SUKHBIRI DEVI & ORS versus UNION OF INDIA & ORS. on 29 September 2022

SUKHBIRI DEVI & ORS.

v.

UNION OF INDIA & ORS.

(Civil Appeal No. 10834 of 2010)

SEPTEMBER 29, 2022

[AJAY RASTOGI AND C. T. RAVIKUMAR, JJ.]

Code of Civil Procedure, 1908 – Or.XIV, r.2(2) – Whether theissue of limitation can be determined as a preliminary issue u/Or.XIV, r.2(2) – Held: Yes – The issue of limitation can be framed anddetermined as a preliminary issue u/Or. XIV, r.2(2)(b), CPC in acase where it can be decided on admitted facts – In the presentcase, the findings of the Trial Court with respect to preliminary issueof limitation are based on the relevant dates revealed from thepleadings of the plaintiffs in the plaint itself – ‘Statements’ by aparty to proceedings are admissions and facts admitted need not beproved – The manner of consideration by the Trial Court whichultimately resulted in dismissal of the suit reveals that it haddetermined the preliminary issue regarding the period of limitationwith reference to the averments in the plaint and the dismissal of thesuit was in accordance with the decision on the said preliminaryissue – No perversity or illegality in the concurrent findings of thecourts below warranting interference – Limitation Act,1963 – Article136, 17, 65 – Evidence Act, 1872 – ss.17, 18, 58.

Constitution of India – Article 136 – Scope of, againstconcurrent findings – Held: Interference with the concurrentfindings in an appeal u/Article 136 is to be made sparingly, that toowhen the judgment impugned is absolutely perverse – Onappreciation of evidence, possibility of another view also cannotbe a reason for substitution of a plausible view taken and confirmed.

Deeds and documents – Relinquishment deed – Held:Consideration of validity of a relinquishment deed and considerationof the period of limitation with reference to the same are differentand distinct.

Practice and Procedure – Non-mentioning of provision in theorder – Held: Misquoting or non-quoting of a provision by itself

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Awill not make an order bad so long as the relevant enabling provisionis in existence and it was correctly applied though withoutspecifically mentioning it.

Words & Phrases – “admitted facts”, “admission” –Discussed – Evidence Act, 1872 – ss.17, 18, 58.

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Dismissing the appeal, the Court

HELD: 1.1 Interference with the concurrent findings in anappeal under Article 136 of the Constitution is to be madesparingly, that too when the judgment impugned is absolutelyperverse. On appreciation of evidence another view is possibleCalso cannot be a reason for substitution of a plausible view takenand confirmed. We will now, bearing in mind the settled position,proceed to consider as to whether the said appellate power invitesinvocation in the case on hand. [Para 4][530-H; 531-A-B]

1.2 ‘Statements’ by a party to proceedings are admissionsDand facts admitted need not be proved. The appellants cannotlegally have any dispute or grievance in taking their statementsin the plaint capable of determining the starting point of limitationfor the purpose of application of Order XIV, Rule 2(2)(b) of theCPC. Though, limitation is a mixed question of law and facts itEwill shed the said character and would get confined to one ofquestion of law when the foundational fact(s), determining thestarting point of limitation is vividly and specifically made in theplaint averments. In such a circumstance, if the Court concernedis of the opinion that limitation could be framed as a preliminarypoint and it warrants postponement of settlement of other issuesFtill determination of that issue, it may frame the same as apreliminary issue and may deal with the suit only in accordancewith the decision on that issue. It cannot be said that such anapproach is impermissible in law and in fact, it is perfectlypermissible under Order XIV, Rule 2(2)(b), CPC and legal in suchcircumstances. The issue limitation can be framed and determinedGas a preliminary issue under Order XIV, Rule 2(2)(b), CPC in acase where it can be decided on admitted facts. [Paras 17 and18][536-D-G]

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1.3 A perusal of Article 136 of the Limitation Act wouldreveal the indubitable position that it applies only when anapplication for execution of any decree (other than a decreegranting a mandatory injunction) or order of any Civil Court is tobe filed. In the instant such a stage for application of Article 136of the Limitation Act had not reached and, in troth, the questioninvolved is relatable only to the time restriction for initiating legalproceedings to seek the alleged legal right. In the saidcircumstances, the inevitable conclusion can only be that Article136 got no application in the case on hand and as such theAppellants could not claim for a larger period of limitation of 12years. [Paras 19-21][538-F-H; 539-A]

1.4 The findings of the Trial Court with respect topreliminary issue of limitation are based on the relevant datesrevealed from the pleadings of the plaintiffs in the plaint itself.True that in the plaint it is repeatedly alleged that therelinquishment deed was obtained fraudulently by the 5threspondent. However, conspicuously its date was not mentioned.But then the plaint averment is that their predecessor-in-interestShri ‘NS’, on coming to know about the use of the saidRelinquishment Deed, had preferred an objection on 05.04.1991to the authorities whereunder he sought not only for itscancellation but also on the ground of obtainment by playing fraudfor refraining them from issuing allotment of the alternative plotin the exclusive name of the 5th respondent. In this context it isalso relevant to note that going by the plaint averments after thedeath of Shri ‘NS’ on 14.05.1993 the original first plaintiff, who isnone other than one of the sons of Shri ‘NS’, filed representationson the lines of the objection taken up by his father. Even if non-mentioning of the date of Relinquishment Deed is not taken aspurposeful that cannot and will not therefore save the plaintiffsfrom the inescapable, adverse finding on the question of limitationto bring in a suit against the said Relinquishment Deed. Evidently,Suit No.410 of 2000 was filed only on 14.06.2000. Thus, it is verymuch clear from the plaint averments that the RelinquishmentDeed is anterior to the date of letter of intimation to the 5threspondent (08.03.1991) and obviously, the date of objectionagainst the same was firstly preferred by deceased ‘NS’ viz.,05.04.1991. Evidently, the aforesaid two dates specifically AB

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Amentioned in the plaint were taken into account by the Trial Courtas also by the First Appellate Court and the High Court in thematter of consideration of the question “whether the suit wasbarred by limitation.” The manner of consideration by the TrialCourt which ultimately resulted in dismissal of suit No.410/2000would reveal, as stated hereinbefore, that it had determined theBpreliminary issue regarding the period of limitation with referenceto the averments in the plaint. The dismissal of the suit was inaccordance with the decision on the said preliminary issue. [Para22][539-B-H]

1.5 Coming to the judgment of the First Appellate CourtCwhereby it dismissed the appeals of the plaintiffs and confirmedthe judgment and decree of the Trial Court it is evident that thevarious contentions raised by the appellants therein wereconsidered in detail by the First Appellate Court. The FirstAppellate Court correctly exposited the legal position that theDquestion of limitation is to be considered not with reference tothe validity of the Relinquishment Deed. In this context it is alsoto be noted that despite taking up a specific allegation that theRelinquishment Deed was fraudulently obtained by the 5threspondent, the plaintiffs had not chosen to assail and seek forits setting aside. Even after seeking for cancellation of theErelinquishment deed before the authorities as early as on05.04.1991 the predecessor-in-interest had not chosen to get itset aside by approaching a competent civil court during hislifetime. Upon his death on 14.05.1993, though the period oflimitation for seeking to set it aside did not get arrested and ranFagainst the plaintiffs who stepped into the shoes of ‘NS’, none ofthem seek to get it set aside by moving a civil court, within theperiod of limitation. The pleadings in this appeal and the argumentsadvanced would show that till date with such a prayer no competentcivil court was moved by the original plaintiffs and also the appellants herein. In short, in the absence of any successfulGchallenge against the validity of the said Relinquishment Deedby making proper prayer in an appropriate proceedings, and thattoo within the prescribed period of limitation, the conclusion andfinding of the First Appellate Court, as aforesaid, cannot be saidto be perverse or illegal as there can be no doubt with respect toHthe position that consideration of validity of a relinquishment deed and consideration of the period of limitation with reference tothe same are different and distinct. [Para 23][540-A-G]

1.6 The challenge against the impugned judgment of theHigh Court is that it wrongly applied Article 58 of the LimitationAct while confirming the concurrent decisions of the FirstAppellate Court and the Trial Court. In this context, it is relevantto note the prayers made in the suit by the plaintiffs which wereextracted hereinbefore. Undoubtedly, the plaintiffs sought fordeclarations and thereby, made the nature of the suit asdeclaratory. This position is indisputable. It is true that the TrialCourt though found the period of limitation as three years takinginto account the nature of the reliefs it did not specifically mentionthe relevant provision in its judgment. There can be little doubtwith respect to the position that misquoting or non-quoting of aprovision by itself will not make an order bad so long as therelevant enabling provision is in existence and it was correctlyapplied though without specifically mentioning it. The High Courthad only referred to the relevant, applicable provision under theLimitation Act upon considering the nature of the suit and thereliefs sought for, in the plaint. There is no perversity or illegalityin the finding of the High Court for sustaining the concurrentfindings with respect to the issue whether the suit was barred bylimitation. [Paras 25][541-B-F]

1.7 The relief sought for, in suit No.410/2000 would revealthat the first prayer, which is the main prayer, is declaratory innature. Even according to the plaintiffs, as revealed from the plaintthe second prayer is only consequential relief. A perusal of thesame would undoubtedly show that it is consequential and not anindependent one and therefore the courts below are right inholding that the said prayer is grantable only if the first prayer isgranted. In this case based on the determination on thepreliminary issue of limitation and in accordance with the decisionon that preliminary issue the suit was dismissed. The provisionsunder Order XIV Rule 2(1) and Rule 2(2)(b) permit to deal withand dispose of a suit in accordance with the decision on thepreliminary issue. In the case on hand in view of the nature of thefinding on the preliminary issue and the consequential AB

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Aconsideration of the suit in terms of Order XIV Rule 2(2)(b) andtaking note of the fact that the suit do not survive after suchconsideration there is no reason to consider the contention ofthe appellants with reference to Order VII Rule 11 based on thedecisions relied on by them. So also, the contentions of theappellants based on Articles 17 and 65 also would pale intoBinsignificance and warrant no consideration at all, in thecircumstances. There is absolutely no perversity or illegality inthe concurrent findings of the courts below warrantinginterference in invocation of the power under Article 136 of theConstitution of India. [Paras 26, 27][541-F-H; 542-A-C]

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Nusli Neville Wadia v. Ivory Properties (2020) 6 SCC557 : [2019] 15 SCR 795; National Insurance Co. Ltd.Vs. Rattani (2009) 2 SCC 75 : [2008] 17 SCR 1251;Ranganayakamma & Anr. v. K.S. Prakash (Dead) ByLRs. & Ors. (2008) 15 SCC 673 : [2008] 9 SCR 297Dand Vimal Chand Ghevarchand Jain & Ors. v. RamakantEknath Jadoo (2009) 5 SCC 713; State of Rajasthan v.Shiv Dayal (2019) 8 SCC 637 : [2019] 10 SCR 243 –relied on.

C. Natarajan v. Ashim Bai & Anr. (2007) 14 SCC 183 :E[2007] 11 SCR 33; Popat And Kotecha Property v. StateBank of India Staff Assn (2005) 7 SCC 510 : [2005] 2Suppl. SCR 1030; Daya Singh & Anr. v. Gurdev Singh(Dead) by LRs. & Ors. (2010) 2 SCC 194; Mt. Bolo v.Mt. Koklan (2010) 2 SCC 194 : [2010] 1 SCR 194;Mst. Rukhmabai v. Lala Laxminarayan [1960] 2 SCRF253; Mongin Realty and Build Well Private Limited v.Manik Sethi 2022 SCC Online SC 156; Bikoba DeoraGaikwad & Ors. v. Hirabai Marutirao Ghorgare & Ors.(2008) 8 SCC 198 : [2008] 9 SCR 1038; Narinder Kaur& Anr. v. Amar Jeet Singh Sethi & Anr. 2000 III A DG(Delhi), 599; M/s Crescent Petroleum Ltd. v. M. V.Monchegorsk & Ors. AIR 2000 Bombay 161 – referredto.

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CIVIL ORIGINAL JURISDICTION: Civil Appeal No. 10834 of2010.

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From the Judgment and Order dated 25.08.2009 of the High Courtof Delhi at New Delhi in R.S.A. No. 79 of 2007.

Arvind Kumar, Chiranjeev Johri, Mrs. Laxmi Arvind, Advs. forthe Appellants.

Anupam Lal Das, Sr. Adv., Ms. Anirudh Singh, Krishanu Barua,Rahul Pratap, Anish Kumar Gupta, Ms. Archana Preeti Gupta, G. S.Makkar, Mrs. Anil Katiyar, Ms. Binu Tamta, Dhruv Tamta, PradeepKumar Mathur, Advs. for the Respondents.

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The Judgment of the Court was delivered by

C. T. RAVIKUMAR, J.

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1. This appeal by Special Leave is directed against the judgmentand order in RSA No.79/2007 dated 25.08.2009 passed by the High Courtof Delhi. The appellants were plaintiffs in Suit No.410 of 2000 on the fileof the Court presided over by Shri Vidya Prakash, Civil Judge, Delhi,(hereinafter referred to as ‘the Trial Court’), filed seeking reliefs mainlyagainst the 5[th] Respondent. The Trial Court framed a preliminary issue onthe question of limitation, evidently, upon forming the opinion that casemay be disposed of on an issue of law and that it warrants postponementof settlement of other issues until after that issue has been determinedand to deal with the suit in accordance with the decision on that issue.

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AAccordingly, the Trial Court framed a preliminary question as to “whetherthe Suit is within the limitation”. Upon answering the same in the negative,in accordance with the said decision, the suit was dismissed as perjudgment dated 13.05.2005. The defendants challenged the said judgmentand decree before the Court presided over by Shri Sukhdev Singh,Additional District Judge, Delhi, (hereinafter referred to as the ‘FirstBAppellate Court’) in Civil Appeal No.99/2005 and it dismissed the appealand confirmed the judgment and decree of the Trial Court, as per judgmentdated 08.12.2006. Thereupon, they took up the matter in second appealbefore the High Court. As per the impugned judgment dated 25.08.2009the High Court concurred with the findings and dismissed the appealCanswering the question of law against the appellants. Leave was grantedin Special Leave Petition No.34648 of 2009 filed against the statedjudgment of the High Court and in this civil appeal, the respondents weregranted liberty to file counter affidavits.

2. We have heard the learned counsel appearing for the appellantsDand also the learned counsel appearing for the respective respondents.

3. At the outset, it is to be noted that the challenge in this appeal isagainst concurrent findings by three Courts, as mentioned hereinbefore.The scope of an appeal by special leave under Article 136 of theConstitution of India against the concurrent findings is well settled. InEState of Rajasthan vs. Shiv Dayal[1]reiterating the settled position, thisCourt held that a concurrent finding of fact is binding, unless it is infectedwith perversity. It was held therein:- “When any concurrent finding of fact is assailed in second appeal,the appellant is entitled to point out that it is bad in law because itFwas recorded de hors the pleadings or it was based on no evidenceor it was based on misreading of material documentary evidenceor it was recorded against any provision of law and lastly, thedecision is one which no Judge acting judicially could reasonablyhave reached. (see observation made by learned Judge VivianBose, J. as His Lordship then was a Judge of the Nagpur HighGCourt in Rajeshwar Vishwanath Mamidwar & Ors. vs. DashrathNarayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43).”

4. Thus, evidently, the settled position is that interference with theconcurrent findings in an appeal under Article 136 of the Constitution is to be made sparingly, that too when the judgment impugned is absolutelyperverse. On appreciation of evidence another view is possible alsocannot be a reason for substitution of a plausible view taken andconfirmed. We will now, bearing in mind the settled position, proceed toconsider as to whether the said appellate power invites invocation in thecase on hand.

5. For making a consideration as mentioned above, it is onlyapposite to make a brief reference to the facts involved in the caserevealed from the averments in the plaint. The predecessor-in-interestof the appellants, viz., Shri Rama Nand, was the bhumidar of certainextent of agricultural land situated in Village Naraina in Delhi. The saidplot of agricultural land was acquired and Award No.19/75-76 was passedin relation to its acquisition on 09.01.1976. Subsequently, Rama Nanddied, leaving behind his widow, two sons – Nahar Singh and Dhan Singhand four daughters - Smt. Shakuntala Devi, Smt. Krishna Devi, Smt.Parvati Devi and Smt. Santhosh. Later, the widow of Shri Rama Nandalso died. As per the policy, whereunder the land was acquired, thebhumidar was entitled to allotment of alternative residential plot in lieu ofthe acquired land. Later, the alternative plot was allotted by respondentNos.1 to 4 in the exclusive name of Dhan Singh, upon his production ofregistered Relinquishment Deed, as per letter No.F- 31(11)/8/87/L&B/ALT/8226 dated 08.03.1991. The said letter dated 08.03.1991 to the 5[th]respondent for allotment of an alternative residential plot in his name,based on the Relinquishment Deed issued by the other legal heirs in hisfavour, came to the notice of Shri Nahar Singh, who thereupon filed anobjection on 05.04.1991, before respondent Nos.1-4 stating that alternativeplot shall not be allotted in the exclusive name of Dhan Singh. Further,it was stated therein that the Relinquishment Deed produced before theAuthorities was obtained fraudulently by Dhan Singh. Subsequently,Nahar Singh died on 14.05.1993. Thereupon, his widow and childrenstepped into his shoes. Furthermore, it is averred in the plaint thatthereupon, the original plaintiff No.1 submitted similar representations tothe Authorities in a bid to make them refrain from allotting the alternativeplot in the exclusive name of the 5[th] respondent. It is thereafter that theyinstituted Suit No.410 of 2000, on 14.06.2000. All these averments arespecifically made in the said plaint. At this juncture, it is to be noted thatthe four sisters of Nahar Singh who are also the legal heirs of deceasedRama Nand did not join them for instituting the suit against Dhan Singh A

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A(the 5[th] respondent in the Suit) and virtually, they were made proformadefendants therein.

6. A bare perusal of the plaint would reveal that the suit wasinstituted for declaratory reliefs, inter alia, stating that the cause of actionarose when application for alternative plot was made by the DefendantBNo.5 by playing fraud and claiming himself to be the sole and exclusiveheir of deceased Rama Nand and further when objections throughrepresentations were made to the wrongful application of allotment, onnumber of dates.

Based on such averments it was prayed for a decree declaringCthat the Plaintiffs are the co- owners in the allotment of the suit PlotNo.13, Type A-I in Sector 26, Rohini, New Delhi (allotted in lieu ofpermanent acquisition of the lands of Shri Rama Nand, s/o Bhupan) andthe Defendant No.5 is not the exclusive allotted/owner of the saidresidential plot in suit. The further relief sought for is entirely dependanton the above declaratory relief.D

7. Defendant Nos.1,2 and 4 (respondent Nos.1,2 and 4 herein)filed a joint written statement and the fifth respondent filed it separately.In view of the nature of the judgment of the Trial Court, the AppellateCourt and the High Court and also nature of consideration, which we areintending to undertake, it is absolutely unnecessary to delve into theirEpleadings.

8. Based on the impugned judgment, the rival pleadings and thearguments advanced before us, following substantial questions call forconsideration:- F(a) Whether the issue of limitation can be determined as apreliminary issue under Order XIV, Rule 2(2) of the Code of CivilProcedure (for short ‘CPC’)?

(b) Whether a larger period of limitation of 12 years would beavailable to the plaintiffs to bring in a suit by virtue of application ofArticle 136 of the Limitation Act, 1968 (for short ‘The Act’), as contendedGby the appellant and in the facts and circumstances obtained in this case?

(c) Whether Article 17 or Article 65 of the Act got any application,as contended by the appellants, in view of the plaint averments, in caseArticle 136 of the Act is found inapplicable?

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9. As relates the first question bifold contentions have been raisedby the appellants. Limitation being a mixed question of law and facts, inview of the provisions under Order XIV, Rule 2(2), the course adoptedby the Trial Court and confirmed by the Appellate Court and the HighCourt, is absolutely impermissible in law, it is contended. If at all thatpreliminary issue was to be considered it ought to have been madeunder Rule 11, Order VII, CPC and then, subject to its outcome, at theworst, the plaint could have been rejected in terms of Clause (d) ofRule 11 of Order VII, CPC, it is further contended.

10. The contentions raised in resistance on behalf of the5[th] respondent appears to be syllogistic. According to him, the foundationalfacts for determining the nature of Suit No.410/2000 as declaratory suitand the starting point of limitation as relates a declaratory suit are availablein the plaint averments themselves. The second proposition is that despitecoming to know about the registered Relinquishment Deed dated21.10.1985, the predecessor- in-interest of the plaintiffs Shri Nahar Singhand/or the plaintiffs did not resort to civil remedy to get it set asideevenafter maintaining the stand that it was fraudulently obtained. Thethird proposition is that repeated representations or applications torespondent Nos.1 to 4 would not extend the period of limitation. To wit,according to the 5[th] respondent the suit was barred by limitation on thosecounts and, it was rightly dismissed as nothing further could survive foradjudication in the suit thenceforth.

11. Citing various decisions, such as C. Natarajan Vs. AshimBai & Anr.[2], Popat And Kotecha Property Vs. State Bank of IndiaStaff Assn[3], Daya Singh & Anr. Vs. Gurdev Singh (Dead) by LRs.& Ors.[4], Mt. Bolo vs. Mt. Koklan[5] and Mst. Rukhmabai Vs. LalaLaxminarayan[6]the appellants attempted to drive home their points.

12. In C. Natarajan’s case[2] and in Popat And KotechaProperty’s case[3] the plaints were rejected on the ground of being barredby Order VII, Rule 11(d), CPC unlike the case on hand where the suitwas dismissed in accordance with the decision on the preliminary issue.This Court held that Order VII, Rule 11(d) would apply if the avermentsin the plaint were given face value and taken to be correct in their entirety 2 (2007) 14 SCC 1833 (2005) 7 SCC 5104 (2010) 2 SCC 1945 AIR 1930 PC 2706 1960 (2) SCR 253

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Aappear to be barred by any law. Furthermore, it was held that in thatregard the Court would not be entitled to consider the case of the defence.

13. The Privy Council in the decision in Mt. Bolo’s case[5] heldthat there could be no ‘right to sue’ until there is an accrual of the rightasserted in the suit and its infringement or at least a clear and unequivocalBthreat to infringe that right by the defendant against whom the suit isinstituted. In Daya Singh’s case[4] the question was with respect to the‘right to sue’ for declaration. This Court, after referring to the decisionin Mt. Bolo’s case[5], held that a mere adverse entry in revenue recordswould not give rise to cause of action and it would accrue only whenright asserted in the suit is infringed or when there is a clear andCunequivocal threat to infringe that right.

14. In Mst. Rukhmabai’s case[6], involving question of limitationin a suit for declaration of a deed as sham, this court considered thequestion of limitation under Article 120 of the Limitation Act, 1908 andheld that the ‘right to sue’ would accrue when the defendant clearly andDunequivocally threatened to infringe the right asserted by the plaintiff inthe suit. Further it was held that every threat to such a right would notamount to a clear and unequivocal threat to compel him to file a suit andwhether any particular threat would give rise to a compulsory cause ofaction would depend on the question as to whether that threat effectivelyEinvades or jeopardise the said right. In case on further deliberation aconsideration of the case on hand in the light of the above decisionsbecame inevitable, then we will undertake such an exercise.

15. Now, we will consider the first question: ‘whether the issue oflimitation can be determined as a preliminary issue under Order XIV,FRule 2, CPC’. It is no longer res integra. In the decision in MonginRealty and Build Well Private Limited vs. Manik Sethi[7], even whileholding that the course of action followed by the learned Trial Judge ofdirecting the parties to address arguments on the issue of limitation asirregular since it being a case where adduction of evidence was required,a two-Judge Bench of this Court referred to a three-Judge BenchGdecision of this Court in Nusli Neville Wadia Vs. Ivory Properties[8]observing that the issue therein was whether the issue of limitation couldbe determined as a preliminary issue under Order XIV, Rule 2, CPC.After taking note of the fact that going by the decision in Nusli Neville 7 2022 SCC Online SC 156H8 [(2020) 6 SCC 557]

Wadia’s case[8], in a case where question of limitation could be decidedbased on admitted facts it could be decided as a preliminary issue underOrder XIV, Rule 2(2)(b), CPC., the two- Judge Bench held that in thecase before their Lordships the question of limitation could not havebeen decided as a preliminary issue under Order XIV, Rule 2 of CPC asdetermination of the issue of limitation in that case was not a purequestion of law. In the said contextual situation it is worthy and appropriateto refer to paragraphs 51, in so far as it is relevant, and 52 of the decisionin Nusli Neville Wadia’s case[8]and they read thus:-

“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 is the question of lawarises which is dependent upon the outcome of admitted facts, itis open to the court to pronounce the judgment based on admittedfacts and the preliminary question of law under the provisions ofOrder 14 Rule 2. In Order 14 Rule 2(1), the court may decide thecase on a preliminary issue. It has to pronounce the judgment onall issues. Order14Rule2(2)makes a departure and the courtmay decide the questionoflawastojurisdictionof thecourtorabarcreatedtothesuit by any law for the time being in force, suchasundertheLimitationAct.

52. […] Inacase,questionof limitationcanbedecidedbasedonadmitted facts, it can be decided as a preliminary issue underOrder 14 Rule 2(2)(b). Once facts are disputed about limitation,the determination of the question of limitation also cannot be madeunder Order 14 Rule 2(2) as a preliminary issue or any other suchissue of law which requires examination of the disputed facts. Incase of dispute as to facts, is necessary to be determined to givea finding on a question of law. Such question cannot be decided asa preliminary issue. In a case, the question of jurisdiction alsodepends upon the proof of facts which are disputed and thequestion of law is dependent upon the outcome of the investigationof the 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.”

(Emphasis added)

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A16. In view of the legal position obtained from the decision inNusli Neville Wadia’s case[8]the following decisions also assumerelevance. In the decision in National Insurance Co. Ltd. Vs. Rattani[9]this Court held that an admission made in the pleadings by a party isadmissible in evidence proprio vigore. Equally well settled is the principleof law that an admission made by a party in his pleadings is admissibleBagainst him proprio vigore (see the decisions in Ranganayakamma &Anr. Vs. K.S. Prakash (Dead) By LRs. & Ors.[10]and Vimal ChandGhevarchand Jain & Ors. Vs. Ramakant Eknath Jadoo[11].

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17. In the context of the usage of the expression “admitted facts”in paragraph 52 of the decision in Nusli Neville Wadia’s case[8]andCthe word ‘admission’ employed the National Insurance CO. Ltd. case[9]a reference to Sections 17, 18 and 58 of the Indian Evidence Act wouldnot be inappropriate. A conjoint reading of the said provision would revealthat ‘statements’ by a party to proceedings are admissions and factsadmitted need not be proved.D

18. We referred to the said provisions and decisions only to stressupon the point that the appellants cannot legally have any dispute orgrievance in taking their statements in the plaint capable of determiningthe starting point of limitation for the purpose of application of OrderXIV, Rule 2(2)(b) of the CPC. Though, limitation is a mixed question ofElaw and facts it will shed the said character and would get confined toone of question of law when the foundational fact(s), determining thestarting point of limitation is vividly and specifically made in the plaintaverments. In such a circumstance, if the Court concerned is of theopinion that limitation could be framed as a preliminary point and itwarrants postponement of settlement of other issues till determinationFof that issue, it may frame the same as a preliminary issue and may dealwith the suit only in accordance with the decision on that issue. It cannotbe said that such an approach is impermissible in law and in fact, it isperfectly permissible under Order XIV, Rule 2(2)(b), CPC and legal insuch circumstances. In short, in view of the decisions and the provisions,Greferred above, it is clear that the issue limitation can be framed anddetermined as a preliminary issue under Order XIV, Rule 2(2)(b), CPCin a case where it can be decided on admitted facts.

9 [(2009) 2 SCC 75]10 [(2008) 15 SCC 673]H11 [(2009) 5 SCC 713]

19. With the above observations and conclusions we will now,refer to the findings returned by the Trial Court on the stated preliminaryissue of limitation, with a view to answer the question as to whether theimpugned judgment confirming the First Appellate Court which, in turn,confirmed the judgment and decree of the Trial Court, requiresintervention. In that regard it is only apposite to refer to the followingrecital from the Trial Court’s judgment carrying plaint avermentsindicating the starting point of limitation and also findings on the preliminaryissue:

“As per averments made in para 8 of the plaint plaintiffsthemselves have mentioned that their predecessor in interestalongwith defendants Nos. 6 to 9 had executed relinquishmentdeed in favour of defendant no. 5. Although they have also takenthe plea that same was obtained defendant no. 5 by playing fraudon the pretext of mutation of residential house in MCD records.Such averments made in the said para goes to show that Ld.Predecessor in interest of plaintiffs was very well aware aboutthe execution of registered release deed since date of its execution.Even if it be considered that defendant no. 5 had played fraudupon predecessor in interest of plaintiffs and the said fraud cameto the knowledge of Sh. Nahar Singh through letter dated. 8.3.1991then the period of limitation for seeking said relinquishment deedas null and void started the said date i.e. 8.3.1991. The reasonbeing that plaintiffs are seeking declaration to the effect that theyare co-owners of the suit plot and defendant no. 5 is not theexclusive owner thereof. The said relief can be granted by thecourt only when the relinquishment deed dated 21.10.1985 is heldto be illegal null and void and not binding upon them. In otherwords, unless and until the said relinquishment deed is held to beillegal and not binding on the executants, the plaintiffs cannot bedeclared as co-owners of the suit plot along with defendants no. 5to 9. Therefore, the plaintiffs are also seeking declaration regardingcancellation of release deed dated 21.10.1985 indirectly which isbeing alleged as having been obtained through fraud and whichfact admittedly came to their knowledge on 8/3/1991. Plaintiffsare claiming their title through Sh. Nahar Singh one of the legalheirs of deceased Sh. Rama Nand. Once Sh. Nahar Singh cameto know about the fraud and illegality of the release deed the periodof limitation started running from the said date of cancellation and A

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Amere factum regarding death of Sh. Nahar Singh would not stopthe period of limitation once it has been started. Plaintiffs havestepped into the shoes of Sh. Nahar Singh and were, therefore,required to challenge the release deed within the period of limitationprescribed by law. It is needless to mention here that period oflimitation prescribed for filing such a suit for declaration challengingBthe release deed in question is three years from the date of accrualof cause of action which in the present case arose, in the opinionof the court, on 8/3/1991 when Sh. Nahar Singh came to knowabout the alleged fraud being played by defendant no. 5 upon himalong with defendants no. 6 to 9. The present suit has been filedConly on 14.6.2000, therefore, the present suit is barred by limitation.Hence, court finds merit in the arguments raised on behalf ofdefendants that the present suit is not maintainable being barredby limitation. The submissions made on behalf of plaintiffs thatthere were several representations being submitted before variousAuthorities by plaintiffs from time to time and period of limitationDwas continuing during all these period is without any merit as meresending representations on behalf of plaintiffs with authoritiescannot extend period of limitation. The plaintiffs slept over theirright during the whole period of limitation and therefore they cannotbe permitted to plead that the present suit is within the period ofElimitation due to sending of representations with the departments.Hence, for all these reasons it is held that the present suit is barredby limitation. Accordingly, issue is decided against the plaintiffs.”

20. Before proceeding further with the above- mentioned issuesand the findings returned, it is only proper to consider the contention ofFthe Appellants regarding the applicability of Article 136 of the LimitationAct. According to us, the contention is jesuitical. A perusal of Article136 of the Limitation Act would reveal the indubitable position that itapplies only when an application for execution of any decree (other thana decree granting a mandatory injunction) or order of any Civil Court is to be filed. (See the decision of this Court in Bikoba Deora GaikwadG& Ors. vs. Hirabai Marutirao Ghorgare & Ors.[12]

21. In the instant such a stage for application of Article 136 of theLimitation Act had not reached and, in troth, the question involved isrelatable only to the time restriction for initiating legal proceedings to H12 (2008) 8 SCC 198

seek the alleged legal right. In the said circumstances, the inevitableconclusion can only be that Article 136 got no application in the case onhand and as such the Appellants could not claim for a larger period oflimitation of 12 years.

22. The findings of the Trial Court with respect to preliminaryissue of limitation are based on the relevant dates revealed from thepleadings of the plaintiffs in the plaint itself. True that in the plaint it isrepeatedly alleged that the relinquishment deed was obtained fraudulentlyby the 5th respondent. However, conspicuously its date was notmentioned. But then the plaint averment is that their predecessor-in-interest Shri Nahar Singh, on coming to know about the use of the saidRelinquishment Deed, had preferred an objection on 05.04.1991 to theauthorities whereunder he sought not only for its cancellation but alsoon the ground of obtainment by playing fraud for refraining them fromissuing allotment of the alternative plot in the exclusive name of the 5[th]respondent. In this context it is also relevant to note that going by theplaint averments after the death of Shri Nahar Singh on 14.05.1993 theoriginal first plaintiff, who is none other than one of the sons of ShriNahar Singh, filed representations on the lines of the objection taken upby his father. Even if non-mentioning of the date of Relinquishment Deedis not taken as purposeful that cannot and will not therefore save theplaintiffs from the inescapable, adverse finding on the question of limitationto bring in a suit against the said Relinquishment Deed. Evidently, SuitNo.410 of 2000 was filed only on 14.06.2000. Thus, it is very muchclear from the plaint averments that the Relinquishment Deed is anteriorto the date of letter of intimation to the 5[th] respondent (08.03.1991) andobviously, the date of objection against the same was firstly preferred bydeceased Nahar Singh viz., 05.04.1991. Evidently, the aforesaid two datesspecifically mentioned in the plaint were taken into account by the TrialCourt as also by the First Appellate Court and the High Court in thematter of consideration of the question “whether the suit was barred bylimitation.” The manner of consideration by the Trial Court which ultimatelyresulted in dismissal of suit No.410/2000 would reveal, as statedhereinbefore, that it had determined the preliminary issue regarding theperiod of limitation with reference to the averments in the plaint. Thedismissal of the suit was in accordance with the decision on the saidpreliminary issue. Since we have already extracted the operative portionof the Trial Court judgment, we do not think it necessary to refer to itsreasons and findings.

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A23. Coming to the judgment of the First Appellate Court wherebyit dismissed the appeals of the plaintiffs and confirmed the judgment anddecree of the Trial Court it is evident that the various contentions raisedby the appellants therein were considered in detail by the First AppellateCourt. The judgment would reveal that before the First Appellate Court,besides reiterating the contentions unsuccessfully raised before the TrialBCourt, the appellants therein / the plaintiffs had contended, relying on thedecision in Narinder Kaur & Anr. Vs. Amar Jeet Singh Sethi &Anr.[13], that Relinquishment Deeds do not relinquish the share of executantbut would have only the effect of transferring the shares. Paragraph 17of the judgment of the First Appellate Court would reveal that it correctlyCexposited the legal position that the question of limitation is to be considerednot with reference to the validity of the Relinquishment Deed. In thiscontext it is also to be noted that despite taking up a specific allegationthat the Relinquishment Deed was fraudulently obtained by the 5[th]respondent, the plaintiffs had not chosen to assail and seek for its settingaside. As noted earlier, even after seeking for cancellation of theDrelinquishment deed before the authorities as early as on 05.04.1991 thepredecessor-in-interest had not chosen to get it set aside by approachinga competent civil court during his lifetime. Upon his death on 14.05.1993,though the period of limitation for seeking to set it aside did not getarrested and ran against the plaintiffs who stepped into the shoes ofENahar Singh, none of them seek to get it set aside by moving a civilcourt, within the period of limitation. The pleadings in this appeal and thearguments advanced would show that till date with such a prayer nocompetent civil court was moved by the original plaintiffs and also theappellants herein. In short, in the absence of any successful challengeagainst the validity of the said Relinquishment Deed by making properFprayer in an appropriate proceedings, and that too within the prescribedperiod of limitation, the conclusion and finding of the First AppellateCourt, as aforesaid, cannot be said to be perverse or illegal as there canbe no doubt with respect to the position that consideration of validity ofa relinquishment deed and consideration of the period of limitation withGreference to the same are different and distinct.

24. It is also evident that another contention was raised on behalfof the appellants before the First Appellate Court relying on M/sCrescent Petroleum Ltd. Vs. M.V. Monchegorsk & Ors.[14]that 13 [2000 III A D (Delhi), 599]H14 [AIR 2000 Bombay 161]

power of dismissal of suit on the ground of absence of cause of actionshall be exercised by courts sparingly and cautiously and the benefit ofdoubt must go to the plaintiff. This contention was rightly repelled bythe First Appellate Court holding that in the case on hand the questionwas not one of dismissal on the ground of absence of cause of actionbut, on the ground of being barred by limitation, reckoning the nature ofthe suit as declaratory.

25. The challenge against the impugned judgment of the HighCourt is that it wrongly applied Article 58 of the Limitation Act whileconfirming the concurrent decisions of the First Appellate Court and theTrial Court. In this context, it is relevant to note the prayers made in thesuit by the plaintiffs which were extracted hereinbefore. Undoubtedly,the plaintiffs sought for declarations in the manner referred above andthereby, made the nature of the suit as declaratory. This position isindisputable. It is true that the Trial Court though found the period oflimitation as three years taking into account the nature of the reliefs itdid not specifically mention the relevant provision in its judgment. Therecan be little doubt with respect to the position that misquoting or non-quoting of a provision by itself will not make an order bad so long as therelevant enabling provision is in existence and it was correctly appliedthough without specifically mentioning it. The High Court had onlyreferred to the relevant, applicable provision under the Limitation Actupon considering the nature of the suit and the reliefs sought for, in theplaint. We do not find any perversity or illegality in the finding of theHigh Court for sustaining the concurrent findings with respect to theissue whether the suit was barred by limitation.

26. The relief sought for, in suit No.410/2000 would reveal thatthe first prayer, which is the main prayer, is declaratory in nature. Evenaccording to the plaintiffs, as revealed from the plaint the second prayer(extracted hereinbefore) is only consequential relief. A perusal of thesame would undoubtedly show that it is consequential and not anindependent one and therefore the courts below are right in holding thatthe said prayer is grantable only if the first prayer is granted. In this casebased on the determination on the preliminary issue of limitation and inaccordance with the decision on that preliminary issue the suit wasdismissed. As held by the three-judge Bench in the decision in NusliNeville Wadia’s case (supra) the provisions under Order XIV Rule2(1) and Rule 2(2)(b) permit to deal with and dispose of a suit in A

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Aaccordance with the decision on the preliminary issue. In the case onhand in view of the nature of the finding on the preliminary issue and theconsequential consideration of the suit in terms of Order XIV Rule 2(2)(b)and taking note of the fact that the suit do not survive after suchconsideration we find no reason to consider the contention of the appellantswith reference to Order VII Rule 11 based on the decisions relied on byBthem and referred hereinbefore. So also, the contentions of the appellantsbased on Articles 17 and 65 also would pale into insignificance andwarrant no consideration at all, in the circumstances.

27. The upshot of the above discussion is that there is absolutelyno perversity or illegality in the concurrent findings of the courts belowCwarranting interference in invocation of the power under Article 136 ofthe Constitution of India. In the result, the appeal stands dismissed withcosts.

28. All pending applications are disposed of.

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Divya Pandey

(Assisted by : Deepak Panwar, LCRA)

Appeal dismissed.

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