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2004 DIGILAW 94 (HP)

Ganga Devi v. State Of Himachal Pradesh

2004-05-12

V.K.GUPTA

body2004
JUDGMENT : V.K. Gupta, J. The parties are at variance with respect to the form of this appeal, viz; whether it be treated as a Regular Second Appeal or a Misc. Appeal under Section 104 read with Order 43, Rule 1 (u), C.P.C. To bring about an end to this small, inconsequential controversy, I treat this as a Misc. Appeal in terms of Section 104 read with Order 43 Rule I (u), C.P.C. because undoubtedly the judgment dated 15.1.1998 was passed by the learned Additional District Judge, Solan, in Civil Appeal No. 33-S/13 of 96 and while disposing of the aforesaid appeal the learned Court issued an order of remand to the trial Court for fresh trial of Civil suit No. 418/1 of 1989 by setting aside the judgment dated 12th June, 1996 passed in the aforesaid suit. 2. Brief facts giving rise to the filing of this appeal are that Girdhari Lal deceased (represented by his legal representatives appellants in the present appeal in this Court) had filed Civil Suit No. 199/1 of 1978 against the State of Himachal Pradesh and others including Collector. Solan and private defendants for permanent injunction restraining the defendants in the said suit from interfering in and from cutting removing or in any way dealing with the trees standing upon a piece of land particulars whereof were clearly mentioned in the cause-title of the said suit. This suit was decreed by the learned Senior Sub Judge, Solan on 31st December, 1979 The State of H.P. through Secretary (Forests) and the Collector Solan filed Civil Appeal No. 145-S/13 of 1982 against the aforesaid judgment and decree and the learned Additional District Judge, Solan and Sirmaur Districts, at Solan vide his judgment dated 23rd February, 1983 dismissed the said appeal of the appellant State. Even though the aforesaid appeal was dismissed on 23rd February, 1983, on 6th October, 1989 Civil Suit No. 418/1 of 1989 was filed by the State of Himachal Pradesh through Secretary (Forests) and Collector. Solan District, for declaration to the effect that the judgment and decree dated 31st December, 1979 passed by the learned Senior Sub Judge, Solan in Civil Suit No. 1991 of 1978 was a nullity it should be declared as void and non-est as the same had been passed without jurisdiction and had been obtained by misrepresentation of facts and fraud played by defendant No. 1 etc. etc. etc. The said suit No. 418/1 of 1989 was dismissed by the learned Senior Sub Judge. Solan, on 12th June, 1996. As many as 11 issues were framed in the said suit. Issue No. 8 was with respect to the limitation and the finding on Issue No. 8 by the trial Court in the said suit was that since the decree under challenge was passed on 31st December, 1979 and the appeal against the same had also been decided in 1983 and because the suit had been filed in 1989, it was clearly barred by limitation. 3. Against the aforesaid judgment dated 12th June, 1996, the State of Himachal Pradesh and the Collector, Solan, filed Civil Appeal No. 33-S/13 of 1996 and as noticed at the outset learned Additional District Judge, Solan, vide his judgment dated 15th January 1998 allowed the said appeal and passed an order remanding the suit for trial by the learned Senior Sub Judge, Solan, after framing four additional issues. It is against this judgment that the present appeal has been filed by the appellants. 4. At the very outset, I must record and observe that the learned Advocate General appearing for respondents No. 1 and 2 has fairly and frankly conceded that as far as the ground of fraud for setting aside the decree dated 31st December, 1979 is concerned, the State does not press this ground because fraud has been even though pleaded in the plaint, but indeed the particulars of the fraud were not mentioned in the plaint and because of the mandatory requirement of law as contained in Order 6, Rule 4 Civil Procedure Code, in the absence of particulars of fraud, a suit on that ground was not maintainable. 5. The present appeal should succeed and on two simple grounds. First and foremost, Civil Suit No. 418/1 of 1999 was patently barred by limitation and issue to that effect was framed by the trial Court in that suit and this issue was decided against the plaintiff. Article 59 of the Schedule to the Limitation Act reads thus: "59". The cancel or set aside an instrument or decree or for the resission of a contract. Three Years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. 6. Article 59 of the Schedule to the Limitation Act reads thus: "59". The cancel or set aside an instrument or decree or for the resission of a contract. Three Years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. 6. Para 15 of the plaint in Suit No. 419/1 of 1989 relating to cause of action reads thus: "That the cause of action arose last year when defendant started interfering in the suit land and filed execution of the judgment and decree dated 31.12.79 passed by the Senior Sub Judge, Solan, which is being challenged in the suit." 7. As Article 59 (supra) would clearly indicate the time from which the limitation period of three years for setting aside a decree would start running would be when the facts entitling the plaintiff to have the decree set aside first become known to him. Para 15 of the plaint (supra) does not mention about the knowledge of such facts nor does it mention any ancillary or incidental facts. Para 15 makes only a bald assertion that the cause of action accrued "last year" when the defendant in the suit started interfering in the suit land and took over execution proceedings. That surely cannot give rise to the accrual of any cause of action to the plaintiffs in the aforesaid suit to file the suit. The cause of action to file the aforesaid suit was the passing of the decree and the decree was passed on 31st December, 1979. Even if the cause of action could be extended to the judgment in the appeal against the said decree the appellate Court had disposed of the appeal in 1983. These were the facts, viz, the passing of the judgment/decree in the suit (in 1979) and the disposal of the appeal by the appellate Court (in 1983) which entitled the plaintiffs in the aforesaid suit to have the decree set aside and these facts were very well known to the plaintiff all through. These were the facts, viz, the passing of the judgment/decree in the suit (in 1979) and the disposal of the appeal by the appellate Court (in 1983) which entitled the plaintiffs in the aforesaid suit to have the decree set aside and these facts were very well known to the plaintiff all through. Therefore, it can safely be said without any fear of contradiction that the suit was patently time barred and that no fact was pleaded in terms of any statutory provision as contained in the Limitation Act by which the plaintiffs could plead or had indeed pleaded that the time as far as the limitation is concerned would begin from some other date. In that view of the matter, therefore, the trial Court (learned Senior Sub-Judge, Solan) had rightly framed Issue No. 8 and correctly decided the same against the plaintiffs by holding that the suit was time barred. 8. The learned Additional District Judge, the appellate Court while deciding Civil Appeal No. 33-S/13 of 1996 has very very erroneously omitted even to discuss issue No. 8 in the course of his judgment in the aforesaid appeal. In para 4 of the judgment, the appellate Court has reproduced all the 10 issues. These 10 issues included issue No. 8 which related to the limitation aspect of the suit but in the entire body of the judgment, there is not a word, not a whisper or murmur with respect to the limitation aspect of the suit or issue No. 8 or the merits of the finding on this issue by the trial Court. If a suit was dismissed as time barred, of course apart from other aspects relating thereto, it was obligatory and incumbent upon the appellate Court to have taken notice of this aspect of the matter especially in view of Section 3 of the Limitation Act. which clearly lays down that every suit instituted after the prescribed period of limitation shall be dismissed although the limitation has not been set up as a defence in the suit. which clearly lays down that every suit instituted after the prescribed period of limitation shall be dismissed although the limitation has not been set up as a defence in the suit. If a suit was time barred, how could it be revived and how could it an appeal against that judgment dismissing the suit be allowed, without the appellate Court at all bothering to take into notice all the relevant aspects, or without taking into account the merits of the case, both factual as well as legal with respect to the limitation. I must record and observe that the appellate Court committed a material irregularity in omitting to take note of the aforesaid aspect in the course of his judgment. I am saying so more assertively because I am quite confident that had the appellate Court taken note of the limitation aspect, per se there would have been a discussion about this aspect and the result of the appeal might have been different. 9. The second ground of allowing the appeal is that Civil Suit No. 418/1 of 1989 suffered from res judicata. Whatever grounds with respect to decree dated 31st December, 1979 were available to them when they filed an appeal against that judgment and decree and that appeal having been dismissed the raising of same grounds or other grounds by way of filing a suit challenging the decree clearly and apparently amounted to the suit being barred by res judicata. Of course if the decree dated 31st December, 1979 were challenged even through a suit (despite the appeal against the same having been dismissed) on the ground that it was obtained by fraud, surely no one can be allowed to say that that suit was barred by res judicata but as noticed at the outset, in so far as the fraud aspect is concerned, the material particulars of the fraud not finding mention or a place in the plaint, the suit on that ground was not at all maintainable. 10. On both the aforesaid counts, it can be said that the appellate Court while deciding Civil Appeal No. 33-S/1 of 1996 vide judgment dated 15th January 1998 completely misdirected itself by allowing the appeal and by remanding the suit for retrial. 10. On both the aforesaid counts, it can be said that the appellate Court while deciding Civil Appeal No. 33-S/1 of 1996 vide judgment dated 15th January 1998 completely misdirected itself by allowing the appeal and by remanding the suit for retrial. The said judgment (and decree) is accordingly set aside with all the consequences, but in the peculiar facts and circumstances of this case without any order as to costs.