SUKHBIRI DEVI & ORS. VERSUS UNION OF INDIA & ORS

SUKHBIRI DEVI & ORS.  VERSUS UNION OF INDIA & ORS

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



1
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
2
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
3
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.
4
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
5
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
6
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
7
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
8
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?
(c) Whether Article 17 or Article 65 of the Act
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
9
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
10
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
11
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
12
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
13
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]
14
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
15
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]
16
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
17
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
18
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
19
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
20
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
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
22
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
23
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
24
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]
25
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
26
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]
27
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
28
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,
29
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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