Smt. Gurbux Kaur And Smt. Gurdev ... vs Shri Hari Singh And Ors.
2003 Latest Caselaw 282 Del

JUDGMENT

Vikramajit Sen, J.

1. In Suit No. 2392 of 1996 the Plaintiff is the daughter of late Sardar Kundan Singh who died on 17.8.1981 and in Suit No. 2418 of 1996 the Plaintiff is the daughter of late Sardar Polo Singh who is stated to have died on 4.11.1997. The parties are cousins of each other. The prayer in Suit No. 2392/96 is for the passing of a decree declaring the dissolution of the sundry partnership firm, in which Plaintiff's father was a partner, for the rendition of accounts thereof, and for possession of immovable properties in which Plaintiff's father held a share. In Suit No. 2418/96 the prayers are essentially the same and so far as the facts are concerned the difference is that the claim is in respect of the estate of Sardar Polo Singh.

 2. It  appears that   the Defendants herein had   fired    the  first salvo in the  shape  of  probate petitions  in which they   had  propounded Wills allegedly  executed by late Sardar Kundan Singh and late Sardar Polo Singh in their favor. These probate  petitions  came  to be  dismissed by K. Ramamoorthy, J.  by a   common  Judgment  dated  6.8.1996.   It is the uncontroverter case of the  parties  that it is the  Defendants who were in possession  of the immovable properties as well as  the assets of the erstwhile partnership in which late  Sardar  Kundan Singh and  late Sardar Polo Singh were partners, to the  exclusion of the Plaintiffs  
 

 3. A  Written Statement has  been  filed   in which  a preliminary  objection has been raised to the   effect that the suit is  barred  by limitation.   Two   applications  under Order VII  Rule 11(d) read with  Section 151 of the Code of Civil Procedure have  also been filed by the Defendants   for the  rejection of the plaint  on the  same  ground.   By these Orders   I  propose    to  decide   the question of whether the suits   are  liable to be  dismissed as  being  barred by time.  


 

 4. The  contention of Mr. P.K. Seth, learned counsel appearing on behalf of Plaintiffs,  is  that     Order VII Rule 11  Code of Civil Procedure cannot be invoked by the Defendants in the  circumstances of the  case.  It is    his   contention  that   the suit  must  be allowed   to run its full  course and only thereafter    can    a   final   decision be     properly taken on this  issue.   Mr. Seth  further  contends, drawing support   from Prakash Shukla v. State & Others.  ,  that    in view  of the  language of this Rule only the  averments   in the plaint  can be  looked  into, and  if    so done the applications  must be  rejected.   I find  no  merit in this  contention  for the  simple  reason that the  statements  in the plaints  specifically mention that    the cause  of action  arose   to the Plaintiff on the  deaths of late Sardar Kundan Singh and late Sardar Polo Singh, the  respective fathers of the Plaintiffs on 17.8.1971 and 4.11.1977.  Mr. Adarsh Dial, learned counsel appearing on behalf of Defendants,  has  founded    his argument on  these  very statements.   Although I am of the view that in deciding a   contention  raised under Order  VII  Rule 11(d)  CPC,  either in the Written Statement or  by way of   a separate  application, the Court is not  expected   to pursue   a  pedantic approach while  reading the plaint   in order to arrive  at  the  conclusion  of whether the    action   is barred by limitation or not;  instead   a  holistic  approach has to be  taken.    In T. Arivandandam v. T.V. Satyapal & Another, , Justice Krishna Iyer had   directed that  if on   a reading of the plaint it is manifestly vexatious and  meritless in the   sense of not disclosing  a  clear right to sue, the Court  should  exercise its power under Order VII of the Code of Civil Procedure. In that   case the plaint  was  rejected by the Apex Court. This view  was recommended  by the Apex Court in Azhar Hussain v. Rajiv Gandhi, 1986 (Supp) SCC 315, ITC Limited v. Debts Recovery Appellate Tribunal and Others,  and Samar Singh v. Kedar Nath Alias K.N. Singh & Others, 1987 (Supp) SCC 663.  The Hon'ble Supreme Court did not perceive any obstacle in the path of the   rejection of     a  suit even though Issues   had been  framed and, therefore,  the expected course of the lis would  have been  the    recording of   evidence.  
 

 5.    It may  even be    dereliction of   duty  if the suit is   pointlessly continued    till its   normal end  i.e. by constraining    the   parties to   lead  evidence  even   though it is  quite clear  to all concerned    that the  suit    is  already dead.  Instead a euthanasia   has to be   performed.   It is the  bounden  duty of the Court to do so  where   futile and   pointless litigation comes to its attention and notice.    It is  always   open to the Court to  intelligently  view    the contents of the    entire file before  it   in order to arrive at    an informed   decision  of whether the plaint should  be    rejected.   In using the   words "statement in the plaint" what is   intended  to be  articulated by the Legislature is that  the Court  ought not  to   go into  contentious issue by sifting  through the contents of the Plaint  and the Written Statement and coming to  a   decision on the  preponderance of probabilities.  As soon as     two opinions  are    possible  about the  maintainability of the suit,  that is one  articulated  in the plaint  and the other   voiced in the Written Statement, the Court  ought not to   reject the plaint without giving  adequate opportunity to the Plaintiff to prove its  case.  Undoubtedly, the averments   in the plaint  always  remain at the  fulcrum of the investigations.  
 

 6. I  shall now   refer to the  facts  of both the  cases    to  see whether the preliminary objection  raised by the Defendants should be  sustained.  The   Defendants   had  filed probate petitions on 8.3.1973 and 30.1.1978 respectively.    In Ishwardeo Narain Singh v. Sm. Kamta Devi and others, ,  the Apex Court has  opined  that the Probate Court  is concerned  only  with the  question of  whether  the Will  sought to be  probated  is the   last  testament  of the  deceased  person,  that   was  duly executed,   that it had been  attested in accordance    with law,  and whether  at the   time of such execution the   testator  was of sound  mind.  In that   case  it   was  succinctly and perspicuously  observed that   the  question of     whether a particular   bequest  is  good or  bad   is not   within  the purview  of the Probate Court.  The case of the Plaintiffs  was  that Probate of these Wills should not be   granted,   and  as it   transpired,  the Plaintiffs  succeeded   in their  submission.   What is  required  to be  seen is whether  they were  precluded  or   obstructed  in any manner  whatsoever  in approaching  the appropriate Court  for the vindication  of  their   perceived   rights to possession  and  enjoyment of the  immovable  and   movable  properties.   In the  present   case  the prayers  were    for the dissolution and rendition  of accounts   of the erstwhile firms which  stood  dissolved by the   deaths  of late Sardar Kundan Singh and late Sardar Polo Singh.   This   relief     was   not   available  to them in the probate proceedings filed  by  the   defendants   and  these   claims  were not   subjudice.    The Plaintiffs could have   filed separate suits for  possession of the  properties     of  their   respective  fathers and also for the   dissolution  and  rendition of accounts during   the  pendency  of the   probate  proceedings.   A convenient   test  would  always be  whether the later suit  would be liable to be  stayed  under Section 10 of the Code of Civil Procedure.  
 

 7.   According to Article 65 of the Schedule  to the  Limitation Act   the prescribed    period  within  which a  suit for  possession must be  filed   is  twelve  years  and  time   from which  this   period  begins  to  run is from when  the  possession of the Defendant becomes   adverse  to the  Plaintiff.  It is the Plaintiffs   own  case  that they were  out of possession of the properties   when  Smt. Gurbux  Kaur filed   her Objections    in the  probate  case on 15.3.1976.  It   should  have been  made   clear  to her at least on that date that the   Defendants had  presented   a   case of  possession hostile    or adverse  to her.  The suit  ought  to have been  filed   on or before  14.3.1988.  This  applies   mutates  mutants   to Smt. Gurdev Kaur.   It is of course  arguable  that the hostile and  adverse   possession   would  be  from the   date   on which she  received   summons/notice   of the filling of the petition, that is, sometime in 1973.  This  need not be  gone   into as  the  period of  prescription applies in both events.   The prescribed period for the   relief of   dissolution of partnership and  rendition  of  accounts    is  three years which has  expired much earlier on  the respective    deaths of late Sardar Kundan Singh and late Sardar Polo Singh.  
 

 8. Mr. Dial has   argued that   Section 14(1) of the Limitation Act is not attracted in the facts of the case. It reads as  follows:  
   "14. Exclusion of time of proceeding bona  fide in court without jurisdiction.--(1) In  computing the period of limitation for  any suit  the  time during which the plaintiff has been prosecuting  with due diligence another civil proceeding, whether in a  court  of  first instance  or of appeal or  revision,  against the   same party  for the  same relief  shall be  excluded, where the proceeding  relates to the  same  matter in issue and is   prosecuted in good faith in  a  court which, from defect of jurisdiction or other cause of a  like nature, is unable to entertain it."  

 

 9. The use of the word "plaintiff" in sub-section (1) of Section 14 of the Limitation Act can  lead   to two  situations.  Firstly, that the   Plaintiff  seeking the  enlargement of time   need not be    a  plaintiff in the other  civil proceedings  which    it has been prosecuting with  due  diligence.  Secondly, it can be    predicated   that the Plaintiff  in both   the  actions    must be  one   and the  same   person  who  seeks to  avail of the  latitude contained in Section 14(1) of the Limitation Act.    In my  opinion  the  word "plaintiff"  must be   governed by the  concept of  the prosecution    of  a   legal action.   In partition suits therefore,  where all the parties  are co-sharers, the Defendant   may well  respond  to  the role of  a Plaintiff.  However, if  in partition suit  one or  any of the Defendants sets up a   case  of exclusive    ownership,  and   in  order to perfect   this  title,    such Defendant must    file  a   suit for  possession, he would not be  entitled to the  protection of Section 14(1) of the Limitation Act.   It   would be  the  rarest case that the Defendant in the   previously dismissed suit would be in a   position   to  claim   the benefit  of  an  extension of time corresponding to    the  pendency of that    action.   In most cases, therefore, the person seeking to   avail of the    exclusion of time  would have to be the Plaintiff in the  previous  action  as  well as the current action.   That the  person  seeking  to  avail of the benefit  of Section 14(1) of the Limitation Act must be   the Plaintiff in both  actions is also borne out from the  fact that     the previous action ought to have been dismissed  from  a   defect  of  jurisdiction or  other   cause   of    a   like   nature which  results in such an action becoming  non-entertainable by a  Court.   This is not what has   transpired in the  present  case  since   the  probate proceedings  had been dismissed   on merits.  However,  had  such proceedings    been  defeated    for  any   jurisdictional  reasons  the benefit  would  still  not  inure  to  a  Defendant in those  proceedings.    Quite obviously the Defendants as well as   the  subject  matter of the  two suits   would also have to be  the  same.  Therefore, since  probate proceedings have  only  a   limited  scope of  enquiry  as explained in  Ishwardeo Narain's  case (supra),   it  would   have no application  to suits for  possession or rendition of  accounts pertaining to the   firm.   The facts  in Rajinder Singh & others v. Santa Singh and others, ,  and in the present  case are similar in essential  features.   
 

 10.   The Plaintiffs claim is  wholly different to that of the Defendants as  set up by them  in the  previous  litigation.  It should also   have  become plain to the Plaintiffs that if timely legal  action was not  taken their rights  would be  lost.  They have  failed to file their suit  for  possession and will regretfully have to  suffer the  consequences.  
 

11. Similar views have also been expressed by a Learned Single Judge of this Court in Air India v. Shyam Antenna Electronic (P) Limited, . In that case it was observed that "ordinarily a defendant who is merely defending a suit filed by the other party cannot be taken to be prosecuting the said suit. This is for the reason that he is merely defending the suit. Since the plaintiff and defendant have different prescribed meanings which are well known it is only the plaintiffs who prosecute the suit. However, in case where defendant sets up his own claim or claims and also prays or a relief thereto he will also be taken to be prosecuting the suit". I shall only refer to the decision in Narayan Jivaji Patil and another v. Gurunathgouda Khandappagouda Patil and another AIR 1939 Bombay 1 which also clarifies the position.

12. It has oftentimes been stated that when limitation steps in it does not extinguish the right altogether, but merely forecloses the remedies. The rationale behind prescribing limitation has been succinctly stated by the Apex Court in Rajinder Singh's case (supra.) Paragraph 17 of that Judgment reads as under:

   "The policy underlying  statutes  of limitation, spoken of as  statutes of "repose" or of "peace",  has been thus  stated in Halsbury's Laws of England Vol. 24 p. 181 (para 330): "330. Policy of Limitation Acts.  The courts have expressed at  least   three differing reasons    supporting the   existence of  statutes of limitation, namely, (1) that long  dormant claims  have more of  cruelty than justice  in them, (2) that  a   defendant  might have  lost the evidence to  disprove   a  stale  claim, and (3) that  persons with good causes of  actions should pursue  them with reasonable diligence".  
   
 

 13. For these reasons  I am  satisfied  that  the objection   taken  by  the  Defendants is well founded.   The suits   are dismissed as  having been   filed    beyond  the period  of prescribed  period  under the Limitation Act.