh has a right to continue with the present suit as sole plaintiff in Civil Suit No.41 of 1997. In nutshell, it came to be claimed in the application that since Mr. Govinder Singh in his later suit i.e. Civil Suit No.31 of 2003 had claimed relief "A decree for declaration that the family settlement executed by Sardar Bahadur Swarup Singh on 20.03.1982, Memorandum dated 24.3.1982 and the relinquishment dated 7.5.1987, in respect of the Joint Hindu Property, Knollswood, Shimla East is illegal, void and not binding on the plaintiff and confer no title on Defendant No.1 and the consequent mutation No.1353, attested on 23.05.87 on the basis thereof is not binding on the plaintiff and the property continues to be jointly owned and possessed by the plaintiff and Defendant No.1 and 2", issue No.6 framed in the Civil Suit filed by Mr. Govinder Singh i.e. "Whether the suit is barred by limitation, as alleged? If yes, what is its effect? OPD, is of utmost importance. It also came to be submitted at the behest of applicant/defendant No.1 that after seeking the aforesaid declaration, Mr. Govinder Singh had also claimed a relief of partition and separate possession of 1/3rd share in the ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -7- aforementioned suit property, but before Mr. Govinder Singh can claim any relief in the said civil suit, he has to first overcome the primary .
question of limitation, because said Civil Suit was filed in the High Court of Himachal Pradesh on 02.05.2003, therefore, same is ex facie barred by limitation.
9. Afore application filed by applicant/defendant No.1 came to be resisted at the behest of non-applicant/respondent No.1-Mr. Govinder Singh by way of filing detailed reply, raising therein preliminary objections. Mr. Govinder Singh contended that application is neither competent nor maintainable in light of judgment passed by the Hon'ble Apex Court in Civil Appeal No.10525 of 2024 (arising out of SLP(C) No.789 of 2024), whereby Hon'ble Apex Court while transposing non-
applicant/respondent No.1-Govinder Singh as plaintiff in the suit, closed earlier suit filed by him bearing Civil Suit No.31 of 2003. Precisely, it came to be contended at the behest of non-applicant/respondent No.1- Govinder Singh that pursuant to order passed by the Hon'ble Apex Court, he has now been transposed as plaintiff in the present suit i.e. Civil Suit No.41 of 1997 and as such, has a right to prosecute the same.
It is asserted that the suit must proceed further in light of the transposition of Mr. Govinder Singh as plaintiff, in accordance with order passed by the Hon'ble Apex Court in Civil Appeal No.10525 of 2024.
Since earlier suit filed by Mr. Govinder Singh has been withdrawn following the orders passed by the Hon'ble Apex Court, coupled with the ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -8- fact that Mr. Govinder Singh has been transposed as plaintiff in the suit originally filed by Mr. Pravir Singh and same has been restored to its .
original number, he has vested right to continue with the said suit. Issues framed in the Civil Suit, previously instituted by Mr. Govinder Singh, are of no relevance, as the said suit stands closed by the order of the Hon'ble Apex Court.
10. Taking taken note of afore pleadings adduced on record by the respective parties, learned Additional District Judge-I, Shimla, vide order dated 25.03.2025 (Annexure P-7) dismissed the application filed by applicant/defendant No.1 on the ground that in light of binding directions issued by Hon'ble Apex Court in SLP, detailed hereinabove, issue of limitation framed in Civil Suit No.31 of 2003 has rendered redundant and devoid of any legal consequences. Learned Court below further held that any interpretation to the contrary would undermine the order passed by the Hon'ble Apex Court, which is impermissible and contrary to the principles of judicial discipline and binding precedent. In the afore background, petitioner has approached this Court in the instant proceedings, praying therein to set aside aforesaid order.
11. I have heard the parties and gone through the record.
12. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Arjun Lall, learned counsel representing the applicant/petitioner is that Court below while passing impugned order has failed to take note of the fact that prior ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -9- to his being transposed as plaintiff in present suit i.e. Civil Suit No.41 of 1997, non-applicant/respondent No.1-Mr. Govinder Singh had filed Civil .
Suit bearing No.31 of 2003, seeking therein decree for declaration that family settlement executed by Sardar Bahadur Swarup Singh on 20.03.1982, Memorandum dated 24.3.1982 and the relinquishment dated 7.5.1987, in respect of the Joint Hindu Property, as detailed hereinabove, are illegal, void and not binding upon him. Mr. Arjun Lall, learned counsel representing the applicant/petitioner further submitted that in addition to aforesaid declaration, non-applicant/respondent No.1- Mr. Govinder Singh had also sought a decree for partition and separate possession of his alleged 1/3rd share in the suit property, along with relief in the nature of permanent prohibitory injunction, but for getting such relief, he is first required to overcome the fundamental issue of limitation, because Civil Suit No.31 of 2003 was instituted by him on 02.05.2003 and thus ex facie barred by limitation. Mr. Arjun Lall, learned counsel representing the applicant/petitioner, further argued that learned Court below completely ignored the directions of Hon'ble Apex Court, as contained in Para 12 of the order dated 09.09.2024 (Annexure P-3), whereby it was incumbent upon the Court below to adjudicate the question of limitation. He further submitted that Court below erred in law by wrongly and erroneously relying upon the provision of Section 21(2) of the Limitation Act to non-suit the present petitioner. He submitted that even if suit is taken to have been filed by Mr. Govinder Singh in the year ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -10- 1997, yet ex facie the same would be hopelessly barred by limitation, since a decree of declaration was sought by him declaring that the family .
settlement arrived at in 1982 and the deed of relinquishment executed by S.B. Sarup Singh in 1987 were not binding on him. He submitted that Court below proceeded on wrong premise merely because Mr. Govinder Singh was transposed from the array of defendant to that of a plaintiff, but yet issue of limitation framed in Civil Suit No.31 of 2003 is required to be adjudicated for proper adjudication of the case at hand, especially when Hon'ble Apex Court in Para 12 of its order kept the issues, including that of limitation, alive to be raised by the petitioner.
13. To the contrary, Mr. Deepak Gupta, learned counsel for the non-applicant/respondent No.1-Mr. Govinder Singh, vehemently argued that present application is nothing, but a ploy to delay the conclusion of suit, otherwise ordered to be decided by the Hon'ble Apex Court in time bound manner. While referring to the judgment passed by the Hon'ble Apex Court in SLP, detailed hereinabove, Mr. Deepak Gupta, learned counsel representing respondent No.1, argued that Hon'ble Apex Court, while transposing Mr. Govinder Singh as plaintiff, categorically ordered that subsequent suit i.e. Civil Suit No.31 of 2003, having been filed by Mr. Govinder Singh, pending on the file of Senior Civil Judge, Shimla, shall stand closed. He submitted that once afore Civil Suit has been closed for all intents and purposes, there is no question, if any, for Court below to decide the issue of limitation, if any, framed in earlier suit. He ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -11- further submitted that Mr. Govinder Singh has now been transposed as plaintiff in the Civil Suit No.41 of 1997 and as such, he has a right to .
prosecute the same, that too from the stage, it was closed.
14. It is quite apparent from the facts noticed hereinabove that as of today, Civil Suit No.31 of 2003, having been filed by non-applicant/respondent No.1-Mr. Govinder Singh does not survive, rather for all intents and purposes stands closed, pursuant to order dated 09.09.2024 passed by the Hon'ble Apex Court in Civil Appeal No.10525 of 2024, detailed hereinabove. It is also not in dispute that pursuant to afore order passed by the Hon'ble Apex Court, non-applicant/respondent No.1-Mr. Govinder Singh stands transposed as plaintiff in the suit, originally filed by Mr. Pravir Singh i.e. Civil Suit No.41 of 1997. It is further matter of record that vide order dated 15.01.2025 passed in CMA No.1171 of 2024, learned Additional District Judge, Shimla, clarified that pursuant to order passed by the Hon'ble Apex Court, Mr. Govinder Singh had the right to continue with the present suit as a sole plaintiff and no such right can be granted to Mr. Pravir Singh. In nutshell, case of the applicant/petitioner is that subsequent Civil Suit No.31 of 2003 instituted by non-applicant/respondent No.1-Mr. Govinder Singh is barred by limitation and therein issue No.6 i.e. with regard to limitation was framed and as such, on account of transposition of Mr. Govinder Singh as plaintiff in the suit, originally filed by Mr. Pravir Singh i.e. Civil Suit No.41 of 1997, deserves to be dismissed on the ground of limitation. Since non-
::: Downloaded on - 26/09/2025 21:46:10 :::CIS2025:HHC:33715 -12- applicant/respondent No.1-Mr. Govinder Singh in earlier suit had claimed relief of partition and separate possession of 1/3rd share in the suit .
property, beside there being relief of permanent prohibitory injunction, he has to first overcome the primary question of limitation, as was framed in the suit filed by him in the year 2003 i.e. Civil Suit No.31 of 2003, however, having carefully gone through the judgment passed by the Hon'ble Apex Court dated 09.09.2024, this Court is not persuaded to accept the aforesaid contention raised at the behest of applicant/petitioner. r
15. Section 3 of the Limitation Act clearly lays down that no suit, appeal or application instituted, preferred or made after the period of prescribed limitation shall be entertained, rather dismissed even though limitation has not been set-up a a defence, subject to the exceptions contained in Section 4 to 24 (inclusive) of the Limitation Act. Close scrutiny of aforesaid provision of law though reveals that if a suit is barred by limitation, no specific plea qua such issue is required to be set-
up as a defence, rather Court having taken note of limitation period can reject the plaint on the ground of limitation on its own. The use of word 'shall' in aforesaid provision clearly suggests that dismissal is mandatory, subject to certain exceptions, as contained in Section 4 to 24. It casts an obligation upon the competent Court of law to dismiss the application, which is presented beyond the period of limitation, however, there may ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -13- not be any application of Section 3 of the Limitation Act in the given facts and circumstances of the case.
.
16. Admittedly, earlier suit filed by non-applicant/respondent No.1-Mr. Govinder Singh could be said to be barred by limitation for the reliefs he had claimed in the same, but once such suit stands closed, pursuant to order passed by the Hon'ble Apex Court and Mr. Govinder Singh stands transposed as plaintiff in earlier suit filed by Mr. Pravir Singh i.e. Civil Suit No.41 of 1997, which already has reached the stage of cross-examination of defendant, there appears to be no occasion for Court below, at first instance, to decide issue No.6, which was framed in suit filed by Mr. Govinder Singh i.e. Civil Suit No.31 of 2003, rather Civil Suit No.41 of 1997 would proceed on the basis of pleadings adduced in that case by respective parties. Issue of limitation, if any, framed in afore suit shall also be decided by the Court below on the basis of pleadings as well as evidence adduced on record by the respective parties, but certainly suit filed in the year 1997 wherein non-applicant/respondent No.1-Mr. Govinder Singh stands transposed as plaintiff in the suit instituted by Mr. Pravir Singh, cannot be rejected on the ground of limitation, that too on the premise that earlier suit filed by Mr. Govinder Singh i.e. Civil Suit No.31 of 2003 was barred by limitation. Moreover, this Court finds that pursuant to order dated 09.09.2024 passed by the Hon'ble Apex Court, earlier Civil Suit No.41 of 1997, wherein Mr. Govinder Singh has been transposed as plaintiff, shall proceed from the ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -14- stage it was closed. Admittedly afore suit was closed/dismissed in default from the stage of cross-examination of defendant, if it is so, there .
is no occasion, if any, for Court below to frame the issue of limitation, rather, issue of limitation, if already framed in aforesaid suit filed by Mr. Pravir Singh, wherein now Mr. Govinder Singh now stands transposed as plaintiff, shall be decided by the Court below in totality of pleadings as well as evidence adduced on record by the respective parties.
17. Though at this stage, Mr. Arjun Lall, learned counsel representing the applicant/petitioner, while referring to the order dated 07.05.2015 passed by the Division Bench of this Court in LPA No.6 of 2007, vehemently argued that liberty was reserved to the parties to raise all pleas in earlier suit, but this Court is of the view that afore observation cannot be read out of context for the reason that same was made while subsequent suit filed by Mr. Govinder Singh in the year 2003 was stayed in terms of Section 10 of CPC. Since both the suits i.e. Civil Suit No.41 of 1997 and Civil Suit No.31 of 2003 were almost identical and similar prayer was made by Mr. Pravir Singh and Mr. Govinder Singh, who happens to be son and father, competent Court of law while allowing the application filed under Section 10 of the CPC, stayed the subsequent suit, but permitted the parties, including plaintiff i.e. Mr. Govinder Singh, to raise all pleas in earlier suit.
18. It is apt to take note of the fact that after passing of order dated 07.05.2015 in LPA No.6 of 2007, earlier suit was pursued by Mr. ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -15- Pravir Singh. Afore suit was dismissed in default by learned Additional District Judge-I, Shimla, vide order dated 09.05.2019. Though Mr. Pravir .
Singh filed an application under Order 9 Rule 9 CPC, for setting aside the aforesaid order of dismissal in default, but subsequently he withdrew that application, as a result thereof, order dated 09.05.2019 became absolute. After passing of order dated 07.05.2015 in LPA No.6 of 2007, wherein liberty was reserved to the parties to raise all the issues in earlier suit, matter remained pending with the Court below for almost four years and during afore period, not only issues were framed, but plaintiff i.e. Mr. Pravir Singh also led his evidence. Case was dismissed in default at the time of cross-examination of defendant, if it is so, applicant/petitioner herein could have raised all issues, which he intended to raise pursuant to order dated 07.05.2015 passed in LPA No.6 of 2007, in earlier suit filed by Mr. Pravir Singh i.e. Civil Suit No.41 of 1997. But now once pursuant to order passed by the Hon'ble Apex Court, subsequent Civil Suit No.31 of 2003 stands closed for all intents and purposes, issue, if any, of limitation framed therein is of no consequence, rather strictly in terms of judgment passed by Hon'ble Apex Court, Court below is required to proceed with the earlier Civil Suit No.41 of 1997, that too from the stage it was dismissed in default.
19. If the order dated 09.09.2024 passed by the Hon'ble Apex Court is read in its entirety, it clearly suggests that though Hon'ble Apex Court was fully convinced that since first suit was dismissed, but since ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -16- question of application of res judicata is to be decided by the Court below, Hon'ble Apex Court only observed that there is no bar for .
proceeding with the second suit, however, having taken note of nature of dispute and relationship inter se parties, especially inter se Mr. Pravir Singh and Mr. Govinder Singh, Hon'ble Apex Court ordered that let first suit continue i.e. Civil Suit No.41 of 1997, instead of allowing the second suit to start afresh. While reviving the first suit filed in the year 1997, pending before the Additional District Judge, Shimla, Hon'ble Apex Court categorically ordered that same shall start from the stage it was closed.
20. Though Mr. Arjun Lall, learned counsel representing the applicant/petitioner, repeatedly argued that since liberty has been reserved to parties to raise all issues, plea of limitation, which is very important in the case at hand, can also be raised. There cannot be any quarrel with the aforesaid submission of Mr. Arjun Lall, learned counsel representing the applicant/petitioner. Issue, if any, sought to be raised, pursuant to liberty granted by Division Bench of this Court as well as Hon'ble Apex Court, can also be raised in the pending suit i.e. Civil Suit No.41 of 1997, but framing of issue of limitation, if any, in the subsequent suit i.e. Civil Suit No.31 of 2003 is of no relevance for the adjudication of the suit, otherwise ordered to be decided by the Hon'ble Apex Court i.e. Civil Suit No.41 of 1997.
21. Once Hon'ble Apex Court held that learned Additional District Judge shall start the proceedings from the stage it was closed, ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -17- additional pleas, if any, proposed to be taken by the applicant/plaintiff can be taken in that suit only, but certainly that suit cannot be dismissed .
on the ground that in subsequent suit i.e. Civil Suit No.31 of 2003 filed by Mr. Govinder Singh, who now stands transposed as plaintiff in Civil Suit No.41 of 1997, issue of limitation was framed. On account of his being transposed as plaintiff in Civil Suit No.41 of 1997, non-applicant/respondent No.1-Mr. Govinder Singh has become plaintiff in the suit originally filed by Mr. Pravir Singh, but that does not mean that pleadings adduced by him in his earlier suit bearing Civil Suit No.31 of 2003 would also substitute the pleadings made by Mr. Pravir Singh in suit bearing No.41 of 1997. On account of his being transposed as plaintiff in Civil Suit No.41 of 1997, Mr. Govinder Singh has to proceed with the pleadings adduced on record by Mr. Pravir Singh in Civil Suit No.41 of 1997 only and he cannot be permitted to take benefit, if any, of pleadings adduced by him in earlier suit filed in the year 2003. Similarly, non-applicant/respondent No.1-Mr. Govinder Singh cannot be permitted to harp upon the pleadings, if any, adduced by Mr. Govinder Singh in his earlier suit i.e. Civil Suit No.31 of 2003, which now stands closed for all intents and purposes.
22. Though Mr. Arjun Lall, learned counsel representing the applicant/petitioner, attempted to argue that Court below wrongly placed reliance upon Section 21 of the Limitation Act, but bare perusal of aforesaid provision of law clearly suggests that once defendant is ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -18- transposed as plaintiff, general principle as per Section 21(2) of the Limitation Act would come into play. Section 21(2) of the Limitation Act .
provides that the suit, after transposition, should be treated as having been filed on the date when the original suit was instituted. Aforesaid provision has been purposely provided to ensure that claim is not rendered time barred due to procedural change. On account of procedural change, whereby Mr. Govinder Singh has been transposed as plaintiff in earlier suit filed by Mr. Pravir Singh, non-applicant/respondent No.1-Mr. Govinder Singh shall be deemed to have filed Civil Suit No.41 of 1997 and he wont be able to go beyond the pleadings, which were originally filed by Mr. Pravir Singh. Similarly, non-
applicant/respondent No.1, who is defendant in earlier suit, cannot be permitted to take advantage of pleadings adduced on record in the previous suit i.e. Civil Suit No.31 of 2003 by Mr. Govinder Singh, who now stands transposed as plaintiff in Civil Suit No.41 of 1997. Though Mr. Arjun Lall, learned counsel representing the applicant/petitioner while referring to the provisions contained in Order 7 Rule 11(d) of CPC further argued that once suit is barred by limitation, Court must decide the issue by reading only the averments (statement) contained in the plaint and no evidence beyond the plaint, including written statements, affidavits or arguments, can be considered. This Court sees no reason to differ with Mr. Arjun Lall, because bare reading of aforesaid provision of law clearly suggests as has been argued by Mr. Arjun Lall, but the case at hand, ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -19- which was originally filed by Mr. Pravir Singh, is/was not barred by limitation for the reason that same was filed by Mr. Pravir Singh, after his .
having attained the age of majority.
23. Applicant/petitioner in his petition has admitted that suit filed by Mr. Pravir Singh is not barred by limitation. Now once Mr. Govinder Singh has been transposed as plaintiff in the suit filed by Mr. Pravir Singh and subsequent suit filed by him has been closed for all intents and purposes, plaint in Civil Suit No.41 of 1997 cannot be rejected while exercising power under Order 7 Rule 11(d) CPC, that too on the ground that suit filed by Mr. Govinder Singh, bearing Civil Suit No.31 of 2003, was barred by limitation. Now for all intents and purposes, non-
applicant/respondent No.1-Mr. Govinder Singh is plaintiff in Civil Suit No.41 of 1997 and as such, he can sue and be sued on the basis of pleadings adduced on record in Civil Suit No.41 of 1997. By now it is well-settled that only the statements in the plaint should be considered while deciding whether the plaint is barred by limitation. Any dispute over facts or mixed questions of law and fact cannot be resolved at this stage.
Otherwise also, by now it is well-settled that if there is even a possibility that the issue of limitation requires evidence or factual determination, the plaint should not be rejected summarily. Reliance in this regard is placed upon judgment passed by the Hon'ble Apex Court in Nusli Neville Wadia Vs. Ivory Properties and Others, (2020) 6 SCC 557, relevant paras of which read as under:
::: Downloaded on - 26/09/2025 21:46:10 :::CIS2025:HHC:33715 -20- "64. In Narne Rama Murthy v. Ravula Somasundaram [Narne Rama Murthy v. Ravula Somasundaram, (2005) 6 SCC 614] , this Court has held that even if it is apparent from the plaint averment only, that suit is .
barred by limitation, it can be tried as a preliminary issue even in the absence of plea of limitation raised by the defendants. However, in cases where the question of limitation is a mixed question of fact and law and suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation, which have been pleaded have to be proved, on issues raised and decided on evidence. However, in our considered opinion, question of limitation, in no case, can be said to be a question of jurisdiction of the Court in the context it has been used in Section 9-A CPC.
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67. In Vaish Aggarwal Panchayat v. Inder Kumar [Vaish Aggarwal Panchayat v. Inder Kumar, (2020) 12 SCC 809 : 2015 SCC OnLine SC 751 : AIR 2015 SC 3357] , the question came up for consideration of rejection of the plaint under Order 7 Rule 11 on the ground that same being barred by limitation. On mere ex facie reading of the plaint, it could not be held that the suit was barred by time. The question of limitation becomes a mixed question of facts and law and cannot be decided as a preliminary issue as the framing of issues and taking evidence was necessary.
68. In our opinion, it cannot be laid down as proposition of law under Order 7 Rule 11(d) that the plaint cannot be rejected as barred by limitation. It can be said that it is permissible to do so mainly in a case where the plaint averment itself indicates the cause of action to be barred by limitation and no further evidence is required to adjudicate the issue."
24. Reliance is also placed upon the latest judgment of Hon'ble Apex Court in Civil Appeal No.5622 of 2025 (arising from SLP(C) No.2549 of 2021), titled as P. Kumarakurubaran Vs. P. Narayanan, decided on 29.04.2025, wherein factum of suit being barred by limitation, ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -21- ordinarily would be a mixed question of law and fact and for that reason invoking Order VII Rule 11 CPC is ruled out. Relevant Para of afore .
judgment reads as under:
"13. In this backdrop, the approach of the High Court in reversing the well-reasoned order of the trial Court warrants interference. The trial Court had rightly held that the issue of limitation necessitated adjudication upon evidence, particularly in view of the appellant's assertion that the Power of Attorney executed by him did not confer any authority upon his father to alienate the suit property and that the impugned transaction came to his knowledge only at a much later point in time. In such circumstances, the determination of limitation involved disputed questions of fact that could not be summarily decided without the benefit of trial. The High Court, however, proceeded to reject the plaint solely on a prima facie assumption that the suit was barred by limitation, without undertaking any examination as to whether the plea regarding the date of knowledge was demonstrably false or inherently improbable in light of the record. In the opinion of this Court, such an approach amounts to an error of law and constitutes a misapplication of the well-established principles governing the exercise of power under Order VII Rule 11 CPC. For the same reasons, the decisions relied upon by the learned counsel for the respondents are inapplicable, being factually distinguishable."
25. Concept of transposition in civil proceedings refers to the process of changing the status of a party from defendant to plaintiff or vice versa, depending on the circumstances of the case. Transposition is primarily permitted to ensure that justice is not defeated due to procedural technicalities, particularly when the original plaintiff either abandons the suit, fails to prosecute it, or when justice demands that a defendant should be allowed to continue the proceedings in the capacity of a plaintiff. Order 1 Rule 10(2) CPC deals with the transposition when ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -22- the plaintiff withdraws or abandons the suit and any other party to the suit (i.e. defendant) has a right to relief in respect of the subject matter, .
defendant may apply to be transposed as a plaintiff to continue the proceedings. Since it is not in dispute in the case at hand that in the earlier suit filed by Mr. Pravir Singh, non-applicant/respondent No.1-Mr. Govinder Singh was arrayed as defendant No.4, he otherwise had a right to be transposed as plaintiff, in case of non-prosecution of suit filed by Mr. Pravir Singh, that too without any effect on the period of limitation as per Section 21(2) of the Limitation Act.
26. Learned counsel representing the petitioner placed reliance upon the judgment passed by the Hon'ble Apex Court in Mallavva and Another Vs. Kalsammanavara Kalamma (Since Dead) by Legal Heirs and Others, 2024 SCC OnLine SC 3846, wherein it was held that when there are two reliefs prayed for in the same suit, one for cancellation of sale deed and one for recovery of possession, the Court treated relief of possession as consequential prayer and relief for cancellation as substantive prayer, thus the limitation period should be considered with respect to the substantive relief of cancellation, which would be three years and not twelve year. Further, learned counsel placed reliance upon the judgment passed by the Hon'ble Apex Court in Indian Evangelical Lutheran Church Trust Association Vs. Sri Bala & Co., 2025 SCC OnLine 48, wherein it was held that Court's function on the presentation of plaint is to examine whether on assumed facts, the plaint is within ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -23- time. Although the normal rule is that when there is a mixed question of law and facts, usually the plaint is not rejected as barred by limitation, .
however, it is not an inflexible rule. Learned counsel representing the petitioner further placed reliance upon the judgment passed by the Hon'ble Apex Court in SLP(C) No.12658 of 2025, titled as Santosh Devi Vs. Sunder, wherein Hon'ble Apex Court held that the requirement of Order VII Rule 6 is that the plaint should show the ground upon which exemption from normal period of limitation is claimed. Having carefully perused aforesaid judgments, this Court finds no application of the same in the given facts and circumstance of the present case and as such, need not be noticed.
27. This Court finds it necessary to take note of judgment passed by the Hon'ble Apex Court in Mukesh Kumar and Others Vs. Col. Harbans Waraich, 1999 (9) SCC 380, wherein it was observed that as per Section 21 when a new plaintiff or defendant is substituted or added, the suit shall be deemed to have been instituted at the time he/she was made party to the suit, however Section 21(2) of the Act states that afore provision would not apply in case where plaintiff/defendant is added or substituted owing to assignment or devaluation of any interest during the pendency of suit or where plaintiff is made a defendant or vice versa, in such situations plaintiff/defendant shall be deemed to have instituted the suit on an earlier date and as such after transposition of party, there should be no addition to the ::: Downloaded on - 26/09/2025 21:46:10 :::CIS 2025:HHC:33715 -24- subject matter of the suit. Relevant Para of afore judgment reads as under:
.
"9. Section 21 of the Limitation Act provides that wherever on institution of a suit a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he is so made a party. However, if the court is satisfied that omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Sub-section (2) thereof makes it very clear that these provisions would not apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of the suit or where a plaintiff is made a defendant or a defendant is made a plaintiff. Section 21 has no application to cases of transposition of parties. Since transposition also involves addition of a plaintiff or a defendant, as the case may be, into the suit as originally filed, sub-section (2) of Section 21 of the Limitation Act applies only to those cases where the claim of the person transposed as a plaintiff can be sustained on the plaint as originally filed or where a person remaining as a plaintiff after the said transposition can sustain his claim against the transposed defendant on the basis of the plaint as originally filed. For sub-section (2) to apply all that is necessary is that the suit as filed originally should remain the same after the transposition of the plaintiff and there should be no addition to its subject-matter. Where a suit as originally filed is properly framed with the proper parties on record the mere change of a party from the array of defendants to that of plaintiffs under Order I Rule 10 of the Civil Procedure Code will not make him a new plaintiff and will not bring the case within this section and in such a case sub-section (1) will not apply. For instance, where one of the plaintiffs refusing to join as a plaintiff was first made a defendant and thereafter transposed as a plaintiff, he is not a new plaintiff. Therefore, the argument advanced on behalf of the appellants that the suit is barred by limitation insofar as Ashwani Kumar is concerned inasmuch as he is transposed as a plaintiff after the period of limitation does not stand to reason."::: Downloaded on - 26/09/2025 21:46:10 :::CIS
2025:HHC:33715 -25-
28. Consequently, in view of detailed discussion made hereinabove as well as law taken into consideration, this Court finds no .
force in the present petition and accordingly the same is dismissed, being devoid of any merits.
The present petition is disposed in the above terms, so also the pending miscellaneous application(s), if any.
(Sandeep Sharma),
Judge
September 26, 2025
(Rajeev Raturi) r
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