Delhi High Court
Sushil Kumar Goyal vs Ram Singh Gautam on 6 December, 2012
Author: Veena Birbal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 112/2011
% Date of Decision: December 6, 2012
SUSHIL KUMAR GOYAL ..... Appellant
Through : Mr. Wills Mathews with
Mr Jose Abraham & Ms Amrita
Jayan, Advs.
versus
RAM SINGH GAUTAM ..... Respondent
Through : Mr. Mir Akhtar Hussain, Adv.
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J.
*
CM No. 12631/2011 (condonation of delay)
There is delay of 30 days in filing this appeal. In view of the
reasoning given, delay is condoned.
The application stands disposed of.
RSA 112/2011
1. By way of this regular second appeal under Section 100 of Code
of Civil Procedure, challenge has been made to the impugned judgment
dated 18.01.2011 passed by the ld. lower appellate court in RCA No.
18/2010 whereby the impugned judgment dated 07.05.2005 passed by
the ld. Civil Judge in Suit No. 43/2004 has been upheld.
2. The relevant facts for disposal of present appeal are as under:-
The appellant was the plaintiff before the ld. Civil Judge. He
had filed a suit for recovery of Rs.2,16,700/- against the
respondent/defendant. His case was that his father Sh. Sri Niwas Goel
was a tenant of respondent/defendant in respect of one shop in
premises no. 27/81, Gali no.7, Pandav Road, Vishwas Nagar, Delhi.
His father had died on 26.12.1996. It was alleged that taking
advantage of the same, the respondent/defendant broke open the locks
of the tenanted shop and committed theft of the goods belonging to the
father of the plaintiff/appellant. The plaintiff/appellant had lodged
FIR No. 179/1997 under Section 453/380 IPC against the
respondent/defendant in police station Vivek Vihar. It was alleged
that the goods were worth Rs. 1,40,000/-. The appellant/plaintiff had
submitted list of goods before the Police as well as in the trial court. In
the criminal case, the respondent/defendant was held guilty vide
judgment dated 06.01.2000 and was sentenced to SI for three months
for the offence under Section 453 IPC and also SI for three months for
the offence under Section 380 IPC. After his conviction, the
appellant/plaintiff served a legal notice dated 13.03.2000 calling upon
the respondent/defendant to return the goods or in the alternative pay
the price of the goods worth Rs. 1,40,000/- along with interest.
Despite service of notice respondent/defendant had failed to return the
goods. Accordingly, appellant/plaintiff filed the aforesaid recovery
suit.
3. The respondent/defendant had contested the suit by filing a
detailed written statement wherein he had taken the stand that the
possession of the tenanted shop was handed over on 08.10.1995 by the
father of the appellant/plaintiff of his own free will and there was no
question of breaking open the locks of the shop or theft of goods as is
alleged and the suit filed was without any cause of action. Some
preliminary objections were also taken in the written statement.
Thereafter, replication was filed by the appellant/plaintiff. The ld.
trial court framed in all nine issues. The issue no.5 was framed on the
question of limitation. The ld. Civil Judge on the basis of evidence on
record held that the theft in question was allegedly committed on
10/11.01.1997 and as per Article 68 of Schedule of the Limitation Act,
1963, the limitation of three years is provided for filing the suit and as
the suit was filed on 29.04.2000, there was delay of 3 months and 18
days in filing the suit, as such, dismissed the suit on the ground of
limitation. The findings on other issues were also given but before the
first appellate court only the issue of limitation was pressed.
4. On the basis of evidence on record, the ld. ADJ also observed
that in cross-examination the appellant/plaintiff himself had stated that
he came to know of the breaking open of locks on 10.11.1997 as such
the limitation would start from the said date. Accordingly, the suit was
barred by limitation.
5. The ld. counsel for the appellant has argued that the limitation
would start from the date of conviction of the respondent/defendant
and not from the date of breaking open of locks of the shop, as is taken
by both the courts below as such the finding of courts below on the
issue of limitation is wrong.
6. On the other hand, learned counsel for respondent/defendant has
argued that no substantial question of law arises in the present case and
the appeal is liable to be dismissed.
7. It is the own case of the appellant/plaintiff that he had come to
know that the locks of the tenanted premises had been broken on
10/11.01.1997 when he went to meet the respondents/defendants. It is
also his case that he had filed a complaint on the basis of which FIR
No.179/1997 was registered under Section 453/380 IPC against the
respondent/defendant in police station Vivek Vihar on 19.02.1997. As
per his own case set up, the appellant/plaintiff had the knowledge that
the goods were in unauthorized possession of the respondent/defendant
since 10/11.01.1997. Both the courts below have also given finding
based on evidence on record that theft was committed on
10/11.01.1997. As per appellant/plaintiff, the limitation for filing the
present suit is governed by Article 68 of the Limitation Act. The
period of limitation as provided under the above provision for filing the
suit for specific movable property lost, or acquired by theft or
dishonest misappropriation or conversion is three years and the time
begins to run when the person having the right to the possession of the
property first learns in whose possession it is. Even as per Article 91
of the Limitation Act, suit for compensation for wrongfully taking or
detaining any specific property lost or acquired by theft is three years
from the date when the person having the right to the possession of the
property first learns in whose possession the property is. Looking from
any angle result is same. Both the courts have held that from the
documents/evidence on record it has been established that the breaking
open of the locks of the shop and removal of goods thereof was in the
knowledge of the plaintiff on 10/11.01.1997. Even as per case set up
by him, he had come to know of breaking open the lock of shop on
10/11.01.1997. In his evidence before the ld. trial court, the
appellant/plaintiff had stated that the FIR was registered against
respondent/defendant on 19.02.1997 on the basis of his complaint. The
suit was filed by appellant/plaintiff. On the factual position emerging
above from evidence both the Courts have rightly applied the law and
dismissed the suit as barred by limitation.
8. The ld. counsel for appellant/plaintiff has relied upon Chacko v.
Paily: AIR 1985 Kerala 196 to substantiate his contention that the
period of limitation starts from the date of conviction. However, the
facts of the judgment relied upon are totally different. The same are
not applicable to the present case.
9. No substantial question of law arises in this second appeal. The
appeal stands dismissed.
VEENA BIRBAL, J
December 6, 2012
srb
