Sh. Vasudev vs Smt. Geeta Devi & Anr.
2010 Latest Caselaw 3541 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+          CS(OS) NO.41/2010 & IA NOS.311/2010 & 3308/2010

                                                    Reserved on : 12.5.2010
                                                Date of Decision 30.07.2010

SH. VASUDEV                                            ......      Plaintiff
                                     Through:    Mr.L.B.Rai, Advocate

                                      Versus

SMT. GEETA DEVI & ANR.                                   ...... Defendants
                                     Through:    Mr.Ramkishan,       Advocate
                                                 for defendant no.1.
                                                 Mr.Ajay Bahl, Adv. for
                                                 defendant no.2.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                                Yes
2.     To be referred to the Reporter or not ?                     No
3.     Whether the judgment should be reported
       in the Digest ?                                             No

V.K. SHALI, J.

1. This is a suit for possession, declaration, permanent

injunction and cancellation of decree dated 8.12.2008 passed

by Sh.Y.S.Jonwal, Sub-Judge, First Class, Delhi in CS(OS)

No.1058/86 and a decree dated 24.7.2009 passed by

Sh.Naresh Kumar Malhotra, Administrative Civil Judge VIII,

Karkardooma Court, Delhi in CS(OS) No.269/90 (old) and

CS(OS) No.379/2006 (new).

2. Briefly stated the facts of the case are that the plaintiff had

allegedly purchased a plot of land bearing No.B-95, situated

in Khasra no.81, Khatauni No.198/68, situated in the Abadi

of Pandav Nagar, Village Patparganj by way of General Power

of attorney, agreement to sell, affidavit and Receipt dated

09.1.1984. It is alleged by the plaintiff that the defendant

no.1 is the daughter and defendant no.2 is the relation of one

Pandit Ram Swaroop Sharma, who has already expired and

who was working with the plaintiff. It is also alleged by him

that at the time when he had purchased the aforesaid piece of

land, he was living at G-734, Srinivaspuri, Delhi.

3. The plaintiff has stated that the deceased Ram Swaroop

Sharma was helping the plaintiff in construction work. The

plaintiff states that he had permitted Ram Swaroop Sharma

to use and look after the said property which he had

purchased. It is alleged recently in a suit filed by him

bearing no.182/2009 the defendant no.1 filed the written

statement on 18.6.2009 and he learnt that the temporary

structure which was existing on the said piece of land was

demolished by the defendant no.1 in collusion and

connivance with the anti-social elements and Goondas and he

started raising unauthorized construction.

4. It is further alleged by him that it is during the pendency of

these proceedings, he learnt about the factum of two decrees

the validity of which is being challenged in the present suit.

It is alleged that the defendants in connivance with the other

persons had forcefully occupied the plot of the defendant w.e.f

18.6.2009 and hence he has prayed for the aforesaid relief of

possession and a decree of cancellation of the two decrees

apart from permanent injunction.

5. In view of the averments made in the plaint, on the very first

date when the suit came up for hearing, the learned counsel

was directed to satisfy the Court regarding maintainability of

the suit on the ground of limitation. This query was raised

from the learned counsel for the plaintiff on account of the

fact that in the cause of action clause, the plaintiff himself

had stated that it accrued to him for the first time on 9.1.84

when he purchased the plot of land.

6. There is no dispute about the fact that a suit for possession

has to be filed within 12 years from the date of accrual of the

cause of action while as the suit was filed much after the

expiry of the said period of limitation, that is why the notices

were issued to the other side and arguments were heard on

the question of limitation. It is at this point of time that the

plaintiff filed an application under Order 6 Rule 17 CPC

bearing IA No.3308/2010 for amending the plaint so that the

date when the cause of action is stated to have accrued to the

plaintiff was actually reflected in the plaint was sought to be

modified. It was stated that the cause of action accrued on

18.6.2009 when the defendants had taken forcible

possession. The reference in this regard was made to para 9

of the plaint.

7. I have heard the learned counsel for the plaintiff as well as

learned counsel for the defendant.

8. There is no dispute about the fact that even if the plea of

limitation is not raised by the defendant, it casts an obligation

on the Court to be prima facie satisfied that the suit which is

brought up before the Court is within limitation. It was in

this context that the learned counsel for the plaintiff was

directed to satisfy the Court with regard to the maintainability

of the suit on the ground of limitation.

9. A perusal of averments made in paragraphs 9 and 13 are

relevant so as to decide this question. In para 9, the plaintiff

has stated that defendant no.1 in collusion and connivance

with other persons has forcibly occupied the plot of the

plaintiff on 18.6.2009 for which he has made a complaint to

the police as well as to the ACP concerned. In para 13, the

plaintiff has stated that the cause of action arose for the first

time on 9.1.84 when the plaintiff had purchased the plot from

Jag Ram and he has further stated that the cause of action

arose on 18.6.2009 when the defendants dispossessed the

plaintiff and started raising the construction and since the

cause of action is continuing in his favour he brought this

suit for possession.

10. Section 3 of the Limitation Act clearly states that a suit which

is beyond the period of limitation, cannot be entertained.

Even though this may work out to be a hardship to the

plaintiff but there is no question of condonation of delay of

filing the suit. The only provision which permits exclusion of

time in filing the suit is under Section 14 where time is spent

by person bonafide in wrong forum. Section 9 is further

relevant which shows that once the period of limitation starts,

no subsequent event can stop it. Meaning thereby that once

the clock starts ticking the subsequent disability or inability

or a subsequent development will not stop the period of

limitation.

11. Another Article which will be relevant for the purpose of

deciding the question of limitation in the instant case is

Article 64. It is laid down that the suit for possession has to

be filed within 12 years. The period of Limitation is to be

reckoned from the date when the possession of the person

against whom a decree is sought becomes adverse to that of

the plaintiff. If that be so, then notwithstanding the fact that

the plaintiff in the cause of action clause has intentionally or

unintentionally mentioned that the cause of action accrued to

him on 09.1.84, the period of limitation would have to be

reckoned only from 18.6.2009 when the defendants had

taken the forcible possession of the suit premises. There is a

definite averment made in this regard by the plaintiff in para

9 of the plaint. It is in this light and because of this fact that

I feel it will be too harsh on the plaintiff to reject the suit of

the plaintiff on the ground of limitation Under Order 7 Rule

11 (d) of the CPC at the threshold. Accordingly, the plaint is

prima facie held to be within limitation.

12. The plaintiff has also filed an application under Order 6 Rule

17 CPC for amending the cause of action clause in this regard

which I feel ought not to have been considered without first

seeing as to whether the suit as framed is maintainable or

not? The application for seeking amendment ought to be

considered only once the plaintiff prima facie satisfies the

Court that the suit as framed is maintainable.

13. In the present case, I am satisfied that prima facie the period

of limitation will have to be reckoned only from 19.6.2009 and

not from 9.1.1984. I accordingly, hold that the suit of the

plaintiff is within limitation. So far as the amendment to the

plaint is concerned as the suit is still at the threshold, the

plaintiff is permitted to amend the suit.

14. Amended plaint be filed within two weeks.

15. Accordingly, summons be issued to the defendants on the

amended plaint.

V.K. SHALI, J.

JULY 30, 2010 RN