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2017 DIGILAW 82 (MP)

Chironji Bai v. Narayan Singh

2017-01-16

ANAND PATHAK

body2017
JUDGMENT : Anand Pathak, J. Appellants/plaintiffs have preferred this appeal under Section 100 of CPC challenging the judgment and decree of reversal dated 12th May, 2004 passed by Third Additional District Judge, Vidisha in Civil Appeal No. 60-A/2003; whereby, the judgment and decree dated 15/9/2003 passed by First Civil Judge, Class-II, Vidisha in Civil Suit No. 175-A/2003 has been set aside. 2. Plaintiffs have preferred a suit for declaration, possession, partition and permanent injunction in respect of suit property and for setting aside of judgment and decree dated 9/10/1965 passed in Civil Suit No. 116-A/1965. The genealogy tree of the plaintiffs is demonstrated as under:- According to plaintiffs, plaintiff No 3-Khumanobai is wife of Kishori and plaintiffs No. 1 and 2 Chironjibai and Smt. Amnibai are daughters of Kishori and Khumanobai. 3. Plaintiffs have filed a suit while pleading that the defendant Bhaiyalal has obtained a decree dated 9/10/1965 from Civil Judge, Class-II, Vidisha by playing fraud to the Court, therefore, the proceedings including judgment and decree, undertaken before the trial Court in Civil Suit No. 116-A/1965 are liable to be set aside along with other reliefs. 4. The defendants filed the written statement and contested the claims made by the plaintiffs. According to respondents/defendants, plaintiff No. 3 Smt. Khumano Bai was a party to the decree passed in year 1965 and according to defendants, plaintiffs had the knowledge of the fact about the passing of decree in past. Defendants have pleaded that the plaintiffs No. 1 and 2 were minors at the time of execution of decree in year 1965 because they were parties in litigation of year 1965. Details of plaintiff Amni Bai has not been disclosed in specific terms regarding her majority status, therefore she had to be treated as major. Similarly, plaintiff Chironjibi has already admitted to be an adult in plaint itself. Therefore, question of status regarding minority is to be dealt with in respect of Amni Bai only. Defendants have prayed for dismissal of the suit on the ground of limitation as well as on the point of adverse possession and further pleaded that in earlier suit of year 1965, judgment and decree passed was a consent decree, wherein, the present plaintiffs Khumanobai, Amnibai and Chironjibai have specifically given the consent and on their consent, a consent decree had been passed. After that, mutation had taken place in year 1966. After that, mutation had taken place in year 1966. Therefore, relief as sought cannot be given to plaintiffs. 5. Trial Court had framed as many as 17 issues. After the issues were framed, evidence was led by the parties and after appreciation of evidence, trial Court decreed the suit in favour of plaintiffs on the basis of Article 59 of the Limitation Act treating the suit to be in limitation from the date of knowledge of passing of consent decree in year 1965. The suit was filed on 29/9/1982 and cause of action has been explained in the suit when the plaintiffs came to know about the passing of judgment and decree dated 9/10/1965, in the year 1982 just before filing of the suit. Trial Court not only decreed the suit but awarded mesne profits and decree for restoration of possession of plaintiffs. 6. Being aggrieved, the respondent No. 1/defendant has filed first appeal under Section 96 of the CPC before the first appellate Court and tried to resort to Article 60 of the Limitation Act for setting aside of the decree. 7. Appellate Court reversed the judgment and decree passed by the trial Court and dismissed the suit on the ground of Section 6 and 8 of the Limitation Act. According to appellate Court , the defendant Bhaiyalal has not obtained the judgment and decree on the basis of any misrepresentation and came to the conclusion that the proceedings have not been initiated within stipulated period of three years, therefore, the judgment and decree passed by the trial Court has been set aside. 8. After passing of the judgment and decree by the first appellate court, the plaintiffs have preferred the instant second appeal under Section 100 of CPC and on 17/4/2013, the appeal was admitted on following substantial question of Law:- "Whether, learned lower appellate Court is justified in reversing the judgment and decree passed by learned trial Court on the ground that the suit is time barred despite the fact that the judgment and decree passed in Civil Suit No. 116-A/1965 was passed against the minors." 9. Learned counsel for the appellants submits that the defendant No. 1 has obtained the judgment and decree against the present plaintiffs by way of filing a suit on 19/8/1965 and caused the appearance of the defendants (plaintiffs in the present case), therefore, a lawyer was appointed by him (on behalf of present plaintiffs) and caused to file written statement admitting the pleadings and submissions filed by the said plaint and on the basis of consent given by the then defendants (present plaintiffs) the decree has been passed. According to him, the said decree has been obtained through misrepresentation to the plaintiff No. 2 Khumanobai about filing of some different proceedings before the revenue Court and on that pretext defendant No. 1 obtained the signatures of plaintiff No. 2 Khumanobai and other plaintiffs. 10. According to counsel, only Khumanobai was major at that point of time and Chironjibai and Amnibai were minors at the time of filing of suit/written statement, therefore, the said judgment and decree was never applicable over them and therefore, they filed the suit for setting aside the same. He referred to the evidence led by the parties in this regard, specifically the evidence of Bhaiyalal (DW/1); wherein, in para 15, the said witness has accepted that he facilitated the signature of Khumanobai over the written statement filed in the suit of year 1965. He further referred to the evidence of DW/2 Imrat Singh, wherein; in para 5 witness has accepted that daughters were minors at the relevant point of time. According to counsel for appellant, the evidence of DW/1 and DW/2 reflects that the daughters of plaintiff No. 3 Khumanobai were minors at the time of consent decree which was obtained through misrepresentation and therefore, is not binding over them in any manner. He further submits that when their claim over ancestral land was challenged by the defendant No. 1 in year 1982 then they came to know about the basis for challenge and thereafter after due search, they came to know about the passing of judgment and decree in year 1965 and thereafter they preferred the civil suit for declaration and for setting aside the judgment and decree passed in civil suit No. 116-A/1965. Therefore, the suit is well within limitation and looking to the interest of minors they had the legal authority to prefer the suit when they came to know about this fact. Therefore, the suit is well within limitation and looking to the interest of minors they had the legal authority to prefer the suit when they came to know about this fact. Trial Court has rightly passed the judgment and decree decreeing the suit on the basis of Article 59 of the Limitation Act which prescribes the limitation as three years from the date of knowledge regarding passing of judgment and consent decree. He relied upon the judgment rendered by Hon'ble Supreme Court in the case of Darshan Singh and Ors., v. Gujjar Singh (dead) by LRs., and Ors., (2002) 2 SCC 62 , Balvant N. Viswamitra and Ors., v. Yadav Sadashiv Mule (Dead) through LRs. and Ors., (2004) 8 SCC 706 , Varsha Plastics Private Ltd. and Anr. v. Union of Inida and Ors. (2009) 3 SCC 687 and Daya Singh and Anr. v. Gurdev Singh (Dead) by LRs. And Ors., (2010) 2 SCC 194 . 11. Per contra, learned counsel for the respondents vehemently argued in support of impugned judgment of appellate Court and craved the indulgence of this Court over Order 32, Rule 3 (A) of CPC to plead that the decree against the minor can only be set aside when there is any adverse interest caused by the guardian or next friend to the minor. As no adverse interest has been caused by the plaintiff No. 3 being the mother of plaintiffs No. 1 and 2, therefore, decree passed in favour of defendant No. 1 in 1965 cannot be set aside. His further argument is that plaintiff No. 3 Khumanobai was admittedly major at the time of filing of the suit in year 1965 and knowing fully well the effect and operation of filing written statement in pending litigation, she had given authority to the counsel in this regard and now she cannot take a somersault and plead contrary to her action. She represented the interest of other minors, therefore, even if for a minute it is assumed that the plaintiffs No. 1 and 2 were minors at the time of passing of judgment and decree in year 1965, even then, she has specifically represented the interest of other minors alleged to be existing at the time of passing of consent decree. According to him, the plaintiffs have filed documents vide Ex. P/1 to P/4 in which Ex. According to him, the plaintiffs have filed documents vide Ex. P/1 to P/4 in which Ex. P/2 and P/3 are school certificates, credentials of which have been shaken in the cross-examination and therefore are of no use. He submits that Khumanobai was major at the time of passing of consent decree. Age status of Ganeshi Bai has not been explained by the plaintiffs in their plaint, therefore, it is deemed to be admitted that Ganeshi Bai was major. Now the only question which comes regarding minority status of plaintiffs No. 1 and 2 Chirongibai and Amnibai. On the basis of statement of PW/1 Chirongi Bai in para 9,23 to 26 and 40, respondent No. 1 has tried to point out the inconsistent stand take by her in respect of her age. She consistently scuffled between different periods. He also relied upon the evidence of PW/4 Bhaiyalal, who also according to respondents supported their case in respect of school certification. He submitted that school certificates have been obtained fraudulently just to lower the age status of Chirongibai. According to him, the suit is covered under Section 6 and 8 of the Limitation Act. He relied upon the judgment of Hon'ble Apex Court rendered in the matter of Darshan Singh v. Gurdev Singh, 1994 (6) SCC 585 . Besides that, he also contended that the plaintiffs have nowhere sought relief of setting aside of decree obtained through fraud and nowhere alleged or pleaded regarding the fact that present defendant No. 1 has obtained the decree through fraud. 12. While relying upon the judgment rendered by Hon'ble Apex Court in the case of Sneh Gupta v. Devi Sarup and Ors., (2009) 6 SCC 194 he pleaded that decree must be set aside within limitation; whereas, in the present case, decree has not been attempted to be set aside within limitation. 13. Heard learned counsel for the parties and perused the record. 14. Regarding substantial question of law as framed earlier : The consent decree was passed by the trial Court in Civil Suit No. 116-A/1965; wherein, the parties in the present lis (predecessors/successors) have accepted the compromise. If the plaintiffs No. 1 and 2 were not aware of the consent decree or were aggrieved by the said decree then they should have come-out with the case pleading misconduct/gross-negligence as provided in Order 32, Rule 3 (A) of CPC. If the plaintiffs No. 1 and 2 were not aware of the consent decree or were aggrieved by the said decree then they should have come-out with the case pleading misconduct/gross-negligence as provided in Order 32, Rule 3 (A) of CPC. The said provisions gives a protection umbrella in favour of the interest of minor, if his/her next friend of guardian/ guardian ad litem have committed any misconduct or gross-negligence in a suit resulting in prejudice to the interests of the minor. For ready reference, Order 32, Rule 3 (A) of CPC is reproduced as under:- "3-A. Decree against minor not to be set aside unless prejudice has been caused to his interests. - (1) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the along with her of the suit adverse to that of the minor, but the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree. (2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interests of the minor." 15. Section 44 of the Evidence Act also provides a remedy, wherein, the daughters could have pleaded fraud or collusion against their mother, who happened to be the guardian ad litem in the earlier suit of 1965 but her no pleading of misconduct or gross negligence as provided under Order 32, Rule 3 (A) or of fraud or collusion as per Section 44 of the Evidence Act are available in the record/submissions of appellants to reach to the conclusion that the mother Khumanobai, who happened to be the guardian of the other plaintiffs had committed fraud or obtained the consent decree with collusion. In absence of such pleadings, benefit of Order 32, Rule 3 (A) of CPC or Section 44 of Evidence Act cannot be given to the plaintiffs. 16. In absence of such pleadings, benefit of Order 32, Rule 3 (A) of CPC or Section 44 of Evidence Act cannot be given to the plaintiffs. 16. In fact, plaintiff No. 3 is one of the parties/plaintiffs, has filed the suit along with her daughters, this fact itself establishes that the plaintiffs are having good relations inter se and therefore, on this count, plea of misconduct or gross-negligence/fraud/collusion goes. 17. Now the question of limitation in respect of the proceedings against the present respondent/defendant is concerned, it appears from the record that the plaintiffs have preferred the present suit after 17 years of consent decree. Sections 6, 7 and 8 of the Limitation Act are worth consideration in this regard. The compromise decree as discussed above even if void, was required to be set aside. Sections 6, 7 and 8 of the Limitation Act are applicable in the present case and thus reproduced as under:- "6. Legal disability. - (1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule. (2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so specified. (3) Where the disability continues up to the death of that person, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified. (4) Where the legal representative referred to in subsection (3) is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained in sub-sections (1) and (2) shall apply. (4) Where the legal representative referred to in subsection (3) is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained in sub-sections (1) and (2) shall apply. (5) Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died. Explanation : For the purposes of this section 'minor' includes a child in the womb. 7. Disability of one of several persons. - Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased. Explanation I : This section applies to a discharge from every kind of liability, including a liability in respect of any immovable property. Explanation II: For the purposes of this section, the manager of a Hindu undivided family governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property. 8. Special exceptions. - Nothing in section 6 or in section 7 applies to suits to enforce rights of preemption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application." 18. Section 8 is proviso to Section 6 and 7. Section 8 is proviso to Section 6 and 7. A combined effect of Sections 6 and 8 read with third column of the appropriate article would be that a person under disability may sue after cessation of disability within the same period as would otherwise be allowed from the time specified therefore in the third column of the Schedule but special limitation as an exception has been provided in Section 8 laying down that extended period after cessation of the disability would not be beyond three years from the date of cessation of the disability or death of the disabled person. In each case, the litigant is entitled to a fresh period of limitation from the date of cessation of disability subject to the condition that in no case the period extended by this process under Section 6 or 7 shall exceed three years from the date of cessation of the disability. This is the legal position as per the mandate of Hon'ble Apex Court. 19. Looking to the present case, it appears that the present plaintiffs have filed a joint written statement (Ex. D/1) before the trial Court in earlier suit (116-A/1965). Plaintiff No. 3 Khumanobai and another daughter Ganeshibai were major when they put their signatures over the written statement. Similarly, in respect of Amnibai, no cogent evidence has been produced by the plaintiffs showing her status as minor at the time of earlier suit of 1965. Although Amnibai not even entered into the witness box before the trial Court to substantiate her claim as a minor at the time of passing of decree of 1965. only plaintiff left was Chironjibai where she could have established her status as minor at the relevant point of time but in her deposition as PW/1 she has rather created a doubt through her deposition especially in paragraphs 9, 23,24 and 40 which are mutually contradictory and inconsistent. Other document exhibited by the plaintiffs are also not sufficiently lucent to reach home the conclusions in respect of their submissions. Appellate Court had already dealt with in extenso regarding the same. 20. Even if, the date of birth of plaintiff No. 1 Chironjibai is taken to be as 9/12/1954, even then, she attained the majority on 9/12/1972 and therefore, she had the limitation available for her till 9/12/1975 but she filed the present suit on 29/9/1982 which is barred by time. 21. 20. Even if, the date of birth of plaintiff No. 1 Chironjibai is taken to be as 9/12/1954, even then, she attained the majority on 9/12/1972 and therefore, she had the limitation available for her till 9/12/1975 but she filed the present suit on 29/9/1982 which is barred by time. 21. In the overall facts and circumstances of the case, Article 60 of the Limitation Act would apply here. Even otherwise, appellants/plaintiffs have not demonstrated sufficiently about their date of knowledge and have casually referred the date for making an attempt to show the suit within limitation. Even otherwise, in the present suit neither the decree passed in Civil Suit No. 116-A/1965 dated 9/10/1965 has been produced nor khasra entries/mutation order dated 5/7/1966 has been produced to substantiate the claim. The judgment of Hon'ble Apex Court as passed in the matter of Darshan Singh and Ors. v. Gurdev Singh, (1994) 6 SCC 585 , Asharfi Lal v. Koili (Smt.) Dead by Lrs, (1995) 4 SCC 163 , Utha Moidu Haji v. Kuniningarath Kunhabdulla and Ors., (2007) 14 SCC 792 and Sneh Gupta v. Devi Sarup and Ors., (2009) 6 SCC 194 support the case of the respondents/defendants and categorically provides that the limitation is a statute of repose and if the suit is not filed within the period of limitation then the remedy would be barred. Similarly, Hon'ble Apex Court has held in these judgments while interpreting Section 6,7 and 8 of the Limitation Act as well as Order 32 of CPC and Section 44 of the Indian Evidence Act that limitation is to be construed strictly in accordance with the provisions of Limitation Act. The relevant extract of Hon'ble Apex Court judgment in the case of Sneh Gupta (supra) is reproduced as under:- "67. We are concerned herein with a question of limitation. The compromise decree, as indicated hereinbefore, even if void was required to be set aside. A consent decree, as is well known, is as good as a contested decree. Such a decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963 would be applicable. It is not the law that where the decree is void, no period of limitation shall be attracted at all. Such a decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963 would be applicable. It is not the law that where the decree is void, no period of limitation shall be attracted at all. In State of Rajasthan v. D.R. Laxmi, [ (1996) 6 SCC 445 ], this Court held : "10. The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances. It is seen that the acquisition has become final and not only possession had already been taken but reference was also sought for; the award of the Court under Section 26 enhancing the compensation was also accepted. The order of the appellate court had also become final. Under those circumstances, the acquisition proceedings having become final and the compensation determined also having become final, the High Court was highly unjustified in interfering with and in quashing the notification under Section 4 (1) and declaration under Section 6." On the other hand, the judgments as cited by the counsel for appellants are not applicable in the present set of facts. The overall fact situation of the case and conduct of the parties (especially plaintiffs) suggest that judgments as cited by the respondents/defendants are applicable in the present case. Thus, from the above discussion it is apparent that neither the plaintiff No. 1 has filed the suit within three years after attaining the majority nor the plaintiff No. 3 Khumanobai filed the suit within three years after giving the consent in earlier suit No. 116-A/65. Therefore, the present suit is bared by limitation and has rightly been dismissed by the lower appellate Court. Therefore, the present suit is bared by limitation and has rightly been dismissed by the lower appellate Court. Plaintiffs could not prove their case on the basis of oral and documentary evidence. 22. The substantial question of law is answered accordingly. 23. Resultantly, the appeal fails and is hereby dismissed.