THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Appellate Jurisdiction)
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Single Bench: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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R.F.A. No. 01 of 2020
Duk Nath Nepal,
Son of late Dilli Ram Nepal,
Resident of Tintek Busty,
P.O. Rakdong,
P.S. Singtam,
East Sikkim. ..... Appellant
Versus
1. Chandra Shekhar Nepal,
Son of Lt. Nandi Keshar Nepal,
Near Zero Point Tintek,
P.O. Rakdong,
P.S. Singtam,
East Sikkim.
2. The Secretary,
Water Resources & River Development Department,
Government of Sikkim,
Nirman Bhawan, Zero Point,
Gangtok,
East Sikkim.
3. The Secretary,
Irrigation and Flood Control Department,
Government of Sikkim,
Nirman Bhawan, Zero Point,
Gangtok,
East Sikkim.
4. District Collector,
District Administrative Center,
Gangtok,
East Sikkim.
5. The Sub-Divisional Magistrate,
District Administrative Center,
Gangtok, East Sikkim. ..... Respondents
2
R.F.A. No. 1 of 2020
Duk Nath Nepal vs. Chandra Shekhar Nepal and Others
Appeal under Section 96 read with Order XLI rule 1 and 2 of the
Code of Civil Procedure, 1908.
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Appearance:
Mr. S.S. Hamal, Advocate with Ms Priyanka Chettri, Advocate, for
the Appellant.
Mr. A. K. Upadhyaya, Senior Advocate with Ms Gita Bista, Legal
Aid Counsel and Ms. Rachhitta Rai, Advocate, for the respondent
no. 1.
Dr. Doma T. Bhutia, Additional Advocate General with Mr. S.K.
Chettri, Government Advocate for the respondents no. 2 to 5.
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Date of hearing : 07.04.2022
Date of judgment: 20.04.2022
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The present appeal assails the impugned order dated
28.08.2019 passed by the learned District Judge, Special
Division-I, East Sikkim at Gangtok in Title Suit No. 15 of 2018
allowing an application (the application ) under order VII Rule 11
read with section 151 of the Code of Civil Procedure Code, 1908
(CPC) rejecting the plaint.
2. The appellant had filed a suit under section 9 and
16(e) read with section 151 CPC seeking the following reliefs:-
a. A decree declaring to pay compensation of amount of ₹14,80,000/- (Rupees fourteen lakhs eighty thousand only) by the Defendant Nos.1, 2 and 3 to the Plaintiff, along with the interest of 5% per month from the date of filing till the date of disposal, 3 R.F.A. No. 1 of 2020 Duk Nath Nepal vs. Chandra Shekhar Nepal and Others
b. A decree declaring that the said old canal is an ancestral canal,
c. A decree declaring to open/restore the old canal by the Defendant No.1 being an easementary right,
d. Pass such necessary order and orders of reliefs to which the Plaintiff is entitled to in law and in equity according to law in the interest of justice.
3. The appellant had stated in the plaint that in the end
of year 2011, the respondent no.1 - a local contractor, blocked
the generation old irrigation canal stating that the respondent
no.3 had sanctioned an irrigation canal. The appellant further
pleaded that since 2011 till the filing of the suit there was no
such construction due to which the appellant's paddy field
turned into uncultivable land making the appellants suffer a loss
of ₹1.5 lakhs a year.
4. The records reveal that on 31.12.2018 the respondent
no.1 filed the application which was ultimately allowed by the
impugned order.
5. The learned District Judge held that there is no
specific article in the Limitation Act, 1963 which deals with suit
for declaration of right to use canal or waterways and hence,
such a declaration would be covered by Article 58 thereof. The
learned District Judge examined Article 85 of the Limitation Act,
1963 which provides that for a suit claiming compensation for
obstructing a way or a water course the limitation prescribed is 4 R.F.A. No. 1 of 2020 Duk Nath Nepal vs. Chandra Shekhar Nepal and Others
three years from the date of obstruction. The learned District
Judge also examined Article 86 of the Limitation Act, 1963 which
provides that for a suit claiming compensation for diverting a
water course the limitation prescribed is three years from the
date of diversion. It was held that the period of limitation started
running immediately from the date the right to sue accrued, i.e.,
the date of obstruction or diversion of the canal by the
respondent no.1. The learned District Judge held that the suit
filed by the appellant was barred by the law of limitation.
6. Mr. S.S. Hamal, learned counsel for the appellant,
submitted that the impugned judgment was not correct in
holding so since the appellant was claiming a contractual right or
an implied promise as would be evident from the information
provided by the respondent no.3 dated 30.2.2016 (annexure-5).
He therefore submits that Article 55 of the Limitation Act, 1963
dealing with compensation for breach of any contract, express or
implied not specifically provided for would be the appropriate
article. He also relied upon the judgments of Supreme Court in
Dahiben vs. Arvindbhai Kalyanji Bhanusali1 and the Church of Christ
Charitable Trust & Educational Charitable Society vs. M/s
Ponniamman Educational Trust2. The learned counsel also relied
upon a judgment upon this court in Ms Dinku Khati and Another
vs. Smt. Kamal Kumari Subba and Another3. The facts in the present
1 AIR 2020 SC 3310 2 AIR 2012 SC 3912 3 SLR (2019) SIKKIM 939 5 R.F.A. No. 1 of 2020 Duk Nath Nepal vs. Chandra Shekhar Nepal and Others
case are different than what was in Dinku Khati (supra). In
Dahiben (supra), the Supreme Court while examining Article 58
and 59 of the Limitation Act, 1963 on a matter relating to Order
VII Rule 11(a) and (d) CPC, the Supreme Court held on
examining the averments in the plaint that the cause of action
arose on the non-payment of the bulk of the sale consideration
and not on receipt of the index of the sale deed as pleaded. The
Supreme Court was of the view that the court must determine
when the right to sue first accrued and the right to sue accrues
only when the cause of action arises. It held that suit must be
instituted when right asserted in suit is infringed or there is clear
and unequivocal threat of infringement. It also held inter alia that
the provisions of Order VII Rule 11 is mandatory in nature as it
specifies that the plaint "shall" be rejected if any of the grounds
specified in clauses (a) to (e) are made out. In the Church of Christ
Charitable Trust & Educational Charitable Society (supra), the
Supreme Court held that the application for rejection of plaint
under Order VII Rule 11 CPC has to be decided only on the basis
of the averments in the plaint and the pleas taken in the written
statement are immaterial.
7. Mr. A.K. Upadhyaya, learned Senior Counsel for
respondent no.1, submitted that the impugned judgment was
legally sound and correct and may not be interfered with. 6
R.F.A. No. 1 of 2020 Duk Nath Nepal vs. Chandra Shekhar Nepal and Others
8. The averments in the plaint read as a whole, without
addition or subtraction, in conjunction with the documents relied
upon makes it clear that the appellant was not seeking for
compensation for the breach of any implied contract as argued
by the learned counsel for the appellant. A perusal of the prayer
as quoted above reflects that all the prayers prayed for by the
appellant were declaratory in nature. Suits relating to
declarations are covered by Part-III of the Limitation Act, 1963.
As the prayers are not covered by Articles 56 and 57 thereof, all
the declaratory reliefs would be covered by Article 58 as rightly
held by the learned District Judge. In such a situation, the
period of limitation would be three years and time would begin to
run when the right to sue first accrues. On a reading of the
plaint, it is clear that the right to sue first accrued in the end of
the year 2011 when the respondent no.1 blocked the generation
old irrigation canal. Even if one were to consider the prayer "a" to
be a prayer for compensation and not a declaration as held by
the learned District Judge, both under Article 85 and 86, the
period of limitation is also three years from the date of
obstruction or the date of diversion. Once again, the cause of
action would accrue from the end of the year 2011 and therefore,
the suit ought to have been filed in the year 2014. The records
reveal that the plaint was filed by the appellant only in the year
2018. The suit was therefore clearly barred by limitation.
9. Accordingly, the appeal fails and is therefore rejected. 7
R.F.A. No. 1 of 2020 Duk Nath Nepal vs. Chandra Shekhar Nepal and Others
10. The registry shall transmit a copy of this judgment to
the court of the learned District Judge, Special Division-I, East
Sikkim at Gangtok.
( Bhaskar Raj Pradhan )
Judge
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Internet : Yes
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