HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 23 Case :- SECOND APPEAL No. - 691 of 1990 Appellant :- Safiullah Respondent :- Khas Mohammad Counsel for Appellant :- S.K. Chaturvedi,M.Y.Khan Counsel for Respondent :- P.P.Chaudhary Hon'ble Siddhartha Varma,J.
This is a plaintiff's second appeal against the judgment and decree passed by the First Appellate Court dated 6.2.1990 by which the defendant's first appeal was allowed and the suit was dismissed. The plaintiff had filed a suit for cancellation of sale deeds dated 9.3.1981 and 6.9.1983 executed by Basarat, father of the plaintiff and the defendant in favour of the defendant Khas Mohammad. The Trial Court after framing seven issues found, while deciding issue no.1, that the sale deeds were a result of fraud and while deciding issue no. 2, it found that the suit was 10within limitation and decreed the suit. The First Appellate Court however, upon dealing with all the pleadings and evidence on record concluded that the suit was barred by limitation, the plaintiff had not been able to prove that there was any fraud or misrepresentation because of which the sale deed came into existence and further found that the defendant was in possession of the suit property.
The second appeal was admitted on the following substantial questions of law :
A. Whether according to plaint allegation Civil Court has got jurisdiction to cancel the sale deed in question which were voidable documents?
B. Whether the suit filed by the plaintiff-appellant for cancellation of alleged sale deed is not barred by time?
H. Whether the learned Lower Appellate Court has no jurisdiction to record its finding on any other issue when it has arrived at the conclusion that it has no jurisdiction?
Learned counsel for the appellant has made the following submissions:
(I) The sale deed was a result of fraud and misrepresentation.
(II) No consideration had passed to the deceased father.
(III) Though the sale deed gives out the necessity for the selling of the land but the necessity of wanting more money for going to Haj was not there as the plaintiff's father had already been on Haj.
(IV) That the sale deed was executed not by his father but by an imposter.
(V) The defendant had not been able to prove that the father of the plaintiff had actually executed a sale deed as the defendant had not himself come into the witness box.
In reply, the learned counsel for the respondent submitted that the suit and the second appeal should be dismissed as the suit was barred by limitation. The sale deeds were dated 9.3.1981 and 6.9.1983 and the suit was filed on 23.4.1987. No averment has been made in the plaint about the date of knowledge of the execution of the sale deed. Therefore, it shall be presumed that the suit was barred by limitation as under Article 59 of the Limitation Act a suit had to be filed within three years after gaining knowledge of the execution of the sale deed. Learned counsel for the defendant-respondent has also submitted that as the plaint was verified at the appellate stage, the suit was definitely barred by limitation. He has further submitted that the burden to prove that the sale deed was not executed by the plaintiff's father was on the plaintiff and the First Appellate Court had rightly observed that it was the plaintiff who had to prove that the sale deed was not executed by his father and thus if the defendant did not come to the witness box it did not matter at all. He further stated that the best evidence which the plaintiff-appellant had in his possession namely the sale deed, which their father had earlier executed of a house was not produced in evidence. Had that been done then the signatures/thumb impressions on the disputed sale deeds could have been compared with the signatures/thumb impressions on the admitted sale deed by which the father of the appellant had sold another house. He has in the end submitted that the suit was barred by Section 34 of the Specific Relief Act as the witness of the plaintiff P.W.1, Sri Azizullah himself had admitted that the defendant was in possession and in view of the fact that no relief for possession had been prayed for by the plaintiff the suit was to be dismissed as being barred by Section 34 of the Specific Relief Act.
After having gone though the record of the case and after having heard the learned counsel for the parties, I am of the view that the first appeal was rightly allowed. The suit which was filed on 23.4.1987 for cancellation of the sale deeds executed on 9.3.1981 and 6.9.1983 was definitely barred by limitation. Article 59 of the Limitation Act, 1963 is being reproduced herein 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.
Admittedly, the plaintiff- appellant has not disclosed in the whole of the plaint as to when he gained knowledge about the existence of the sale deeds. The only paragraphs which are relevant with regard to the various dates as to when the cause of action arose are paragraphs-5 and 6 of the plaint and they are being reproduced herein as under:
Þ5- ;g fd izfroknh ge oknh dk HkkbZ gS bl ukrs izfroknh ds Qsjokuk bl dk;Zokgh dks udy nLrkost futkbZ dh udy ysus ds ckn vius HkkbZ izfroknh ls fou; djrk jgk fd rqe Qjth tehu firk dh fy[kk fy;s gks mu nLrkostksa dks ealw[k djk nks ;g ckr ge oknh us ekpZ 1986 bZ0 esa dgkA bl ij izfroknh ge oknh dk HkkbZ jkth gks x;k vkSj 1 lky dk le; ge oknh ls ekaxk dh 1 lky esa :i;k iSlk bdV~Bk djds nLrkost futkbZ ealw[k djk ywaxkA tc ge oknh us ns[kk fd 1 lky dk le; izfroknh ds dgus ds vuqlkj chr x;kA vkSj izfroknh us nLrkost futkbZ ealw[k ugh djk;k rc vizSy 1987 esa ge oknh us izfroknh ls fQj dgk izfroknh us nLrkost futkbZ ealw[k djkus dks rS;kj ugh gqvk vkSj budkj dj fn;kA bl ij ge oknh dks cgqr [ksn gqvk vkSj ykpkj gksdj nkok nkf[ky dj jgk gwWA 6- ;g fd dkj.k okn o vf[kfr;kj lek;r vnkyr gktk djkus dfFkr nLrkost cSukek jftLVjh Qjth }kjk izfroknh cgd izfroknh ufoLrk clkjr iq= nqykj oks djus budkj nLrkost futkbZ ealw[k djkus fnukad 12-3-87 }kjk izfroknh vUrxZr ekStk ipnsmjk rIik mft;kj ijxuk exgj iwjc rglhy [kyhykckn ftyk cLrh esa iSnk gq;sAÞ The suit was filed on 23.4.1987. The sale deeds are of 9.3.1981 and 6.9.1983. There is no averment in the plaint which gives the date as to when the plaintiff gained knowledge about the existence of the sale deeds. Clearly thus the suit was barred by limitation. Section 3 of the Indian Limitation Act reads as under :
"3. Bar of limitation.--(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.
(2) For the purposes of this Act--
(a) a suit is instituted,--
in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted-
(i) in the case of a set- off, on the same date as the suit in which the set- off is pleaded;
(ii) in the case of a counter-claim, on the date on which the counter claim is made in court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court."
It says that the suit had to be dismissed, if it was barred by limitation within which it had to be filed. In the instant case, the suit was filed after three years of the execution of the sale deeds and, therefore, it was definitely barred by limitation. Substantial question of law at Sl. no.B is thus answered and it is held that the suit ought to have been dismissed as barred by limitation.
The submission of the learned counsel for the respondent that the suit was bad on the ground that it was not verified also requires to be addressed. Under Order 6 Rule 15 C.P.C. the plaint has to be verified. In the instant case, the plaint was not verified at the trial stage and the verification was done only at the appellate stage on 11.12.1989 i.e. after the judgment of the Trial Court.
The learned counsel for the defendant-respondent has submitted that if the verification was done on 11.12.1989 then even if the suit was filed within the prescribed period of limitation it shall be deemed that it was not filed within the prescribed period of limitation as the verification was actually done on 11.12.1989 and, therefore, it was well after three years of execution. However, this argument does not appear to be correct. When the trial of the suit commenced in the year 1987 and was concluded in 1988, no objection regarding verification was raised. When ultimately the verification was allowed then it would be deemed that it was verified at the time when the suit was filed. Order VI, Rule 15 (2) & (3) C.P.C. states that the person who verifies the pleading shall specify by reference to the numbered paragraph of the pleading as to what he had verified and it further says that the verification shall be signed by the person who makes it along with the date and the place on which the signatures are made. Order IV, Rule 1 C.P.C. reads as under:
"1. Suit to be commenced by plaint.- (1) Every suit shall be instituted by presenting a plaint in duplicate to the court or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2)."
It says that every plaint shall have to comply with the Rules as are contained in Orders VI and VII of the CPC and that a plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in Order IV, Rule 1 (1) & (2) CPC.
This argument in the first blush appeared to be correct but upon going through the various decisions rendered by this Court and by the Supreme Court, it transpires that Order VI, Rule 15 is only directory in nature. In fact, AIR 2006 SC 1194 ( Vidyawati Gupta and others Vs. Bhakti Hari Nayak and others) clearly lays down that when a pleading does not conform with the provisions of Order VI Rule 15, the defect therein is a mere irregularity which can be cured by an amendment and consequently when the verification in the plaint is done, which was originally defective, the plaint must be taken to have been presented not on the date of the amendment but on the date when it was first presented. AIR 1931 Alld. 507 was also of the same view.
In such circumstances, it becomes clear that when by means of an amendment the plaint was verified, it shall be deemed to have been verified from the date when it was instituted. The findings as have been arrived at by the First Appellate Court were absolutely correct.
What is more, the suit was definitely barred by Section 34 of the Specific Relief Act as the relief of possession was definitely missing and that too in the teeth of the admission of P.W.1 himself that the defendant was in possession in pursuance of the two sale deeds. In 1993 SC 957 (Vinay Krishna Vs. Keshav Chandra and others) the Supreme Court has very categorically laid down that no Court shall make any declaration where the plaintiff being able to seek a further relief than a mere declaration, omits to do so. In view of what has been stated above there is no requirement to answer the questions framed as A and H.
In such circumstances, the second appeal is dismissed and the suit must thus also fail.
Order Date :- 17.8.2017 Ashish Pd.