Vinod Guru and another vs Parul Soni

K.K. Trivedi Judge

This is an appeal u/s 96 of the CPC by the defendants against the judgment and decree dated 23.03.2007 passed in Civil Suit No. 11-A/2005 by the V Additional District Judge, Sagar. By the said judgment and decree, the suit filed by the respondent has been decreed and it is declared that the sale-deed dated 12.09.1997 executed in favour of the appellant No. 1 by appellant No. 2 is not binding on the respondent/plaintiff. A further decree of injunction has been granted restraining the appellants to interfere in the possession of the respondent/plaintiff in House No. 6/53-B, Sadar Bazar, Sagar. Facts giving rise to filing of this appeal are that the respondent filed a suit initially against the appellant No. 1 only on 05.05.1999 seeking following relief :

(The relief claimed in the unamended claim are mentioned).

The contention made in the plaint were that the respondent has purchased the house from the appellant No. 2 by a registered sale-deed dated 02.03.1997 for Rs. 2,00,000/- and was put in possession of the said house. The description of the house and its boundaries were mentioned. It was alleged that the respondent was minor and his father was looking after the property. The appellant No. 1 was an influential person and was intending to grab the property of the respondent/plaintiff. In the intervening night of 11.04.1999, the appellant No. 1 tried to take forcible possession of the house. When he was stopped to do so and a complaint in writing was made, it was alleged by the appellant No. 1 that vide registered sale-deed dated 12.09.1997 the appellant from No. 1 has purchased the house for a valuable consideration from appellant No. 2 and thus has become the owner of the said house. On the basis of such information, the respondent thought that a cloud is cast on his title on the strength of such a sale-deed, therefore, the suit was filed on 05.05.1999 only against the appellant No. 1.

A written statement was filed by the appellant No. 1 and it was categorically denied that the house in question was purchased by the respondent from Smt. Kamla Devi vide registered sale-deed dated 02.03.1997. It was contended that in fact a fraud was committed by the father of the respondent and for the said purposes, a complaint was lodged. In fact the house was said to be sold for a consideration of Rs. 2,00,000/- but in fact a cheque of Rs. 50,000/- was given to somebody else, which was never received by the appellant No. 2 and, therefore, there was no sale-deed executed in favour of the respondent. In fact such a sale-deed was also a forged document. Even after making such a submission by the appellant No. 1 in his written statement, the respondent/plaintiff did not consider it necessary to implead Smt. Kamla Devi as a party in the suit for a long time and ultimately taken the step for impleadment of such a person as a party only on 25.08.2003 by making an application under Order 1 Rule 10, sub-rule (2) of the CPC vide I.A. No. 5. An application for amendment in the plaint was also made on the same date vide I.A. No. 4. The said applications were considered by the Trial Court and were allowed vide order dated 06.10.2004. Accordingly, the amendment in the plaint was done and the appellant No. 2 was also impleaded as a party on 06.10.2004. It will not be out of place to mention here that in such circumstances the appellant No. 2 was a necessary party in the suit as it was alleged that the sale-deed was executed in favour of the appellant No. 1 as also in favour of the respondent by the said lady and certain dispute with respect to the execution of the sale-deed was also raised. Therefore, the respondent was well aware of the fact that the appellant No. 2 was a necessary party for grant of an effective decree in case the respondent succeeds in the suit but no attempt was made to implead her as a party in the suit. Certain application u/s 45 of the Indian Evidence Act was made by the appellant No. 1 and this was pointed out that the thumb impression of appellant No. 2 was required to be examined by an expert. Such applications were considered, permission was granted and expert report was obtained. All this was well within the knowledge of the guardian in lis of the respondent, who was required to prosecute the suit on behalf of the minor plaintiff in appropriate manner.

The law in this respect is well settled that the effect of substituting or adding new plaintiff or defendant would be governed by the provisions of Section 21 of the Limitation Act. It is specifically provided that where after the 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 was so made a party. The proviso prescribed under the said Section empowers the Court to direct that the suit, as regards such plaintiff or defendant, shall also be deemed to be instituted on any earlier date but for that an application is required to be made, the bonafides are required to be shown and then only the Court can enlarge the period. Now in view of the aforesaid facts, it is to be examined whether the suit so filed by the respondent could be said to be filed within limitation as against the appellant No. 2.

The factual aspects as have been narrated herein above indicate that the respondent/plaintiff was fully aware of the fact that a cloud is cast on his title over the disputed house. The execution of the sale-deed in favour of appellant No. 1 was claimed to be done by the appellant No. 2, who too was the transferrer of the property in favour of the respondent/plaintiff. The reliefs as were claimed in unamended plaint could not have been granted to the respondent without impleadment of the necessary party, i.e. appellant No. 2. If this was within the knowledge of the respondent, it was the duty on the part of the respondent to implead appellant No. 2 as a party immediately in the suit. There was callous negligence on the part of the respondent in not adding such a necessary party in the suit. The Court has passed no order on the date when the application of adding appellant No. 2 as a party in the suit was allowed extending the limitation for filing of the suit as against the appellant No. 2. The order simply says that the appellant No. 2 was a necessary party and, therefore, is to be added as defendant in the suit. While allowing the application for amendment because of allowing the I.A. No. 5, the Trial Court has passed no order in this respect exercising the powers conferred on it under the proviso to Section 21 of the Limitation Act. The record indicates that no application for the said purposes was made by the respondent/ plaintiff. Thus, it is to be inferred that the suit was deemed to be filed against the appellant No. 2 on 06.04.2010 when she was impleaded as a party in the suit. If that is the position, it is to be considered whether the suit as against the newly added person could be said to be within the limitation or not.

Apparently the cause of action accrued to the respondent when the suit was said to be filed against the appellant No. 1 as has been described in the plaint in paragraph 14 wherein it is said that the cause of action accrued on 11.04.1999 when a threat was given by the appellant No. 1 to the respondent. For such a suit where there is no limitation prescribed under the Limitation Act, the limitation of 3 years is available for filing of the suit. From 11.04.1999, the suit should have been filed against the appellant No. 2 within a period of 3 years. The same cause of action is also made available for the appellant No. 2 but the suit cannot be said to be filed against her within limitation on the date when she was impleaded as a party. This being so, the learned lower Court has not rightly considered this issue whether the suit as filed by the respondent was within the limitation or not. In fact the issue in this respect was not framed but was required to be framed. At least when the claim of the respondent was being considered in view of Issue No. 3, this particular aspect was required to be examined. Since this has not been done, the judgment and decree passed by the Court below cannot be said to be as per law.

This Court in the case of Mahesh Singh and Others Vs. Sewaram and Others, has considered these aspects whether the limitation for filing of the suit can be examined at a particular stage or not. This Court has held that the question of limitation being a mixed question of law and facts, can be raised at any time even if it was not raised before the lower Court. It is further held by this Court in case of Central India Chemicals Private Ltd. Vs. Union of India (UOI), , in para 14, which reads thus :

"Thus, in the suit limitation under Art.30 has not been expressly pleaded. Still it does not help the plaintiff. One has, in this respect to distinguish between a case where limitation is an arguable point and has therefore to be pleaded and one where it is patent and non-controversial on the proved facts. Here, for example the two crucial dates are on the plaint itself and do not admit of the least doubt or controversy. Thus, under Sec. 3 of the Limitation Act, the Court has to dismiss it whether or not limitation has been set up as a defence."

This proposition of law has further been considered by the Apex Court in various cases and it has been held that if a suit, appeal or application are preferred beyond the limitation prescribed, the same are liable to be dismissed in view of the specific provisions of sub-section (1) of Section 3 of the Limitation Act, 1963. In the case of Noharlal Verma vs. District Cooperative Central Bank Ltd., 2009 RN 42, the Apex Court considered these aspects and has categorically held that such core issues are to be decided first.

Thus, it is clear that the suit filed by the respondent as against the appellant No. 2 was not maintainable, being barred by limitation. Secondly, the effective relief as was claimed in the unamended plaint could not have been granted to the respondent by the Court below without the impleadment of the necessary party, i.e. appellant No. 2. In view of these provisions of law, the suit of the respondent was liable to be dismissed. Accordingly, finding that the Court below has erred in law in granting the decree in favour of the respondent, this appeal is allowed. The judgment and decree of the Court below is set aside. The suit of the respondent stands dismissed. However, looking to the facts and circumstances in the present case, parties to bear their own cost.