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Gujarat High Court · body

2017 DIGILAW 3 (GUJ)

Ibrahim Haji Abdulla Lokhandwala v. Chief Officer

2017-01-09

RAJESH H.SHUKLA

body2017
JUDGMENT : Rajesh H. Shukla, J. 1. The present Second Appeal has been filed under Section 100 of the Civil Procedure Code by the appellants-original plaintiffs challenging the impugned judgment and order rendered in Regular Civil Appeal No. 10/2013 by the learned 5th Additional District Judge, Rajkot dated 01.12.2014 confirming the judgment and order rendered in Regular Civil Suit No. 72 of 2012 by the learned Additional Civil Judge, Dhoraji dated 23.01.2013 raising the substantial questions of law as posed below:- "(A) Whether both the courts below have committed substantial error of law in holding that the suit of the appellants is barred by limitation and not appreciating the fact that period of limitation would commence from the date of refusal on the part of the defendant and further by dismissing the suit of the plaintiffs on the ground of limitation, though issue of limitation was not even framed? (B) Whether both the courts below have committed substantial error of law in not appreciating that the defendant had not even contested the suit and not even filed reply and, therefore, the contents of the plaint would be deemed to have been accepted by them? (C) Whether the appellant court has committed substantial error of law in not framing points for determination as required under the provisions of the Order 41 Rule 21 of the Code of Civil Procedure, 1908?" 2. The appellants herein filed Regular Civil Suit No. 72/2012 before the court of the learned Civil Judge, Dhoraji, which came to be dismissed. Against which, Regular Civil Appeal No. 10/2013 came to be preferred before the learned District Court, which was also dismissed, which led to filing of the present Second Appeal raising the substantial questions of law as stated above. 3. Heard learned advocate, Shri S.P. Majmudar for the appellant and learned advocate, Shri Premal Joshi for the respondent. 4. Learned advocate, Shri Doshi referred to the background of the facts and submitted that the respondent-Nagarpalika invited tenders to sell the land by auction process in June, 1995, wherein the appellant deposited earnest money and, thereafter, the respondent-Nagarpalika passed Resolution No. 4 dated 10.04.2002 in favour of the present appellant. However as no progress was made, suit came to be filed, which was dismissed and, hence, appeal was filed, which also came to be dismissed on the ground of limitation. 5. However as no progress was made, suit came to be filed, which was dismissed and, hence, appeal was filed, which also came to be dismissed on the ground of limitation. 5. Learned advocate, Shri Majmudar submitted that both the Courts below have committed an error particularly the lower appellate court has failed to raise specific issue with regard to the limitation and proceeded to decide without raising an issue of limitation as required under the law. For that purpose, he referred to the Order 41, Rule 31 of the Civil Procedure Code and submitted that unless such an issue of limitation is raised, same cannot be decided. He has also referred to and relied upon the judgment of the Hon'ble High Court in case of Shah Keshavji Pashuji Vira (Decd.) v. Shah Mavji Pasu in Second Appeal No. 45 of 2014 dated 11.03.2014. Similarly he has referred to and relied upon the judgment of the Hon'ble Division Bench of this High Court in case of Shantaben Motiram Nai v. Govindbhai Mangaldas Valand in First Appeal No. 3193/2012 and submitted that the suit is decided without framing an issue of limitation and the trial court could not have considered this aspect of limitation and, therefore, suit cannot be decided. He, therefore, submitted that it is a substantial question of law, which is required to be addressed referring to the provision of the Order 41, Rule 31 of the Civil Procedure Code. 6. Learned advocate, Shri Joshi referred to the background of the facts and submitted that the auction was held in 1995 and, thereafter, the appellant has not done anything nor has taken any steps and further even in the year 2002 when the Resolution is said to have been passed by the respondent-Nagarpalika, the appellant has not moved any proceeding. He, therefore, submitted that the trial court has dismissed the suit on the ground of limitation, which has been confirmed by the first appellate court. He submitted that though the issue may not have specifically been framed or stated regarding the limitation, the judgment and the discussion on the aspect of limitation would clearly suggest that the Court has considered this aspect of limitation providing an opportunity to both side. He, therefore, submitted that it cannot be argued that aspect of limitation has been considered without the knowledge or without providing an opportunity to the appellant herein. He, therefore, submitted that it cannot be argued that aspect of limitation has been considered without the knowledge or without providing an opportunity to the appellant herein. He further submitted that even if the Court had not framed the issues, it was open for the appellant to make a request for framing of such an issue. He, therefore, submitted that having not done so, now in the Second Appeal, concurrent finding of facts given by both the Courts below cannot be challenged posing the question of law, which is termed as substantial question of law. He has referred to and relied upon the judgment of the High Court of Gujarat in case of Suryakant Kanji Bheda v. Hemlataben Indukumar Rajana, reported in 1998 (1) GLH 138 and referring to the observations made in paragraph No. 7, he submitted that as observe, if the proper issues are not framed or they are defective, the parties could get issues properly framed, however, he cannot be allowed to find fault with the issues before the appellate or revisional court. 7. In rejoinder, learned advocate, Shri Majmudar for the appellant again referred to the background of the facts and submitted that two aspects are confused i.e. one is referring to 1995 and process of auction was started, whereas another is in the year 2002 when the Resolution is said to have been passed. He, therefore, submitted that as the Resolution was not implemented then only, cause of action could arise in the year 2010 when the respondent-Nagarpalika failed to take further steps. He further submitted that it is not merely passing of Resolution but when no steps were taken till 2010, cause of action arose in the year 2010 and suit is filed. He, therefore, submitted that suit cannot be said to be time barred. He also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Daya Singh & Anr. v. Gurdev Singh (dead) by Lrs. & Ors., reported in (2010) 2 SCC 194 and referring to Paragraph No. 14, submitted that the Court has considered when the cause of action has arisen. He, therefore, submitted that the present appeal may be allowed. 8. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 9. & Ors., reported in (2010) 2 SCC 194 and referring to Paragraph No. 14, submitted that the Court has considered when the cause of action has arisen. He, therefore, submitted that the present appeal may be allowed. 8. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 9. As could be seen from the background of the facts, in respect of the auction held in 1995, when the suit came to be filed in the year 2012, for the first time even if the Resolution which is said to have been passed by the respondent-Nagarpalika is of the year 2002. Admittedly there is nothing by which it could be said that the period of limitation would not be attracted. It is required to be stated that the appellant also filed writ petitions being Special Civil Application Nos. 7322 & 7323 of 2012 before the High Court and the High Court (Coram : R.M. Chhaya, J.) vide order dated 05.09.2012 dismissed the petition raising same issue and there is specific reference with regard to the aspect of delay. It has been observed, "(9) It further transpires that the plots in question which were sought to be transferred in favour of the petitioner in the auction was factually and actually took place on 19.06.1995 followed by administrator's resolution No. 4 dated 10.04.2002 is sought to be revived for performance of the same in the year 2012 by filing this petition on 30.06.2012. (10) Taking into consideration the aforesaid factual aspects of the matters, the petitions not only suffer from delay and latches on the part of the petitioner but the prayers prayed for, which are in the form of specific performance of the proceedings of auction which took place on 02.06.1995 as prayed for would otherwise be barred by limitation if the suit would have been preferred by the petitioner. Hence, the prayers prayed for cannot be granted by this Court in the petitions under Article 226 of the Constitution of India, after lapse of 17 years from the date of auction and 10 years after the date of the aforesaid resolution No. 4 dated 10.04.2002." 10. Thus the aforesaid order of the High Court with regard to the same issue and for the same prayer would clinch the issue and it would hardly call for any further deliberation. Thus the aforesaid order of the High Court with regard to the same issue and for the same prayer would clinch the issue and it would hardly call for any further deliberation. However since the contention has been raised in the present Second Appeal emphasizing on the aspect of framing of the issue under Order 41, Rule 31 of the Civil Procedure Code, it is required to be considered that the issues are framed so as to narrow down the controversy and focus on the real controversy between the parties. Thus the issues which are required to be raised would give guidance to the parties for the purpose of adducing evidence to establish their rights or the case and also would give broad outline for the parties for preparing their case and evidence. In the facts of the case, even though the issue raised is not specifically referring to the aspect of limitation, the judgment and discussion would clearly suggest that the aspect of limitation has been considered to the knowledge of the parties. Therefore, it cannot be said that the appellant was put to any disadvantage and it has caused any prejudice. The appellant was very much aware and in fact, he has been riding on two horses to say the least. The Hon'ble High Court in a judgment in case of Suryakant Kanji Bheda (supra) referring to this aspect has made observation, which has been relied upon by learned advocate, Ms. Joshi. 11. It is well accepted that Law of Limitation is founded on a public policy that the litigation or the issue should be kept alive for a limited period and not ad infinitum. The observations have been made by the Hon'ble Apex Court in catena of judicial pronouncement while considering the aspect of limitation with reference to the Limitation Act. While considering the aspect of condonation of delay, the guidelines have been laid down with regard to the approach. However, Law of Limitation is enacted by the Legislature providing for the period of limitation for redressal of the grievance. The Hon'ble Apex Court in a judgment in case of Popat and Kotecha Property v. State Bank of India Staff Association, reported in (2005) 7 SCC 510 has observed, "Rules of limitation are not meant to destroy the rights of parties. The Hon'ble Apex Court in a judgment in case of Popat and Kotecha Property v. State Bank of India Staff Association, reported in (2005) 7 SCC 510 has observed, "Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So, a life-span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae ut sit finis litium." 12. Therefore, the submissions which have been made by learned advocate, Shri Majmudar referring to the aspect of limitation that no issue has been framed or it has not been considered, is required to be considered in background of the aforesaid observations and the facts of the case. As stated, even if the issue may not have been specifically made, same is considered. Therefore the moot question is whether the issue involved are focused for the purpose of deciding the controversy. As rightly submitted, if the appellant had any grievance, the appellant could have got the issue properly framed by making necessary application. Having not done so, it is too late now to raise such contentions relying upon Order 41, Rule 31 of the Civil Procedure Code. If such contentions are to be accepted, it would amount to hyper-technical view without reference to underlying idea of Order 41, Rule 31 of the Civil Procedure Code. Further such submissions are misconceived in light of the fact that the appellant has been pursuing another remedy way of writ petitions before the High Court and as observed as stated hereinabove, the High Court had even in a petition under Article 226 of the Constitution of India declined to interfere with considering the aspect of delay and laches. Further such submissions are misconceived in light of the fact that the appellant has been pursuing another remedy way of writ petitions before the High Court and as observed as stated hereinabove, the High Court had even in a petition under Article 226 of the Constitution of India declined to interfere with considering the aspect of delay and laches. Thus by such appeal, what is sought to be addressed is that inspite of the order of the coordinate bench in Special Civil Application Nos. 7322 & 7323 of 2012, this Court i.e. another coordinate bench of the High Court should consider in a different manner sitting in an appeal over the judgment of the coordinate bench of the High Court, which is not permissible. Therefore in background of the facts and in view of the concurrent findings of facts, the substantial questions of law which are sought to be posed, cannot be said to be any substantial question of law. 13. It is well settled that scope of exercise of discretion under Section 100 of the Civil Procedure Code in Second Appeal is very limited and unless it has been shown that there is a substantial question of law, which can be said have been involved, normally concurrent findings of fact would not be interfered with. The Hon'ble Apex Court in a judgment reported in (2007) 1 SCC 546 in case of Gurdev Kaur & Ors. v. Kaki & Ors. has clearly observed that :- "Now, High Courts can interfere thereunder only where substantial questions of law are involved and have been formulated in the memorandum of appeal - The amendment clearly indicates that the legislature never intended the second appeal to become a third trial on facts." 14. The aforesaid view has been reiterated in a subsequent judgment of the Hon'ble Apex Court in case of Nagarpalika Thakurdwara v. Khalil Ahmed & Ors., reported in AIR 2016 SC 4477 , wherein the Hon'ble Apex Court has also considered as to what could be said to be substantial questions of law. 15. The present Second Appeal deserves to be dismissed and accordingly stands dismissed. Notice is discharged. 16. In view of the dismissal of Second Appeal, the Civil Application filed therein does not survive and stands disposed of accordingly.