SARANPAL KAUR ANAND versus PRADUMAN SINGH CHANDHOK AND OTHERS on 28 March 2022

100

SUPREME COURT REPORTS

[2022] 19 S.C.R.

A

SARANPAL KAUR ANAND

v.

PRADUMAN SINGH CHANDHOK AND OTHERS

(Civil Appeal No. 2573 of 2022)

B

MARCH 28, 2022

[SANJIV KHANNA AND BELA M. TRIVEDI, JJ.]

Code of Civil Procedure, 1908: Or. VII r. 11(d), Or. XII r. 6 –Rejection of plaint on the ground of limitation – Admission of factin the plaint – On facts, the appellant-plaintiff filed a suit againstCrespondent nos 1 to 9-defendant Nos. 1 to 9 seeking a decree ofdeclaration that the suit property is a joint undivided family propertyof the plaintiff and defendant Nos. 3 to 9 being the successors ofthe parents of the plaintiff; decree of declaration that the purportedsale deed dated 23.08.1969 executed by late mother of the plaintiffDthrough her alleged attorney in favour of her brother-defendantno. 1 and the purported sale deed dated 12.10.1995 executed bythe brother in favour of his son-defendant no. 2 is null and void;and a decree for permanent injunction against defendant Nos.1and 2, restraining them from raising/constructing/adding/ alteringor entering into any agreement to sell or creating any third partyEinterest in respect of any portion of the suit property –DefendantNo. 1 and 2 filed written statements as also an application forrejection of the plaint on the ground of limitation – Plaintiff filedtwo applications u/Or. VI r. 17 seeking amendment of the plaint forincorporating relief of possession and amending the cause of actionFclause – Thereafter, the Single Judge of the High Court decided thepreliminary issue holding that the suit being barred by time, theplaint was liable to be rejected; and the amendment applicationswere dismissed as mala fide and not maintainable – Division Benchupheld the said order – As regards the issue-whether the SingleBench could have framed the preliminary issue u/Or. XIV r. 2 withGregard to the issue of limitation for rejecting the plaint u/Or. VII r.11(d);whether the Division Bench could have taken recourse to Or.XII r. 6, which was not the issue before the Single Bench, for rejectingthe plaint; and whether Single Bench and Division Bench erred inreferring to the written statements and the other documents whichHwere not part of the plaint while rejecting the plaint on the ground that the suit was barred by limitation, in view of difference of opinionbetween two Hon’ble Judges, the matter to be placed before Hon’blethe Chief Justice of India for directions.

Directing to place the matter before Hon’ble the ChiefJustice of India for appropriate orders/directions, the Court

HELD:

Per Sanjiv Khanna, J. :

1.1 A decision under clause (d) of Rule 11 to Order VII ofthe Code of Civil Procedure, 1908 normally proceeds on‘demurrer’. This means that the party objecting to the legal actionassumes the truth of the matter alleged by the opposite partyand sets up that it is insufficient in law to sustain the claim orthere is some other defect on the face of the pleadings constitutinga legal reason why the proceedings should not be allowed toproceed further. [Para 8][112-D-E]

1.2 As per Article 58 of the Schedule of the Limitation Act,in a suit for declaration where Articles 56 and 57 do not apply,the plaint should be filed within a period of three years when theright to sue first accrues. On applying Article 58 to the prayer fordeclaration, that the sale deed dated 23rd August 1969 is invalid,the suit filed after 42 years on 27th March 2012 is clearly barredby limitation. [Para 10][114-A-B]

1.3 The general principle, which also manifests itself inSection 17 of the Limitation Act, is that every person is presumedto know his own legal right and title in the property, and if hedoes not take care of his own right and title to the property, thetime for filing of the suit based on such a right or title to theproperty is not prevented from running against him. Theprovisions of Section 17(1) embody fundamental principles ofjustice and equity, viz. that a party should not be penalised forfailing to adopt legal proceedings when the facts or the documentshave been wilfully concealed from him and also that a party whohad acted fraudulently should not be given the benefit of limitationrunning in its favour by virtue of such frauds. When the plaintiffrelies on Section 17(1) (b) of the Limitation Act asserting fraudor mistake, he has to state the date on which he has discovered A

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Athe fraud or mistake, and also state that he could not havediscovered the fraud or mistake with reasonable diligence on adate earlier than on which he has based his cause of action. [Paras10 and 13][114-G; 115-A-B; 116-D-E]

1.4 Rules of pleadings relating to fraud and exemption fromBlaw of limitation are set out in Order VI Rule 4 and Order VIIRule 6 of the Code. When and to the extent Order VII Rule 6and Order VI Rule 4 apply, these provisions being specific willprevail over the general rule found in Order VI Rule 2 of theCode. Nevertheless, the requirement of the Rules is to pleadspecific facts with dates, but not the factual evidence on the basisCof which the plaintiff would ultimately seek to establish and justifyhis claim for exemption of limitation. When the minimum thresholdrequired in terms of Order VI Rule 4 and Order VII Rule 6 issatisfied and met, cannot be put in a straitjacket or rigid formula,as it would depend upon the facts and circumstances includingDantecedent facts, and in particular the relationship between theparties or their predecessors and the period bygone withoutchallenge. While examining these aspects, especially at the initialstage under clause (d) of Rule 11 to Order VII or Order XIVRule 2 of the Code, the court cannot proceed on the basis of theassumption as to the evidence that would be led so as to recordEa finding on the evidence. At the same time, an artifice or cleverdrafting should not prevent the court from stopping plainly time-barred proceedings. The court can take benefit of Order XII Rule6 of the Code when there are admissions made by the plaintiff inthe plaint and the documents which are admitted by the parties,For there being no dispute which would require oral evidence inthe context of the documents. There is no bar against invokingprovisions of Order VII Rule 11 and Order XIV Rule 2 together,or even applying Order XII Rule 6 while proceeding withdemurrer. Provisions of the Code are not watertight compartments, unless such statutory construction is express orGmanifestly prohibited. we would not in the absence of constraints,deny the trial court or the appellate court flexibility in applicationof the procedural law. Underlying objective of prescribingprocedure is to advance the cause of justice. Therefore unlesscompelled by express language or clear intend barring a course,H

the provisions of the Code as a procedural enactment ought tobe construed to leave the court to meet and deal with situationsin the ends of justice. [Para 14][116-E; 117-D-G; 118-A-C]

1.5 The plaint state that defendant Nos. 1 and 2, along withTK, had a mala fide and ulterior intention in usurping the suitproperty and assets of the plaintiff and her family members.Defendant Nos. 1 and 2 in their possession have certain blankpapers and other documents of other properties allegedly signedby HK and other family members of the plaintiff and TK, andbased upon which they are now trying to forge and create fictitiousdocuments. The sale deed executed by HK in favour of TK andthe sale deed executed by TK in favour of defendant No.1 arenull and void, being vitiated by fraud, cheating, fraudulentmisrepresentation, forgery, illegality etc. and thus, inconsequentialin law. It is averred that HK could not have transferred a bettertitle in favour of TK, and further, TK could not have transferreda better title than she had. The sale deeds are also fraudulent onthe count of being without consideration. They are a result of aconspiracy hatched by the defendant Nos. 1 and 2 amongstthemselves with HK and TK with the sole and cheap objectiveto usurp the lawful ownership and title of the plaintiff and thedefendant Nos. 3 to 9. The plaintiff’s deceased mother could neverhave and had no intent or purpose or necessity to execute thesale deed in favour of TK. Defendant Nos. 1 and 2 are inpermissive possession, having limited and restricted rights touse and occupy the property through late TK. The ownership,title and interest claim predicated by them are based ondocuments, mutations, etc., that are inconsequential in law, notvalid, being fraudulent, concocted act of forgery, fabrication,misrepresentation, etc. Defendant Nos. 1 and 2 are liable to beremoved from the suit property once the purpose and object ofgranting permissive possession, restricted and limited right touse and occupy the suit premises has been served. It is claimedthat the plaintiff is entitled to seek recovery of mesne profits atthe rate of Rs. 1 lakh per year or such rate as determined bycourts from defendant Nos. 1 and 2 for the illegal, unlawful andunauthorised use and occupation of the suit property. [Para15.9][125-A-F]

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A1.6 The language and the words used in the legal noticeson behalf of the plaintiff and other family members are admissionsof facts which uncover the illusion made by creative and craftynarration to obfuscate the patent delay of over four decades. Toget over the admissions, the plaintiff has submitted that the word/expression used in the notices is ‘given’ and not ‘transfer/sale’.BThat the word ‘given’ used is factually correct, albeit when onereads the notices holistically it is lucid that the plaintiff, alongwith her family members and defendant No.3, have accepted thatthere was transfer of the suit property in favour of TK. [Para18][127-F-G]

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1.7 The assertions made in the plaint by the plaintiff againsther mother late HK that she had acted in an active and jointconcert, connivance and conspiracy with late TK are self-servingand phantastic. As per need and factual background of the matter,assertions in the pleadings have to be examined and understoodDwith other statements and documents relied by the plaintiffwithout feeling helpless and paralysed by unclear, illusory orcontradictory drafting. Meaningful reading of the entire plaintmay be required when grossly implausible and dubious statementsare made. The idea is to check and weed out manifestly vexatiousand meritless cases at the threshold. [Para 19][128-C-E]E

1.8 The plaint accepts the close relationship inter se theparties as relatives and in business activities. The person whohad executed the sale deed in 1969 as attorney of HK is thebrother of the plaintiff with whom the plaintiff has no dispute. TKand defendant Nos. 1 and 2 were residing in the suit property. NoFclaim was made until the death of the plaintiff’s mother andgrandmother, HK and TK respectively, on 6th August 2005 and24th July 2007. HS had died earlier in 1974. For 42 years postthe execution of the sale deed in 1969, there was no dispute andchallenge to the ownership of TK. In 2008, disputes had arisenGbut regarding inheritance of the estate of TK however the plaintiffand defendant No. 3 did not challenge the title and ownership ofTK. In this background, as the plea of lack of knowledge appearsto be conjured and unreal, the pleading and the documents areread with discernment and perceptiveness without getting carried away by bald and pretentious accusations that do not infuse withthe accepted and ‘admitted’ facts. [Para 20][128-E-G; 129-A]

1.9 The notices dated 10th October 2008 and 24th October2008 are admitted and referred to without reservation in the plaint.They have been filed by the plaintiff with the plaint as relevantdocuments relied upon by the plaintiff. The plaint does not disputeor explain the contents and admissions made in the two notices.On application of the principle of demurrer, it has to be held, onthe basis of the averments made in the plaint and the documentsrelied upon and admitted by the plaintiff, that even prior to 2008,the plaintiff was aware and had knowledge of the sale deed dated23rd August 1969 by which the ownership rights were transferredto TK. The plaintiff did not, in 2008, question and challenge thetransfer, though she was fully aware that TK had acquiredownership rights. [Paras 21, 22][129-B-C]

1.10 The ambit and conditions of Section 17(1) of theLimitation Act, which is to protect rights of a party defraudedfrom lapse of time till he remains in ignorance of the fraud, orwith reasonable diligence could have discovered the fraud. Section17(1) does not assist a person who merely shuts his eyes in spiteof circumstances requiring him to ascertain facts on which hewould have discovered the fraud. Section 17(1) of the LimitationAct saves rights of the party defrauded from lapse of time as longas the party is not at fault on his own account. On facts, it isapparent that the plaintiff was aware and had knowledge inOctober 2008 about execution and transfer of the ownership rightsin favour of late TK vide sale deed dated 23rd August 1969executed by defendant No.3. Unadorned assertion in the plaintfeigning ignorance as to the sale deed would not help, as in thefacts as pleaded and accepted in the plaint, the plaintiff wasrequired to state and indicate that ignorance was not due to failureto exercise reasonable diligence. [Para 23][129-D-F]

1.11 The judgment of the Single Judge and the DivisionBench of the High Court dismissing the suit as being barred bylimitation is upheld. The judgment of the Single Judge and theDivision Bench with regard to the dismissal of two applications A

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Afiled by the plaintiff for amendment of pleadings under Order VIRule 17 of the Code, on the ground that when the suit itself hasbeen barred by limitation, amendments to such a suit will beunnecessary, is affirmed. [Para 24][129-G-H; 130-A]

Per Bela M. Trivedi, J. (Dissenting) :B

1.1 Though the defendant no. 2 had filed an applicationseeking rejection of plaint under Order VII Rule 11(d) of CPC,the Single Bench instead of deciding the said application, frameda preliminary issue under Order XIV Rule 2, as to ‘whether thesuit as framed is liable to be rejected under Order VII Rule 11(d)Cof CPC on the ground of limitation’. The Single Bench thendecided the preliminary issue against the plaintiff holding thatthe plaint was liable to be rejected under Order VII, Rule 11(d),considering the written statement and other documents filed bythe concerned defendants, which were not part of the Plaint. TheDivision Bench in the Regular Appeal filed by the appellant-Dplaintiff against the judgment and order passed by the SingleBench, committed further error by relying upon the provisionscontained in Order XII Rule 6 of CPC, which was not even theissue before the Single Bench, and confirmed the order passedby the Single Bench. The scope, ambit and parameters for decidingEan application under Order VII Rule 11(d) for the rejection of theplaint; for raising a preliminary issue under Order XIV Rule 2(2);and for passing the judgment on admission of fact in the pleadingor otherwise under Order XII Rule 6 being absolutely differentand mutually exclusive, all the three provisions could not beinterchangeably used for the purpose of rejecting the plaint underFOrder VII Rule 11(d) of the CPC. [Para 9][136-B-E]

1.2 The basic postulate underlined in clause (a) and clause(d) of Rule 11 Order VII is that while rejecting the plaint underthe said provisions, the court is required to see only the avermentsmade in the plaint and the documents, if any, annexed to the plaint,Gand not to the written statement or other documents which arenot part of the plaint. For invoking Order VII Rule 11 (d), and forthe purpose of rejecting the plaint on the ground that the suit isbarred by any law, only the averments made in the plaint have to H

be referred to and that the defence taken by the defendant in thewritten statement being wholly irrelevant, must not beconsidered. [Paras 11, 15][137-G; 140-D]

1.3 As regards framing of preliminary issue under OrderXIV Rule 2(2) also, the legal position is well settled. Sub Rule 2of Rule 2 of Order XIV specifies that where issues both of lawand of fact arises in the same suit and the court is of the opinionthat the case or any part thereof may be disposed of on an issueof law only, it may try that issue first if the issue relates to – (a)the jurisdiction of the court, or (b) a bar to the suit created by anylaw for the time being in force. [Para 16][140-E]

1.4 A plea of limitation cannot be decided as an abstractprinciple of law divorced from the facts as in every case thestarting point of limitation has to be ascertained which is entirelya question of fact. A plea of limitation being mixed question of lawand fact cannot be decided as a preliminary issue under OrderXIV, Rule 2(2). [Para 20][144-C-D]

1.5 So far as pronouncing a judgement on admission underOrder XII Rule 6 is concerned, for an admission to qualify as avalid admission, it necessarily has to be an unequivocal,unambiguous and unconditional. [Para 21][144-D-E]

Issues

1.6 The Single Bench had rejected the plaint under OrderVII Rule 11(d) after framing a preliminary issue under Order XIVRule 2(2) of CPC. The Single Bench after taking intoconsideration the written statement and other documents heldthat the suit was barred by law of Limitation and rejected theplaint under Order VII, Rule 11(d) CPC. Apart from the fact thatno preliminary issue could have been framed under Order XIV,Rule 2(2) with regard to the issue of limitation which was a mixedquestion of law and fact, the Single Bench erroneously consideredthe written statement and the documents filed by the defendantwhile rejecting the plaint under Order VII Rule 11(d) of CPC.The Division Bench also fallaciously referred to the contentionsraised in the written statement and referred to the documentsnamely Applications filed in some eviction proceedings, which A

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Awere neither referred to in the plaint nor annexed to the plaint.The Division Bench further erroneously relied upon somestatements made in the legal notices construing them as anadmission on the part of the plaintiff for passing judgment underOrder XII, Rule 6 against the plaintiff, while confirming the orderpassed by the Single Bench rejecting the plaint of the plaintiffBunder Order VII, Rule 11(d) CPC. In the opinion of the Courtthere was no clear, unambiguous and unconditional admissionmade by the plaintiff in any of the said legal notices which couldbe termed as an admission of the claim made by the defendantwith regard to the knowledge of the plaintiff in respect of theCexecution of the alleged sale deeds. On the contrary, the plaintiffhad pleaded fraud committed against her and other defendantswho were the legal representatives of HK. The Court at thisjuncture is not inclined to go into the merits of the issues involvedin the suit. The Single Bench and the Division Bench passed theimpugned orders de hors the specific provisions of CPC and inDutter disregard of the position of law settled by this Court. Evenif, the Single Bench had found that the suit was filed misusing theprocess of law or that an illusion was created with regard to thecause of action by clever drafting, in that case also Order VIIRule 11 could not have been resorted to. [Paras 24, 25][146-C-EH; 147-A]

1.7 The inherent jurisdiction under Section 151 CPC cannotbe exercised to nullify the provisions of the CPC. The inherentpowers of the court are in addition to the powers specificallyconferred on the court by the Code, and cannot be exercised in aFmanner which will be contrary or different from the procedureexpressly provided in the Code. [Para 26][147-C-D]

1.8 The scope, ambit and parameters for deciding anapplication for rejection of the plaint under Order VII Rule 11(d),for deciding the preliminary issue on pure question of law underGOrder XIV Rule 2(2) and for pronouncing a judgment on admissionunder Order XII Rule 6 being absolutely different andindependent of each other, the Single Bench and the DivisionBench were required to strictly adhere to the procedures laiddown in the said provisions, and could not have exercised inherent powers or suo moto powers dehors the specificprovisions contained in the Code. The impugned orders passedby the High Court being in utter disregard of the said provisionsand of the settled legal position, are quashed and set aside. Thesuit is restored on the file of the Single Bench. [Para 27][147-F-G; 148-A]

Nusli Neville Wadia v. Ivory Properties and Ors. (2020)6 SCC 557 : [2019] 15 SCR 795; Chander KantaBansal v. Rajinder Singh Anand (2008) 5 SCC 117 :[2008] 4 SCR 748; Kamala and Ors. v. K.T. EshwaraSa and Ors. (2008) 12 SCC 661 : [2008] 7 SCR 39;Shakti Bhog Food Industries Ltd. v. Central bank ofIndia and Anr. 2020 SCC Online SC 482; Satti ParadesiSamadhi v. M. Sankuntala (2015) 5 SCC 574 : [2014]1 SCR 249; Uttam Singh Dugal & Co. Ltd. v. UnitedBank of India and Ors. 2000 (4) RCR Civil 89; HimaniAlloys Ltd. v. Tata Steel Ltd. 2011 (3) Civil Court Cases721 – relied on.

Khatri Hotels Private Limited and Ors. v. Union of India(UOI) and Ors. (2011) 9 SCC 126 : [2011] 15 SCR299; Karam Kapahi and Ors. v. Lal Chand PublicCharitable Trust and Ors. (2010) 4 SCC 753 : [2010] 4SCR 422; Charanjit Lal Mehra and Ors. v. Kamal SarojMahajan and Ors. (2005) 11 SCC 279 : [2005] 2 SCR661; T. Arivandandam v. T.V. Satyapal and Ors. (1977)4 SCC 467 : [1978] 1 SCR 742; Saleem Bhai and Ors.v. State of Maharashtra and Ors. (2003) 1 SCC 557 :[2002] 5 Suppl. SCR 491; Soumitra Kumar Sen v.Shyamal Kumar Sen and Ors. (2018) 5 SCC 644;Srihari Hanumandas Totala v. Hemant Vithal Kamat andOrs. (2021) 9 SCC 99; Ramesh B. Desai and Ors. v.Bipin Vadilal Mehta and Ors. (2006) 5 SCC 638 : [2006]3 Suppl. SCR 414; Uttam Singh Dugal and Co. Ltd. v.Union Bank of India and Ors. 2000 (4) RCR Civil 89;Arjun Singh v. Mohindra Kumar and Ors. AIR 1964SC 993 : [1964] SCR 946; Pallav Sheth v. Custodianand Ors. (2001) 7 SCC 549 : [2001] 1 Suppl. SCR387; P. Radha Bai and Ors. v. P. Ashok Kumar andOrs. (2019) 13 SCC 445 : [2018] 12 SCR 143; A

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110SUPREME COURT REPORTS

AMadanuri Sri Rama Chandra Murthy v. Syed Jalal(2017) 13 SCC 174 : [2017] 5 SCR 294; T.Arivandandam v. T.V. Satyapal (1977) 2 SCC 467 :[1977] 2 SCR 654 – referred to.

Case Law Reference

The Judgment of the Court was delivered by CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2573of 2022H

From the Judgment and Order dated 25.04.2016 of the High Courtof Delhi at New Delhi in RFA (OS) No. 54 of 2015.

Shyam Divan, Sr. Adv., Dinesh C. Pandey, Udayatiya Banerjee,Piyush Sharma, Dushyant Dahiya, Advs. for the appellant.

P.S. Patwalia, Sr. Adv., Ms. Priyanka Tyagi, Surya Kant, Arun K.Sinha, Advs. for the respondents.

The Judgments of the Court were delivered by SANJIV KHANNA, J.

Leave granted.

2. The appellant before us, Saranpal Kaur Anand, is the plaintiffwho has filed a Civil Suit, C.S. (O.S.) No. 873 of 2012, seeking: a decreeof declaration that the suit property bearing No. 4-C/7, New RohtakRoad, New Delhi, is a joint undivided family property of the plaintiff anddefendant Nos. 3 to 9 being the successors of late Harnam Singh Anandand late Harbans Kaur; a decree of declaration that the purported saledeed dated 23[rd] August 1969 executed by late Harbans Kaur throughher alleged attorney in favour of late Tej Kaur is a fictitious, sham,incompetent, bad, illegal, null and void; a decree of declaration that thepurported sale deed dated 12[th] October 1995 executed by late Tej Kaurin favour of Pervinder Singh Chandhok (defendant No. 2) is fictitious,sham, incompetent, bad, illegal, nullity and void ab initio in law; and adecree for permanent injunction restraining Praduman Singh Chandhokand Pervinder Singh Chandhok (defendant Nos.1 and 2), their agents,nominees, successors, assigns, representatives etc., from raising/constructing/adding/ altering or entering into any agreement to sell orcreating any third party interest, claims, or parting with possession thereof,in respect of any portion of the suit property besides seeking determinationof the amount of damages and mesne profits.

3. Defendant Nos. 1 and 2 filed their respective written statementscontesting the suit. They also filed an application for rejection of theplaint on the ground of limitation.

4. By the order dated 7[th] February 2014, the Single Judge of theHigh Court settled the preliminary issue of limitation as under:

“Whether the suit as framed is liable to be rejected under OrderVII Rule 11(d) of the CPC on the ground of limitation?”

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A5. Subsequently the plaintiff filed two applications for amendmentof the plaint to incorporate prayer for possession and amending the causeof action clause, which were taken up for hearing along with hearing onthe preliminary issue.

6. By the order dated 6[th] April 2015 the Single Judge decided theBpreliminary issue holding that the suit being barred by time, the plaintwas liable to be rejected. The applications for amendment filed by theplaintiff were dismissed as mala fide and not maintainable.

7. The impugned order dated 25[th] April 2016 passed by the DivisionBench of the High Court dismissed the appeal preferred by the plaintiffCupholding the order rejecting the plaint on the ground that it was filedbeyond the period of limitation. The applications filed for amendment ofthe plaint being unnecessary were, therefore, rightly rejected by the SingleJudge.

8. A decision under clause (d) of Rule 11 to Order VII[1] of the CodeDof Civil Procedure, 1908 (for short, ‘the Code’) normally proceeds on‘demurrer’. This means that the party objecting to the legal action assumesthe truth of the matter alleged by the opposite party and sets up that it isinsufficient in law to sustain the claim or there is some other defect on theface of the pleadings constituting a legal reason why the proceedings shouldnot be allowed to proceed further.[2] This is also the underlying principleEbehind clause (d) of Order VII Rule 11 of the Code which applies when itappears from a statement in the plaint that the suit is barred by any law.The law would include the Limitation Act, 1963. Section 3 of the LimitationAct mandates that every suit, appeal or application instituted, preferred orfiled after the prescribed period, and subject to provisions of Sections 4 toF24, shall be dismissed although limitation has not been set up as a defence.Sub-rule (2) to Rule 2 of Order XIV[3] of the Code lays down that where 1 “Order 7, Rule 11- Rejection of plaint - The plaint shall be rejected in the followingcases:— (d) where the suit appears from the statement in the plaint to be barred by anylaw;”

2 See paragraph 14 in Ramesh B. Desai v. Bipin Vadilal Mehta & Ors. (2006) 5 SCC 638.G3 Order XIV Rule 2(2) Court to pronounce judgment on all issues. — (2) Whereissues both of law and of fact arise in the same suit, and the Court is of opinion that thecase or any part thereof may be disposed of on an issue of law only, it may try thatissue first if the issue relates to—

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purposemay, if it thinks fit, postpone the settlement of the other issues until after that issue hasHbeen determined, and may deal with the suit in accordance with the decision on that issue.

issues of both law and fact arise in the same suit, and the court is of theopinion that the case or any part thereof can be disposed of on an issueof law only, it may try that issue first if the issue (a) relates to thejurisdiction of the court, or (b) bar to the suit is created by any law forthe time being in force. Therefore, when decision on issues of law dependupon decision on issues of fact, the issue of law should not be decided asa preliminary issue[4]. However, when the issue of law can be adjudicatedon ‘admitted facts’, the court can decide the issue of law as a preliminaryissue under Order XIV Rule 2 of the Code. The position of law has beensuccinctly stated in Nusli Neville Wadia v. Ivory Properties andOthers[5] in the following words:

“51...As per Order 14 Rule 1, issues arise when a materialproposition of fact or law is affirmed by the one party and deniedby the other. The issues are framed on the material proposition,denied by another party. There are issues of facts and issues oflaw. In case specific facts are admitted, and if the questionof law arises which is dependent upon the outcome ofadmitted facts, it is open to the court to pronounce thejudgment based on admitted facts and the preliminaryquestion of law under the provisions of Order 14 Rule 2. InOrder 14 Rule 2(1), the court may decide the case on a preliminaryissue. It has to pronounce the judgment on all issues. Order 14Rule 2(2) makes a departure and the court may decide the questionof law as to jurisdiction of the court or a bar created to the suit byany law for the time being in force, such as under the LimitationAct.”

(Emphasis added)

(Emphasis added)

9. At the outset itself, it must be stated that unless the plaintiffsucceeds in grant of declaration whereby the validity of the sale deeddated 23[rd] August 1969 executed and transferring the suit property infavour of late Tej Kaur has been challenged, all other reliefs would failand cannot be granted. Thus, the question to be answered is whetherthe prayer for grant of declaration that the sale deed dated 23[rd] August1969 is null and void being fictitious, sham, incompetent, bad and illegalis barred by limitation, can be decided as a legal issue without evidencebeing led?

4 See paragraph 13 and 15 in Ramesh B. Desai (supra).

5 (2020) 6 SCC 557

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A10. As per Article 58[6] of the Schedule of the Limitation Act, in asuit for declaration where Articles 56[7] and 57[8] do not apply, the plaintshould be filed within a period of three years when the right to sue firstaccrues. On applying Article 58 to the prayer for declaration, that thesale deed dated 23[rd] August 1969 is invalid, the suit filed after 42 yearson 27[th] March 2012 is clearly barred by limitation. However, though notBadverted to in the impugned order of the Division Bench and the orderof the Single Judge of the High Court, it is apparent that the plaint, forthe purpose of decree of declaration that the sale deed dated 23[rd] August1969 is invalid, relies on Section 17 of the Limitation Act, which dealswith the effect of fraud and mistake, and reads:C“17. Effect of fraud or mistake.—(1) Where, in the case of anysuit or application for which a period of Limitation is prescribedby this Act,—

(a) the suit or application is based upon the fraud of the defendantor respondent or his agent; orD(b) the knowledge of the right or title on which a suit or applicationis founded is concealed by the fraud of any such person asaforesaid; or

(c) the suit or application is for relief from the consequences of aEmistake; or(d) where any document necessary to establish the right of theplaintiff or applicant has been fraudulently concealed from him, the period of Limitation shall not begin to run until the plaintiff orapplicant has discovered the fraud or the mistake or could, withFreasonable diligence, have discovered it; or in the case of aconcealed document, until the plaintiff or the applicant first hadthe means of producing the concealed document or compelling itsproduction…..”

The general principle, which also manifests itself in Section 17 ofGthe Limitation Act, is that every person is presumed to know his ownlegal right and title in the property, and if he does not take care of hisown right and title to the property, the time for filing of the suit based on H

6 To obtain any other declaration

7 To declare the forgery of an instrument issued or registered.

8 To obtain a declaration that an alleged adoption is invalid, or never, in fact, took place.

such a right or title to the property is not prevented from running againsthim. The provisions of Section 17(1) embody fundamental principles ofjustice and equity, viz. that a party should not be penalised for failing toadopt legal proceedings when the facts or the documents have beenwilfully concealed from him and also that a party who had actedfraudulently should not be given the benefit of limitation running in itsfavour by virtue of such frauds.[9] However it is important to rememberthat Section 17 does not defer the starting point of limitation merelybecause the defendant has committed a fraud. Section 17 does notencompass all kinds of frauds, but specific situations covered by clauses(a) to (d) to Section 17(1) of the Limitation Act. Section 17(1)(b) and (d)encompass only those fraudulent documents or acts of concealment ofdocuments which have the effect of suppressing knowledge entitling theparty to pursue his legal remedy. Once a party becomes aware ofantecedent facts necessary to pursue legal proceedings, the period oflimitation commences.[10]

11. Therefore in the event the plaintiff makes out a case that fallswithin any or more of the four clauses to sub-section (1) to Section 17 ofthe Limitation Act, the period of limitation for filing of the suit shall notbegin to run until the plaintiff or applicant has discovered the fraud/mistake or could with reasonable diligence have discovered it or if thedocument is concealed till the plaintiff has the means of producing theconcealed document or compelling its production a fortiori.

12. ‘Diligence’ as a word of common parlance means attention,carefulness, and persistence in efforts of doing something.[11 ]This Courtin Chander Kanta Bansal v. Rajinder Singh Anand,[12] in reference toproviso to Order VI Rule 17 of the Code, defined ‘diligence’ as:

“16...According to Oxford Dictionary (Edn. 2006), the word“diligence” means careful and persistent application or effort.“Diligent” means careful and steady in application to one’s workand duties, showing care and effort. As per Black’s LawDictionary (18th Edn.), “diligence” means a continual effort toaccomplish something, care; caution; the attention and carerequired from a person in a given situation...”

9 Pallav Sheth v. Custodian and Others, (2001) 7 SCC 549

10 P. Radha Bai and Others v. P. Ashok Kumar and Another, (2019) 13 SCC 445

11 P. Ramanatha Aiyar, The Major Law Lexicon (4th Edition, Lexis Nexis Publication)12 (2008) 5 SCC 117.

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AThe word ‘diligence’ read with the word ‘reasonable’ in the contextof Section 17(1) of the Limitation Act is subjective and relative, andwould depend upon circumstances of which the actor called upon to actreasonably, knows or ought to know. Vague clues or hints may not matter.Whether the plaintiff/applicant had the means to know the fraud is arelevant consideration. It is manifest that Section 17(1) of the LimitationBAct does not protect a party at fault for failure to exercise reasonablediligence when the circumstances demand such exercise and on exerciseof which the plaintiff/applicant could have discovered the fraud. Whenthe time starts ticking subsequent events will not stop the limitation. Thetime starts running from the date of knowledge of the fraud/mistake; orCthe plaintiff/applicant when required to exercise reasonable diligencecould have first known or discovered the fraud or mistake. In case of aconcealed document, the period of limitation will begin to run when theplaintiff/applicant had the means of producing the concealed documentor compelling its production.

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13. Thus when the plaintiff relies on Section 17(1) (b) of theLimitation Act asserting fraud or mistake, he has to state the date onwhich he has discovered the fraud or mistake, and also state that hecould not have discovered the fraud or mistake with reasonable diligenceon a date earlier than on which he has based his cause of action.

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E14. Rules of pleadings relating to fraud and exemption from lawof limitation are set out in Order VI Rule 4[13] and Order VII Rule 6[14] ofthe Code. Order VI Rule 4 lays down that in all cases where a partypleading relies upon fraud, particulars with respect to the date and item,if necessary, shall be stated in the pleadings. The fraud as alleged in theplaint must state those facts which together taken as a whole, if proved,Fwould show and establish fraud. Pleading of fraud should be conspicuous E

13 “Order VI Rule 4. Particulars to be given where necessary.—In all cases in whichthe party pleading relies on any misrepresentation, fraud, breach of trust, wilful default,or undue influence, and in all other cases in which particulars may be necessary beyondsuch as are exemplified in the forms aforesaid, particulars (with dates and items if”Gnecessary) shall be stated in the pleading.

14 “Order VII Rule 6. Grounds of exemption from limitation law.—where the suit is instituted after the expiration of the period prescribed by the law oflimitation, the plaint shall show the ground upon which exemption from such law isclaimed:

Provided that the Court may permit the plaintiff to claim exemption from the law oflimitation on any ground not set out in the plaint, if such ground is not inconsistentHwith the grounds set out in the plaint.”

and palpable, and should not be predicated on mere suspicion andconjecture. Of course, the court, at the initial stage when deciding anapplication under clause (d) to Order VII Rule 11 has to proceed underdemurrer, and therefore, should accept the facts as alleged in the plaint,but can in a given case draw irrefutable inferences from the facts stated.Order VII Rule 6 of the Code requires the plaintiff to show the groundsupon which exemption(s) from the law of limitation is claimed, and theplaint should set out the ground(s) for claiming such exemptions, whichmeans that the plaintiff must state the causes or reasons or attributes orbasis on which, according to the plaintiff, a period should be excludedand not be counted. The recitals in the plaint should be specific andcomply with the terms of Order VI Rule 4 of the Code. Order VI Rule6 is liberal and flexible as while mandating that a suit instituted postexpiry of the period of limitation must state the grounds upon whichexemption is claimed, permits the plaintiff to rely on a ‘ground’ notinconsistent with the ground set out in the plaint. The proviso does notnullify the requirement that in the first place the plaint must set out theground seeking exemption from limitation. When and to the extent OrderVII Rule 6 and Order VI Rule 4 apply, these provisions being specificwill prevail over the general rule found in Order VI Rule 2 of the Code.Nevertheless, the requirement of the Rules is to plead specific factswith dates, but not the factual evidence on the basis of which the plaintiffwould ultimately seek to establish and justify his claim for exemption oflimitation. When the minimum threshold required in terms of Order VIRule 4 and Order VII Rule 6 is satisfied and met, cannot be put in astraitjacket or rigid formula, as it would depend upon the facts andcircumstances including antecedent facts, and in particular the relationshipbetween the parties or their predecessors and the period bygone withoutchallenge. While examining these aspects, especially at the initial stageunder clause (d) of Rule 11 to Order VII or Order XIV Rule 2 of theCode, the court cannot proceed on the basis of the assumption as to theevidence that would be led so as to record a finding on the evidence. Atthe same time, an artifice or clever drafting should not prevent the courtfrom stopping plainly time-barred proceedings, an aspect we would againadvert to subsequently. The court can take benefit of Order XII Rule 6[15]

15 “Order XII Rule 6. Judgment on admissions.—

(1) Where admissions of fact have been made either in the pleading or otherwise,whether orally or in writing, the Court may at any stage of the suit, either on theapplication of any party or of its own motion and without waiting for the determination AB

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Aof the Code when there are admissions made by the plaintiff in the plaintand the documents which are admitted by the parties, or there being nodispute which would require oral evidence in the context of the documents.There is no bar against invoking provisions of Order VII Rule 11 andOrder XIV Rule 2 together, or even applying Order XII Rule 6 whileproceeding with demurrer. Provisions of the Code are not watertightBcompartments, unless such statutory construction is express or manifestlyprohibited. we would not in the absence of constraints, deny the trialcourt or the appellate court flexibility in application of the procedurallaw. Underlying objective of prescribing procedure is to advance thecause of justice. Therefore unless compelled by express language orCclear intend barring a course, the provisions of the Code as a proceduralenactment ought to be construed to leave the court to meet and dealwith situations in the ends of justice.

15. Having elucidated in brief the legal position, we would nowrefer to the averments made in the plaint in some detail:D15.1 Initial paragraphs of the plaint state that the plaintiff anddefendant Nos. 3 to 9 are related to each other as brother, sister, andlate brother’s wife and sons. They belong to the family of Harnam SinghAnand and Harbans Kaur, who had since demised on 23[rd] September1974 and 6[th] August 2005 respectively. Defendant No.1, Praduman SinghEChandhok, is the brother of late Harbans Kaur. Defendant No. 2,Pervinder Singh Chandhok, is the son of defendant No.1 and also thecousin of the plaintiff. Harnam Singh Anand, prior to his demise, hadprosperous joint Hindu family businesses and establishments both in Indiaand Iran. He had purchased various properties, including the suit property,in the name of his wife, Harbans Kaur, from one Ram Rattan vide saleFdeed dated 20[th] January 1958 for a consideration of Rs.83,800/- andregistered with the Sub-Registrar’s Office, Delhi on 17[th] February 1958.It is averred that the suit property is a benami property of Harnam SinghAnand. The plaintiff and defendant Nos. 3 to 9, being successors-in-interest, are entitled to their respective shares in the suit property underGthe law of succession. At the time of purchase, the suit property was of any other question between the parties, make such order or give such judgment as itmay think fit, having regard to such admissions.“ (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn upin accordance with the judgment and the decree shall bear the date on which the judgmentHwas pronounced.”

under tenancy of several tenants who were instructed to pay rent andhad attorned to Harbans Kaur. However, Harbans Kaur was merely theostensible and benami owner of the suit property and never had anyright, interest or title.

15.2 Harbans Kaur was very close to her mother Tej Kaur andher brother, defendant No.1. To help them, and as a concession, she hadpermitted Tej Kaur and defendant Nos. 1 and 2 to temporarily reside inthe suit property. Tej Kaur did not have any means to support herselfand her family members comprising of defendant Nos. 1 and 2. HarbansKaur, to make her mother Tej Kaur and her family members, includingdefendant Nos. 1 and 2, stay in the suit property considering their financialhardships, had negotiated with the tenants and had paid substantialamounts to persuade the tenants to vacate the property. Harbans Kaurhad filed several eviction petitions against the tenants who had refusedto vacate. Tej Kaur died on 24[th] July 2007. However, defendant Nos. 1and 2, after the demise of Tej Kaur, had continued to reside and, thereafter,in spite of requests, refused to vacate the suit property. Tej Kaur wasgranted a permissive and limited concession to stay in the suit propertywithout conferring any right, interest or title.

15.3 The plaint also states that defendant No. 1 was in employmentof Harnam Singh Anand at Iran. This was done to enable defendant No.1 to earn a living and sustain in life and maintain his family with dignity.Defendant Nos. 1 and 2 were deeply involved in the business activitiesand affairs at Iran.

15.4 Paragraph 8 of the plaint, which is of some importance, readsas under:

“8. That in view of the above it is abundantly clear and evidentthat (i) Smt. Harbans Kaur was never the owner of suit property,(ii) Factually and legally Sh. Harnam Singh was the owner, (iii)Mrs. Harbans Kaur never have had an right or authority orcompetence to transfer rights, title or interest in the suit property;(iv) Right to stay was granted to Mrs. Tej Kaur which was apermissive usage only and that too during her life time. On deathof Mrs. Tej Kaur and/or Mrs. Harbans Kaur, said permissive usecame to an end, (v) Mrs. Harbans Kaur never had right to transfertitle through any person claiming by or under her. It has two limbs.Firstly Mrs. Harbans Kaur never enjoyed title. Secondly she hadnever any right to transfer, thirdly she did not have any competence A

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to confer any right upon any person to act for and on her behalffor any of these acts and deeds, (vi) Over and above all theseissues, even on the touch tone of law, the alleged sale deed isillegal and nullity in law. Sale Deed is without consideration. Noconsideration was ever paid at the time of execution of allegedsale deed and terms of the deed were never performed. It was atbest a contingent agreement which is not fulfilled and thus it givesor creates no right or title or interest thereunder. Sale Deed isbad, illegal and void document. It does not create any right infavour of deceased Mrs. Tej Kaur and/or the defendants 1 and 2.Plaintiff has therefore, sought a declaration with respect to saidsale deed and has also prayed for its cancellation and finally (vii)After death of Mrs. Harbans Kaur and/or Mrs. Tej Kaur, theDefendants 1 and 2 were bound in law to hand over vacantpeaceful possession of the suit property when called upon to doso which they have failed. Their possession IS absolutely illegal,unlawful and unauthorized and they are liable to pay chargestowards illegal/unlawful and unauthorized use and occupation /mesne / profits / damages. These charges are payable from dateof possession till date of delivery of vacant peaceful possessionof suit property unto plaintiff and her family members. Inquiry isrequired to be caused by the Hon’ble Court to determine thequantum of damages/mesne profits admissible and payable byDefendants 1 and 2 in the present case.”

15.5 Paragraphs 12, 13, 14 of the plaint read as under:

15.5 Paragraphs 12, 13, 14 of the plaint read as under:

“12. That the plaintiff now has learnt recently that Smt. Tej Kaurtogether with Defendants 1 & 2 actuated with greed and takingundue advantage of the faith and trust reposed by Smt. HarbansKaur, conspired to usurp the assets and properties of the Plaintiff’sfamily. Late Smt. Tej Kaur and Defendants No. 1 & 2 fraudulentlyand deceitfully got signed from Late Smt. Harbans Kaur throughher attorney the Defendant No. 3 a document purporting to beSale Deed dated 23.08.1969 seeking to transfer/convey the right/interest/title in the said property in favour of Smt. Tej Kaur againstpurported consideration of Rs. 90,000/- and by falsely allegingthat Rs. 20,000/- will be as an advance and Rs. 30,000/- will bepaid before Sub-Registrar, Delhi and balance Rs. 40,000/- wouldbe paid in equal 4 instalments in four years. Not only the documents created are forged, fictitious, sham, inconsequential in law butalso a nullity being void ab-initio in as much neither Smt. HarbansKaur was ever entitled/competent to create any third-party rights/interest/title in the said property but also Smt. Tej Kaur never hadany ability to pay any amount and much less the alleged amountsin question and which till date has not been received. All this whileSmt. Tej Kaur had been representing herself to be using the saidproperty on the basis of the permission/consent granted by thefamily of the Plaintiff.

13. That pursuant to and acting on the basis of the fictitious SaleDeed dated 23.08.1969 claimed to have been registered on27.08.1969 Late Smt. Tej Kaur purportedly acting as owner withoutany valid/lawful authority conferred upon her by the family of thePlaintiff and acting dishonestly to dilute the rights/interest/title ofthe Plaintiff and her family members fraudulently executed afictitious General Power of Attorney dated 04.04.1982 in favourof the Defendant No. 1 in respect of the said property. Thatpursuant to the fictitious Sale Deed dated 23.08.1969 Late Smt.Tej Kaur purportedly made the document purporting to be a Saledeed dated 12.10.1995 in favour of the Defendant No. 2 for theafore-said property against the purported sham consideration ofRs. 4,00,000/-. The same is totally and absolutely illegal, null andvoid, non-est, fraudulent, sham and bogus transaction. Noconsideration was received by the family members of the plaintiffin any manner whatsoever nor the transaction permitted or evenratified by her family members.

14. That it is pertinent to mention that the Plaintiff has furthercome to know from the certified copies of proceedings beforethis Hon’ble Court in C.M. (Main) No. 982 of 2004 that duringthe pendency of the said proceedings Smt. Tej Kaur demised on24.07.2007 and the defendant No. 1 filed an application underOrder 22 Rule 3 read with Section 151 CPC registered as C.M.No. 5848 of 2008 seeking impleadment of LRs of deceased Smt.Tej Kaur wherein he placed on record the copy of the Will dated03.05.2007 executed by Smt. Tej Kaur allegedly claiming herselfto the exclusive and sole owner of the said property havingpurchased vide the purported fictious Sale Deed dated 23.08.1969claimed to have been registered on 27.08.1969 and bequeathing AB

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Athe same in favour of the Defendant No. 2 which is totallycontradictory to the purported sham/illegal and null and voidtransaction made outherein above.”

15.6 Paragraphs 15 to 18 of the plaint refer to an order passed bythis Court dated 30[th] January 1973, which is a reported decision, relatingBto eviction proceedings filed by Harbans Kaur for misuse of propertyfor commercial purposes by one of the tenants. The matter was remandedto the Rent Controller to adjudicate the issues afresh. Thereupon, one ofthe tenants had filed a second appeal against the order of the RentController before the Delhi High Court. In 2004, Tej Kaur had also fileda petition under Article 227 before the High Court against an order passedCby the Rent Controller. After the death of Tej Kaur, defendant No.1 hadmoved an application seeking impleadment as a legal heir disclosing andrelying upon the Will dated 3[rd] May 2007. In terms of the said Will,defendant No.1 had become the sole and exclusive owner of the suitproperty. The Will, it is stated, does not refer to the sale deed dated 12[th]DOctober 1995 and rather claims to have been executed by Tej Kaur infavour of defendant No.2. The plaintiff had appeared in the saidproceedings after the publication of notices in the newspaper and opposedthe prayer claiming that she too is a legal representative, being the daughterof Harbans Kaur. Immediately thereafter, defendant Nos. 1 and 2compromised the matter with the tenant. The petition filed under ArticleE227 was withdrawn by defendant Nos.1 and 2, but the court vide orderdated 29[th] September 2008 had given liberty to the legal representativeof Harbans Kaur to raise claim/right as and when any subsequentproceeding arises. First Appeal filed by the tenant was also withdrawnon the same day. It is pleaded that Harbans Kaur had continued toFprosecute the eviction proceedings against the tenants and there was noattornment of rights as Harbans Kaur had retained all rights with her.There were judicial findings on title against Tej Kaur by the RentController against which no steps were taken to perform or concludethe sale transaction, and it remained inconclusive. It is averred that TejGKaur had never acquired any right or title in the property because ofwhich Harbans Kaur was always impleaded and remained a party in theeviction proceedings as an owner and landlord.

15.7 Paragraphs 19 to 21 of the plaint refer to the legal noticedated 10[th] October 2008 served by the plaintiff and her family members,including defendant No. 3, on defendant Nos.1 and 2; the reply theretoH

dated 15[th] October 2008 by defendant Nos.1 and 2 without furnishingdetails; rejoinder dated 24[th] October 2008, followed by specific legalnotice dated 24[th] October 2008 to defendant Nos. 1 and 2; and the replythereto dated 4[th] November 2008, which again was without providingany details or documents. we shall subsequently refer to these letters/legal notices as they are of substantial importance and relevance. It ispleaded that defendant Nos. 1 and 2, acting illegally and arbitrarily, haveinstigated and induced defendant Nos. 6 to 8, namely Damanpal KaurAnand, Jaspreet Singh Anand and Gursimar Singh Anand (wife andchildren of late Kultaran Singh Anand, brother of the plaintiff), to rakeup false, inconsistent claims and issues to divide the family and dragthem into inter se litigation. At the behest and insistence of defendantNos. 1 and 2, defendant Nos. 6 to 8 have initiated several proceedingsagainst the plaintiff, her brother and other family members, which arestill pending. In one such proceeding, from the written statement filed bydefendant Nos. 7 and 8 on 16[th] December 2010, the plaintiff for the firsttime came to vaguely know about the purported sale of the suit propertyby Harbans Kaur to Tej Kaur. The plaintiff and other family memberswere utterly shocked and surprised and thus became suspicious aboutthe intentions of defendant Nos. 1 and 2. Thereafter, the plaintiff hadmade enquiries of various court proceedings, pending and disposed ofmatters. Whereas at one such enquiry made in the Office of the Sub-Registrar, Delhi, they came to know about the fictitious, sham, illegal,fraudulent transactions created by defendant Nos. 1 and 2.

15.8 Paragraph Nos. 22 and 33 of the plaint state that the plaintiffwas completely in the dark and had no knowledge of the sale deed dated23[rd] August 1969 and the subsequent sale deed dated 12[th] October 1995.Regarding the date on which the cause of action arose, the plaint states:

“22. That Smt. Harbans Kaur including the Plaintiff and her familymembers have been totally kept in dark about these false,mischievous and fraudulent deals entered into amongst Late TejKaur and the defendant No. 1 & 2 as made out herein above.The Plaintiff or even his mother Smt. Harbans Kaur deceasedwas at no point of time either apprised about the same or herconcurrence or even her signatures were ever obtained in thesaid purported illegal and sham Deed of Sale dated 23.08.1969claimed to have been registered on 27.08.1969 or even thesubsequent purported fictitious documents/sale deeds dated A

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12.10.1995 and Will dated 30.05.2007 which are null and void abinitio being nullity and fraud conveying no right/interest/title uponthe defendants No. 1 & 2 or even Smt. Tej Kaur in any manner atany point of time and thus does not affect the right/interest/title ofthe plaintiff and her family members to own, enjoy and possessthe same.

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33. That the cause of action first arose on 23.08.1969 claimed tobe registered on 27.08.1969 when the purported fictitious saledeed was executed by Late Harbans Kaur in favour of Late Smt.CTej Kaur in respect of the subject property. It again arose on04.05.1982 when purported General Power of Attorney wasexecuted by Late Tej Kaur in favour of defendant no. 1. It againarose on 12.10.1995 when purported fictitious sale deed wasexecuted by Late Smt. Tej Kaur in favour of defendant no. 2 inDrespect of the subject property. The cause of action further aroseon 30.05.2007 when purported Will bequeathing the subjectproperty was executed by Smt. Tej Kaur in favour of DefendantNo. 2 on the basis of the purported fictitious sale deed dated23.08.1969 claimed to be registered on 27.08.1969. The cause ofaction again arose in on 10.10.2008, 24.10.2008, when theEdefendants No.1 & 2 when called upon to admit and acknowledgethe rights/interest/title of the Plaintiff and her family membersand handover the possession of the suit property denied vide replydated 15.10.2008 and 04.11.2008…”[16]

16 The plaintiff had filed an application under Order VI Rule 17 of the code (I.A. No.F7950 of 2014), seeking to amend paragraph 33 of the plaint by incorporating thefollowing additional facts:

“The cause of action further arose on 27.02.2012 and on 29.02.2012/15.06.2012when the plaintiff upon coming to know about the frauds played by the DefendantsNos.1 and 2 in resorting to illegal/unlawful creation of purported sale deeds appliedand obtained certified copies of the purported sale deeds dated 12.10.1995 and theGpurported sale deed dated 23.08.1969 registered on 27.08.1969 respectively fromthe office of the Sub-Registrar, Delhi pursuant to the disclosures made in theWritten Statement dated 16.12.2010 filed by the defendants Nos. 7 and 8 in C.S.(O.S.) No. 1677 of 2010 titled as Gurdev Singh Anand and Ors. v. Jaspreet SinghAnand and Anr., legal notices and responses received and the extensive inquries/searches made in the office of the Sub-Registrar Delhi.”

The additional facts, as mentioned, would not make any difference to the presentHoutcome in view of the finding that the plaintiff had knowledge about execution of the

15.9 Paragraphs 23 to 28 of the plaint state that defendant Nos. 1and 2, along with Tej Kaur, had a mala fide and ulterior intention inusurping the suit property and assets of the plaintiff and her familymembers. Defendant Nos. 1 and 2 in their possession have certain blankpapers and other documents of other properties allegedly signed byHarbans Kaur and other family members of the plaintiff and Tej Kaur,and based upon which they are now trying to forge and create fictitiousdocuments. The sale deed executed by Harbans Kaur in favour of TejKaur and the sale deed executed by Tej Kaur in favour of defendantNo.1 are null and void, being vitiated by fraud, cheating, fraudulentmisrepresentation, forgery, illegality etc. and thus, inconsequential in law.It is averred that Harbans Kaur could not have transferred a better titlein favour of Tej Kaur, and further, Tej Kaur could not have transferred abetter title than she had. The sale deeds are also fraudulent on the countof being without consideration. They are a result of a conspiracy hatchedby the defendant Nos. 1 and 2 amongst themselves with Harbans Kaurand Tej Kaur with the sole and cheap objective to usurp the lawfulownership and title of the plaintiff and the defendant Nos. 3 to 9. Theplaintiff’s deceased mother could never have and had no intent or purposeor necessity to execute the sale deed in favour of Tej Kaur. DefendantNos. 1 and 2 are in permissive possession, having limited and restrictedrights to use and occupy the property through late Tej Kaur. Theownership, title and interest claim predicated by them are based ondocuments, mutations, etc., that are inconsequential in law, not valid,being fraudulent, concocted act of forgery, fabrication, misrepresentation,etc. Defendant Nos. 1 and 2 are liable to be removed from the suitproperty once the purpose and object of granting permissive possession,restricted and limited right to use and occupy the suit premises has beenserved. It is claimed that the plaintiff is entitled to seek recovery ofmesne profits at the rate of Rs. 1 lakh per year or such rate as determinedby courts from defendant Nos. 1 and 2 for the illegal, unlawful andunauthorised use and occupation of the suit property.

16. The sale deed dated 23[rd] August 1969 in favour of Tej Kaurwas executed by Gurdev Singh Anand as the attorney of Harbans Kaur.Gurdev Singh Anand, the third defendant in the suit, is the brother of the sale deed dated 23[rd] August 1969, if not earlier at least in 2008. It is also discernible thatshe could have with reasonable diligence in the given facts as pleaded in the plaint,ascertained and known facts relating to the execution of the sale deed dated 23[rd] August1969.

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Aplaintiff. Execution of the sale deed and signatures of Gurdev SinghAnand acting as the attorney of his mother Harbans Kaur are undisputed.The sale deed is a registered document. The plaint accepts that the salewas for a consideration of Rs.90,000/- . The sale deed states thatRs.20,000/- was received in advance and Rs.30,000/- was paid beforethe Sub-Registrar. The balance amount of Rs.40,000/- was to be paid toBthe vendor by the vendee in four equal monthly instalments. The plaintdoes not state if any suit or proceedings were initiated for the recoveryof Rs.40,000/-. Any suit or proceedings for recovery of Rs.40,000/- wouldbe barred by limitation. The sale deed mentions that on the date ofexecution Harbans Kaur was present in Tehran, Iran, and therefore, herCson Gurdev Singh Anand, who is the brother of the plaintiff, as an attorney,was executing the sale deed as authorised vide Special Power of Attorneyauthenticated on 23[rd] August 1969. These facts are again not challengedand contested in the plaint. Sale deed dated 23[th] August 1969 is morethan thirty years old, and during the lifetime of Harbans Kaur or TejKaur it was never challenged and questioned by Harbans Kaur or anyDof their family members. In terms of Section 90 of the Evidence Act, thepresumption is that the signature and every other part of the document,its execution and attestation is by persons by whom it purports to beexecuted and attested.

17. Legal notice dated 10[th] October 2008, states that late HarbansEKaur, after her marriage, took steps to establish late Tej Kaur and herson Praduman Singh Chandhok, the first defendant. The legal noticedated 10[th] October 2008 regarding the suit property states:

“3. In fact property No. 4-C/7, New Rohtak Road, New Delhi –110005 was given by Smt. Harbans Kaur unto her mother Ms.FTej Kaur and she took all steps to establish her brother namelyPraduman Singh Chandhok. Smt. Harbans Kaur settled her brotherby entrusting him with jobs of managing various business(s) andestate of her late husband Shri Harnam Singh in Iran andelsewhere.G4. Since Ms. Tej Kaur died intestate, Ms. Harbans Kaur legallysucceeds to her share in estate of Ms. Tej Kaur along with otherremaining legal heirs, Praduman Singh, Chandhok and others. Hershare to the estate is joint and undivided and is to be succeededupon my clients jointly.”

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“9 (iii) All my clients being sons daughters and grandsons ofdeceased Ms. Harbans Kaur are jointly entitled and have theirclaims in joint undivided share to the estate of Ms. Tej Kaur claimingby or under or through Ms. Harbans Kaur and further notify thatthey are no longer interested in having unity of the and possessionin said estate of Ms. Tej Kaur.”

Legal Notice dated 24[th] October 2008 states:

“3. Post to marriage of Mrs. Harbans Kaur to Shri Harnam Singh,she took all steps to establish home for her mother & brother (lateMs. Tej Kaur and her son- noticee No/1) in furtherance thereof,property No. 4-C/7 New Rohtak Road, New Delhi 110 005was given by Smt. Harbans Kaur into her mother Ms. TejKaur and she also took all steps to establish & same her brother,noticee No.1. Smt. Harbans kaur settled her brother in his life byentrusting him with jobs of managing various business(s) and estateof her husband Shri Harnam Singh (since deceased now) in Iranand elsewhere.

13 (v). partition property No. 4C/7, New Rohtak Road, New Delhiwhere deceased Harbans Kaur has acquired her undivided sharein the eve of death of Mrs. Tej Kaur.”

(Emphasis Supplied)

18. The language and the words used in the legal notices on behalfof the plaintiff and other family members are admissions of facts whichuncover the illusion made by creative and crafty narration to obfuscatethe patent delay of over four decades. To get over the admissions, theplaintiff has submitted that the word/expression used in the notices is‘given’ and not ‘transfer/sale’. That the word ‘given’ used is factuallycorrect, albeit when one reads the notices holistically it is lucid that theplaintiff, along with her family members and defendant No.3, haveaccepted that there was transfer of the suit property in favour of TejKaur. The notice was for partition of the estate left behind by Tej Kaurin the form of the suit property. The plaintiff in the notices did not challengethe legal title of Tej Kaur but had claimed the right of inheritance beinga granddaughter of Tej Kaur. Further, the plaintiff was aware and hadknowledge of the Will dated 3[rd] May 2007 executed by Tej Kaur. The A

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Abequest included the suit property is a fact admitted by the plaintiff inparagraph 14 of the plaint. Reliance placed on the eviction proceedingsdoes not further the plaintiff’s case, as on reading of paragraphs 14 to18 of the plaint it is manifest that the compromise between the tenantand defendant Nos. 1 and 2 as owners/landlord had led to the withdrawalof the proceedings vide order dated 29[th] September 2008. This orderBplaced on record and relied by the plaintiff states that the rights andclaims of the plaintiff and the legal representatives of Harbans Kaur areprotected, while referring to the ownership and inheritance claimed bydefendant Nos. 1 and 2 as legal heirs of Tej Kaur. Legal notices dated10[th] October 2008 and 24[th] October 2008 were issued after the orderCdated 29[th] September 2008 was passed.

19. In view of the said background, the assertions made in theplaint by the plaintiff against her mother late Harbans Kaur that she hadacted in an active and joint concert, connivance and conspiracy with lateTej Kaur are self-serving and phantastic. As per need and factualDbackground of the matter, assertions in the pleadings have to be examinedand understood with other statements and documents relied by the plaintiffwithout feeling helpless and paralysed by unclear, illusory or contradictorydrafting. Meaningful reading of the entire plaint may be required whengrossly implausible and dubious statements are made.[17] The idea is tocheck and weed out manifestly vexatious and meritless cases at theEthreshold.[18]

20. The plaint accepts the close relationship inter se the partiesas relatives and in business activities. The person who had executed thesale deed in 1969 as attorney of Harbans Kaur is the brother of theplaintiff with whom the plaintiff has no dispute. Tej Kaur and defendantFNos. 1 and 2 were residing in the suit property. No claim was made untilthe death of the plaintiff’s mother and grandmother, Harbans Kaur andTej Kaur respectively, on 6[th] August 2005 and 24[th] July 2007. HarnamSingh Anand had died earlier in 1974. For 42 years post the execution ofthe sale deed in 1969, there was no dispute and challenge to the ownershipGof Tej Kaur. In 2008, disputes had arisen but regarding inheritance of theestate of Tej Kaur however the plaintiff and defendant No. 3 did notchallenge the title and ownership of Tej Kaur. In this background, as theplea of lack of knowledge appears to be conjured and unreal, we read 17 See T. Arivandandam v. T.V. Satyapal (1977) 2 SCC 467H18 See Madanuri Sri Rama Chandra Murthy v. Syed Jala (2017) 13 SCC 174

the pleading and the documents with discernment and perceptivenesswithout getting carried away by bald and pretentious accusations that donot infuse with the accepted and ‘admitted’ facts.

21. As already observed, the notices dated 10[th] October 2008 and24[th] October 2008 are admitted and referred to without reservation inthe plaint. They have been filed by the plaintiff with the plaint as relevantdocuments relied upon by the plaintiff. The plaint does not dispute orexplain the contents and admissions made in the two notices.

22. Consequently, on application of the principle of demurrer, ithas to be held, on the basis of the averments made in the plaint and thedocuments relied upon and admitted by the plaintiff, that even prior to2008, the plaintiff was aware and had knowledge of the sale deed dated23[rd] August 1969 by which the ownership rights were transferred to TejKaur. The plaintiff did not, in 2008, question and challenge the transfer,though she was fully aware that Tej Kaur had acquired ownership rights.

23. We have denoted the ambit and conditions of Section 17(1) ofthe Limitation Act, which is to protect rights of a party defrauded fromlapse of time till he remains in ignorance of the fraud, or with reasonablediligence could have discovered the fraud. Section 17(1) does not assista person who merely shuts his eyes in spite of circumstances requiringhim to ascertain facts on which he would have discovered the fraud.Section 17(1) of the Limitation Act saves rights of the party defraudedfrom lapse of time as long as the party is not at fault on his own account.In the aforesaid factual background, it is apparent that the plaintiff wasaware and had knowledge in October 2008 about execution and transferof the ownership rights in favour of late Tej Kaur vide sale deed dated23[rd] August 1969 executed by defendant No.3, Gurdev Singh Anand.Unadorned assertion in the plaint feigning ignorance as to the sale deedwould not help, as in the facts as pleaded and accepted in the plaint, theplaintiff was required to state and indicate that ignorance was not due tofailure to exercise reasonable diligence.

24. In view of the aforesaid facts and position of law, we dismissthis appeal and uphold the judgment of the Single Judge and the DivisionBench of the High Court dismissing the suit as being barred by limitation.We also affirm the judgment of the Single Judge and the Division Benchwith regard to the dismissal of two applications filed by the plaintiff foramendment of pleadings under Order VI Rule 17 of the Code, namely A

B

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EF

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AIA Nos. 17994/2012 and 7590/2014 on the ground that when the suititself has been barred by limitation, amendments to such a suit will beunnecessary.

25. Pending application(s), if any, stand disposed of.

26. Parties to bear their own costs.

B

BELA M. TRIVEDI, J.

1) Having gone through the opinion expressed by my esteemedbrother Justice Sanjiv Khanna, I with respect, express my inability toCagree with the same. In my humble opinion, the impugned judgments ofthe High Court of Delhi, passed by the Single Bench and the DivisionBench are in utter disregard to the provisions contained in the Code ofCivil Procedure (CPC) as also to the legal position well settled by thisCourt in umpteen number of cases. The basic legal premise on whichDboth the courts have proceeded for rejecting the plaint, being erroneousthe same cannot be vindicated for the reasons to follow.

2) Special leave to appeal is granted.

3) Though I propose to deal with only the legal issues involved inthe case, a few basic facts emerging from the record need to be stated.EFor the sake of convenience, the parties shall be referred as per theiroriginal status in the suit.

(i) The Appellant in the present Appeal Smt. Saranpal KaurAnand (Daughter of Late Sardar Harnam Singh Anand andSmt. Harbans Kaur) was the plaintiff in the Civil Suit beingFCS(OS) No. 873 of 2012 filed her in the Delhi High Courtin its original jurisdiction.

(ii) The respondent nos. 1 to 9 herein were the defendant nos.1 to 9 in the suit. The defendant no. 1 Praduman SinghChandhok happened to be the brother of the plaintiff’sGmother and defendant no. 2 happened to be the son ofdefendant no.1. The defendant nos. 3 to 9 happened to bethe legal heirs and successors of the Late Sardar HarnamSingh Anand and Smt. Harbans Kaur.

(iii) The plaintiff filed the suit in question on 27[th] March, 2012Hagainst the defendants seeking a decree of declaration that the suit property being No.4-C/7, New Rohtak Road, NewDelhi was the joint undivided family property of the plaintiffand defendant nos. 3 to 9 and that defendants nos. 1 & 2had no right title or interest upon or to the said property.The plaintiff sought further declaration that the purportedsale deed dated 23[rd] August, 1969 alleged to have beenexecuted by Smt. Harbans Kaur through her allegedattorney in favour of Smt. Tej Kaur was fictitious, sham,nullity and void ab initio and, therefore, deserved to becancelled. The plaintiff also sought a declaration that thepurported sale deed dated 12.10.1995 executed by Smt.Tej Kaur in favour of defendant no. 2 was fictitious, sham,nullity and void ab initio. The plaintiff further sought a prayerfor permanent injunction against defendant nos. 1 and 2 forrestraining them from carrying out any construction/addition/alteration, or entering into any agreement to sell or creatingthird party interest in respect of any portion of the suit property.

(iv) On 10.05.2012, the defendant nos. 1 & 2 filed theirrespective written statements raising various contentionsand praying for the dismissal of the suit.

(v) On 15.05.2012, the defendant no. 2 filed an applicationseeking rejection of the plaint under Order VII Rule 11(d)CPC being I.A. No. 9950 of 2012 in the suit.

(vi) On 11.09.2012, the plaintiff filed an application under OrderVI Rule 17 CPC being I.A.No. 17994 of 2012 seekingamendment in the plaint for incorporating the relief ofpossession in the prayer clause.

(vii) On 07.02.2014, the Trial Court i.e. the Single Bench of theHigh Court framed a preliminary issue as under:

“1. Whether the suit as framed is liable to be rejectedunder Order VII Rule 11(d) of the CPC on the groundof limitation? OPD”

(viii) On 28.04.2014, the plaintiff filed another application underOrder VI, Rule 17 seeking to amend cause of action clauseto explain/elaborate the incident leading to filing of the suit.The said application was registered as I.A. No. 7950/14 inthe said suit.

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A(ix)The Single Bench vide the common order dated 6[th] April,2015, decided the preliminary issue along with the I.A. No.17994/12 and IA No. 7950/14, rejecting the plaint. Theoperative part contained in the paras 39 and 40 of the saidorder reads as under:

B

B“39. The suit is apparently time barred. Hence, the plaintis rejected. The issue framed in the matter is accordinglydecided against the plaintiff and in favour of defendantnos. 1 & 2, the amendment applications filed by theplaintiff are malafide and are not maintainable as thesame itself is time barred on the face of pleadings andCdocuments placed on record. Both applications areaccordingly dismissed.

40. The plaint is rejected. All pending applications arealso disposed of consequently”.

D(x)Being aggrieved by the said judgment and decree passedby the Trial Court /Single Bench, the plaintiff preferred anappeal being RFA (OS) No.54 of 2015 under section 96 ofCPC before the Appellate Court/Division Bench of the HighCourt. The Division Bench confirmed the order passed bythe Single Bench and dismissed the said Appeal vide theEimpugned judgment and order dated 25[th] April, 2016. TheDivision Bench while dismissing the Appeal also tookrecourse to the provisions contained in Order XII Rule 6CPC, which was not the issue before the Single Bench.

F4) Being aggrieved by the impugned judgment passed by theDivision Bench of the High Court, the appellant-plaintiff has filed thepresent Appeal.

5) Having regard to the impugned orders passed by the SingleBench and the Division Bench of the High Court, following questionsfall for consideration:-G

a.Whether the Single Bench i.e. the trial court could haveframed the preliminary issue under Order XIV Rule 2 withregard to the issue of limitation which was a mixed questionof law and fact, for the purpose of rejecting the plaint underOrder VII Rule 11(d) of the CPC?

H

SARANPAL KAUR ANAND v. PRADUMAN SINGHCHANDHOK AND OTHERS [BELA M. TRIVEDI, J.]

b.Whether the Division Bench i.e. the appellate court couldAhave travelled beyond the scope of Appeal and takenrecourse to Order XII Rule 6 CPC, which was not the issuebefore the Single Bench, for the purpose of rejecting theplaint under Order VII Rule 11(d), CPC?

B

c.Whether Single Bench and Division Bench had committedan error of law apparent on the face of record by referringto the written statements and the other documents whichwere not part of the plaint while rejecting the plaint underOrder VII Rule 11(d) on the ground that the suit was barredby law of Limitation?

C

6) The learned Senior Counsel Mr. Shyam Divan for the appellant-original plaintiff has made following submissions:

(i) Limitation being a mixed question of facts and law, the plaintcould not be rejected under Order VII Rule 11(d) CPC.

D

(ii) An application under Order VII Rule 11(d) ought to bedecided solely on the basis of the averments made in theplaint and not on the basis of the written statements andother documents or material.

E

(iii) A case involving disputed questions of facts cannot bedecided by the way of preliminary issue under Order XIVRule 2 of the CPC. The issue of limitation cannot be treatedas a pure question of law under Order XIV Rule 2(2), inview of the settled legal position.

F

(iv) Once fraud has been pleaded in the suit, the plaint cannotbe rejected without affording an opportunity to the partiesto adduce the evidence.

(v) The Single Bench and the Division Bench had committedgross error in referring to the documents which were notpart of the plaint in the impugned orders. The Single Benchwas required to first decide the applications of the plaintiffseeking amendments in the prayer clause and the cause ofaction clause of the plaint, before deciding the preliminaryissue framed by it.

G

H

A(vi)The Division Bench had travelled beyond the scope ofappeal by relying upon the provisions contained in OrderXII Rule 6 for rejecting the plaint of the appellant-plaintiff,though it was not the issue before the Single Bench. Evenotherwise there was no admission made by the plaintiff inthe plaint or otherwise which would entitle the appellateBcourt to pass a judgment dismissing the suit of the plaintiff.

(vii) Mr. Divan, learned senior advocate for the appellant-plaintiffhad drawn the attention of the court to the documentsreferred by the Single Bench and Division Bench whichwere not part of the plaint. He also drew the attention ofCthe court to the erroneous findings recorded by the DivisionBench while confirming the order passed by the SingleBench.

(viii) Reliance has been placed by the learned senior advocateMr. Divan on the various judgments of this court to buttressDhis submission that the plaintiff having alleged commissionof fraud, and the issue of limitation being a mixed questionof fact and law, the plaint could not be rejected under OrderVII Rule 11(d) of the CPC. Order XIV Rule 2 also doesnot confer any jurisdiction upon the court to try the issue ofElimitation as a preliminary issue, the same being not a purequestion of law.

7) The learned Senior Counsel Mr. P.S. Patwalia appearing forthe contesting respondent nos. 1 and 2 (Original defendant no. 1 and 2)made following submissions:F

(i) The Single Bench had rightly framed the preliminary issuewith regard to the issue of limitation, which was a purequestion of law, and had rightly rejected the plaint underOrder VII Rule 11(d) of CPC. The said judgment havingbeen confirmed by the Division Bench, this Court may notGinterfere with the said concurrent findings of the factsrecorded by the two courts.

(ii) The plaintiff had filed the applications for amendments inthe plaint under Order VI Rule 17 as an afterthought tocover up the issue of limitation, misusing the process ofHlaw.

(iii) Placing reliance on the decision of this Court in case ofAKhatri Hotels Pvt. Ltd. Vs. Union of India1, Mr. Patwaliasubmitted that if the suit is based on multiple causes ofaction, the period of limitation would begin to run from thedate when the right to sue first accrued.

(iv) Having regard to the nature of the pleadings and admittedBdocuments, the Division Bench of the High Court had rightlyexercised its Suo moto powers under Order XII Rule 6 forthe purpose of rejecting the plaint.

(v) In view of the admission of the plaintiff with regard to theownership of Smt. Tej Kaur by seeking succession to herCestate and the knowledge of the will dated 03[rd] May, 2007executed by late Smt. Tej Kaur in favour of the defendantno. 2 in the year 2008, and the suit having been filed inMarch, 2012, it was clearly beyond the period of limitationof three years prescribed under the Limitation Act.

D

(vi) The Division Bench of the High Court was well within itsjurisdiction to exercise the power under Order XII, Rule 6CPC and pass a judgment Suo moto. In this regard he hasplaced reliance on the decisions of this court in case ofKaram Kapahi & Ors. Vs. M/S Lal Chand PublicECharitable Trust & Anr.2 and in case of Charanjit LalMehra & Ors. Vs. Smt. Kamal Saroj Mahajan & Anr.3

(vii) Placing reliance on the decision in case of T.Arivandandam Vs. T. V. Satyapal & Anr.4, he submittedthat if on a meaningful reading of the plaint, it appears to bemanifestly vexatious and meritless, the court should exerciseits powers under Order VII Rule 11 of CPC, which hasbeen rightly exercised by the High Court.

F

8) At the outset, it may be noted that the suit having been filed bythe plaintiff in the High Court in its original jurisdiction, the Single Benchas a trial court and the Division Bench as an appellate court were required G

1 (2011) 9 SCC 1262 (2010) 4 SCC 7533 (2005) 11 SCC 2794 (1977) 4 SCC 467

H

Ato adhere to the specific provisions contained in the CPC while decidingthe suit and the Appeal respectively.

9) As discernible from the record, though the defendant no. 2 hadfiled an application seeking rejection of plaint under Order VII Rule11(d) of CPC, the Single Bench instead of deciding the said application,Bframed a preliminary issue under Order XIV Rule 2, as to ‘whether thesuit as framed is liable to be rejected under Order VII Rule 11(d) ofCPC on the ground of limitation’. The Single Bench then decided thepreliminary issue against the plaintiff holding that the plaint was liable tobe rejected under Order VII, Rule 11(d), considering the written statementand other documents filed by the concerned defendants, which were notCpart of the Plaint. The Division Bench in the Regular Appeal filed by theappellant-plaintiff against the judgment and order passed by the SingleBench, committed further error by relying upon the provisions containedin Order XII Rule 6 of CPC, which was not even the issue before theSingle Bench, and confirmed the order passed by the Single Bench. It isDneedless to say that the scope, ambit and parameters for deciding anapplication under Order VII Rule 11(d) for the rejection of the plaint; forraising a preliminary issue under Order XIV Rule 2(2); and for passingthe judgment on admission of fact in the pleading or otherwise underOrder XII Rule 6 being absolutely different and mutually exclusive, allthe three provisions could not be interchangeably used for the purposeEof rejecting the plaint under Order VII Rule 11(d) of the CPC. It is alsowell settled proposition of law that when a power is to be exercised by aCivil Court under an express provision, the inherent power under Section151 of CPC cannot be taken recourse to.

10) In order to make the position more clear, let us refer to theFrelevant provisions as contained in the CPC.

-Order VII Rule 11 reads as under:

11. Rejection of plaint.— The plaint shall be rejected in thefollowing cases:—

G

(a) Where it does not disclose a cause of action; (b) …

(c) …

(d) where the suit appears from the statement in the plaintto be barred by any law; H

(e) …

(f) …

-Order XII Rule 6 reads as under:

6. Judgment on admissions—(1) Where admissions of facthave been made either in the pleading or otherwise, whetherorally or in writing, the Court may at any stage of the suit,either on the application of any party or of its own motionand without waiting for the determination of any otherquestion between the parties, make such order or give suchjudgment as it may think fit, having regard to such admissions.(2) Whenever a judgment is pronounced under sub-rule (1)a decree shall be drawn up in accordance with the judgmentand the decree shall bear the date on which the judgmentwas pronounced.

-Order XIV Rule 2 reads as under:

1. Framing of issue:…

2. Court to pronounce judgment on all issues.— (1)Notwithstanding that a case may be disposed of on apreliminary issue, the Court shall, subject to the provisionsof sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the samesuit, and the Court is of opinion that the case or any partthereof may be disposed of on an issue of law only, it maytry that issue first if the issue relates to— (a) the jurisdictionof the Court, or (b) a bar to the suit created by any law forthe time being in force, and for that purpose may, if it thinksfit, postpone the settlement of the other issues until afterthat issue has been determined, and may deal with the suitin accordance with the decision on that issue.

11) The basic postulate underlined in clause (a) and clause (d) ofRule 11 Order VII is that while rejecting the plaint under the saidprovisions, the court is required to see only the averments made in theplaint and the documents, if any, annexed to the plaint, and not to thewritten statement or other documents which are not part of the plaint. Incase of Kamala & Ors Vs. K.T. Eshwara Sa & Ors.[5], it has been 5 (2008) 12 SCC 661

A

BC

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Aobserved that for the purpose of invoking Order VII Rule 11 (d) of CPC,no amount of evidence can be looked into and that the conclusion thatthe suit is barred under any law must be drawn from the avermentsmade in the plaint. To be precise, it was held as under:- “21. Order VII, Rule 11(d) of the Code has limited application.BIt must be shown that the suit is barred under any law. Such aconclusion must be drawnfrom the averments made in the plaint.Different clauses in Order VII, Rule 11, in our opinion, shouldnot be mixed up. Whereas in a given case, an application forrejection of the plaint may be filed on more than one groundspecified in various sub-clauses thereof, a clear finding to thatCeffect must be arrived at. What would be relevant for invokingClause (d) of Order VII, Rule 11 of the Code is the avermentsmade in the plaint. For that purpose, there cannot be any additionor subtraction. Absence of jurisdiction on the part of a court canbe invoked at different stages and under different provisions ofDthe Code. Order VII, Rule 11 of the Code is one, Order XIV,Rule 2 is another.

22. For the purpose of invoking Order VII, Rule 11(d) of the Code,no amount of evidence can be looked into. The issues on merit ofthe matter which may arise between the parties would not beEwithin the realm of the court at that stage. All issues shall not bethe subject matter of an order under the said provision.

……….

25. The decisions rendered by this Court as also by various HighCourts are not uniform in this behalf. But, then the broad principleFwhich can be culled out therefrom is that the court at that stagewould not consider any evidence or enter into a disputed questionof fact of law. In the event, the jurisdiction of the court is found tobe barred by any law, meaning thereby, the subject matter thereof,the application for registration of plaint should be entertained.”

G12) In case of Salim Bhai and Ors. Vs. State of Maharashtraand Ors.[6], it was made clear that for the purpose of deciding an applicationunder clauses (a) and (d) of Rule 11 of Order VII, CPC, the avermentsin the plaint are germane; the plea taken by the defendant in the written statement would be wholly irrelevant. Similar view has been taken bythis Court in case of Soumitra Kumar Sen Vs. Shyamal Kumar Senand Ors.[7], in para 9 thereof, it was observed as under:- “9. In the first instance, it can be seen that insofar as relief ofpermanent and mandatory injunction is concerned that is basedon a different cause of action. At the same time that kind of reliefcan be considered by the trial court only if the plaintiff is able toestablish his locus standi to bring such a suit. If the avermentsmade by the appellant in their written statement are correct, sucha suit may not be maintainable in as much as, as per the appellantit has already been decided in the previous two suits that respondentno. 1/plaintiff retired from the partnership firm much earlier, aftertaking his share and it is the appellant (or appellant and respondentno. 2) who are entitled to manage the affairs of M/s. Sen Industries.However, at this stage, as rightly pointed out by the High Court,the defense in the written statement cannot be gone into. One hasto only look into the plaint for the purpose of deciding applicationunder Order VII Rule 11, CPC. It is possible that in a cleverlydrafted plaint, the plaintiff has not given the details about Suit No.268 of 2008 which has been decided against him. He has totallyomitted to mention about Suit No. 103 of 1995, the judgmentwherein has attained finality. In that sense, the plaintiff/respondent

no. 1 may be guilty of suppression and concealment, if theaverments made by the appellant are ultimately found to be correct.However, as per the established principles of law, such a defenceprojected in the written statement cannot be looked into whiledeciding application under Order VII Rule 11, CPC.”

13) In one more recent judgment in case of Shakti Bhog FoodIndustries Ltd. Vs. Central bank of India and Another[8], it was alsoobserved as under:- “18. It is clear that in order to consider Order VII Rule 11, thecourt has to look into the averments in the plaint and the same canbe exercised by the trial court at any stage of the suit. It is alsoclear that the averments in written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the 7 (2018) 5 SCC 644

8 2020 SCC Online SC 482

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Aplaint. In other words, what needs to be looked into in decidingsuch an application are the averments in the plaint. At that stage,the pleas taken by the defendant in the written statement arewholly irrelevant and the matter is to be decided only on the plaintaverment. These principles have been reiterated in Raptakos Brett& Co. Ltd. V. Ganesh Property, (1998) 7 SCC 184 and MayarB(H.K.) Ltd. V. Vessel M.V. Fortune Express, (2006) 3 SCC 100.”

A

14) In the latest decision in case of Srihari Hanumandas TotalaVs. Hemant Vithal Kamat[9], also it has been categorically stated thatwhether the suit is barred by any law or not must be determined fromthe statements made in the plaint and it is not open to decide the issue onCthe basis of any other material including the written statement filed in the case.

15) From the afore-stated legal position, it is absolutely clear thatfor invoking Order VII Rule 11 (d), and for the purpose of rejecting theplaint on the ground that the suit is barred by any law, only the avermentsDmade in the plaint have to be referred to and that the defence taken bythe defendant in the written statement being wholly irrelevant, must notbe considered.

16) As regards framing of preliminary issue under Order XIVRule 2(2) also, the legal position is well settled. Sub Rule 2 of Rule 2 ofEOrder XIV specifies that where issues both of law and of fact arises inthe same suit and the court is of the opinion that the case or any partthereof may be disposed of on an issue of law only, it may try that issuefirst if the issue relates to – (a) the jurisdiction of the court, or (b) a barto the suit created by any law for the time being in force.F17) In Satti Paradesi Samadhi & Philliar Temple Vs. M.Sakuntala[10], it has been observed as under:- “15. In the case at hand, we find that unless there is determinationof the fact which would not protect the plaintiff under Section 10of the Limitation Act the suit cannot be dismissed on the groundGof limitation. It is not a case which will come within the ambit andsweep of Order 14 Rule 2 which would enable the court to framea preliminary issue to adjudicate thereof.The learned Single Judge, 9 (2021) 9 SCC 99H10 (2015) 5 SCC 574

as it appears, has remained totally oblivious of the said facet andadjudicated the issue as if it falls under Order 14 Rule 2. Werepeat that on the scheme of Section 10 of the Limitation Act wefind certain facts are to be established to throw the lis from thesphere of the said provision so that it would come within the conceptof limitation. The Division Bench has fallen into some error withoutappreciating the facts in proper perspective. That apart, theDivision Bench, by taking recourse to Articles 92 to 96 withoutappreciating the factum that it uses the words “transferred by thetrustee for a valuable consideration” in that event the limitationwould be twelve years but in the instant case the asseveration ofthe plaintiff is that the trustee had created three settlement deedsin favour of his two daughters and a granddaughter. The issue ofconsideration has not yet emerged. This settlement made by thefather was whether for consideration or not has to be gone intoand similarly whether the property belongs to the Trust as Trust isunderstood within the meaning of Section 10 of the Limitation Acthas also to be gone into. Ergo, there can be no shadow of doubtthat Issue 1 that was framed by the learned Single Judge was anissue that pertained to the fact and law and hence, could not havebeen adjudicated as a preliminary issue. Therefore, the impugnedorder [Satti Paradesi Samadhi v. M. Sankuntala, (2012) 2 LW865 (Mad)] is wholly unsustainable.”

18) In Ramesh B. Desai Vs. Bipin Vadilal Mehta[11], it has beenheld as under:- “13. Sub-rule (2) of Order 14 Rule 2 CPC lays down that whereissues both of law and of fact arise in the same suit, and the courtis of the opinion that the case or any part thereof may be disposedof on an issue of law only, it may try that issue first if that issuerelates to (a) the jurisdiction of the court, or (b) a bar to the suitcreated by any law for the time being in force. The provisions ofthis Rule came up for consideration before this Court in MajorS.S. Khanna v. Brig. F.J. Dillon [(1964) 4 SCR 409 : AIR 1964SC 497] and it was held as under: (SCR p. 421)”

“Under Order 14 Rule 2, Code of Civil Procedure where issuesboth of law and of fact arise in the same suit, and the court is of AB

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Aopinion that the case or any part thereof may be disposed of onthe issues of law only, it shall try those issues first, and for thatpurpose may, if it thinks fit, postpone the settlement of the issuesof fact until after the issues of law have been determined. Thejurisdiction to try issues of law apart from the issues of fact maybe exercised only where in the opinion of the court the whole suitBmay be disposed of on the issues of law alone, but the Code confersno jurisdiction upon the court to try a suit on mixed issues of lawand fact as preliminary issues.Normally all the issues in a suitshould be tried by the court; not to do so, especially when thedecision on issues even of law depend upon the decision of issuesCof fact, would result in a lopsided trial of the suit.”

Though there has been a slight amendment in the language ofOrder 14 Rule 2 CPC by the amending Act, 1976 but the principleenunciated in the abovequoted decision still holds good and therecan be no departure from the principle that the Code confers noDjurisdiction upon the court to try a suit on mixed issues of law andfact as a preliminary issue and where the decision on issue of lawdepends upon decision of fact, it cannot be tried as a preliminaryissue.”

19) The issue of limitation has not been considered to be a pureEquestion of law to be decided as a preliminary issue under Order XIVRule 2 of CPC, by three Judge Bench of this Court in case of NusliNeville Wadia Vs. Ivory Properties[12]. In the said case, a referencewas made to the three Judge Bench with respect to the interpretation ofthe provisions contained in section 9 A of CPC as inserted by theMaharashtra Amendment Act, 1977 and the court held that the provisionsFcontained in section 3 read with sections 4 to 24 of the Limitation Act,1963 do not provide that the court has no jurisdiction to deal with thematter. It has been further held that so long as the court has thejurisdiction to try the suit, it cannot proceed to dismiss it on the ground oflimitation under section 3, and that unless the question is a pure questionGof law, it cannot be decided as a preliminary issue under Order XIVRule 2. The Bench further opined that mixed question of law and factcannot be decided as a preliminary issue under Order XIV Rule 2. Thecourt elaborately dealt with the provisions contained in Order XIV Rule2 (2) in the light of the Limitation Act and observed as under:- “51. - - - - As per Order XIV Rule 1, issues arise when amaterial proposition of fact or law is affirmed by the one partyand denied by the other. The issues are framed on the materialproposition, denied by another party. There are issues of factsand issues of law. In case specific facts are admitted, and if thequestion of law arises which is dependent upon the outcome ofadmitted facts, it is open to the Court to pronounce the judgmentbased on admitted facts and the preliminary question of law underthe provisions of Order XIV Rule 2. In Order XIV Rule 2(1), theCourt may decide the case on a preliminary issue. It has topronounce the judgment on all issues. Order XIV Rule 2(2) makesa departure and Court may decide the question of law as tojurisdiction of the Court or a bar created to the suit by any law forthe time being in force, such as under the Limitation Act.

52. In a case question of limitation can be decided based on admittedfacts, it can be decided as a preliminary issue under Order XIVRule 2(2)(b). Once facts are disputed about limitation, thedetermination of the question of limitation also cannot be madeunder Order XIV Rule 2(2) as a preliminary issue or any othersuch issue of law which requires examination of the disputed facts.In case of dispute as to facts, is necessary to be determined togive a finding on a question of law. Such question cannot be decidedas a preliminary issue. In a case, the question of jurisdiction alsodepends upon the proof of facts which are disputed. It cannot bedecided as a preliminary issue if the facts are disputed and thequestion of law is dependent upon the outcome of the investigationof facts, such question of law cannot be decided as a preliminaryissue, is settled proposition of law either before the amendment ofCPC and post amendment in the year 1976.

53. The suit/application which is barred by limitation is not a groundof jurisdiction of the court to entertain a suit. If a plea of adversepossession has been taken under Article 65 of the Limitation Act,in case it is successfully proved on facts; the suit has to bedismissed. However, it is not the lack of the jurisdiction of theCourt that suit has to be dismissed on the ground of limitation, butproof of adverse possession for 12 years then the suit would bebarred by limitation such question as to limitation cannot be decidedas a preliminary issue.

……..

ABC

DEF

G

H

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ABC

DEF

G

H

A55. Reliance has been placed on the provisions of Section 3 of theLimitation Act to submit that the Court cannot proceed with thesuit which is barred by limitation although limitation has not beenset up as a defence. No doubt about it that Section 3 of the Actprovides that subject to the provisions contained in Section 4 and24 of the Limitation Act, every suit instituted, appeal preferred,Band the application made after the prescribed period shall bedismissed, it nowhere provides that Court has no jurisdiction todeal with the matter. Until and unless Court has the jurisdiction, itcannot proceed to dismiss it on the ground of limitation underSection 3.”

C

20) From the afore-stated decisions of this Court, there remainsno shadow of doubt that a plea of limitation cannot be decided as anabstract principle of law divorced from the facts as in every case thestarting point of limitation has to be ascertained which is entirely a questionof fact. A plea of limitation being mixed question of law and fact cannotDbe decided as a preliminary issue under Order XIV, Rule 2(2).

21) Now, so far as pronouncing a judgement on admission underOrder XII Rule 6 is concerned, again the law is well settled that for anadmission to qualify as a valid admission, it necessarily has to be anunequivocal, unambiguous and unconditional. Considering the objectsEand reasons for amending Order XII, Rule 6, it has been held in case ofUttam Singh Dugal & Co. Ltd. Vs. United Bank of India & Ors[13].that:- “10. As to the object of the Order XII Rule 6, we need not sayanything more than what the legislature itself has said when theFsaid provision came to be amended. In the objects and reasonsset out while amending the said rule, it is stated that where aclaim is admitted, the court has jurisdiction to enter a judgment forthe plaintiff and to pass a decree on admitted claim. The object ofthe Rule is to enable the party to obtain a speedy judgment atleast to the extent of the relief to which according to the admissionGof the defendant, the plaintiff is entitled.We should not undulynarrow down the meaning of this Rule as the object is to enable aparty to obtain speedy judgment. Where other party has made aplain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the faceof which, it is impossible for the party making such admission tosucceed.”

22) In the case of Himani Alloys Ltd. Vs. Tata Steel Ltd.[14], ithas been categorically observed that the admission made by the partyshould be clear, unambiguous and unconditional and the court shouldexercise its judicial discretion on examination of facts and circumstancesof the case. Para 10 thereof reads as under:- “10. It is true that a judgment can be given on an “admission”contained in the minutes of a meeting. But the admission shouldbe categorical. It should be a conscious and deliberate act of theparty making it, showing an intention to be bound by it.Order XIIRule 6 being an enabling provision, it is neither mandatory norperemptory but discretionary. The court, on examination of thefacts and circumstances, has to exercise its judicial discretion,keeping in mind that a judgment on admission is a judgment withouttrial which permanently denies any remedy to the defendant, byway of an appeal on merits. Therefore, unless the admission isclear, unambiguous and unconditional, the discretion of the Courtshould not be exercised to deny the valuable right of a defendantto contest the claim. In short, the discretion should be used onlywhen there is a clear “admission” which can be acted upon. (Seealso Uttam Singh Duggal & Co. Ltd. Vs. united Bank of India [2000(7) SCC 120], Karam Kapahi Vs. Lal Chand public CharitableTrust [2010 (4) SCC 753] and Jeevan Diesels and Electricals Ltd.Vs. Jasbir Singh Chadha [2010 (6) SCC 601].”

23) Though the learned senior Advocate Mr. Patwalia for therespondents has placed heavy reliance on the decision in case of KaramKapahi & Ors Vs. M/S Lal Chand Public Charitable Trust[15 ]and incase of Charanjit Lal Mehra & Ors Vs. Smt. Kamal Saroj Mahajan& Anr[16], they are hardly helpful to the respondents. There cannot beany disagreement to the proposition of law laid down in the said judgmentsthat the principle behind Order XII, Rule 6 is to give the plaintiff a rightto speedy judgment. As such, under this Rule, either party may get rid of 14 2011 (3) Civil Court Cases 721

15 (2010) 4 SCC 753

16 (2005) 11 SCC 279

AB

CD

E

FG

H

Aso much of the rival claims about which there is no controversy. Eventhe admissions made by the parties to the interrogatories and recordedby the court as contemplated in Order X CPC also could be taken intoconsideration, nonetheless Order XII, Rule 6 could be resorted to onlywhen there is clear and unambiguous admission of facts, and not otherwise.The said Rule 6 also could not be invoked by the Appellate Court suoBmoto in the Appeal, when the trial court had not dealt with such issue,and had rejected the plaint under Order VII, Rule 11(d) CPC.

24) So far as the facts of the present case are concerned, asstated earlier the Single Bench had rejected the plaint under Order VIIRule 11(d) after framing a preliminary issue under Order XIV Rule 2(2)Cof CPC. The Single Bench after taking into consideration the writtenstatement and other documents held that the suit was barred by law ofLimitation and rejected the plaint under Order VII, Rule 11(d) CPC.Apart from the fact that no preliminary issue could have been framedunder Order XIV, Rule 2(2) with regard to the issue of limitation whichDwas a mixed question of law and fact, the Single Bench erroneouslyconsidered the written statement and the documents filed by the defendantwhile rejecting the plaint under Order VII Rule 11(d) of CPC. TheDivision Bench also fallaciously referred to the contentions raised in thewritten statement and referred to the documents namely CM Applicationsfiled in some eviction proceedings, which were neither referred to in theEplaint nor annexed to the plaint. The Division Bench further erroneouslyrelied upon some statements made in the legal notices dated 10.10.2008and 24.10.2008 construing them as an admission on the part of the plaintifffor passing judgment under Order XII, Rule 6 against the plaintiff, whileconfirming the order passed by the Single Bench rejecting the plaint ofFthe plaintiff under Order VII, Rule 11(d) CPC. In the opinion of theCourt there was no clear, unambiguous and unconditional admission madeby the plaintiff in any of the said legal notices which could be termed asan admission of the claim made by the defendant with regard to theknowledge of the plaintiff in respect of the execution of the alleged sale deeds. On the contrary, the plaintiff had pleaded fraud committed againstGher and other defendants who were the legal representatives of Smt.Harbans Kaur. The Court at this juncture is not inclined to go into themerits of the issues involved in the suit. Suffice it to say that the SingleBench and the Division Bench have passed the impugned orders dehors the specific provisions of CPC and in utter disregard of the positionHof law settled by this Court.

25. Even if, the Single Bench had found that the suit was filedmisusing the process of law or that an illusion was created with regardto the cause of action by clever drafting, in that case also Order VIIRule 11 could not have been resorted to. As held by Supreme Court in awell-known case of T. Arivandandam Vs. T.V. Satyapal & Anr.[17], thepowers under Order VII Rule 11 of CPC have to be exercised takingcare to see that the ground mentioned therein is fulfilled. It is furtherheld therein that if clever drafting has created an illusion of a cause ofaction, the Court should nip it in the bud at the first hearing by examiningthe party searchingly under Order X, CPC.

26) It is also a trite law that the inherent jurisdiction under Section151 CPC cannot be exercised to nullify the provisions of the CPC. Theinherent powers of the court are in addition to the powers specificallyconferred on the court by the Code, and cannot be exercised in a mannerwhich will be contrary or different from the procedure expressly providedin the Code. The scope of Section 151 was considered by this Court asback as in 1964 in case of Arjun Singh Vs. Mohindra Kumar & Ors[18],in which it was aptly held as under:- “It is common ground that the inherent power of the Court cannotoverride the express provisions of the law. In other words, if thereare specific provisions of the Code dealing with a Particular topicand they expressly or by necessary implication exhaust the scopeof the powers of the Court or the jurisdiction that may be exercisedin relation to a matter the inherent power of the Court cannot beinvoked in order to cut across the powers conferred by the Code.”

27. In that view of the matter, the scope, ambit and parametersfor deciding an application for rejection of the plaint under Order VIIRule 11(d), for deciding the preliminary issue on pure question of lawunder Order XIV Rule 2(2) and for pronouncing a judgment on admissionunder Order XII Rule 6 being absolutely different and independent ofeach other, Single Bench and Division Bench were required to strictlyadhere to the procedures laid down in the said provisions, and could nothave exercised inherent powers or suo moto powers dehors the specificprovisions contained in the Code. The impugned orders passed by theHigh Court being in utter disregard of the said provisions and of the 17 (1977) 4 SCC 467

18 AIR 1964 SC 993

AB

CD

E

FG

Asettled legal position, deserve to be quashed and set aside and areaccordingly set aside. The suit is restored on the file of the Single Bench.The Single Bench is directed to proceed with the suit in accordance withlaw. It is made clear that the Court has not expressed any opinion eitheron the issue of limitation or on the merits of the suit.

B28. The appeal stands allowed.

ORDER

In view of the difference of expressed by two separate judgments,Cthe Registry is directed to place the matter before Hon’ble the ChiefJustice of India for appropriate orders/directions.

Nidhi Jain(Assisted by : Ajay, LCRA)

Matter to be placed before Hon’ble CJIfor orders/directions.

D

E

F

G

H