Omwati Gupta & Ors. v. Sumitra Devi Goyal & Anr.

1. Challenge by means of this petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) is to the impugned order of the trial court dated 19.2.2014 which has dismissed the application under Section 3 of the Limitation Act, 1963 read with Article 59 of the Schedule appended thereto filed by the petitioners/defendants for dismissing the suit as barred by time.

2. The subject suit is a suit for declaration and permanent injunction whereby the respondent no.1/plaintiff no.1 has sought cancellation of the sale deed dated 26.2.2009 executed by the respondent no.1/plaintiff no.1 in 2014:DHC:4271 favour of petitioner no.1/defendant no.1 with a view to settle respondent no.2/plaintiff no.2 with defendant no.3/plaintiff no.3 and who is the son-inlaw of respondent no.1/plaintiff no.1.

3. The facts stated in the plaint seeking cancellation of the sale deed are that the sale deed was got executed by the petitioner no.3/defendant no.3 on account of marital discord of the daughter (respondent no.2/plaintiff no.2) of the respondent no.1/plaintiff no.1 with the petitioner no.3/defendant no.3. It is pleaded in the plaint that in order to maintain martial harmony in the family of respondent no.2/daughter, the respondent no.1/mother had executed the subject sale deed, however, the martial discord did not stop and consequently the basis for execution of the sale deed disappeared and thus the sale deed was prayed to be cancelled. The cause of action for filing of the suit is stated to have arisen in the year 2011-12 when the marital discord again started.

4. Petitioners/defendants have placed reliance upon Article 59 of the Limitation Act to urge that the suit for cancellation of the sale deed should have been filed within three years of execution of the sale deed, and since the sale deed was executed on 26.2.2009, the subject suit filed on 07.6.2012 is pleaded to be barred by limitation.

5. Article 59 of the Limitation Act reads as under:-

59 To cancel or set aside an instrument or decree or for the rescission of a contract. Three years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.

6. A reading of the aforesaid Article makes it quite clear that the period of three years commences when the facts entitling the plaintiffs to have the instrument cancelled or set aside become first known to the plaintiffs. In the present case it is when the marital discords again arose, and which destroyed the basis of the sale deed, and and are stated to have arisen in the year 2011- 12, consequently, as per the averments made in the plaint, the suit which was filed on 07.6.2012 cannot be said to be beyond a period of three years of arising of the cause of action.

7. Trial court has dealt with these aspects in paras 1 to 4 of the impugned order which read as under:- “1. Today the matter is listed for admission/denial of documents/framing of issues/arguments on pending applications. The arguing counsel for plaintiff is stated to be not available. The learned counsel for the defendants has pressed for disposal of his application filed U/s 3 of the Limitation Act r/w Article 59 of the Schedule appended thereto. The pleadings on this application are complete. The learned counsel for the defendants has emphasized that the suit filed by plaintiffs, seeking decree of declaration for cancellation of sale deed dated 26.02.2009, executed by plaintiff No.1 in favour of defendant No.1 to be null and void is barred by limitation, as the suit should have been filed within three years from the date of execution of the said document.

2. A perusal of the cause of action pleaded in the suit by the plaintiffs is that the said sale deed was executed by plaintiff No.1 in favour of defendant No.1 with a view to happily settle plaintiff No.2 with defendant No.3 and to mitigate the martial discords between them the said sale deed was executed pursuant to the pressure exerted by defendants upon her. Thereafter, the parties ultimately settled the matter in the year 2010 and plaintiff No.2 started residing with defendant No.3 and by then the cause of action for seeking declaration in question had not arisen and the same arose only after the defendants again started harassing plaintiff No.2 and at that stage feeling agitated and deceived, the plaintiffs approached the court under the provisions of Protection of Women from Domestic Violence Act, 2005 and filed a petition in the year 2011 and an FIR in the year 2012 was also registered against defendants at the instance of plaintiff No.2 and only thereafter, the cause of action to seek such declaration had arisen. The present suit was filed on 07.06.2012.

3. This is settled law through a catena of judgments by various Hon'ble High Courts and the Hon'ble Supreme Court that the question of limitation may not always be a question of fact and it could be a mixed question of fact and law. The learned counsel for the defendants has relied upon Article 59 of the Limitation Act to emphasize the point that the time period to file the present suit is to be reckoned from the date of execution of sale deed in question, whereas a plain reading of Column 3 of this Article reveals that the cause of action to file the suit under this Article arises when the instrument sought to be cancelled or set aside first becomes known to the plaintiff. The limitation period according to me has to be reckoned from the time when the cause of action to seek cancellation of a document arises and not from the date of execution of instrument. Here, because of peculiar facts and circumstances of the present case as well as cause of action pleaded in the suit, the same arose in the year 2011/2012 and as such, the suit cannot be stated to be barred by limitation. The learned counsel for the defendants has cited a host of authorities to emphasize the point that even if the issue of limitation has not been raised as a defence in a suit, the court is bound to consider the same at the threshold of the trial itself. The said preposition is well settled. Even this is also well settled that the limitation period to seek such declaration starts from the date of knowledge of facts, entitling the plaintiff to have the instrument cancelled/rescinded or set aside and knowledge thereof becomes available with him.

4. Even otherwise, the date of instrument can never be invariably taken as the date of starting point of running of the limitation period.” (underlining added)

8. On a query put to the counsel for the petitioners/defendants, it is conceded that the alleged consideration which the mother/respondent no.1/plaintiff no.1 has allegedly received is not by means of a cheque but by means of ‘cash’, and which clearly prima facie points out to the factum that the sale deed was executed by the respondent no.1/plaintiff no.1 only on account of martial discords between her daughter/respondent no.2/plaintiff no.2 and the son-in-law/petitioner no.3/defendant no.3, and which aspect is an aspect of merits which will be decided in the suit finally.

9. In view of the above, I do not find any illegality in the impugned order containing the reasoning as stated above. The suit cannot be said to be barred by limitation as urged by the petitioners/defendants.

10. The petition is therefore dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J AUGUST 29, 2014 KA