Ramcharan Yadav v. Prempal Yadav

1. The CM No.15550/2014 has been filed seeking condonation of delay of 36 days in filing the restoration application i.e. CM No.15549/2014.

2. For the reasons stated in the applications, as ‘sufficient cause’ has been shown, the same are allowed and the appeal is restored to its original number. 2015:DHC:389 RSA No.302/2007

1. This is a regular second appeal filed by the appellant.

2. Vide order dated 03.04.2013, this court had framed the following substantial question of law with regard to the perversity in the findings arrived at by the courts below: “Whether the finding arrived at by the trial court and confirmed by the first appellate court is perverse, if so, to what effect?”

3. I have heard the learned counsel for the appellant/plaintiff and have also gone through the record. However, I find that there is no perversity in the concurrent finding arrived at by the courts below rejecting the plaint of the appellant as barred by limitation in view of Order 7 Rule 11 CPC.

4. The appellant/plaintiff had filed a suit for declaration, mandatory injunction and permanent injunction in the year 2004. So far as the declaration is concerned, it was sought that the documents used for selling the property in question such as Will/power of attorney etc., purported to have been executed by him, were signed by him under misrepresentation in the month of March, 2000 when the appellant/plaintiff had taken a loan of Rs.80,000/- from the respondent/defendant.

5. As a matter of fact these documents according to the respondent/defendant were executed by the appellant/plaintiff in favour of the respondent/defendant transferring the title of the property in question.

6. The appellant/plaintiff in the suit filed by him had alleged that the respondent/defendant was a licensee in respect of the premises in question i.e.K-27, Budh Vihar, Phase-II, Sharma Colony, Village Rithala, Delhi and since he had failed to vacate the same, therefore, the suit was filed. The respondent/defendant filed an application under Order 7 Rule 11 CPC in the said suit stating that the suit is barred by limitation because the declaration has to be sought by a party in accordance with Article 58/59 in the schedule to the Limitation Act, 1963 within a period of three years from the date of accrual of cause of action. In the instant case, the courts below have taken a view that such documents in respect of which declaration was sought to be obtained were within the knowledge of the appellant/plaintiff, purported to have been executed right from day one i.e.06.03.2000, and, therefore, the suit for declaration if any, had to be filed before 31.03.2003 while as the suit for declaration was filed in the year 2004 and thus, ex facie, the same was barred by limitation. At the time of formulation of question of perversity, the learned counsel for the appellant/plaintiff stated the appellant/plaintiff had made an averment in the plaint that he was threatened to be dispossessed on 14.01.2014 & 15.01.2014 and thus the cause of action accrued to him on the said dates and accordingly the suit was within limitation. At that point of time, it was not shown to the court that the appellant/plaintiff was aware of the documents in respect of which the declaration was sought and the appellant/plaintiff did not show to the court that the appellant/plaintiff was in the knowledge of the documents which were being set up by the respondent/defendant with respect to being in lawful possession of the suit property. The relief of permanent and mandatory injunction which was set up by the appellant/plaintiff was not a primary relief, but only subsidiary to the main relief which was for declaration and the period in either case, is to be reckoned from the next day to the date of accrual of cause of action. When the cause of action itself has accrued at the time of signing of the documents on 06.03.2000, the period of limitation starts immediately on the next date because it is not the case of the appellant/plaintiff that he was not aware of those documents. This is on account of the fact that under Section 9 of the Limitation Act, 1963 it is clearly laid down that once the period of limitation starts running, then any subsequent ability or disability does not stop the period of limitation except as is envisaged under Section 12 & 14 of the Limitation Act, 1963 which admittedly is not the case here.

6. For the reasons mentioned above, I concur with the concurrent finding returned by the courts below concurrently holding that the plaint of the appellant/plaintiff is barred by limitation and accordingly is a question of fact and not a question of law much less a substantial question of law nor is any perversity involved in the same.

7. Accordingly, the present appeal is dismissed. V.K. SHALI, J JANUARY 14, 2015