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Madhya Pradesh High Court · body

2012 DIGILAW 430 (MP)

Vinod Guru v. Parul Soni

2012-04-20

K.K.TRIVEDI

body2012
JUDGMENT : Thisis an appeal under Section 96 of the Code of Civil Procedure by the defendantsagainst the judgment and decree dated 23-3-2007 passed in Civil Suit No. 11 -A/2005 by the V Additional District Judge, Sagar . By the said judgment and decree, the suit filed bythe respondent has been decreed and it is declared that the sale-deed dated 12-9-1997 executed in favour of the appellant No. 1 by appellant No. 2 is notbinding on the respondent/plaintiff. A further decree of injunction has beengranted restraining the appellants to interfere in the possession of therespondent/plaintiff in House No. 6/53-B, Sadar Bazar , Sagar . 2.Facts giving rise to filing of this appeal are that the respondent filed a suitinitially against the appellant No. I only on 5-5-1999 seeking following relief : - xxxxxxxxxxxxxxxxxxxxxx (The relief claimed in the unamended claim are mentioned). Thecontention made in the plaint were that the respondent has purchased the housefrom the appellant No. 2 by a registered sale deed dated 2-3-1997 for Rs . 2,00,000/- and was put in possession of the said house.The description of the house and its boundaries were mentioned. It was allegedthat the respondent was minor and his father was looking after the property.The appellant No. 1 was an influential person and was intending to grab theproperty of the respondent/plaintiff. In the intervening night of 11-4-1999 , the appellant No. 1 triedto take forcible possession of the house. When he was stopped to do so and acomplaint in writing was made, it was alleged by the appellant No. 1 that videregistered sale deed dated 12-9-1997 the appellant No. 1 has purchased thehouse for a valuable consideration from appellant No. 2 and thus has become theowner of the said house. On the basis of such information, the respondentthought that a cloud is cast on his title on the strength of such a sale- deed, therefore, the suit was filed on 5-5-1999 only against the appellant No. 1. 4.A written statement was filed by the appellant No. 1 and it was categoricallydenied that the house in question was purchased by the respondent from Smt . Kamla Devi vide registered sale deed, dated 2-3-1997 . It was contended that in fact a fraudwas committed by the father of the respondent and for the said purposes, acomplaint was lodged. In fact, the house was said to be sold for aconsideration of Rs . Kamla Devi vide registered sale deed, dated 2-3-1997 . It was contended that in fact a fraudwas committed by the father of the respondent and for the said purposes, acomplaint was lodged. In fact, the house was said to be sold for aconsideration of Rs . 2 ,00,000 /-but in fact a cheque of Rs .50,000/- was given to somebody else, which was never received by the appellantNo. 2 and, therefore, there was no sale deed executed in favour of the respondent. In fact, such a sale deed was also a forged document. Havenafter making such a submission by the appellant No. 1 in his written statement,the respondent/plaintiff did not consider it necessary to implead Smt . Kamla Devi as a party in the suit for a long time and ultimatelytaken the step for impleadment of such a person as aparty only on 25-8-2003 by making an application under Order 1 Rule 10,sub-rule (2) of the Code of Civil Procedure, vide I.A. No. 5. An applicationfor amendment in the plaint was also made on the same date vide I. A. No. 4.The said applications were considered by the Trial Court and were allowed videorder dated 6-10-2004 .Accordingly, the amendment in the plaint was done and the appellant No. 2 wasalso impleaded as a party on 6-10-2004 . It will not be out of place to mentionhere that in such circumstances the appellant No. 2 was a necessary party inthe suit as it was alleged that the sale deed was executed in favour of the appellant No. 1 as also in favour of the respondent by the said lady and certaindispute with respect to the execution of the sale deed was also raised.Therefore, the respondent was well aware of the fact that the appellant No. 2was a necessary party for grant of an effective decree in case the respondentsucceeds in the suit but no attempt was made to implead her as a party in the suit. Certain application under Section 45 of the IndianEvidence Act was made by the appellant No. 1 and this was pointed out that thethumb impression of appellant No. 2 was required to be examined by an expert.Such applications were considered, permission was granted and expert report wasobtained. Certain application under Section 45 of the IndianEvidence Act was made by the appellant No. 1 and this was pointed out that thethumb impression of appellant No. 2 was required to be examined by an expert.Such applications were considered, permission was granted and expert report wasobtained. All this was well within the knowledge of the guardian in Us of the respondent, who was required to prosecute the suiton behalf of the minor plaintiff in appropriate manner. 5.The law in this respect is well settled that the effect of substituting oradding new plaintiff or defendant would be governed by the provisions ofSection 21 of the Limitation Act. It is specifically provided that where afterthe institution of a suit, a new plaintiff or defendant is substituted oradded, the suit shall, as regards him, be deemed to have been instituted whenhe was so made a party. The proviso prescribed under the said section empowersthe Court to direct that the suit, as regards such plaintiff or defendant,shall also be deemed to be instituted on any earlier date but for that anapplication is required to be made, the bonafides arerequired to be shown and then only the Court can enlarge the period. Now inview of the aforesaid facts, it is to be examined whether the suit so filed bythe respondent could be said to be filed within limitation as against theappellant No. 2. 6.The factual aspects as have been narrated herein above indicate that therespondent/plaintiff was fully aware of the fact that a cloud is cast on histitle over the disputed house. The execution of the sale deed in favour of appellant No. 1 was claimed to be done by theappellant No. 2, who too was the transferred of the property in favour of the respondent/plaintiff. The reliefs as were claimed in unamended plaint could not havebeen granted to the respondent without impleadment ofthe necessary party, i.e., appellant No. 2. If this was within the knowledge ofthe respondent, it was the duty on the part of the respondent to implead appellant No. 2 as a party immediately in the suit.There was callous negligence on the part of the respondent in not adding such anecessary party in the suit. If this was within the knowledge ofthe respondent, it was the duty on the part of the respondent to implead appellant No. 2 as a party immediately in the suit.There was callous negligence on the part of the respondent in not adding such anecessary party in the suit. The Court has passed no order on the date when theapplication of adding appellant No. 2 as a party in the suit was allowedextending the limitation for filing of the suit as against the appellant No. 2.The order simply says that the appellant No. 2 was a necessary party and,therefore, is to be added as defendant in the suit. While allowing theapplication for amendment because of allowing the I.A. No. 5, the Trial Courthas passed no order in this respect exercising the powers conferred on it underthe proviso to Section 21 of the Limitation Act. The record indicates that noapplication for the said purposes was made by the respondent/plaintiff. Thus,it is to be inferred that the suit was deemed to be filed against the appellantNo. 2 on 6-4-2010 when shewas impleaded as a party in the suit. If that is theposition, it is to be considered whether the suit as against the newly addedperson could be said to be within the limitation or not. 7.Apparently, the cause of action accrued to the respondent when the suit wassaid to be filed against the appellant No. 1 as has been described in theplaint in Paragraph 14, wherein it is said that the cause of action accrued on11-4-1999, when a threat was given by the appellant No. 1 to the respondent,For such a suit where there is no limitation prescribed under the LimitationAct, the limitation of 3 years is available for filing of the suit. From 11-4-1999 , the suit should have beenfiled against the appellant No. 2 within a period of 3 years. The same cause ofaction is also made available for the appellant No. 2 but the suit cannot besaid to be filed against her within limitation on the date when she was impleaded as a party. This being so, the learned Lower Court has not rightly considered this issuewhether the suit as filed by the respondent was within the limitation or not.In fact, the issue in this respect was not framed but was required to beframed. This being so, the learned Lower Court has not rightly considered this issuewhether the suit as filed by the respondent was within the limitation or not.In fact, the issue in this respect was not framed but was required to beframed. At least when the claim of the respondent was being considered in viewof issue No. 3, this particular aspect was required to be examined. Since thishas not been done, the judgment and decree passed by the Court below cannot besaid to be as per law. 8.This Court in the case of Mahesh Singh and others Vs. Sewaram and others, 2000 (1) JLJ 373 , has considered these aspects whether thelimitation for filing of the suit can be examined at a particular stage or not.This Court has held that the question of limitation being a mixed question oflaw and facts, can be raised at any time even if itwas not raised before the Lower Court .It is further held by this Court in case of Central India Chemicals PrivateLtd., Sehore Vs. Union of India, Railways, AIR 1962MP 301, in Para 14, which reads thus :- "Thus, in the suit limitation under Art. 30 has not been expressly pleaded. Still it does not help theplaintiff. One has, in this respect to distinguish between a case wherelimitation is an arguable point and has therefore to be pleaded and one whereit is patent and non-controversial on the proved facts. Here, for example thetwo crucial dates are on the plaint itself and do not admit of the least doubtor controversy. Thus, under Section 3 of the Limitation Act, the Court has todismiss it whether or not limitation has been set up as a defence ." Thisproposition of law has further been considered by the Apex Court in variouscases and it has been held that if a suit, appeal or applicationare preferred beyond the limitation prescribed, the same are liable tobe dismissed in view of the specific provisions of sub-section (1) of Section 3of the Limitation Act, 1963. In the case of Noharlal Verma Vs. District Co-operative Central Bank Ltd., 2009(1)M.P.H.T. 113 (SC) = 2009 RN 42 , the Apex Court considered these aspects and hascategorically held that such core issues are to be decided first. 9.Thus, it is clear that the suit filed by the respondent as against theappellant No. 2 was not maintainable, being barred by limitation. District Co-operative Central Bank Ltd., 2009(1)M.P.H.T. 113 (SC) = 2009 RN 42 , the Apex Court considered these aspects and hascategorically held that such core issues are to be decided first. 9.Thus, it is clear that the suit filed by the respondent as against theappellant No. 2 was not maintainable, being barred by limitation. Secondly, theeffective relief as was claimed in the unamended plaint could not have been granted to the respondent by the Court below withoutthe impleadment of the necessary party, i.e.,appellant No. 2. In view of these provisions of law, the suit of the respondentwas liable to be dismissed. 10.Accordingly, finding that the Court below has erred in law in granting thedecree in favour of the respondent, this appeal isallowed. The judgment and decree of the Court below is set aside. The suit ofthe respondent stands dismissed. However, looking to thefacts and circumstances in the present case, parties to bear their own cost.