Shri Kure vs Shri Dalip Singh &Ors.
2014 Latest Caselaw 788 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RSA No. 26/1993

%                                  Reserved on:   16th January, 2014
                                   Pronounced on: 11th February,2014

SHRI KURE                                                 ......Appellant
                            Through:     Mr. Sunil Aggarwal and Mr.
                                         R.C.Gupta, Advocates.

                            VERSUS

SHRI DALIP SINGH &ORS.                                     ...... Respondents

                   Through:               Mr. Swastik Singh, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J

1. This regular second appeal impugns the concurrent judgments of the

courts below; of the trial court dated 18.3.1974; and the appellate court dated

29.10.1992; by which the suit of the respondents-plaintiffs for declaration,

injunction and possession was partially decreed by allowing the prayer only

of declaration. Paras 17 and 18 of the judgment of the trial court read as

under:-

"17. In view of the statement of DW7 and the reports DW7/a and DW7/2, it cannot be said that the plaintiffs are in possession of the suit land.

18. In the result, I pass a decree for declaration in suit No.620/73 in favour of Dalip Singh etc. that the order of the Consolidation Officer dated 18.7.70 ordering the delivery of possession of the suit land to kure defendant is wrong, illegal, without jurisdiction and void. But the plaintiffs must apply to the court having jurisdiction for possession of the suit property and the suit as regards injunction and possession is dismissed. Since the defendant was given the possession in pursuance of an illegal and void manner, the position of the defendant in the suit land is only that of a tres-passer. But under the D.L.R. Act even the rights of a tres-passer are recognized and the suit No.633/73 filed by kure defendant is, therefore, decreed and the plaintiffs are restrained from taking possession of the suit and otherwise than in due course of law. The parties are left to bear their own costs."

2. As stated above, the first appeal filed by the appellant herein,

and who was the defendant in the trial court, was dismissed by the impugned

judgment dated 29.10.1992.

3. At the time of admission of the appeal on 18.2.1993, question

of law which was framed was with respect to ground-4 in the appeal and

which is of whether civil court had jurisdiction in view of Section 44 of the

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act,

1948 (in short 'the Act'). Section 44 of the Act reads as under:-

"Section 44. Jurisdiction of civil court barred as regards matters arising under this Act- No civil court shall entertain any suit instituted or application made, to obtain a decision or order in respect of any mater which the Chief Commissioner or any officer is, by this Act, empowered to determine, decide or disposed of."

4. Besides Section 44, it will be necessary to refer to two other

Sections namely Sections 23 and 26 for deciding the question of law framed

and these Sections read as under:-

"23. Right to possession of new holding. - (1) if all the owners and tenants affected by [the repartition as carried out under sub-section (1) of section 1], agree to enter into possession of the holding allotted to them there under, the consolidation officer may allow them to enter into such possession forthwith or from such date as may be specified by him. [(2) If all owners and tenants as aforesaid do not agree to enter into possession under sub-section (1), they shall be entitled to possession of the holdings and tenancies, allotted to them from such date as may be determined by the Consolidator Officer and published in the prescribed manner in the estate or estates concerned, and the Consolidation Officer sell if necessary, put them in physical possession of the holding to which they are so entitled including Standing crops, if any and for doing so may exercise the powers of a Revenue Officer under the Delhi Land Revenue Act, 1954, or the U.P. Land Revenue Act, 1901, as in force in the Union territory of Delhi, as the case may be.

(3) If there are standing crops on any holding of which possession has been given under sub-section (2), the Consolidation Officer shall determine in the manner provided under this Act the compensation payable in respect of such crops by the person put in possession, who shall, within six months of the date of possession, pay such compensation to the person or persons from whom possession was transferred and in case of default such compensation shall be recoverable from him as an arrear of land revenue.

(4) If any person from whom compensation is recoverable under the scheme fails within 15 days of the [date], referred to in sub-section (2) to deposit such compensation in the prescribed manner, it shall be recoverable from him as an arrear of land revenue, and in such case the amount realised, after deducting the expenses, shall be paid to any person having the interest in the holding.

26. Encumbrances of land-owners and tenants. -(1) If the holding of a landowner or the tenancy of a tenant brought under the scheme of consolidation is burdened with any lease, mortgage or other encumbrance,

such lease, mortgage or other encumbrance shall be transferred and attached to the holding or tenancy allotted under the scheme or to such part of it as the Consolidation Officer subject to any rules that may be made under section 46, may have determined in preparing the scheme; and thereupon the lessee, mortgagee or other encumbrance, as the case may be, shall cease to have any right in .or against the land from which the lease, mortgage or other encumbrance has been transferred. (2) If the holding or tenancy to which a lease, mortgage, or other encumbrance is transferred under sub- section (1) is of less market value than the original holding from which it is transferred, the lessee, mortgagee or other encumbrances, as the case may be, shall subject to the provisions of section 34 be entitled to the payment of such compensation by the owner of the holding, or as the case may, the tenant as the Consolidation Officer may determine.

(3) Not withstanding anything, contained in section 23, the Consolidation Officer shall if necessary put any lessee or any mortgagee or other encumbrances entitled to possession, in possession of the holding or tenancy or part of the holding or tenancy to which his lease, mortgage or other encumbrance has been transferred under sub-section (1)"

5. The Act was passed to consolidate different holdings of one

person in different places in the same village. Fragmented holdings caused

losses both to the private individual who owned the land as also to the

government. So far as the private individual is concerned, lands situated at

different places were difficult to manage besides causing loss of time,

money and energy to cultivate and manage the fragmented holdings. The

individual having fragmented holdings in different places also suffered the

loss of having lesser agricultural out-put which would be larger if instead of

small holdings at different places, there was one large holding at one place.

To the country loss is of GNP on account of fragmented holdings resulting

in lesser production. Therefore, to remove the ills aforestated, the subject

Act was passed. As per the scheme of the Act, first a draft scheme for

consolidation is prepared and published as per Section 19 of the Act. After

the objections of the different stake holders are heard, the scheme is

confirmed as per Section 20 and repartition is then carried out under Section

21. After repartition being done there is a fresh preparation of the record of

rights in terms of Section 22. It is at this stage that Sections 23 and 26

(which are reproduced above) kick-in because the object of consolidation is

not to dispossess persons who are in possession of the pre-consolidated land

holdings and of which land persons may not be owners, and may be tenants

or licencees and so on. As per Sections 23 and 26, if there is no dispute

between the actual owner and the tenant/licencee etc then after the

repartition the person in possession of the fragmented holding (s) comes into

possession of the newly consolidated holding. If however, there is a dispute

the authorities acting under the Act in terms of Sections 23 and 26 pass

appropriate orders for putting the person who ought to be in possession in

actual physical possession of the newly consolidated holding.

6. The aforesaid legal position is stated in view of the facts of the

present case wherein the appellant was not the owner, but was the tenant of

the fragmented holdings. Post the repartition inasmuch as, appellant was not

put in possession of the new holdings, proceedings were initiated by him

under Section 26 of the Act. These proceedings were initiated before the

first stage authority under the Act (i.e consolidation officer Sh. Amarnath

Mahan). The first stage of authority under the Act dismissed the application

vide order dated 9.9.1968 as being barred by time, however, the appellate

authority (Settlement Officer Sh. K.N.Srivastava) vide its judgment dated

17.8.1969 accepted the appeal of the appellant herein and directed that the

appellant be put in physical possession of the consolidated holding. A

second appeal was filed by the respondents herein, but the same was

dismissed by the Deputy Commissioner vide order dated 6.2.1970. I am not

giving the details of the revenue field numbers and inasmuch as the same are

mentioned in the judgments of the courts below and there is no dispute with

regard to the same. Against the order passed by the second appellate

authority under the Act, the respondents herein (plaintiffs in the trial court)

filed a writ petition in the High Court, but the respondents were not

successful. The appellant thereafter took physical possession of the land in

execution of the orders passed under Section 26. Consequently, the subject

suit came to be filed stating that the authorities under the act had decided

wrongly and they had no power to allow the application under Section 26

beyond the period of limitation.

7. Section 44 containing the bar of jurisdiction of civil courts has

already been reproduced above.

8. In view of Section 44 there is a clear-cut bar of jurisdiction for

the civil courts to entertain a suit to decide any issue which the competent

authorities under the Act can decide. Section 9 CPC states that civil courts

can entertain all suits, but not if cognizance of the same is expressly or

impliedly barred. The law with respect to bar on the jurisdiction of the civil

courts has been the subject matter of a catena of decisions of the Supreme

Court (a few thousand cases) and instead of reproducing the relevant

paragraphs of those cases, let me summarize the ratios in this regard as

under:-

(i) A civil court does not take cognizance of a suit if there is an express

or implied bar by a statute barring the jurisdiction of the civil court.

(ii) An express bar prevents the civil court from deciding any matter

which has to be left to be determined in terms of the statute by the

designated authority under the statute which contains the bar.

(iii) Even in spite of an express bar civil court will continue to have

jurisdiction if the authorities under the Act are guilty of assuming

jurisdiction when they have none or if fundamentals of judicial procedure

are not followed or the authorities act in violation of the provisions of the

Act which require a particular procedure to be followed.

(iv) A judgment on merits, even if wrong, by a competent authority under

a statute, does not result in a jurisdictional error. It is because the authority

has jurisdiction, the decision is rendered, and which according to the litigant

who loses out is wrong. In such cases, there is no error of jurisdiction by

deciding wrongly.

(v) Courts will not easily infer an implied bar of jurisdiction unless the

bar necessarily arises from the reading of the concerned statute and which

statute must necessarily provide remedy for enforcing the right. In case,

however a bar can be implied on account of the statute providing the detailed

procedure and constituting the requisite designated authorities for addressing

the rights and grievances, civil courts will not exercise jurisdiction.

9. Some of the judgments of the Supreme Court which laid down

the aforesaid ratio are as under:-

(i) Ebrahim Aboobakar & Anr. Vs. Custodian General of Evacuee

Property 1952 SCR 696: AIR 1952 SC 319 (Constitution Bench).

(ii) Custodian, Evacuee Property Punjab & Ors. Vs. Jafran Begum

1967 (3) SCR 736: AIR 1968 SC 169.

(iii) Saraswati & Ors. Vs. Lachanna (1994) 1 SCC 611.

(iv) Shiv Kumar Chadha & Ors. Vs. MCD & Ors. (1993) 3 SCC 161

(v) M.P. Electricity Board, Jabalpur Vs. Vijay Timber Co. (1997) 1 SCC 68.

(vi) Gurbux Singh Vs. Financial Commissioner 1991 Supp (1) SCC 167.

(vii) Ittyavira Mathai Vs. Varkey Varkey and Anr. 1964 (1) SCR 495:

AIR 1964 SC 907

(viii) S. Vanathan Muthuraja Vs. Ramalingam (1997) 6 SCC 143.

10. Therefore, once there was an express bar, the courts below have

clearly committed gross illegality and perversity in assuming jurisdiction

when they had none. Let me at this stage reproduce the relevant reasoning

of the courts below with respect to bar of jurisdiction of the civil court which

will show that the entire reasoning is not only palpably erroneous but in fact

is wholly perverse:-

"From the judgment of the trial court

Issue No. 2.

13. The learned counsel for the defendant has argued that this court has no jurisdiction to grant the relief of possession or injunction. Therefore, the about should have been filed before the Revenue court. The plaintiffs cannot bring the suit within the jurisdiction of this court by adding the relief of declaration because the substantive relief sought by the plaintiffs is that of injunction or in the alternative that of possession. The jurisdiction of the civil court cannot be invoked by adding relief of declaration. The jurisdiction, according to the defendants, has to be seen from the substantive relief claimed in the plaint and in a suit for possession substantive relief is that of possession and not that of

declaration. I do not agree with this contention of the learned counsel for the defendants firstly because the plaintiffs suit is for declaration with consequential relief of injunction and in the alternative for consequential relief of possession. The suit for injunction by a Bhoomidhar is not barred u/s 185 D.L. R. Act when he seeks an injunction that the defendant should not disturn his possession. Only a suit for possession is barred. In the present case, the main prayer of the plaintiff is that the order of consolidation officer dated 18.7.70 is void and the consequential that defendants may not interfere with the possession of the plaintiff. Only in case, it is held that the plaintiff seeks the relief of possession with cannot be granted by this court otherwise also when the civil court has got jurisdiction to give relief of declaration, the whole of the suit cannot be said to be beyond the jurisdiction of the civil court. The learned counsel for the defendant further argued that since the relief of possession or injunction cannot be granted by this court, the suit only remains for that of declaration and is, therefore, barred under section 34 of the specific Relief Act. I am unable to agree with this contention of the learned counsel for the defendants also. My views are supported by 1964 Punjab page 260 The observations made on page 267 of this authority are relevant. In this case, the plaintiff obtained a pre-emption decree against the defendant and applied for its execution. In the main time Section 17(1) was inserted by Punjab security of Land Tenure Act, 1959 in Act No. 10 of 1953. Section 17(a) reads as follows:

"That notwithstanding any thing to the contrary shown in this Act or Punjab pre-emption Act of 1913, a sale of land comprising tenancy of tenant made to him by the land owner shall not be pre-emptable under the Punjab pre-emption Act, 1913 and no decree of pre-emption passed after this commencement of this Act in respect of any such sale shall be executed by any court." The plaintiff's execution was dismissed and subsequently filed a suit for declaration. The second appeal in question arose in this suit and at page 267, it was observed that though plaintiff cannot claim possession of the property by eviction of the defendant as tenant in civil court but he could claim in civil court. The plaintiff on this consideration, cannot be denied declaration in civil court. I, therefore hold that this court has jurisdiction to try this suit and rant the relief of declaration and consequential injunction but this court has no jurisdiction

to grant the relief of possession if the plaintiffs are held not to be in possession of the suit land. The issue is, therefore, decided accordingly."

" From the judgment of appellate court

ISSUE NO.1 & ADDITIONAL ISSUE NO.II

9. While deciding issue No. 1 in favour of the respondents, Ld. Trial Judge has relied upon a judgment of Hon'ble Delhi High Court delivered in L.P.A.No. 271/1971 Suraj Mal vs Manohar Lal. However, this judgment stands overruled by the Hon'ble Supreme Court of India Vide its judgment dated 2.11.1988 given in civil Appeal No. 2014-2015 of 1973 'Amar singh vs Chandgi'. Ld. counsel for the appellant referred to this unreported judgment during hearing of the appeal. In the said judgment, it has been held that section 26 of the consolidation Act would come into operation only subsequent to and only upon the re-allotment to the original owner being made and he being put in possession of the substituted holding in lieu of the original holding upon repartition and that High court was wrong in holding that once a scheme of Consolidation comes into force, Consolidation Officer has no jurisdiction to exercise powers under section 26 of the Consolidation Act.

One of the sounds raised by the respondents to get the impugned order dt. 18.7.1970 passed by the Consolidation Officer declared as without jurisdiction was that after completion of consolidation in village Badli in 1954-55 consolidation Officer had become functus Officio. This submission has Been upheld by the Ld. trial Judge but in view of the decision of the Hon'ble Supreme Court (Supra) the findings of the trial court have to be set aside and are accordingly set aside.

It was, however, submitted by the Ld. counsel for the respondents that even if the impugned order dated 18.7.70 could not be said to be without jurisdiction on the basis of above referred ground relied upon by respondents, there was another ground available to them in support of their contention that the said order of consolidation Officer was illegal, ultra vires and without jurisdiction. And this ground was that the Consolidation Officer could not have entertained the application of the appellant, who claimed to be a non-occupancy-tenant under section 26 of the Consolidation Act in 1960 i.e. after expiry of more than five years

from the completion of consolidation in 1954-55 and that too when admittedly, appellant had been put in possession of only some part of post-consolidation land in 1955 in lieu of pre-consolidation land which according to him he was entitled to. According to the Ld. counsel for the respondents even if no period of limitation was fixed under section 26 for a non-occupancy tenant to move the Consolidation Officer. That did not give unfettered right to the authorities under the Consolidation Act to entertain an application under section 26 at any time and that too to the prejudice of valuable right of some one which might have accrued as a result of delay on the part of non-occupancy-tenant to act to protect his rights, as is the case in hand where respondents had already been conferred bhumidari rights in respect of land in suit at the time of general distribution of bhumidari certificates in December 1959, whereas admittedly appellant moved the Consolidation Office r in May, 1960. Arguments which was, thus developed by the Ld. counsel for respondents was that even if an authority constituted under a Statute has jurisdiction to pass some order but if in exercise of such jurisdiction it acts arbitrarily then any order passed by it in exercise of its jurisdiction would be without jurisdiction and against the statute and can be set aside/quashed in a civil suit. In my view, there is force in this argument of the Ld. counsel for the respondents. Applying this principle to the facts of the present case, it was argued by the Ld. counsel for the respondents that appellant approached the authorities under Consolidation Act for being put in possession of the land which according to him, he was entitled to, as a result of consolidation of holdings in lieu of the land held by him before the consolidation, after expiry of more than 5 years from the time when even according to the appellant, himself, he had been given possession of part of post-consolidation-land in lieu of pre-consolidation-land held by him. He referred to the statement of consent of the appellant, du12 wherein he admitted that consolidation proceedings took place in 1954-55 and that part of post-consolidation-land had been delivered to the appellant in 1955 and for remaining land, they had applied for possession in 1960. He further admitted during his cross-examination that Nanak Jai Singh and Dalip had been declared bhumidhar in respect of land in suit but grant of these bhumidhari rights were challenged in the court of Consolidation officer. It was argued by Ld. counsel for the respondent that in view of

this fact, application filed by the appellant in 1960 for being put in possession of the land in suit was highly Belated and even If no time limit had been prescribed under section 26 of the Consolidation Act for moving authorities under the Consolidation Act, this kind of application for the side relief of possession could be filed and entertained only within a reasonable period and that a period of more than 5 years could under no circumstance be termed as a reasonable period. He has further argued that passing of the impugned order by entertaining application under section 26 after more than 5 years of the competition of the consolidation proceedings amounted to arbitrary exercise of jurisdiction by the concerned authorities and thus the impugned order was illegal and without jurisdiction and not binding upon the respondents. On the other hand, it was argued by the Ld. counsel for the appellant that if no time limit has been prescribed, only inference that could be drawn was that non-occupancy-tenant could approach the authorities under section 26 of the Consolidation Act at any time and particularly in view of the fact that it was obligatory on the part of the authorities to put him in possession of the post-consolidation-land in lieu of pre-consolidation-land in lieu of pre-consolidation-land. Ld. counsel for the appellant relied upon and referred to Section 42 of the Consolidation Act in support of this proposition of law advanced by him and also referred to a judgment of the Punjab High Court reported in AIR 1967 (Punjab) 111. In my view, this argument of the Ld. counsel for the appellant and reliance on section 42 of the Consolidation Act is of no help to the appellant, inasmuch as, firstly Section 42 of the Act only empowers Chief Commissioner to examine the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act and may pass such order in reference there to as it thinks fit at any time and admittedly, in the present case, impugned order was not passed by the chief Commissioner is exercise of his powers under section 42 of the Act and secondly as his been observed in the said judgment of the Punjab High Court that as far as the exercise of powers under section 42 of the Act by the Chief Commissioner suo moto was concerned, there was no limitation prescribed and these powers could be exercised at any time but as far as exercise of the powers under section 42 of the consolidation Act at the instance of a right holder is concerned, same was governed by rule 18

framed under section 40 of the Consolidation Act and which Rule provides six months period for application under section 42 of the Act from the date of the order against which it is failed. So even if the provisions of Section 42 of the Consolidation Act were applicable the facts of the present case, application of the appellant filed on 6.5.60 was much beyond the period of limitation prescribed under the said Act. Admittedly, appellant was put in possession of part of post-consolidation- land in the year 1955which must have been done in the pursuance of same order passed under section 23 of the Consolidation Act and the appellant having not been put in possession of the entire land which according to him he was entitled to, a cause of action in this favour had accrued in 1955 itself and he having failed to approach the authorities for possession of the left out piece of land for more than five years. He could not have approached the authorities in the year 1960 when in the mean time respondents have been confirmed bhumidhari rights in respect of the land in suit and consequently, the land in suit and consequently, the authorities under the Consolidation Act could not have passed the impugned order.

Ld. counsel for the appellant has also relied upon a judgment of the Hon'ble Supreme Court reported as AIR 1962 SC 1356 in support of his argument that for non-occupancy-tenant there was no limitation provided to move the authorities and as such no limitation on this right of the non- occupancy tenant could be imposed by holding that application could have been moved only within a reasonable period. I am of the view that even this judgment relied upon by the appellant does not advance in any manner his argument. In this case, Hon'ble Supreme Court was interpreting the provision of Income Tax Act where the words 'at any time' had been mentioned. However, under section 26 of the consolidation Act, there are no such words used giving the powers to the authorities to act 'at any time' either suomoto or at the instance of any affected person.

It was then argued by the Ld. counsel for the appellant that even if the impugned order was illegal or without jurisdiction, same could be challenged by way of appeal or revision under the Consolidation Act. This argument is also devoid of any merits, inasmuch as, it has been specifically provided under section 43 of the Consolidation Act that no

appeal or revision shall lie from any order passed under the Act except as provided in the Act, whenever remedy of appeal was intended to be provided by the Legislature, same has been provided under the Specific Sections of the Consolidation Act like section 21 of the Consolidation Act. Under Section 26 however, there is no provision for appeal and revision and for this reason alone, authorities under the Consolidation Act should not act in an arbitrary manner. By giving interpretation to a provision of law, in such manner which is not warranted under the law, as has been done in the present case by the concerned authorities by holding that there was no time limit within which non-occupancy-tenant should approach the authorities under the Consolidation Act for being put in possession of the post-consolidation-land in lieu of pre-consolidation-land authorities have acted arbitrarily. It was also argued by the Ld. counsel for the appellant that even a reasonable period has not been defined under the Consolidation Act and as such it should not be said that period of five years or more was not a reasonable period. This is true that what is a reasonable period, is not defined anywhere but this depends upon facts and circumstances of each case. In the present case, by no stretch of imagination, can it be said that appellant had moved the Consolidation Authorities within a reasonable period. As already observed even under section 42 of the Consolidation Act, a period of six month has been provided for affected person to apply under section 42 of the said Act. If this period of six months was also to be ignored, even then, as has been provided under the Limitation Act 1963 that where no period is prescribed, limitation period was 3 years from the date when right to sue accrues. In the present case, right to apply to the authorities had, definitely, argued to the appellant even according to himself in the year 1955 when he had been delivered part of the land after the consolidation was over. Thus looking from any angle, I have no hesitation in coming to a conclusion that in the year 1960 when the appellant filed the application under section 26 of the Consolidation Act, Consolidation Officer had no jurisdiction to entertain the same and consequently the impugned order which was passed on 18.7.1970 was without jurisdiction.

For the reasons given above, I hold that order dt. 18.7.70 passed by the Consolidation Officer allotting the land in suit in favour of the appellant was without jurisdiction."

11. Whereas the findings of the judgment of the trial court is

perverse because the same ignores the bindingness of Section 44 of the Act

which is not even quoted, the appellate court has fallen into an error because

there is no jurisdictional error in deciding wrongly because the jurisdictional

error is only if the jurisdiction for deciding could not at all have been

exercised. The Supreme Court has accordingly so observed in the judgment

in the case of Ittyavira Mathai (supra) and the relevant para 8 of this

judgment reads as under:-

"8. The first point raised by Mr. Paikedy for the Appellant is that the decree in O.S. No. 59 of 1093 obtained by Anantha Iyer and his brother in the suit on the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer was a nullity because the suit was barred by time. Even assuming that the suit was barred by time, it is difficult to appreciate the contention of Learned Counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well-settled that a court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them can not be treated as nullities. Learned Counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmad and Ors. v. Onkar Pratap Narain Singh and Ors. : A.I.R. (1935) P.C. 85 and contended that since the court is bound under the provisions of Section 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do

so. All that the decision relied upon says is that Section 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The Privy Council has not said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Code of Civil Procedure. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity."

12. In view of the above, the judgments of the courts below are

illegal and therefore are set aside by accepting the appeal and answering the

question of law in favour of the appellant. The suit filed by the

respondent/plaintiff is dismissed because civil courts did not have

jurisdiction in view of Section 44 of the Act. Parties are left to bear their

own costs.

FEBRUARY 11, 2014                                    VALMIKI J. MEHTA, J.
ib/Ne