Delhi High Court
Shri Rajinder Aggarwal vs Shri Vinod Kakkar & Ors on 23 January, 2017
$~A-10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23.01.2017
+ CM(M) 1350/2013 & CM No.20067/2013
SHRI RAJINDER AGGARWAL ..... Petitioner
Through Ms.Sonali Malhotra and Mr.Amit
Sanduja,Advocates
versus
SHRI VINOD KAKKAR & ORS ..... Respondent
Through Mr.Anurag Sharma, Advocate for
Ms.Ruchira Gupta, Advocate for DJB/R-4
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. By the present petition under Article 227 of the Constitution of India
the petitioner seeks to impugn the order dated 1.10.2013 by which the
preliminary issue framed regarding limitation was decided against the
petitioner.
2. The respondent/plaintiff has filed the present suit for declaration and
mandatory injunction. As per the plaint the respondent has purchased 1/3rd
undivided share each in the property except the shop on the ground floor
bearing No.24, Patel Road, West Patel Nagar, New Delhi which property
CM(M)1350/2013 Page 1
was purchased vide registered sale deed dated 18.11.2009. An agreement to
sell dated 15.5.1991 had already been entered into in respect of shop No.1
on the ground floor with M/s.Delhi Tyres and by virtue of the said
agreement to sell rights have been transferred to the petitioner. The case of
the respondent is that the petitioners are violating the terms and conditions
of the agreement to sell dated 15.5.1991 and have encroached upon open
areas in front of the said Shop No.1. They have installed water connection
in the said shop No.1 which is in breach of the terms of the agreement and
they have also made unauthorised and illegal construction. Hence, the suit
was filed seeking a decree of declaration declaring the agreement to sell
dated 15.5.1991 has ceased to exist between the parties as petitioners have
violated the terms and conditions of the agreement. A decree of mandatory
injunction was also sought.
3. The trial court has decided two issues as preliminary issues including
the issue as to whether the suit is barred by limitation. The trial court by the
impugned order held that the respondents have purchased the property on
18.11.2009. It concluded that since the respondent has acquired interest in
part of suit property only in November 2009 they could not possibly have
any cause of action against any impermissive use of the suit property before
2009. The suit being filed in 2012 was held to be within limitation.
4. I have heard learned counsel for the petitioner. None has appeared for
respondents No.1 to 3 despite service. Learned counsel appearing for
respondent No.4 submits that he is only a proforma respondent.
5. Learned counsel for the petitioner has vehemently argued that the
respondent cannot seek a declaration about an agreement of 1991 in 2012
CM(M)1350/2013 Page 2
when the suit was filed. It is urged relying upon Article 58 of the Schedule
to the Limitation Act and the judgment of the Supreme Court in Khatri
Hotels Private Limited and Another vs. Union of India and Another,
[2011] 15 (Addl.) S.C.R. 299 that the cause of action to sue for a declaration
regarding the agreement arose long back.
6. The argument of the petitioner is misconceived. The relevant prayer
which is sought in the plaint which is the bone of contention is as follows:-
"a) a decree for declaration, declaring that the agreement to
sell dated 15.05.1991 is ceased to exist between the parties as
the defendants No.1 to 3 have violated the terms and
conditions of the said agreement, intentionally and
deliberately."
7. It is obvious from a reading of the prayer clause that what the
respondent seeks is a relief to hold the Agreement to Sell of 1991 to be
ineffective as the petitioner has violated the terms and conditions of the said
agreement. It does not seek a declaration that the said agreement is null and
void. No doubt the relief is drafted in a casual manner but what it seeks
actually is a declaration regarding breach of agreement. It is manifest that
the cause of action to sue for a declaration for breach of agreement would
arise only when the actual breach of agreement is alleged to have taken
place. In fact the para on cause of action states that the same arose when the
respondent noticed the unauthorized construction carried out by the
petitioner etc. This aspect would be a disputed question of fact. It is not clear
as to why the trial court has decided the matter as a preliminary issue. In any
case, the settled position of law is that questions of limitation would
normally be a disputed question of law and fact. The trial court could not
CM(M)1350/2013 Page 3
have recorded a finding on the issue of limitation based merely on the
pleadings without the parties leading evidence.
8. Reference in this regard may be had to the judgment of the Supreme
Court in the case of Ramesh B. Desai and Ors.vs. Bipin Vadilal Mehta and
Ors., AIR 2006 SC 3672: MANU/SC/2996/2006 where in para 16 the Court
held as follows:
"16. A plea of limitation cannot be decided as an abstract
principle of law divorced from facts as in every case the
starting point of limitation has to be ascertained which is
entirely a question of fact. A plea of limitation is a mixed
question of law and fact. The question whether the words
"barred by law" occurring in Order VII Rule 11(d) CPC
would also include the ground that it is barred by law of
limitation has been recently considered by a two Judge
Bench of this Court to which one of us was a member
(Ashok Bhan J.) in Civil Appeal No. 4539 of 2003
(Balasaria Construction Pvt. Ltd. v. Hanuman Seva Trust
and Ors.) decided on 8.11.2005 and it was held: -
After hearing counsel for the parties, going
through the plaint, application under Order 7
Rule 11(d) CPC and the judgments of the trial
court and the High Court, we are of the
opinion that the present suit could not be
dismissed as barred by limitation without
proper pleadings, framing of an issue of
limitation and taking of evidence. Question of
limitation is a mixed question of law and fact.
Ex facie in the present case on the reading of
the paint it cannot be held that the suit is
barred by time."
9. In the light of the above, I set aside the order dated 1.10.2013 to the
extent that it adjudicates the issue of limitation as a preliminary issue. This
issue would be decided upon at the time of final adjudication of the suit after
CM(M)1350/2013 Page 4
parties have led their evidence.
10. Petition stands disposed of. All pending applications, if any, also
stand disposed of.
JAYANT NATH, J
JANUARY 23, 2017
n
CM(M)1350/2013 Page 5
