Laxman Prasad Gupta & Anr. vs Jaspal Singh
2015 Latest Caselaw 9134 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                     C.R.P. No.131/2008 & C.M. No.15757/2012

                                     Decided on : 8th December, 2015

LAXMAN PRASAD GUPTA & ANR.           ...... Petitioner
            Through: Mr. Rahul Srivastava, Mr. Manu Dev
                     Sharma & Ms. Anushka Arora,
                     Advocates.

                         Versus

JASPAL SINGH                                     ...... Respondent
                       Through:   Mr. Mukesh Kumar Gupta, Advocate.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a revision petition filed by the petitioners against the order

dated 8.7.2008 by virtue of which the learned Additional District Judge,

Delhi has dismissed the application of the petitioner under Order VII

Rule 11 CPC in Suit No.200/06 titled Jaspal Singh vs. Laxman Prashad

Gupta & Another holding that the issue of limitation is a mixed question

of fact and law and therefore, has to be decided after the parties are

permitted to adduce evidence. So far as issue No.4 which was framed

with regard to the suit not being properly valued for the purpose of court

fees and jurisdiction is concerned, the same was also directed to be

substantiated by the applicant/defendant and could be decided after the

parties have adduced their evidence.

2. I have heard the learned counsel for the petitioners as well as the

learned counsel for the respondent. The main contention of the learned

counsel for the petitioners is that the suit as framed without reference to

the defence of the applicant/defendant is barred by limitation as the same

is filed for recovery of possession and the suit for recovery of possession

is to be filed within 12 years from the date of accrual of cause of action

whereas it has been filed after expiry of 12 years.

3. Before dealing with this point, it may be pertinent here to give the

facts of the case. The respondent/plaintiff filed a suit for possession of

premises bearing Flat No.1 & 2, Mezzanine Floor, 14, School Lane,

Bengali Market, New Delhi alleging that his father Raghubir Singh

Wadhera, who died on 30.11.1992, had purchased the suit property from

M/s. Lion Builders Pvt. Ltd. for a consideration of Rs.1.5 lacs against

receipt-cum-possession letter dated 2.6.1989 and actual possession was

handed over to him. The seller also issued a duly sworn and attested

affidavit dated 1.10.1990 and letter of allotment dated 29.5.1989 to father

of the respondent/plaintiff on the basis of which the respondent/plaintiff

is claiming ownership rights of the suit property. It is alleged that the

petitioners/defendants took forcible possession of the suit property by

breaking open the locks on 26.3.1991 and a criminal complaint was also

lodged in this regard. As a counter-blast, the petitioners/defendants filed

a suit for permanent injunction against Raghubir Singh Wadhera on

fictitious grounds, which was dismissed by the learned Civil Judge on

22.10.2005. During the pendency of the said suit, the respondent

maintained that their father is the owner of the suit property and through

him, they are the legal owners. The respondent/plaintiff also instituted

another civil suit for permanent injunction against petitioners/defendants

along with contempt petition bearing No.35/99 before the learned Civil

Judge. The petitioners/defendants are in illegal possession of the suit

property since 1991.

4. The essential aspect to be considered is that this is a suit for

possession filed by the petitioner and the petitioner himself in paragraph

5 of the plaint has averred as under :-

"That the defendants as named in the title, forcibly and by illegal means by breaking open the locks on or around 26.03.1991 and removing the office furniture i.e. tables and

chairs of the plaintiff's father, entered into and took possession of the suit property. This was done by the defendants Shri Laxman Parshad Gupta and his wife Smt. Rita Gupta."

5. In paragraph 13 of the plaint, it has been averred as under :-

"That the cause of action arose at Delhi first on when the suit property was purchased by the father of the plaintiffs on 02.06.1989, then when the defendants illegally occupied the suit premises by forcibly breaking the locks on 26.03.1991 and the cause of action still continues."

6. A perusal of the aforesaid two paragraphs of the plaint would

clearly show that the respondent/plaintiff is not in possession as he was

dispossessed on 26.3.1991 according to his own saying. This is not in

dispute that according Article 64 of the Limitation Act, a suit for

possession is to be filed within a period of 12 years from the date of

accrual of cause of action. Since possession is sought to be retrieved by

filing the aforesaid suit for possession obviously, the cause of action had

accrued to the plaintiff/respondent on 26.3.1991 and the period of

limitation will start ticking from 27.3.1991. If the period of 12 years is

reckoned from 27.3.1991, the same would end on 26.3.2003. If we go by

the averment made in the cause of action clause, the position becomes

much worse because the respondent/plaintiff is stating that the cause of

action accrued to him to file a suit for possession on 2.6.1989 then the

period of limitation will have to be reckoned from 3.6.1989 and it will

come to an end two years earlier than the aforesaid period, that is to say,

it will come to an end on 1.6.2001. There is no dispute about the fact that

the suit has been filed on 29.8.2006. Thus, from the aforesaid dates,

which are admittedly the plaintiff/respondent's case himself in the plaint,

ex facie the suit becomes barred by limitation.

7. I am unable to understand as to how the learned ADJ has taken into

consideration the various other factors including filing of a suit by the

tenant himself against the plaintiff/respondent as enlarging the period of

limitation of 12 years so as to make the suit within limitation prima facie

and holding that this becomes a mixed question of law and fact. No

doubt in a given case, the question of limitation may not be clear and it

may be a mixed question of law and fact but certainly in the instant case,

from the averments themselves it is very crystal clear that the suit of the

plaintiff/respondent is barred by limitation. I, therefore, feel that the

order dated 8.7.2008 passed by the learned ADJ is perverse on the

question of limitation as being a mixed question of law and fact which

can be decided only after the parties are permitted to adduce evidence. I,

therefore, set aside that order and hold that on the basis of the averments,

the suit itself is barred by limitation and therefore, the application filed by

the petitioner/defendant under Order VII Rule 11 clause (d) of the CPC ex

facie was barred by limitation and therefore, liable to be rejected.

8. I, therefore, allow the revision petition and hold that the suit of the

respondent/plaintiff was barred by limitation and is liable to be rejected.

Ordered accordingly.

9. A copy of this order be sent to the learned ADJ for information and

compliance.

V.K. SHALI, J.

DECEMBER 08, 2015 'AA'