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2008 DIGILAW 907 (AP)

K. Narayanappa v. A. Sreeramulu Reddy

2008-10-21

G.YETHIRAJULU

body2008
Judgment :- (1) This review has been filed by the Appellant in SA No. 646 of 1998. The appellant is the plaintiff in OS No. 119 of 1986 filed for declaration of tile and perpetual injunction against the defendants. After filing of the written statement, the defendants 4 to 6 were brought on record. The suit was decreed in favour of the plaintiff. When the defendants preferred as No. 95 of 1993, it was allowed by the appellate Court by setting aside the judgment of the trial Court. Being aggrieved by the same, the present second appeal has been filed and this Court through the judgment, dated 2. 7. 2008 dismissed the second appeal. Being aggrieved by the same, the present Review Petition has been filed contending that this Court, without noticing the judgment of this Court in jakkamreddy Venugopal Reddy v. Sridevi sarannavarathrulu, 2008 (5) ALD 520 = 2008 (4) ALT 762, wherein the judgment of the Supreme Court in Banarsi Das v. Kanshi Ram, AIR 1963 SC 1165 , was followed, made the following observation in para 13 of the judgment: "When the plaintiff is aware of the execution of Ex. A. 19 sale deed dated 24. 12. 1966 by defendants 2, 3 and Akkamma in favour of 1st defendant, and when the father of plaintiff alleged in Ex. A. 14 notice issued in 1980 that that sale deed is casting a cloud on his title in respect of the suit land and some other land mentioned therein, even assuming that the father of the plaintiff became aware of Ex. A. 19 only in 1980, and felt that that document is casting cloud on the title he allegedly was having over the suit land he should have filed the suit for declaration of title over the suit land within three years from the date of knowledge of Ex. A. 19 in view of Article 58 of the Limitation Act 1963. But he did not do so. So the suit for declaration of title of the plaintiff in respect of the suit land filed in 1986 i. e. , beyond the period of three years from the date of Ex. A. 19 cannot be but be said to be barred by time. But he did not do so. So the suit for declaration of title of the plaintiff in respect of the suit land filed in 1986 i. e. , beyond the period of three years from the date of Ex. A. 19 cannot be but be said to be barred by time. When I pointed out that fact to the learned Counsel for the plaintiff he contended that as the 1st defendant did not raise the plea of limitation, that question cannot be gone into by this Court at the stage of second appeal. I am unable to agree with the said contention because as per Section 3 of the limitation Act, 1963, the Court, in spite of the defendant not taking the plea of limitation, has a duty to look into the question of limitation. So, the plaintiff has to be non suited with regard to the relief of declaration of his title over the suit land sought by him, on the ground of limitation. " (2) The learned Counsel for the petitioner submitted that the learned Single judge committed error in holding that because the plaintiff did not file the suit in respect of 99 cents in S. No. 718/1, as PW4 claimed possession of the same, the plaintiff failed to establish his prima facie title or possession over the suit land, which was against the judgment of the Supreme court, wherein the Supreme Court observed that there must be first a foundation laid in the pleadings and question of fact arrived at by Courts of facts and it must be necessary to decide that question of law for a just and proper decision of the case. He further submitted that the defendants did not raise any plea of limitation either before the trial Court or appellate Court, so also before this Court. But this Court, suo motu observed that even if the defendants did not raise the statutory plea of limitation, the suit is barred by limitation, therefore, he requested to review the order. (3) The learned Counsel for the petitioner drew the attention of this Court to jakkamreddy Venugopal Reddy's case (supra), wherein a learned Single Judge of this Court observed as follows: "Plea of limitation being a mixed question of law and fact is required to be adjudicated based on facts and evidence to be adduced. (3) The learned Counsel for the petitioner drew the attention of this Court to jakkamreddy Venugopal Reddy's case (supra), wherein a learned Single Judge of this Court observed as follows: "Plea of limitation being a mixed question of law and fact is required to be adjudicated based on facts and evidence to be adduced. Such a plea cannot be taken for the first time in second appeal." In Banarsi Das's case (supra), the Supreme Court held:"a new plea of limitation which was not purely one of law but a mixed question of law and facts should not have been allowed to be raised for the first time at the stage of arguments in second appeal by the High court especially when it was raised by the non-contesting defendant who had not filed a written statement in the suit. If the high Court felt overwhelmed by the provisions of Section 3 of the Limitation act, it should at least have given an opportunity to the parties which supported the decree of the trial Court to meet the plea of limitation by amending their pleadings. After allowing the pleadings to be amended, the High Court should have framed an issue and remitted it for a finding to the trial Court under Order 41 Rule 25 CPC. " The Supreme Court further observed: "The High Court has overlooked the fact that even upon the argument addressed before it on behalf of Kanshi Ram, the question of limitation was not one purely of law but was a mixed question of fact and law and, therefore, it was not proper for it to be raised for the first time in argument. We are satisfied that what the High Court has done has caused prejudice to some of the parties to the suit and on that ground alone, we would be justified in setting aside its decision. If the High Court felt overwhelmed by the provisions of Section 3 of the Limitation Act, it should at least have given an opportunity to the parties which supported the decree of the trial court to meet the plea of limitation by amending their pleadings. After allowing the pleadings to be amended, the High court should have framed an issue and remitted it for a finding to the trial Court. After allowing the pleadings to be amended, the High court should have framed an issue and remitted it for a finding to the trial Court. Instead of doing so, it has chosen to treat the pleading of one of the defendants as conclusive not only on the question of fact but also on the question of law and dismissed the suit. It is quite possible that had an opportunity been given to the defendants, they could have established, in addition to proving the dates on which the summonses were served, that the suit was not barred by time because of acknowledgments. In the course of the discussion, the High Court has said that it was not suggested before it by anyone that the claim was not barred by reason of acknowledgments. Apparently, no such argument was advanced before it on behalf of the plaintiff and the defendant Banarsi das because the Counsel were apparently taken by surprise and had no opportunity to obtain instructions on this aspect of the case. We are clearly of opinion that the High court was in error in allowing the plea of limitation to be raised before it particularly by defendants who had not even filed a written statement in the case. We do not think that this was a fit case for permitting an entirely new point to be raised by a non-contesting party to the suit." As per the observation of the Supreme court, if the High Court felt overlooked by the provision of Section 3 of the Limitation act, it should at least have given an opportunity to the parties, which supported the decree of the trial Court to meet the plea of limitation by amending their pleadings. After allowing the pleadings to be amended, the High Court should have framed an issue and remitted it for a finding to the trial Court. The Supreme Court further observed that it is of the opinion that the High Court was in error in allowing the plea of limitation to be raised before it particularly by defendants who had not even filed a written statement in the case. The Supreme Court further observed that it is of the opinion that the High Court was in error in allowing the plea of limitation to be raised before it particularly by defendants who had not even filed a written statement in the case. (4) The learned Counsel for the respondents, on the other hand, submitted that there are subsequent decisions of the supreme Court contrary to the earlier decision, therefore, he drew the attention of this Court on this aspect to Vithalbhai Pvt. Ltd. v. Union Bank of India, 2005 (3)ALD 6 (SC) = 2005 (5) SCJ 28 , wherein the Supreme Court observed as follows : 'To be entitled to file a civil suit the plaintiff must be entitled to a relief and the suit must be of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred (see Section 9 of the Code of Civil Procedure, 1908). Section 3 of the limitation Act, 1963 provides that a suit filed after the prescribed period of limitation, shall be dismissed without regard to the fact whether limitation has been set up as a defence or not." The observation in the above decision clearly indicates that a suit filed after the prescribed period of limitation shall be dismissed without regard to the fact whether limitation has been set up as a defence or not. In Gannmani Anasuya v. Parvatini amarendra Chowdhary, 2007 (6) SCJ 414, the Supreme Court held that: "In terms of Section 3 of the Limitation act, it is for the Court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties. Such a jurisdictional fact need not, thus, be pleaded. In any event, the said evidence was admissible for the purpose of contradicting a witness, which being a relevant fact should have been considered in its proper perspective. If the contents of Ext. B8 were accepted, it was not for the High Court to consider the consequences flowing therefrom, and, thus, but the fact whether the figure (s) contained therein could be verified from the books of account might not be very relevant. If the contents of Ext. B8 were accepted, it was not for the High Court to consider the consequences flowing therefrom, and, thus, but the fact whether the figure (s) contained therein could be verified from the books of account might not be very relevant. Whether, it would be inconsonance with the pleadings of the appellants was again of not much significance if it can be used for demolishing the case of the plaintiffs and Defendant 1. If the figures contained in Ext. B8 were accepted, it was for Defendant 1 to explain the same and not for the appellants. The high Court, in our opinion, thus, committed a manifest error in not taking into consideration the contents of Ext. B8 in its proper perspective. " The above decision is very clear that in terms of Section 3 of the Limitation Act, it is for the Court to determine the question as to whether the suit is barred by limitation and whether the said plea has been raised by the parties. (5) In the present suit, there is no ambiguity regarding the period to be calculated from the date of the document, there is no disputed question of fact and there is only aspect on limitation. In the light of the judgments rendered by the supreme Court in the above decisions cited by the learned Counsel for the respondents, it is very clear that the Court can give finding on such points, the defendants did not raise, even without framing any issue and without there being a plea taken by the defendants in the suit. (6) After going through the entire material, there is no error apparent on the face of the record pointed by the learned counsel for the petitioner to order review of the judgment, therefore, I do not find any merits to review the order. (7) Hence, the Review SAMP is dismissed. No order as to costs.