Ramcharan Yadav vs Prempal Yadav
2015 Latest Caselaw 351 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      RSA No.302/2007
                                     Decided on : 14th January, 2015


    RAMCHARAN YADAV                                       ..... Appellant
                       Through:     Ms.Kusum Lata Sharma, Ms.Geeta
                                    and Mr.Aman Sharma, Adv.

                       versus

    PREMPAL YADAV                                         ..... Respondent

                       Through

    CORAM:
    HON'BLE MR. JUSTICE V.K. SHALI
    V.K. SHALI, J. (ORAL)

C.M. Nos.15549/2014 (Restoration) & 15550/2014 (Condonation of Delay)

1. The CM No.15550/2014 has been filed seeking condonation of

delay of 36 days in filing the restoration application i.e. CM

No.15549/2014.

2. For the reasons stated in the applications, as 'sufficient cause'

has been shown, the same are allowed and the appeal is restored to its

original number.

RSA No.302/2007

1. This is a regular second appeal filed by the appellant.

2. Vide order dated 03.04.2013, this court had framed the

following substantial question of law with regard to the perversity in

the findings arrived at by the courts below:

"Whether the finding arrived at by the trial court and confirmed by the first appellate court is perverse, if so, to what effect?"

3. I have heard the learned counsel for the appellant/plaintiff and

have also gone through the record. However, I find that there is no

perversity in the concurrent finding arrived at by the courts below

rejecting the plaint of the appellant as barred by limitation in view of

Order 7 Rule 11 CPC.

4. The appellant/plaintiff had filed a suit for declaration,

mandatory injunction and permanent injunction in the year 2004. So

far as the declaration is concerned, it was sought that the documents

used for selling the property in question such as Will/power of

attorney etc., purported to have been executed by him, were signed by

him under misrepresentation in the month of March, 2000 when the

appellant/plaintiff had taken a loan of Rs.80,000/- from the respondent/defendant.

5. As a matter of fact these documents according to the

respondent/defendant were executed by the appellant/plaintiff in

favour of the respondent/defendant transferring the title of the

property in question.

6. The appellant/plaintiff in the suit filed by him had alleged that

the respondent/defendant was a licensee in respect of the premises in

question i.e.K-27, Budh Vihar, Phase-II, Sharma Colony, Village

Rithala, Delhi and since he had failed to vacate the same, therefore,

the suit was filed. The respondent/defendant filed an application

under Order 7 Rule 11 CPC in the said suit stating that the suit is

barred by limitation because the declaration has to be sought by a

party in accordance with Article 58/59 in the schedule to the

Limitation Act, 1963 within a period of three years from the date of

accrual of cause of action. In the instant case, the courts below have

taken a view that such documents in respect of which declaration was

sought to be obtained were within the knowledge of the

appellant/plaintiff, purported to have been executed right from day

one i.e.06.03.2000, and, therefore, the suit for declaration if any, had to be filed before 31.03.2003 while as the suit for declaration was

filed in the year 2004 and thus, ex facie, the same was barred by

limitation. At the time of formulation of question of perversity, the

learned counsel for the appellant/plaintiff stated the appellant/plaintiff

had made an averment in the plaint that he was threatened to be

dispossessed on 14.01.2014 & 15.01.2014 and thus the cause of

action accrued to him on the said dates and accordingly the suit was

within limitation. At that point of time, it was not shown to the court

that the appellant/plaintiff was aware of the documents in respect of

which the declaration was sought and the appellant/plaintiff did not

show to the court that the appellant/plaintiff was in the knowledge of

the documents which were being set up by the respondent/defendant

with respect to being in lawful possession of the suit property. The

relief of permanent and mandatory injunction which was set up by the

appellant/plaintiff was not a primary relief, but only subsidiary to the

main relief which was for declaration and the period in either case, is

to be reckoned from the next day to the date of accrual of cause of

action. When the cause of action itself has accrued at the time of

signing of the documents on 06.03.2000, the period of limitation starts immediately on the next date because it is not the case of the

appellant/plaintiff that he was not aware of those documents. This is

on account of the fact that under Section 9 of the Limitation Act, 1963

it is clearly laid down that once the period of limitation starts running,

then any subsequent ability or disability does not stop the period of

limitation except as is envisaged under Section 12 & 14 of the

Limitation Act, 1963 which admittedly is not the case here.

6. For the reasons mentioned above, I concur with the concurrent

finding returned by the courts below concurrently holding that the

plaint of the appellant/plaintiff is barred by limitation and accordingly

is a question of fact and not a question of law much less a substantial

question of law nor is any perversity involved in the same.

7. Accordingly, the present appeal is dismissed.

V.K. SHALI, J JANUARY 14, 2015/dm