Shri Jose Maria Fernandes and Smt. Joaquina Dias vs Shri Camilo Lourenco Rebelo and his wife and Others

R.M.S. Khandeparkar, J.—The Appellants seek to challenge the judgment and decree dated 12th July 1999 passed in Regular Civil Suits Nos. 29/97 and 39/97 by the District Judge, Margao. The substantial questions of law stated to arise for consideration of the matter are the following:-

(1) Whether in view of the categorical averments in the plaint relating to cause of action being initially arisen in May, 1997, and the suit having been filed only in July, 1987, the suit should have been dismissed as being barred by limitation as provided by Section 3 r/w Section 58 of the Limitation Act, 1963?

(2) Whether in view of the rejection of prayer of cancellation of Description No. 24330 and 24331 in favour of the Appellants, other prayers viz. injunction and deletion of names of the Appellants, having been barred by limitation could be granted?

Shri M.S. Sonak, learned Advocate appearing for the Appellants, has also sought to rely upon the decision of our High Court in the matter of Ajab Enterprises Vs. Jayant Vegoiles and Chemicals Pvt. Ltd., in support of his contention that irrespective of the fact whether the plea of limitation is raised by the defendant or not, Section 3 of the Limitation Act casts a duty upon the Court to consider whether a suit is filed within the period of limitation or not. He has also placed reliance upon a decision of The Commissioner of Taxes Vs. Golak Nath Kakati and Another, , contending that mere omission on the part of the appellant did not prohibit the appellant from raising the plea of limitation at the appellate stage. Further contending that the point of limitation is purely a point a of law, and the Appellant is entitled to raise the same even in the second appeal, apart from the fact that the ground in that regard was specifically raised in the memo of appeal before the lower appellate Court. The learned Advocate for the Appellant has sought to rely upon two decisions of the Apex Court, one in The Management of State Bank of Hyderabad Vs. Vasudev Anant Bhide etc., and the other in Town Municipal, Council, Athani Vs. The Presiding Officer, Labour Courts, Hubli and Others etc., .

The contention of the learned Advocate for the Appellants is that irrespective of the absence of the plea of limitation, considering the provisions of Section 3 of the Limitation Act, it was the duty of the Court to dismiss the suit on the ground of limitation. He further submitted that even the suit could have been rejected on the face of the plaint itself and in that regard he drew my attention to Paras 23 and 25 of the plaint. He further submitted that in view of the fact that the trial Court had rejected the prayer for cancellation of the registration in favour of the Appellants on the ground of bar of limitation, on the same count the prayer for declaration and injunction ought to have been rejected.

Perusal of the plaint discloses that the Respondent has stated that somewhere in 1975 the defendant had erected a haystack in the suit property but when objected by the plaintiff, he immediately removed it. In Para 25 he has stated that the cause of action arose on or about May 1977 initially and continued from time to time and this suit is in time. The prayers specifically relate to claim of ownership and injunction, as well as other prayers. Admittedly, the plea of limitation was not raised in the written statement. The trial Court after analysing the evidence placed on record by the parties, rejected the prayer for cancellation of registration on the point of bar of limitation. However, did not reject the prayer for declaration of ownership and injunction. This itself shows that the trial Court had applied mind to the facts of the matter and on analysis of the evidence, had rejected the prayer for cancellation of registration on the ground of bar of limitation, but did not reject the prayer for declaration and injunction on that ground. The contention that the suit could have been rejected on the face of the plaint itself is devoid of substance. Para 25 clearly specifies that the cause of action continued from time to time and it arose till the filing of the suit. Being so, on the face of the plaint, there was no case for rejecting the same on the ground of bar of limitation. As regards the decisions relied upon by the learned Advocate for the Appellants, it is to be seen that all such decisions, except the decision of our High Court were delivered in relation to the matter which arose prior to 1976 amendment to Section 100 of the Civil Procedure Code.

In Management of the State Bank of Hyderabad''s case (supra), the observations that the waiver or omission to take the plea earlier cannot debar the defendant from raising the same at the appellate stage, were made in the peculiar set of facts of that case, as observed in paras 12 to 16 of the said judgment. The observations were certainly on consideration of the said peculiar facts in the case. The observations of the Apex Court in both the decisions cited by the Appellants'' counsel were in relation to matters pertaining to applications filed u/s 33(c) of the Industrial Disputes Act. Both the said decisions were prior to the 1976 amendment to Section 100 of the Civil Procedure Code.

The Apex Court in the various recent decisions has considered the difference in scope of the Section 100 as it stood prior to 1976 and after the 1976 amendment and considering the scope of enquiry which has been limited pursuant to the amendment of 1976, it is not possible to hold that the plea of limitation which is essentially to be decided based on analysis of the materials on record and not merely on the basis of pleadings, and in the facts and circumstances of the case in hand, the decisions relied upon by the Appellants are of no assistance to them. As regards the decision of the learned Single Judge of this Court in Ajab Enterprises (supra), the same was delivered in a suit and not at the stage of second appeal. The observations therein were in regard to the entitlement of the defendant to raise the plea of limitation at the fag end of the hearing of the suit.

The point of limitation having not been raised specifically before the trial Court and the trial Court having decided the suit on merits after analysing the evidence on record, the question that is sought to be raised in that regard can not be said to be a substantial question of law arising for consideration in this appeal, apart from the fact that the point No.1 would certainly require assessment of evidence on record which is not permissible in exercise of jurisdiction u/s 100 of Civil Procedure Code. Merely because the prayer regarding cancellation of registration is rejected on the analysis of the evidence on record by itself cannot be of any assistance to conclude that the relief of ownership declaration and injunction ought to have been refused. The trial Court has granted the said relief on analysis of evidence and the findings therein have been confirmed by the lower appellate Court. In the circumstances, there is no case made out for interference by this Court in exercise of its powers u/s 100 of Civil Procedure Code. No substantive questions of law arise for consideration. Hence the Appeal is summarily rejected.