SUKHBIRI DEVI & ORS. VERSUS UNION OF INDIA & ORS

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

CIVIL APPEAL NO.10834 OF 2010

SUKHBIRI DEVI & ORS. ……APPELLANTS

VERSUS

UNION OF INDIA & ORS. ……RESPONDENTS

J U D G M E N T

C.T. RAVIKUMAR, J.

1. This appeal by Special Leave is directed against

the judgment and order in RSA No.79/2007 dated

25.08.2009 passed by the High Court of Delhi. The

appellants were plaintiffs in Suit No.410 of 2000 on

the file of the Court presided over by Shri Vidya

Prakash, Civil Judge, Delhi, (hereinafter referred to

as ‘the Trial Court’), filed seeking reliefs mainly

against the 5th Respondent. The Trial Court framed a

preliminary issue on the question of limitation,

evidently, upon forming the opinion that case may be

disposed of on an issue of law and that it warrants

postponement of settlement of other issues until

after that issue has been determined and to deal with

the suit in accordance with the decision on that

issue. Accordingly, the Trial Court framed a

preliminary question as to “whether the Suit is

within the limitation”. Upon answering the same in

the negative, in accordance with the said decision,

the suit was dismissed as per judgment dated

13.05.2005. The defendants challenged the said

judgment and decree before the Court presided over by

Shri Sukhdev Singh, Additional District Judge, Delhi,

(hereinafter referred to as the ‘First Appellate

Court’) in Civil Appeal No.99/2005 and it dismissed

the appeal and confirmed the judgment and decree of

the Trial Court, as per judgment dated 08.12.2006.

Thereupon, they took up the matter in second appeal

before the High Court. As per the impugned judgment

dated 25.08.2009 the High Court concurred with the

findings and dismissed the appeal answering the

question of law against the appellants. Leave was

granted in Special Leave Petition No.34648 of 2009

filed against the stated judgment of the High Court

and in this civil appeal, the respondents were

granted liberty to file counter affidavits.

2. We have heard the learned counsel appearing for

the appellants and also the learned counsel appearing

for the respective respondents.

3. At the outset, it is to be noted that the

challenge in this appeal is against concurrent

findings by three Courts, as mentioned hereinbefore.

The scope of an appeal by special leave under Article

136 of the Constitution of India against the

concurrent findings is well settled. In State of

Rajasthan vs. Shiv Dayal1 reiterating the settled

position, this Court held that a concurrent finding

of fact is binding, unless it is infected with

perversity. It was held therein:-

“When any concurrent finding of fact is

assailed in second appeal, the appellant

is entitled to point out that it is bad

in law because it was recorded de hors

the pleadings or it was based on no

evidence or it was based on misreading

of material documentary evidence or it

was recorded against any provision of

law and lastly, the decision is one

1 (2019) 8 SCC 637.

which no Judge acting judicially could

reasonably have reached. (see

observation made by learned Judge Vivian

Bose,J. as His Lordship then was a Judge

of the Nagpur High Court in Rajeshwar

Vishwanath Mamidwar & Ors. vs. Dashrath

Narayan Chilwelkar & Ors., AIR 1943

Nagpur 117 Para 43).”

4. Thus, evidently, the settled position is that

interference with the concurrent findings in an

appeal under Article 136 of the Constitution is to be

made sparingly, that too when the judgment impugned

is absolutely perverse. On appreciation of evidence

another view is possible also cannot be a reason for

substitution of a plausible view taken and confirmed.

We will now, bearing in mind the settled position,

proceed to consider as to whether the said appellate

power invites invocation in the case on hand.

5. For making a consideration as mentioned above, it

is only apposite to make a brief reference to the

facts involved in the case revealed from the

averments in the plaint. The predecessor-in-interest

of the appellants, viz., Shri Rama Nand, was the

bhumidar of certain extent of agricultural land

situated in Village Naraina in Delhi. The said plot

of agricultural land was acquired and Award No.19/75-

76 was passed in relation to its acquisition on

09.01.1976. Subsequently, Rama Nand died, leaving

behind his widow, two sons – Nahar Singh and Dhan

Singh and four daughters - Smt. Shakuntala Devi, Smt.

Krishna Devi, Smt. Parvati Devi and Smt. Santhosh.

Later, the widow of Shri Rama Nand also died. As per

the policy, whereunder the land was acquired, the

bhumidar was entitled to allotment of alternative

residential plot in lieu of the acquired land.

Later, the alternative plot was allotted by

respondent Nos.1 to 4 in the exclusive name of Dhan

Singh, upon his production of registered

Relinquishment Deed, as per letter No.F31(11)/8/87/L&B/ALT/8226 dated 08.03.1991. The said

letter dated 08.03.1991 to the 5th respondent for

allotment of an alternative residential plot in his

name, based on the Relinquishment Deed issued by the

other legal heirs in his favour, came to the notice

of Shri Nahar Singh, who thereupon filed an objection

on 05.04.1991, before respondent Nos.1-4 stating that

alternative plot shall not be allotted in the

exclusive name of Dhan Singh. Further, it was stated

therein that the Relinquishment Deed produced before

the Authorities was obtained fraudulently by Dhan

Singh. Subsequently, Nahar Singh died on 14.05.1993.

Thereupon, his widow and children stepped into his

shoes. Furthermore, it is averred in the plaint that

thereupon, the original plaintiff No.1 submitted

similar representations to the Authorities in a bid

to make them refrain from allotting the alternative

plot in the exclusive name of the 5th respondent. It

is thereafter that they instituted Suit No.410 of

2000, on 14.06.2000. All these averments are

specifically made in the said plaint. At this

juncture, it is to be noted that the four sisters of

Nahar Singh who are also the legal heirs of deceased

Rama Nand did not join them for instituting the suit

against Dhan Singh (the 5th respondent in the Suit)

and virtually, they were made proforma defendants

therein.

6. A bare perusal of the plaint would reveal that

the suit was instituted for declaratory reliefs,

inter alia, stating that the cause of action arose

when application for alternative plot was made by the

Defendant No.5 by playing fraud and claiming himself

to be the sole and exclusive heir of deceased Rama

Nand and further when objections through

representations were made to the wrongful application

of allotment, on number of dates.

Based on such averments it was prayed for a

decree declaring that the Plaintiffs are the coowners in the allotment of the suit Plot No.13, Type

A-I in Sector 26, Rohini, New Delhi (allotted in lieu

of permanent acquisition of the lands of Shri Rama

Nand, s/o Bhupan) and the Defendant No.5 is not the

exclusive allotted/owner of the said residential plot

in suit. The further relief sought for is entirely

dependant on the above declaratory relief.

7. Defendant Nos.1,2 and 4 (respondent Nos.1,2 and 4

herein) filed a joint written statement and the fifth

respondent filed it separately. In view of the nature

of the judgment of the Trial Court, the Appellate

Court and the High Court and also nature of

consideration, which we are intending to undertake, it

is absolutely unnecessary to delve into their

pleadings.

8. Based on the impugned judgment, the rival

pleadings and the arguments advanced before us,

following substantial questions call for

consideration:-

(a) Whether the issue of limitation can be

determined as a preliminary issue under Order XIV,

Rule 2(2) of the Code of Civil Procedure (for short

‘CPC’)?

(b) Whether a larger period of limitation of 12

years would be available to the plaintiffs to bring in

a suit by virtue of application of Article 136 of the

Limitation Act, 1968 (for short ‘The Act’), as

contended by the appellant and in the facts and

circumstances obtained in this case?

got any application, as contended by the appellants,

in view of the plaint averments, in case Article 136

of the Act is found inapplicable?

9. As relates the first question bifold contentions

have been raised by the appellants. Limitation being a

mixed question of law and facts, in view of the

provisions under Order XIV, Rule 2(2), the course

adopted by the Trial Court and confirmed by the

Appellate Court and the High Court, is absolutely

impermissible in law, it is contended. If at all that

preliminary issue was to be considered it ought to

have been made under Rule 11, Order VII, CPC and then,

subject to its outcome, at the worst, the plaint could

have been rejected in terms of Clause (d) of Rule 11

of Order VII, CPC, it is further contended.

10. The contentions raised in resistance on behalf of

the 5th respondent appears to be syllogistic.

According to him, the foundational facts for

determining the nature of Suit No.410/2000 as

declaratory suit and the starting point of limitation

as relates a declaratory suit are available in the

plaint averments themselves. The second proposition is

that despite coming to know about the registered

Relinquishment Deed dated 21.10.1985, the predecessorin-interest of the plaintiffs Shri Nahar Singh and/or

the plaintiffs did not resort to civil remedy to get

it set aside evenafter maintaining the stand that it

was fraudulently obtained. The third proposition is

that repeated representations or applications to

respondent Nos.1 to 4 would not extend the period of

limitation. To wit, according to the 5th respondent

the suit was barred by limitation on those counts and,

it was rightly dismissed as nothing further could

survive for adjudication in the suit thenceforth.

11. Citing various decisions, such as C.

Natarajan Vs. Ashim Bai & Anr.2, Popat And Kotecha

Property Vs. State Bank of India Staff Assn3, Daya

Singh & Anr. Vs. Gurdev Singh (Dead) by LRs. & Ors.4

Mt. Bolo vs. Mt. Koklan5 and Mst. Rukhmabai Vs. Lala

Laxminarayan6 the appellants attempted to drive home

their points.

12. In C. Natarajan’s case2 and in Popat And Kotecha

Property’s case3 the plaints were rejected on the

ground of being barred by Order VII, Rule 11(d), CPC

unlike the case on hand where the suit was dismissed

in accordance with the decision on the preliminary

issue. This Court held that Order VII, Rule 11(d)

2 (2007) 14 SCC 183

3 (2005) 7 SCC 510

4 (2010) 2 SCC 194

5 AIR 1930 PC 270

6 1960 (2) SCR 253

would apply if the averments in the plaint were given

face value and taken to be correct in their entirety

appear to be barred by any law. Furthermore, it was

held that in that regard the Court would not be

entitled to consider the case of the defence.

13. The Privy Council in the decision in Mt. Bolo’s

case5 held that there could be no ‘right to sue’ until

there is an accrual of the right asserted in the suit

and its infringement or at least a clear and

unequivocal threat to infringe that right by the

defendant against whom the suit is instituted. In Daya

Singh’s case4 the question was with respect to the

‘right to sue’ for declaration. This Court, after

referring to the decision in Mt. Bolo’s case5, held

that a mere adverse entry in revenue records would not

give rise to cause of action and it would accrue only

when right asserted in the suit is infringed or when

there is a clear and unequivocal threat to infringe

that right.

14. In Mst. Rukhmabai’s case6, involving question of

limitation in a suit for declaration of a deed as

sham, this court considered the question of limitation

under Article 120 of the Limitation Act, 1908 and held

that the ‘right to sue’ would accrue when the

defendant clearly and unequivocally threatened to

infringe the right asserted by the plaintiff in the

suit. Further it was held that every threat to such a

right would not amount to a clear and unequivocal

threat to compel him to file a suit and whether any

particular threat would give rise to a compulsory

cause of action would depend on the question as to

whether that threat effectively invades or jeopardise

the said right. In case on further deliberation a

consideration of the case on hand in the light of the

above decisions became inevitable, then we will

undertake such an exercise.

15. Now, we will consider the first question:

‘whether the issue of limitation can be determined as

a preliminary issue under Order XIV, Rule 2, CPC’. It

is no longer res integra. In the decision in Mongin

Realty and Build Well Private Limited vs. Manik

Sethi7

, even while holding that the course of action

followed by the learned Trial Judge of directing the

7 2022 SCC Online SC 156

parties to address arguments on the issue of

limitation as irregular since it being a case where

adduction of evidence was required, a two-Judge Bench

of this Court referred to a three-Judge Bench decision

of this Court in Nusli Neville Wadia Vs. Ivory

Properties8 observing that the issue therein was

whether the issue of limitation could be determined as

a preliminary issue under Order XIV, Rule 2, CPC.

After taking note of the fact that going by the

decision in Nusli Neville Wadia’s case8

, in a case

where question of limitation could be decided based on

admitted facts it could be decided as a preliminary

issue under Order XIV, Rule 2(2)(b), CPC., the twoJudge Bench held that in the case before their

Lordships the question of limitation could not have

been decided as a preliminary issue under Order XIV,

Rule 2 of CPC as determination of the issue of

limitation in that case was not a pure question of

law. In the said contextual situation it is worthy and

appropriate to refer to paragraphs 51, in so far as it

8 [(2020) 6 SCC 557]

is relevant, and 52 of the decision in Nusli Neville

Wadia’s case8 and they read thus:-

“51.[…] As per Order 14 Rule 1, issues

arise when a material proposition of

fact or law is affirmed by the one party

and denied by the other. The issues are

framed on the material proposition,

denied by another party. There are

issues of facts and issues of law. In

case specific facts are admitted, and is

the question of law arises which is

dependent upon the outcome of admitted

facts, it is open to the court to

pronounce the judgment based on admitted

facts and the preliminary question of

law under the provisions of Order 14

Rule 2. In Order 14 Rule 2(1), the court

may decide the case on a preliminary

issue. It has to pronounce the judgment

on all issues. Order 14 Rule 2(2) makes

a departure and the court may decide the

question of law as to jurisdiction of

the court or a bar created to the suit

by any law for the time being in force,

such as under the Limitation Act.

52. […] In a case, question of

limitation can be decided based on

admitted facts, it can be decided as a

preliminary issue under Order 14 Rule

2(2)(b). Once facts are disputed about

limitation, the determination of the

question of limitation also cannot be

made under Order 14 Rule 2(2) as a

preliminary issue or any other such

issue of law which requires examination

of the disputed facts. In case of

dispute as to facts, is necessary to be

determined to give a finding on a

question of law. Such question cannot be

decided as a preliminary issue. In a

case, the question of jurisdiction also

depends upon the proof of facts which

are disputed and the question of law is

dependent upon the outcome of the

investigation of the facts, such

question of law cannot be decided as a

preliminary issue, is settled

proposition of law either before the

amendment of CPC and post amendment in

the year 1976.”

(Emphasis added)

16. In view of the legal position obtained from the

decision in Nusli Neville Wadia’s case8 the following

decisions also assume relevance. In the decision in

National Insurance Co. Ltd. Vs. Rattani9 this Court

held that an admission made in the pleadings by a

party is admissible in evidence proprio vigore.

Equally well settled is the principle of law that an

admission made by a party in his pleadings is

admissible against him proprio vigore (see the

decisions in Ranganayakamma & Anr. Vs. K.S. Prakash

(Dead) By LRs. & Ors.10 and Vimal Chand Ghevarchand

Jain & Ors. Vs. Ramakant Eknath Jadoo11.

17. In the context of the usage of the expression

“admitted facts” in paragraph 52 of the decision in

9 [(2009) 2 SCC 75]

10 [(2008) 15 SCC 673]

11 [(2009) 5 SCC 713]

Nusli Neville Wadia’s case8 and the word ‘admission’

employed the National Insurance CO. Ltd. case9 a

reference to Sections 17, 18 and 58 of the Indian

Evidence Act would not be inappropriate. A conjoint

reading of the said provision would reveal that

‘statements’ by a party to proceedings are admissions

and facts admitted need not be proved.

18. We referred to the said provisions and decisions

only to stress upon the point that the appellants

cannot legally have any dispute or grievance in taking

their statements in the plaint capable of determining

the starting point of limitation for the purpose of

application of Order XIV, Rule 2(2)(b) of the CPC.

Though, limitation is a mixed question of law and

facts it will shed the said character and would get

confined to one of question of law when the

foundational fact(s), determining the starting point

of limitation is vividly and specifically made in the

plaint averments. In such a circumstance, if the

Court concerned is of the opinion that limitation

could be framed as a preliminary point and it warrants

postponement of settlement of other issues till

determination of that issue, it may frame the same as

a preliminary issue and may deal with the suit only in

accordance with the decision on that issue. It cannot

be said that such an approach is impermissible in law

and in fact, it is perfectly permissible under Order

XIV, Rule 2(2)(b), CPC and legal in such

circumstances. In short, in view of the decisions and

the provisions, referred above, it is clear that the

issue limitation can be framed and determined as a

preliminary issue under Order XIV, Rule 2(2)(b), CPC

in a case where it can be decided on admitted facts.

19. With the above observations and conclusions we

will now, refer to the findings returned by the Trial

Court on the stated preliminary issue of limitation,

with a view to answer the question as to whether the

impugned judgment confirming the First Appellate

Court which, in turn, confirmed the judgment and

decree of the Trial Court, requires intervention. In

that regard it is only apposite to refer to the

following recital from the Trial Court’s judgment

carrying plaint averments indicating the starting

point of limitation and also findings on the

preliminary issue:

“As per averments made in para 8 of the

plaint plaintiffs themselves have

mentioned that their predecessor in

interest alongwith defendants Nos.6 to

9 had executed relinquishment deed in

favour of defendant no. 5. Although

they have also taken the plea that same

was obtained defendant no. 5 by playing

fraud on the pretext of mutation of

residential house in MCD records. Such

averments made in the said para goes to

show that Ld. Predecessor in interest

of plaintiffs was very well aware about

the execution of registered release

deed since date of its execution. Even

if it be considered that defendant no.

5 had played fraud upon predecessor in

interest of plaintiffs and the said

fraud came to the knowledge of Sh.

Nahar Singh through letter dated.

8.3.1991 then the period of limitation

for seeking said relinquishment deed as

null and void started the said date

i.e. 8.3.1991. The reason being that

plaintiffs are seeking declaration to

the effect that they are co-owners of

the suit plot and defendant no. 5 is

not the exclusive owner thereof. The

said relief can be granted by the court

only when the relinquishment deed dated

21.10.1985 is held to be illegal null

and void and not binding upon them. In

other words, unless and until the said

relinquishment deed is held to be

illegal and not binding on the

executants, the plaintiffs cannot be

declared as co-owners of the suit plot

along with defendants no. 5 to 9.

Therefore, the plaintiffs are also

seeking declaration regarding

cancellation of release deed dated

21.10.1985 indirectly which is being

alleged as having been obtained through

fraud and which fact admittedly came to

their knowledge on 8/3/1991. Plaintiffs

are claiming their title through Sh.

Nahar Singh one of the legal heirs of

deceased Sh. Rama Nand. Once Sh. Nahar

Singh came to know about the fraud and

illegality of the release deed the

period of limitation started running

from the said date of cancellation and

mere factum regarding death of Sh.

Nahar Singh would not stop the period

of limitation once it has been started.

Plaintiffs have stepped into the shoes

of Sh. Nahar Singh and were, therefore,

required to challenge the release deed

within the period of limitation

prescribed by law. It is needless to

mention here that period of limitation

prescribed for filing such a suit for

declaration challenging the release

deed in question is three years from

the date of accrual of cause of action

which in the present case arose, in the

opinion of the court, on 8/3/1991 when

Sh. Nahar Singh came to know about the

alleged fraud being played by defendant

no. 5 upon him along with defendants

no. 6 to 9. The present suit has been

filed only on 14.6.2000, therefore, the

present suit is barred by limitation.

Hence, court finds merit in the

arguments raised on behalf of

defendants that the present suit is not

maintainable being barred by

limitation. The submissions made on

behalf of plaintiffs that there were

several representations being submitted

before various Authorities by

plaintiffs from time to time and period

of limitation was continuing during all

these period is without any merit as

mere sending representations on behalf

of plaintiffs with authorities cannot

extend period of limitation. The

plaintiffs slept over their right

during the whole period of limitation

and therefore they cannot be permitted

to plead that the present suit is

within the period of limitation due to

sending of representations with the

departments. Hence, for all these

reasons it is held that the present

suit is barred by limitation.

Accordingly, issue is decided against

the plaintiffs.”

20. Before proceeding further with the abovementioned issues and the findings returned, it is

only proper to consider the contention of the

Appellants regarding the applicability of Article 136

of the Limitation Act. According to us, the

contention is jesuitical. A perusal of Article 136

of the Limitation Act would reveal the indubitable

position that it applies only when an application for

execution of any decree (other than a decree granting

a mandatory injunction) or order of any Civil Court

is to be filed. (See the decision of this Court in

Bikoba Deora Gaikwad & Ors. vs. Hirabai Marutirao

Ghorgare & Ors.12

12 (2008) 8 SCC 198

21. In the instant such a stage for application of

Article 136 of the Limitation Act had not reached

and, in troth, the question involved is relatable

only to the time restriction for initiating legal

proceedings to seek the alleged legal right. In the

said circumstances, the inevitable conclusion can

only be that Article 136 got no application in the

case on hand and as such the Appellants could not

claim for a larger period of limitation of 12 years.

22. The findings of the Trial Court with respect to

preliminary issue of limitation are based on the

relevant dates revealed from the pleadings of the

plaintiffs in the plaint itself. True that in the

plaint it is repeatedly alleged that the

relinquishment deed was obtained fraudulently by the

5th respondent. However, conspicuously its date was

not mentioned. But then the plaint averment is that

their predecessor-in-interest Shri Nahar Singh, on

coming to know about the use of the said

Relinquishment Deed, had preferred an objection on

05.04.1991 to the authorities whereunder he sought

not only for its cancellation but also on the ground

of obtainment by playing fraud for refraining them

from issuing allotment of the alternative plot in the

exclusive name of the 5th respondent. In this context

it is also relevant to note that going by the plaint

averments after the death of Shri Nahar Singh on

14.05.1993 the original first plaintiff, who is none

other than one of the sons of Shri Nahar Singh, filed

representations on the lines of the objection taken

up by his father. Even if non-mentioning of the date

of Relinquishment Deed is not taken as purposeful

that cannot and will not therefore save the

plaintiffs from the inescapable, adverse finding on

the question of limitation to bring in a suit against

the said Relinquishment Deed. Evidently, Suit No.410

of 2000 was filed only on 14.06.2000. Thus, it is

very much clear from the plaint averments that the

Relinquishment Deed is anterior to the date of letter

of intimation to the 5th respondent (08.03.1991) and

obviously, the date of objection against the same was

firstly preferred by deceased Nahar Singh viz.,

05.04.1991. Evidently, the aforesaid two dates

specifically mentioned in the plaint were taken into

account by the Trial Court as also by the First

Appellate Court and the High Court in the matter of

consideration of the question “whether the suit was

barred by limitation.” The manner of consideration by

the Trial Court which ultimately resulted in

dismissal of suit No.410/2000 would reveal, as stated

hereinbefore, that it had determined the preliminary

issue regarding the period of limitation with

reference to the averments in the plaint. The

dismissal of the suit was in accordance with the

decision on the said preliminary issue. Since we have

already extracted the operative portion of the Trial

Court judgment, we do not think it necessary to refer

to its reasons and findings.

23. Coming to the judgment of the First Appellate

Court whereby it dismissed the appeals of the

plaintiffs and confirmed the judgment and decree of

the Trial Court it is evident that the various

contentions raised by the appellants therein were

considered in detail by the First Appellate Court.

The judgment would reveal that before the First

Appellate Court, besides reiterating the contentions

unsuccessfully raised before the Trial Court, the

appellants therein / the plaintiffs had contended,

relying on the decision in Narinder Kaur & Anr. Vs.

Amar Jeet Singh Sethi & Anr.13, that Relinquishment

Deeds do not relinquish the share of executant but

would have only the effect of transferring the

shares. Paragraph 17 of the judgment of the First

Appellate Court would reveal that it correctly

exposited the legal position that the question of

limitation is to be considered not with reference to

the validity of the Relinquishment Deed. In this

context it is also to be noted that despite taking up

a specific allegation that the Relinquishment Deed

was fraudulently obtained by the 5th respondent, the

plaintiffs had not chosen to assail and seek for its

setting aside. As noted earlier, even after seeking

for cancellation of the relinquishment deed before

the authorities as early as on 05.04.1991 the

predecessor-in-interest had not chosen to get it set

aside by approaching a competent civil court during

his lifetime. Upon his death on 14.05.1993, though

13 [2000 III A D (Delhi), 599]

the period of limitation for seeking to set it aside

did not get arrested and ran against the plaintiffs

who stepped into the shoes of Nahar Singh, none of

them seek to get it set aside by moving a civil

court, within the period of limitation. The pleadings

in this appeal and the arguments advanced would show

that till date with such a prayer no competent civil

court was moved by the original plaintiffs and also

the appellants herein. In short, in the absence of

any successful challenge against the validity of the

said Relinquishment Deed by making proper prayer in

an appropriate proceedings, and that too within the

prescribed period of limitation, the conclusion and

finding of the First Appellate Court, as aforesaid,

cannot be said to be perverse or illegal as there can

be no doubt with respect to the position that

consideration of validity of a relinquishment deed

and consideration of the period of limitation with

reference to the same are different and distinct.

24. It is also evident that another contention was

raised on behalf of the appellants before the First

Appellate Court relying on M/s Crescent Petroleum

Ltd. Vs. M.V. Monchegorsk & Ors.14 that power of

dismissal of suit on the ground of absence of cause

of action shall be exercised by courts sparingly and

cautiously and the benefit of doubt must go to the

plaintiff. This contention was rightly repelled by

the First Appellate Court holding that in the case on

hand the question was not one of dismissal on the

ground of absence of cause of action but, on the

ground of being barred by limitation, reckoning the

nature of the suit as declaratory.

25. The challenge against the impugned judgment of

the High Court is that it wrongly applied Article 58

of the Limitation Act while confirming the concurrent

decisions of the First Appellate Court and the Trial

Court. In this context, it is relevant to note the

prayers made in the suit by the plaintiffs which were

extracted hereinbefore. Undoubtedly, the plaintiffs

sought for declarations in the manner referred above

and thereby, made the nature of the suit as

declaratory. This position is indisputable. It is

14 [AIR 2000 Bombay 161]

true that the Trial Court though found the period of

limitation as three years taking into account the

nature of the reliefs it did not specifically mention

the relevant provision in its judgment. There can be

little doubt with respect to the position that

misquoting or non-quoting of a provision by itself

will not make an order bad so long as the relevant

enabling provision is in existence and it was

correctly applied though without specifically

mentioning it. The High Court had only referred to

the relevant, applicable provision under the

Limitation Act upon considering the nature of the

suit and the reliefs sought for, in the plaint. We do

not find any perversity or illegality in the finding

of the High Court for sustaining the concurrent

findings with respect to the issue whether the suit

was barred by limitation.

26. The relief sought for, in suit No.410/2000 would

reveal that the first prayer, which is the main

prayer, is declaratory in nature. Even according to

the plaintiffs, as revealed from the plaint the

second prayer (extracted hereinbefore) is only

consequential relief. A perusal of the same would

undoubtedly show that it is consequential and not an

independent one and therefore the courts below are

right in holding that the said prayer is grantable

only if the first prayer is granted. In this case

based on the determination on the preliminary issue

of limitation and in accordance with the decision on

that preliminary issue the suit was dismissed. As

held by the three-judge Bench in the decision in

Nusli Neville Wadia’s case (supra) the provisions

under Order XIV Rule 2(1) and Rule 2(2)(b) permit to

deal with and dispose of a suit in accordance with

the decision on the preliminary issue. In the case on

hand in view of the nature of the finding on the

preliminary issue and the consequential consideration

of the suit in terms of Order XIV Rule 2(2)(b) and

taking note of the fact that the suit do not survive

after such consideration we find no reason to

consider the contention of the appellants with

reference to Order VII Rule 11 based on the decisions

relied on by them and referred hereinbefore. So also,

the contentions of the appellants based on Articles

17 and 65 also would pale into insignificance and

warrant no consideration at all, in the

circumstances.

27. The upshot of the above discussion is that there

is absolutely no perversity or illegality in the

concurrent findings of the courts below warranting

interference in invocation of the power under Article

136 of the Constitution of India. In the result, the

appeal stands dismissed with costs.

28. All pending applications are disposed of.

…………………………………………….J.

(AJAY RASTOGI)

…………………………………………….J.

(C.T. RAVIKUMAR)

New Delhi;

September 29, 2022

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