Shri Hari Ram vs Smt. Shanti Devi & Ors.
2015 Latest Caselaw 7544 Del

$~18
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) No. 1908/2015 and IA No. 13346/2015
       SHRI HARI RAM                           ..... Plaintiff
                        Through : Mr. S. C. Phogat, Adv.

                        versus

       SMT. SHANTI DEVI & ORS.                    ..... Defendants
                      Through : None

       CORAM:
       HON'BLE MS. JUSTICE HIMA KOHLI

                        ORDER

% 05.10.2015

1. The present suit for declaration and permanent injunction has

been instituted by the plaintiff praying, inter alia, for the following

reliefs:

"(i) Direct the defendants to place on record the copy of Regd. Sale deed No.17999, Addl. Book No.1, Vol. No.3206, pages 58 to 66 dated 6.12.2010 for Rs.32,50,000/- executed between defendant no.1 and defendant no.2 to 5.

(ii) Pass a decree of Declaration/cancellation in favour of the plaintiff and against the defendants thereby declaring/cancelling the Sale Deed bearing Documents No.17999, Addl. Book No.1, Vol. No.3206, Pages 58 to 66 dated 6.12.2010 in respect of property/plot measuring 475 sq. yards i.e. 1/4th share in comprising Kh.No.31/19/2 (1-18) situated in extended Lal Dora Abadi of Village Shakur Pur, Delhi-110034, as null and void.

(iii) To pass a Decree of Permanent Injunction in favour of the plaintiff and against the defendants, thereby

restraining the defendants, thereby restraining defendants, their, agents, servants, legal representative etc. from alienating, selling or creating any third party interest and dispossessing the plaintiff from the plot measuring 475 sq. yards i.e. 1/4th share in comprising Kh. No. 31/19/2 (-18) situated in extended Lal Dora Abadi of village Shakur Pur,Delhi-110034."

2. The case set up in the plaint is that the plaintiff is the owner

and in possession of 1/4th share in the subject land along with his

brother, Jagdish and some other relatives, who are also owners to

the extent of 1/4th share. In the month of October, 1993, Shri

Kishan Singh (deceased husband of the defendant No.1) had

approached the plaintiff and asked him to execute documents for

transferring his share in the subject land in the name of his

brother, Jagdish and he had informed the plaintiff that Jagdish was

unavailable due to some urgent work. The plaintiff claims to have

signed some documents at the asking of the husband of the

defendant No.1.

3. It has been averred that later on, in the month of January,

1994 Shri Jagdish had met the plaintiff who told him that he had

been asked by the defendant No.1‟s husband (Kishan Singh) to get

the papers prepared for transfer of the subject land in his favour.

At that time, Jagdish had told the plaintiff that Kishan Singh might

have played a fraud on him. Immediately thereafter, the plaintiff

claims to have contacted Kishan Singh on 27.1.1994 and asked him

to hand over the papers which he had made him sign but the

former had flatly refused to do so and he informed the plaintiff that

he had got the plaintiff‟s 1/4th share in the subject land transferred

in his wife‟s name, i.e., the defendant No.1 herein. On receiving this

information, the plaintiff had served a legal notice dated 28.1.1994

on Shri Kishan Singh which was duly replied to by him, through

counsel, vide letter dated 10.2.1994.

4. Without throwing any light on the stand taken by Kishan

Singh in his reply refuting inter alia, the plaintiff‟s claim and

asserting that he had executed a set of documents for sale of his

1/4th share in the subject land in favour of the defendant No.1,

including a payment receipt, affidavit, registered will etc., the

plaintiff has gone on to state in the plaint that on 17.2.1994, he

came to know that the defendant No.1 and her husband were

negotiating with some persons in the village to sell the subject land

and he had immediately filed a suit for permanent injunction

against them in the very same year, which was ultimately

dismissed on merits by the trial court.

5. In the captioned suit instituted by the plaintiff against

defendant No.1 and her husband, he had prayed for a decree of

permanent injunction for restraining the defendants, their agents,

servants, legal representative, etc., from alienating, selling or

creating any third party interest and dispossessing him from the

subject land to the extent of his share therein.

6. Defendant No.1 and her husband had contested the said suit

and asserted in their written statement that the plaintiff had

concealed the correct facts from the Court and he was not in

possession of the subject land. They had averred that on

21.10.1993, the plaintiff had in fact agreed to sell his 1/4th share in

the subject land in favour of the defendant No.1 and he had

received the entire sale consideration against a valid receipt. The

plaintiff had also executed other supporting documents of sale

including an agreement to sell, affidavit, Will, etc., in favour of the

defendant No.1 and had handed over to her, the possession of his

1/4th share in the subject land. The defendants had contended that

under the garb of a suit for permanent and mandatory injunction,

the plaintiff was in fact seeking the relief of declaration and

cancellation of the sale documents, which is impermissible and

accordingly they had prayed for dismissal of the suit.

7. On completion of pleadings, the following issues were framed

by the learned Civil Judge on 5.7.1996 :

"1. Whether there is no cause of action in filing the suit?

OPD

2. Whether the suit of the plaintiff is bad for misjoinder of necessary parties?

OPD

3. Whether suit of the plaintiff is not maintainable in present form?

OPD.

4. Whether the suit is properly valued for purpose of court fees & jurisdiction?

OPD

5. Whether plaintiff is entitled to the injunction as prayed for?

OPP

6. Relief."

8. After the evidence was recorded in the suit, the learned Civil

Judge had dismissed the same vide judgment dated 03.10.2001

and observed that under the garb of filing a suit for injunction, the

plaintiff was actually seeking the relief of declaration and

cancellation of documents and that he had not approached the

court with clean hands and had concealed material facts. It was

also noted that plaintiff had failed to disclose the fact that he had

personally appeared before the Sub-Registrar on 29.10.1993 and

had executed a Will in favour of the defendant No.1 in respect of

the subject land. Accordingly, all the issues framed in the said suit

were decided against the plaintiff and the suit was dismissed.

9. Aggrieved by the aforesaid decision, the plaintiff had filed an

appeal before the learned Senior Civil Judge which was later on

withdrawn by him. However, no averment has been made by the

plaintiff in the plaint with regard to the date of withdrawal of the

said appeal; nor is the counsel for the plaintiff in a position to

inform the Court of the exact date.

10. After the passage of almost a decade and half, the plaintiff

has instituted the present suit on the ground that in the last week

of September, 2014, defendant No.5, Mahesh Kumar had visited

him and informed him that he and his brother had purchased the

subject land from the defendant No.1 through a registered sale

deed dated 6.12.2010, and defendant No.5 was threatening him to

vacate the same. The plaintiff has thus instituted the present suit

claiming inter alia that Sh. Kishan Singh, deceased husband of the

defendant No.1 had fraudulently got the plaintiff to sign the

documents of sale in respect of his 1/4th share in the subject land in

favour of his wife and she had in turn illegally sold the said land to

the defendant No.5 by virtue of a sale deed dated 6.12.2010, which

ought to be declared as null and void.

11. The present suit was listed for admission on 8.7.2015 and on

the said date, the Court had expressed a prima facie view that it

appears to be barred by limitation particularly in the light of the

averments made in the cause of action para of the plaint. It was

also noticed that the plaintiff had cursorily referred to the institution

of the earlier suit for permanent injunction against the defendant

No.1 and her husband in respect of the subject land, but he had

failed to file a copy of the judgment dated 3.10.2001, passed by the

learned Civil Judge. While directing the plaintiff to file the relevant

documents, the case was adjourned to 22.7.2015, for arguments on

the maintainability of the suit.

12. On 22.7.2015, lawyers were abstaining from appearing in

Court and as a result, the case as adjourned to 24.8.2015. On

24.8.2015 the plaintiff had appeared in person and sought an

adjournment. At his request, the case was adjourned for today. It

was, however, made clear that no further accommodation will be

granted to the counsel for the plaintiff who ought to come prepared

for arguments on the aspect noted above.

13. Today, learned counsel for the plaintiff argues that the suit is

not barred by limitation and the relief prayed for here is entirely

different from one that was prayed for in the earlier suit instituted

by the plaintiff in the year 1994. He contends that in the earlier suit

only the relief of permanent injunction against defendant No.1 and

her husband with respect to the subject land was prayed for

whereas in the present suit, the plaintiff is asking for cancellation of

the sale deed dated 6.2.2010, execution whereof came to his

knowledge as recently as in September, 2014. He therefore,

asserts that the present suit has been filed well within the period of

limitation, reckoned from September, 2014.

14. To examine the aspect of limitation, in the first instance, it is

necessary to refer to Articles 58 and 59 of Schedule 1 of the

Limitation Act, 1963 which prescribe the period of limitation

for filing a suit for a decree of declaration and for a decree of

cancellation of an instrument, and state as below:-

The Schedule Periods of Limitation [See Sections 2(j) and 3]

First Division - Suits

PART III-Suits relating to Declarations

DESCRIPTION PERIOD OF TIME FROM OF SUIT LIMITATION WHICH PERIOD BEGINS TO RUN

58. To obtain any Three years When the right to other declaration sue first accrues

PART IV-Suits relating to Decrees and Instruments

DESCRIPTION PERIOD OF TIME FROM OF SUIT LIMITATION WHICH PERIOD BEGINS TO RUN

59. To cancel or set Three years When the facts aside an entitling the instrument or plaintiff to have decree or for the the instrument or rescission of a decree cancelled contract. or set aside or the contract rescinded first become known to him.

It is also relevant to note that Section 9 the Limitation Act

prescribes that once time has begun to run, no subsequent

disability or inability to institute a suit or make an application, stops

it.

15. To decide the issue of limitation, the averments made by the

plaintiff in the cause of action para of the plaint gain significance

and are reproduced herein below:-

"13. That the cause of action arose in favour of the plaintiff and against the defendants in the month of October, 1993 when late Kishan Singh fraudulently got some paper signed by the plaintiff which were misused by defendant No. 1 and late Kishan Singh. The cause of action again arose on 27.1.94 when the plaintiff demanded the papers back from late Kishan Singh. The cause of action again on 28.1.94 when the plaintiff got issued legal notice. The cause of action further arose on 10.2.1994 when the husband of the defendant no. 1

replied to the legal notice. The cause of action further arose on 06.12.2010 when the defendant no. 1 illegally got the sale deed registered in name of defendant no. 2 to 5. The cause of action further arose in the last week of September, 2014 when Shri Manoj Kumar disclosed that they have purchased the plot in Kh. No. 38/11/13 (0-7) and on verification by the plaintiff, it was revealed that the defendant no. 1 also sold the plot in Kh. No. 31/19/2 (1-18) to the defendant no. 2 to 5 and the cause of action is still subsisting in favour of the plaintiff."

16. On a meaningful reading of the pleas taken in the plaint in

conjunction with the cause of action para reproduced hereinabove,

it is manifest that even as per the plaintiff, the cause of action to

sue had arisen in his favour in month of October, 1993 when Sh.

Kishan Singh, (husband of the defendant No.1) had "fraudulently"

got some papers signed by the plaintiff which were allegedly

misused by the husband and wife as long back as on 27.1.1994,

when the plaintiff had demanded that the papers be returned to

him and further, the cause of action had arisen on 28.1.1994, when

the plaintiff had got a legal notice served on the defendant No.1

and her husband.

17. The law on the aspect of the date when the cause of action

for instituting a suit arises, is well settled. In the case of Khatri

Hotels vs. U.O.I. & Anr. 2011 (10) Scale 190, when the Supreme

Court was required to examine a situation where a right to sue

accrues on multiple causes of action and decide as to when will the

period of limitation begin to run for instituting a suit, the following

pertinent observations were made:-

"24. The Limitation Act, 1963 (for short "the 1963 Act") prescribes time limit for all conceivable suits, appeals, etc. Section 2(j) of that Act defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 13 lays down that every suit instituted, appeal preferred or application made after the prescribed period shall, subject to the provisions of Section 4 to 24, be dismissed even though limitation may not have been set up as defence. If a suit is not covered by any specific article, then it would fall within the residuary article. In other words, the residuary article is applicable to every kind of suit not otherwise provided for in the schedule.

25. Article 58 of the 1963 Act, which has a bearing on the decision of this appeal, reads as under:

The Schedule Periods of Limitation [See Sections 2(j) and 3]

First Division - Suits _______________________________________________ Description of suit Period of Time from which limitation period begins to run _______________________________________________

PART III - Suits Relating to Declarations

58. To obtain any Three years When the right to sue other declaration. first accrues."

"26. Article 120 of the Indian Limitation Act, 1908 (for short, 'the 1908 Act') which was interpreted in the judgment relied upon by Shri Rohtagi reads as under:-

_______________________________________________ Description of suit Period of Time from which limitation period begins to run _______________________________________________

120. Suit for which Six years When the right to sue no period of accrues."

limitation is provided elsewhere in this schedule.

27. The differences which are discernible from the language of the above reproduced two articles are:

(i) The period of limitation prescribed under Article 120 of the 1908 Act was six years whereas the period of limitation prescribed under the 1963 Act is three years and,

(ii) Under Article 120 of the 1908 Act, the period of limitation commenced when the right to sue accrues. As against this, the period prescribed under Article 58 begins to run when the right to sue first accrues.

28. Article 120 of the 1908 Act was interpreted by the Judicial Committee in Bolo v. Mt. Koklan and it was held: (IA p. 331)

"There can be no „right to sue‟ until there is an accrual of the right asserted in the suit and its infringement, or at least, a clear or unequivocal threat to infringe that right, by the defendant against whom the suit is instituted."

The same view was reiterated in Annamalai Chettiar v. A.M.K.C.T. Muthukaruppan Chettiar and Gobinda Narayan Singh v. Sham Lal Singh

29. In Rukhmabai v. Laxminarayan, the three-Judge Bench noticed the earlier judgments and summed up the legal position in the following words: (Rukhmabai case, AIR p. 349, para 33)

"33. ....The right to sue under Article 120 of the 1908 Act accrues when the defendant has clearly or unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective or innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right."

30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word 'first' has been used between the words `sue' and `accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued." (emphasis added)

18. Thus the Supreme Court had concluded that when it comes to

computation of the period of limitation for instituting a suit, the said

period will begin to run from the date when the right to sue has first

accrued. It was clarified that the said right would first accrue under

Article 58 of the Act when the right asserted in the suit is infringed

upon or when there is clear or unequivocal threat to infringe that

right.

19. In the present case, as per the averments made in the plaint,

which are taken as true and correct and accepted on their face

value, the plaintiff was extended a threat by the defendant No.1

and her husband in respect of subject land in the month of October,

1993 which had compelled him to serve a legal notice on them on

28.1.1994. In these circumstances where the defendant no. 1 and

her husband had allegedly extended a threat to the plaintiff and

asserted a title on the subject land, the period of limitation for

instituting a suit for declaration shall have to be computed under

Article 58 and 59, from October, 1993 or at best, February, 1994

when the defendant no. 1 and her husband had first repudiated the

pleas of ownership taken by the plaintiff in his legal notice dated

28.1.1994. However, the plaintiff elected to institute a suit only for

the relief of permanent and mandatory injunction against the

defendant no. 1 and her husband. While filing their written

statement in the said suit, the defendant no. 1 and her husband

had reiterated their stand that the plaintiff had sold his 1/4th share

in the subject land in favour of the defendant no. 1by executing a

set of sale documents. Despite the pleas taken by the defendants in

the suit, the plaintiff did not take any steps to amend the plaint and

ask for the relief of declaration and cancellation of documents in

respect of the subject land, which was available to him.

20. The judgment dated 3.10.2001 passed by the trial court is a

telling comment on the conduct of the plaintiff and the manner in

which he had deliberately withheld material facts and approached

the court with unclean hands. The learned Civil Judge had gone to

the extent of observing that under the garb of instituting a suit for

injunction, the plaintiff was seeking the relief of declaration and

cancellation of documents, which is impermissible. Inspite of the

said observations and dismissal of his suit, the plaintiff did not take

any step to institute a fresh suit for declaration and cancellation of

the sale documents executed in favour of the defendant no.1.

Instead, he withdrew the appeal preferred by him against the

judgment dated 3.10.2001.

21. In this background, for the learned counsel for the plaintiff to

urge that for computing the period of limitation for instituting the

present suit, the Court cannot take into consideration documents

executed by the plaintiff in the year 1993, as they were

unregistered, is fallacious and contrary to the settled legal position.

The plaintiff was all along aware of the stand taken by the

defendant no. 1 and her husband in respect of the subject land and

was also conscious of the fact that his rights, if any, therein was

under open threat from the defendant No.1 and her husband. This

position was crystallized when the defendant No.1‟s husband had

specifically repudiated the assertions of fraud levelled by the

plaintiff against him, in the reply dated 10.02.1994 issued in

response to the plaintiff‟s legal notice dated 28.01.1994 and

pleaded so in the written statement filed by them in the suit he had

instituted.

22. The sale deed subsequently executed by the defendant No.1

in favour of the defendant No.5 on 06.12.2010 in respect of the

subject land cannot give a fresh cause of action to the plaintiff to

invoke his legal remedies for the simple reason that if his rights in

the subject land were jeopardised by the defendant No.1 and her

husband in the year 1993-1994, then the said threat had given rise

to a compulsory cause of action in his favour and this shall have to

be treated as the first date from which the right to sue for

declaration would have to be computed for instituting a suit. If the

plaintiff had a grievance in respect of the sale documents

purportedly executed by him under ignorance or on

misrepresentation, as alleged, then the moment he became aware

of the alleged fraud played on him, he ought to have approached

the Court for appropriate relief. Section 9 of the Limitation Act

leaves no manner of doubt that once the time has begun to run, it

does not stop and no subsequent disability or inability to institute a

suit would be a ground to extend the prescribed period of limitation.

23. Going by the pleas taken by the plaintiff in the plaint, the

cause of action for instituting the suit had arisen in the year 1993-

1994 and the period of three years reckoned therefrom would have

expired in the year 1996-1997. However, he elected to file a

misconceived suit in the year 1994, only asking for the relief of

permanent injunction without seeking the relief of declaration and

cancellation of sale documents, which was ultimately dismissed on

merits vide judgment dated 03.10.2001. The said judgment has

attained finality for the reason that the plaintiff had opted to

withdraw the appeal preferred against the said decision, thus

accepting the findings on merits returned by the trial court. In

these circumstances, this Court has no hesitation in holding that the

present suit is patently and hopelessly barred by limitation and is

liable to be dismissed under Order VII Rule 11(d) of the CPC.

24. At this juncture, reliance is sought to be placed by learned

counsel for the plaintiff on the judgment of the Supreme Court in

the case of Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana &

Anr. 183 (2011) DLT 1 (SC) to contend that the legality and

authenticity of documents like GPA, Will etc in respect of an

immovable property is questionable and in the absence of

registration of the said documents, no right can flow in favour of

the beneficiary and an agreement of sale itself does not create any

interest or charge in a property. He submits that for an immovable

property to be legally transferred, only a registered deed of

conveyance is permissible and the documents in the nature of GPA,

Will etc. that were executed in favour of the defendant No.1, cannot

convey a title in her favour.

25. The decision in the case of Suraj Lamp (supra) cannot be of

any assistance to the plaintiff in the case in hand for the reason

that even in the said decision, the Supreme Court had hastened to

clarify that the observations made therein were not intended to in

any way affect the validity of the sale agreements and powers of

attorney executed in genuine transactions and that the said

transactions will be treated as complete transactions and further,

that nothing can prevent the affected parties from getting

registered, Deeds of Conveyance to complete their title. In this

background, the plaintiff cannot be permitted to argue that the

documents of sale executed by him in respect of the subject land in

favour of the defendant No.1, as long back as in the year 1993,

should be completely overlooked when computing the period of

limitation available in law for instituting the present suit or that the

court must only take into consideration, the sale deed dated

06.12.2010, executed by the defendant No.1 in favour of

defendants No.2 to 5 and the fact that the said transaction came to

his knowledge in September, 2014, which would entitle him to

institute a suit within a period of three years reckoned from the said

date.

26. This is clearly a case where the plaintiff has tried to create an

illusion of a cause of action by resting his suit on the Sale Deed

dated 6.12.2010, executed by the defendant No.1 in favour of the

defendants No.2 to 5 and on his plea that the said transaction came

to his knowledge in September 2014, when neither of the two

events have any relevance for computing the period of limitation for

maintaining the present suit. The cause of action for instituting a

suit for declaration and cancellation of documents first arose in the

year 1993-94 and the period of limitation reckoned from the said

date got extinguished in the year 1996-97.

27. Taking a cue from the decision of the Supreme Court in the

case of T.Arivandandam Vs. T.V.Satyapal & Anr. reported as

(1977) 4 SCC 467, wherein it was held that if on a meaningful and

not formal reading of the plaint, it is found to be manifestly

vexatious and meritless, in the sense of not disclosing a right to

sue, the court ought to exercise its powers under Order VII Rule 11

CPC, this court is of the opinion that the present suit is an

ingenuous attempt on the part of the plaintiff to throw a cloud on

the title of the subject land by seeking a decree of declaration and

cancellation in respect of the Sale Deed dated 6.12.2010, without

having taken any steps for seeking a declaration in respect of the

documents of sale executed by him in favour of the defendant No.1

way back, in the year 1993. Such a suit is not only liable to be

rejected under Order VII Rule 11 (d) of the C.P.C., being barred by

limitation, it has also to be treated as an abuse of the process of

the court and ought to be nipped in the bud. Accordingly, the

present suit is dismissed as barred by limitation, along with the

pending application.

HIMA KOHLI, J OCTOBER 05, 2015 aj/sk/ap