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1986 DIGILAW 46 (PAT)

Zafar Alam v. Md. Nizam

1986-02-05

S.B.SANYAL, S.S.SANDHAWALIA

body1986
JUDGMENT : S.B. Sanyal, J. - This second-appeal is at the instance, of defendant no. 1 arising out of a suit for declaration that the Mokarari Heyati deed dated 25.8.47 (Exhibit 3) executed by the father of the plaintiffs in favour of Bibi Sahidan and the sale deed executed by Bibi Sahidan dated 26.7.50 (Exhibit B) in favour of defendant no. 1 are void. The plaintiffs further prayed for-declaration of title and recovery of possession of the said holding. 2. Two substantial questions of law were formulated at the time of the admission of the appeal and they are: whether the provisions of the Evacuee Property Act bar the suit and whether the JUDGMENT : of reversal is a proper JUDGMENT :. 3. Mr. Balbhadra Prasad Singh appearing for the appellant gave up the substantial questions of law framed and wanted this Court to formulate another substantial question of law, that is, whether the suit is barred under section 3 of the Limitation Act. Learned counsel contended that since it is a question of jurisdiction and this question having been gone into in the court below can be raised even though not formulated, earlier. According to learned counsel, the court below completely misdirected itself in law in excluding the period 14.12.62 to 20.8.67 under section 14 of the Limitation Act in computing the period of limitation for the institution of the suit. If the said period is not excluded, on the plaintiffs' own case, the date of knowledge of the sale deed being 14.8.61 and the date of institution of the suit being 21.8.67, the suit would be barred in view of section 59 of the Limitation Act which requires' a suit to cancel or set aside an instrument to be instituted within three years of the knowledge of the existence of such an instrument. Mr. Asghar Hussain, on the other hand, contended that in view of the proviso to section 100(5) of the Code of Civil Procedure the Court should refrain from formulating the said question. According to learned counsel this is not a fit case where Court should exercise its discretion in formulating the said question as it is not a substantial question of law at all in view of the finding rendered by the court of appeal below. 4. Both the plaintiffs were minors. Plaintiff no. 1 attained majority in November 1950 and plaintiff no. 4. Both the plaintiffs were minors. Plaintiff no. 1 attained majority in November 1950 and plaintiff no. 2 attained majority in December 1954. Hamiduddin and his second wife Sahidan executed a sale deed in favour of the plaintiffs during their minority on 22.2.1946 (Ext. 4) for a sum of Rs. 2500/-. The plaintiffs are the sons from the daughter of the first wife of Hamiduddin. In spite of the sale deed, Bibi Sahidan was allowed life interest by the plaintiffs' father-Vide Mokaruri Heyati deed dated 25.8.47 (Ext). According to the plaintiffs' case, even though Sahidan was conferred with life interest under the aforesaid, deed by the father of the plaintiffs, she executed a sale deed on 6.7.50 (Ext. B) for a sum of R. 3000/- in favour of the defendants who are none else but her brother's sons. The consideration of Rs. 3000/-, however, was released because of love and affection. The plaintiffs learnt about the existence of the sale deed (Ext. B) on 14.8.61 and the suit was instituted by them on 14.12.62 for cancellation of the said sale deed. The suit however, was valued at Rs. 2,500/-. This valuation, according to the plaintiffs, was given, in view of the valuation set out in the sale deed. The learned Munsif, held that the suit should be valued at Rs. 8,000/- and, therefore, he returned the plaint on 20.8.67 and thereafter the present suit was instituted on 21.8.67 5. The court of appeal below dealt with the question of limitation in paragraph 11 of its JUDGMENT :. It found on the basis of the evidence that the plaintiffs came to learn about the existence of the sale deed in favour of the defendants on 14.8.61. It found as a matter of fact that the plaint was returned on 20.8.67 when the valuation of the suit was raised and the same was filed the very next day in. the court of the Sudordinate Judge. Therefore, the period should be excluded in computing the period of limitation as provided under section 14 of the Limitation Act. It has also referred to the concession on the part of the defendants that under section 14 of the Limitation Act the period spent in pursuing the suit presented before the Munsif shall be excluded. Therefore, the period should be excluded in computing the period of limitation as provided under section 14 of the Limitation Act. It has also referred to the concession on the part of the defendants that under section 14 of the Limitation Act the period spent in pursuing the suit presented before the Munsif shall be excluded. The court of appeal below held the suit maintainable after recording a finding as hereunder :- "I am convinced by the evidence of plaintiff no. 1 (P.W.6) on this point and I hold that under the provisions of Article 59 of the Limitation Act the suit was filed within a period of three years from the date of knowledge of Exts. 3 and B. I am also convinced by the second contention of the learned counsel for the plaintiff-appellant that Mosst. Bibi Sahidan as already held by me had a life interest deed (Ext.3) and the suit was to be filed during her lifetime which was premature but the same became regular after her death. No law of limitation has been brought to my knowledge by which the suit of the plaintiff is hit on this point. Ext. 3 the life interest deed on which I have already relied and I have held that it is a genuine document which granted life interest in favour of Bibi Sahidan, played important part in saving the suit of the plaintiff from being hit by any law of limitation. Thus in my considered opinion the suit of the plaintiff is not hit by any law of limitation and is not time-barred. This point is accordingly disposed of." 6. Mr. Balbhadra Prasad Singh contended that for the purpose of the applicability of section 14 the Court was required to see whether the plaintiffs acted in good faith as defined under section 2(7) of the Limitation Act and not as defened under the General Clauses Act. Whereas under the Limitation Act, the Court is required to see whether the plaintiff acted with care and caution to constitute good faith, under the General Clauses Act, a person is said to act honestly, whether done negligently or not. In support of his submission learned counsel referred to the case of Madhavrao V. Ram Krishna, (A. I. R. 1958 Supreme Court 767). Learned counsel submitted that the court below has not bestowed its thought on this important aspect while excluding the, period. In support of his submission learned counsel referred to the case of Madhavrao V. Ram Krishna, (A. I. R. 1958 Supreme Court 767). Learned counsel submitted that the court below has not bestowed its thought on this important aspect while excluding the, period. He tried to show that the plaintiffs did not act with care and caution in instituting and pursuing the suit before the Munsif. The learned Munsif found the valuation beyond his jurisdiction on 20.9.66 and ORDER :ed for the return of plaint but the plaintiffs filed as against the said ORDER :, without taking back the plaint, an appeal before the Subordinate Judge who was not the appellate forum and on 30.11.66 the memo of appear was returned whereupon the appeal was filed in the court of the District Judge which was ultimately dismissed on 10.5.67. Thereafter only the plaintiffs took back the plaint on 20.6.67 and filed the instant suit on 21.8.67. 7. Whether the plaintiffs acted with care and caution or with negligence are entirely questions of fact. The court of appeal below has given two reasons to hold that the suit was filed within time, one by extending the benefit of section 14 of the Limitation Act and the other by holding that since Bibi Sahidan had a life interest in the property and the suit having been filed during her lifetime it could be said that the suit was premature but not hit by the law of limitation as right to recover will only arise after the death of Bibi Sahidan, which event occurred some time in the year 1969, two years after the institution of the suit in the court of the Subordinate Judge. We, therefore, hold that the substantial question of law sought to be framed at the time of hearing is unsubstantial. 8. Under the amended section 100 of the Code of Civil Procedure the appellant is required to state precisely the substantial question of law in the memorandum of appeal and when the High Court is satisfied that a substantial question of law is involved it shall formulate that question. Section 100(5) mandates that the appeal shall be heard on the question so formulated and the respondent is called upon to show that the case does not involve such question. It is, therefore, manifest that at the time of-hearing the respondent is noticed only to answer the question formulated. Section 100(5) mandates that the appeal shall be heard on the question so formulated and the respondent is called upon to show that the case does not involve such question. It is, therefore, manifest that at the time of-hearing the respondent is noticed only to answer the question formulated. It is in the nature of leave and/or limited rule granted to the appellant only with respect to the point formulated at the time of hearing under ORDER :41 Rule 11 of the Code of Civil Procedure. It is no doubt true that the Court is left with a discretion to hear the appeal on any other substantial question of law not formulated after recording the reasons therefor and when the Court is so satisfied and not ordinarily. This power, therefore, is required to be exercised cautiously. 9. This provision bas come to be enacted by amendment of 1976. There is a salutary purpose for the amendment of section 100 as would be apparent from the 14th Report of the Law Commission (Law Commission's. 14th Report. Volume I, page 190). It recommended that the Judge admitting the second appeal should state the points of law which arise for consideration and enabling the High Court to admit second appeal on specified points only. The Shah Committee in 1972 reiterated the 14th Report of the Law Commission and observed that there should be stricter and better scrutiny of second appeal subject to special leave instead of an absolute right of appeal. The Law Commission in its 54th Report (pages 17 and 87) reviewed the position and recommended that the right of second appeal should be confined to cases where a question of law is involved and such a question is a substantial one. It was only the Joint Committee of the Parliament which felt that the discretion of the Court to hear the appeal on any other substantial question of law, not formulated by it, should not be taken away, so that justice may be done between the perties (See the Gazette of India, Extraordinary, dated 1.4.1976, Part II, Section 2, pages 804-810. 10. 10. Looking to the history and object of the present amendment as well as from the words of section 100(5) of the Code of Civil Procedure, we are of the opinion that this Court should be very alow in reopening the whole case at the stage of hearing and not confining its consideration to the substantial questions of law formulated at the time of admission. It is only in rare cases where the substantial question of law is patent on the face of the record and grave injustice is likely to flow in Court's not formulating the said point, which was omitted to be formulated at the stage of admission, resort to the proviso to section 100(5) could be made. The proviso to section 100(5) carves out an exception to the main provision and in our opinion for exceptional cases indicated above. 11. In the result, the appeal is dismissed but there will be no ORDER :as to costs. S.S. Sandhawalia, C.J. - I agree.