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Madhya Pradesh High Court · body

2016 DIGILAW 330 (MP)

Vijendra Singh v. Mahendra Singh

2016-04-25

VANDANA KASREKAR

body2016
ORDER 1. The appellant has filed the present appeal challenging the order dated 20.10.2015 passed by 10th Additional District Judge, Bhopal in Civil Suit No.200-A/2010 whereby learned Judge has allowed the application filed by the respondent/plaintiff under Order 7 rule 11 of CPC and dismissed the counter claim filed by the appellant-defendant. 2. The plaintiff has filed civil suit for declaration of title as well as for possession and mesne profit. After receiving the summon, the appellant filed written-statement denying all plaint allegations. The appellant has also filed a counter claim under Order 8 rule 6A of CPC. The respondent who is plaintiff in the original suit has filed written-statement of the counter-claim. The trial Court has framed issues regarding the counter-claim filed by the appellant. The respondent thereafter filed an application under Order 7 rule 11 of CPC for rejection of the counter-claim on the ground that the counter-claim is barred by limitation. The appellant filed his detailed reply of the said application and submitted that whether the counter claim is barred by limitation, is a mixed question of law and fact which can be decided only after recording the evidence. 3. The trial Court vide order dated 20.10.2015 has allowed the application filed by the respondent under Order 7 rule 11 of CPC and rejected the counter-claim filed by the appellant on the ground of limitation. Being aggrieved by that order, the appellant has filed the present appeal. 4. Learned counsel for the appellant submits that the trial Court has erred in allowing the application filed by the respondent under Order 7 rule 11 of CPC. He further submits that the cause of action for filing the counter-claim was a continuous cause of action and, therefore, the same should not have been rejected on the ground of limitation. He argued that whether the counter-claim is barred by limitation is a mixed question of law and fact which can be decided only after recording the evidence. He further argued that from perusal of the counter-claim, it is clear that cause of action firstly has been arose in favour of the appellant in the year 2010 and thereafter on 10.12.2013 and the counter-claim was filed on 11.8.2014. Thus, the counter claim has been filed within limitation and, therefore, the trial Court has erred in dismissing the counter-claim filed by the appellant. 5. Thus, the counter claim has been filed within limitation and, therefore, the trial Court has erred in dismissing the counter-claim filed by the appellant. 5. On the other hand, learned counsel for the respondent submits that from perusal of para 10 of the counter-claim, it is clear that the cause of action to file the counter-claim arose in the year 2000 whereas the counter-claim has been filed on 11.8.2014. The relief which is claimed in the counter claim is governed by Article 58 of the Limitation Act which described period of three years from the date on which the right to sue first arose and as in the present case the right to sue first arose to the appellant in the year 2000, therefore, admittedly the relief claimed by the appellant/defendant, as per his own pleadings, is barred by limitation. He further argues that the second date pleaded in the counter claim for accrual of cause of action is 27.3.2010 and from this date also the counter-claim is barred by limitation. He also submits that the relief which claimed by the appellant regarding declaration of title on the basis of adverse possession cannot be granted in the light of the judgment passed by Hon’ble the Supreme Court in the case of Gurdwara Sahib v. Gram Panchayat Village Sirthala and another [ (2014)1 SCC 669 ]. In the light of the aforesaid submissions, he prays that the trial Court has not committed any error in rejecting the counter claim filed by the appellant. 6. I have heard learned counsel for the parties and perused the record. From perusal of para 10 of the counter-claim, it reveals that the appellant has pleaded that the cause of action for filing the counter claim arose in the year 2000 when the plaintiff declined to accept the Will and consequently the defendant had to approach the Court at Gwalior and on subsequent occasion when the plaintiff acted in controversy of wishes of the father and also arose on 27.3.2010 when before completion of 12 years of open declaration by Vijendra Singh of his right in Court of law and also arose on 10.12.2013 when the plaintiff-Mahendra Singh filed documents of Municipal Corporation dated 9.12.2013 showing that possession of garage portion, has been handed over to him by the authority. Thus, as per these averments, the first cause of action arose to the appellant on 10.7.2000 then 27.3.2010. The relief which is claimed by the appellant is governed by Article 58 of the Limitation Act and as per this Article, the period of limitation for filing of suit for declaration is three years when the right to sue accrues. Article 58 of the Limitation Act reads as under : "58. Description of suit Period of Limitation Time from which period begins to run To obtain any other declaration. Three years When the right to sue first accrues.” 7. Hon’ble the Supreme Court in the case of Board of Trustees of Port of Kandla v. Hargovind Jasraj and another, reported in (2013)3 SCC 182 , in paras 21 to 24 has held as under : “21. A suit for declaration not covered by Article 58 of the Schedule to the Limitation Act, 1963 must be filed within 3 years from the date when the right to sue first arises. Article 58 applicable to such suit reads as under: "58. Description of which suit Period of Limitation Time from which period begins to run To obtain any other declaration. Three years When the right to sue first accrues.” 22. The expression “right to sue” has not been defined. But the same has on numerous occasions fallen for interpretation before the Courts. In State of Punjab v. Gurdev Singh, the expression was explained as under (SCC P.5, para 6) : “6. …. The words ‘right to sue’ ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted......” 23. Similarly in Daya Singh v. Gurdev Singh, the position was restated as follows (SCC pp.198-99, paras 13-16) : “13. Let us, therefore, consider whether the suit was barred by limitation in view of Article 58 of the Act in the background of the facts stated in the plaint itself. Part III of the Schedule which has prescribed the period of limitation relates to suits concerning declaration. Let us, therefore, consider whether the suit was barred by limitation in view of Article 58 of the Act in the background of the facts stated in the plaint itself. Part III of the Schedule which has prescribed the period of limitation relates to suits concerning declaration. Article 58 of the Act clearly says that to obtain any other declaration, the limitation would be three years from the date when the right to sue first accrues. 14. In support of contention that the suit was filed within the period of limitation, the learned senior counsel appearing for the appellant-plaintiffs before us submitted that there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. In support of this contention the learned senior counsel strongly relied on a decision of the Privy Council in Bolo v. Koklan. In this decision Their Lordships of the Privy Council observed as follows (IA p.331) : ‘… There can be no “right to sue”, until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.’ 15. A similar view was reiterated in C. Mohammad Yunus v. Syed Unnissa, in which this Court observed (AIR p.810 para 7) : ‘7.... The period of six years prescribed by Article 120 has to be computed from the date when the right to sue accrues and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right.’ In C. Mohammad Yunus, this Court held that the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right. Therefore, the mere existence of an adverse entry in the revenue record cannot give rise to cause of action. 16. ... Therefore, the mere existence of an adverse entry in the revenue record cannot give rise to cause of action. 16. ... Accordingly, we are of the view that the right to sue accrued hen a clear and unequivocal threat to infringe that right by the defendants..” 24. Reference may be made to the decisions of this Court in Khatri Hotels (P) Ltd. V. Union of India, wherein this Court observed (SCC p.130, para 30) : “30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word ‘first’ has been used between the words ‘sue’ and ‘accrued’. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.” (Emphasis supplied) 8. On bare perusal of para 10 of the counter-claim, it is clear that the right to sue first accrues to the appellant in the year 2000 while counter claim has been filed on 11.8.2014 and, according to the appellant, the second cause of action has arose on 27.3.2010 and from this date also the counter-claim is barred by limitation. Thus, the trial Court has not committed any error in rejecting counter claim filed by the appellant. 9. Accordingly, the appeal deserves to be and is hereby dismissed without any order as to cost. 10. Let record of the case be immediately sent to the trial Court.