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2018 DIGILAW 282 (HP)

Chiplu Ram v. State Of H. P.

2018-03-08

VIVEK SINGH THAKUR

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JUDGMENT Vivek Singh Thakur, J. - This application has been filed seeking amendment in writ petition for incorporating certain sub-paras in para 7 of the petition to raise plea that application for redemption, filed by respondent No. 6 Arun Kumar under the provisions of H.P.Tenancy and Land Reforms Act 1972, was barred by limitation, as the said application, as per H.P. Tenancy and Land Reforms Rules, could have been filed within six months from the date of attaining majority by the said respondent, but was filed after two years of attaining majority. 2. Application has been contested by respondents mainly on the ground that no such objection was taken before the Courts below and amendment sought is barred by inordinate delay and latches and allowing of amendment of writ petition at this stage would cause serious prejudice to respondents No. 5 and 6 jeoparadising their valuable rights. It is also contended that application is neither bonafide nor has been moved with due diligence and as the ground now sought to be raised was within the knowledge of petitioners, the same cannot be allowed to be raised by way of amendment of petition when the case has been listed for final hearing and more particularly, when the petitioners have taken adjournments on a number of times. 3. I have heard learned counsel for the parties and have also gone through the record. 4. Learned counsel for the petitioners submits that the facts regarding date of death of Smt. Gharini Devi, predecessor- in-interest of respondents No. 5 and 6, filing of application by these respondents for redemption of land and other documents necessary for determining the issue of limitation, sought to be incoroporated by way of amendment, are already on record. No new document or fact is intended to be placed on record except incorporation of plea of limitation in the writ petition. 5. Relying upon Vineet Kumar vs. Mangal Sain Wadhera (1984)3 SCC 352 learned counsel for the petitioners has argued that as the amendment sought does not constitute an addition of a new cause of action, or raising a new case, but amounts to no more than adding to the facts already on the record, the amendment should be allowed at this stage to promote substantial justice. 6. 6. Another judgment of the Constitutional Bench in case Management of the State Bank of Hyderabad vs. Vasudev Anant Bhide and others AIR 1970 SC 196 has also been relied upon, wherein also appellant was permitted to raise plea of limitation as no fresh fact had to be investigated and as the matter could be dealt with as a pure question of law. 7. Reliance has also been put by the petitioners on the observations of the Apex Court in Muni Lai vs. Oriental Fire and General Insurance Co.Ltd and another (1996)1 SCC 90 wherein it is stated that Section 3 of the Limitation Act speaks of bar of limitation providing that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, after the prescribed period shall be dismissed, although limitation has not been set up as the defence. In other words, unless there is a power for the court to condone the delay, as provided under Sections 4 to 24 (inclusive), every suit instituted after the prescribed period shall be dismissed although limitation has not been set up as the defence. 8. Similarly, judgment in Manindra Land and Building Corporation Ltd. vs. Bhutnath Banerjee and others AIR 1964 SC 1336 of the Constitutional Bench has also been referred by quoting observations therein that Section 3 of the Limitation Act enjoins a Court to dismiss any suit instituted, appeal preferred and application made, after the period of limitation prescribed therefor by Schedule I irrespective of the fact whether the opponent has set up the plea of limitation or not and it is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed. The Court has no choice and if in construing the necessary provision of the Limitation Act or in determining which provisions of the Limitation Act applies, the subordinate Court comes to an erroneous decision, it is open to the Court in revision to interfere with that conclusion as that conclusion has led the Court to assume or not to assume the jurisdiction to proceed with the determination of that matter. 9. Observations in Gannmani Anasuya and others vs. Parvatini Amarendra Chowdhary and others (2007)10 SCC 296 to the same effect have also been relied upon by the petitioners. 10. 9. Observations in Gannmani Anasuya and others vs. Parvatini Amarendra Chowdhary and others (2007)10 SCC 296 to the same effect have also been relied upon by the petitioners. 10. Learned counsel for the petitioners has also referred the judgment in Municipal Council, Ahmednagar and another vs. Shah Hyder Beig and others (2000)2 SCC 48 wherein it is stated that it is true that the plea of limitation ought to be raised at the first available opportunity but that does not mean and imply that the party raising it even during the course of hearing would be barred therefrom. Limitation is a mixed question of law and fact. Time barred claim would not even be entertained by a civil court without there being any opportunity of filing a pleading by the respondents or the defendants in a civil suit. 11. Similarly, judgment in case Lachhman Singh (deceased) through LRs and others vs. Hazara Singh (Deceased) through LRs reported in (2008)5 SCC 444 has been referred wherein it is held that limitation is a question of jurisdiction and Section 3 of the Limitation Act puts an embargo on the Court to entertain a suit if it is found to be barred by limitation. 12. Judgment in case Kamlesh Babu and others vs. Lajpat Rai Sharma and others (2008)12 SCC 577 has also been relied on the same proposition of law wherein it is held that a point of limitation is prima facie admissible even in the Court of last resort, although it had not been taken in the lower Courts. 13. Learned counsel for respondents No. 5 and 6 has convassed that on filing of application for redemption by respondent No. 6 Arun Kumar, petitioners were duly served but they opted to remain absent despite due service as evident from order dated 25.2.1999 (Annexure P-2) and the said order has been upheld upto the Financial Commissioner level and now at this stage petitioners cannot be allowed to raise issue of limitation. It is contended that ground set up for assailing the impugned redemption of land was that as the landlady died after enactment of Act, application could not have filed by her successors through ''Will'' and also that entire land could not have been resumed and only 1/2 acre of irrigated and 3 acre of unirrigated land could have been redeemed and further that redemption of land was not agitated on the ground that application filed by respondent No. 6 was beyond limitation period. It is also argued that in revision petition preferred before the Financial Commissioner, initially plea of not filing the application for redemption within six months period after attaining majority was raised and revision petition was admitted by the Financial Commissioner on the said issue, but at the time of final hearing, no such issue was raised and thus now petitioners cannot be permitted to raise such issue at this stage, as the matter is alive since ages and petitioners, well aware about issue of limitation, did not agitate the same before the lower Courts and it is also submitted that parties cannot be taken to surprise at the last stage of litigation and there is unexplained and inordinate delay in raising the issue and thus amendment sought is not legally permissible and present application has been filed to linger on present proceedings. 14. Learned Deputy Advocate General has reiterated the grounds taken in reply and has supported the contentions raised by respondents No. 5 and 6. 15. Instant application has been filed stating therein that at the time of filing of writ petition, plea proposed to be incorporated in writ petition could not be incorporated for want of availability of complete record and it is only on inspection of record in this Court after the receipt of same in this Court, certain facts were noticed leading to filing of this application. 16 Present revision petition is not a first step litigation but is a petition filed for judicial review of the decision, arrived at by the highest competent authority prescribed in complete mechanism provided under the H.P Tenancy and Land Reforms Act. 16 Present revision petition is not a first step litigation but is a petition filed for judicial review of the decision, arrived at by the highest competent authority prescribed in complete mechanism provided under the H.P Tenancy and Land Reforms Act. Therefore, plea that certain facts were noticed only during pendency of present writ petition cannot be a good ground for filing this application as parties are agitating and contesting their respective claims since 1981.Therefore, in this background, no new plea can be permitted to be taken at this stage despite the fact that writ petition in this Court has been filed invoking the original side jurisdiction of the Court. 17. Be that as it may, as propounded by the Hon''ble Apex Court in numerous judgments, question of limitation is a mixed question of facts and law and Section 3 of Limitation Act, 1963 casts the duty upon Court to dismiss a time barred suit insituted, appeal preferred and efforts made after prescribed period even though limitation has not been set up as a defence. In present case, the facts and circumstances are already on record. Various dates such as date of death of Gharini Devi, attestation of mutation, date of attaining majority by respondent No. 6 and date of filing of application for redemption by respondent No. 6 are matters on record, which are undisputed. Provisions of Rule 21 of H.P. Tenancy and Land Reforms Act are also unambiguous. No new facts are required to be placed on record to consider the question of limitation in terms of H.P.Tenancy and Land Reforms Act for filing an application for redemption by respondent No.6 after attaining the age of majority. Therefore, in the present case question of limitation is a pure question of law to be determined on the basis of material already on record and thus can be raised at any time and failure of the first Court to consider this question can be agitated at this stage. 18. The fundamental issue in plea of limitation raised by the petitioners is that allowing application filed for redemption of land in favour of respondent No. 5 is against the provisions of Section 3 of Limitation Act, 1963. 18. The fundamental issue in plea of limitation raised by the petitioners is that allowing application filed for redemption of land in favour of respondent No. 5 is against the provisions of Section 3 of Limitation Act, 1963. In ground (a) of para 7 of the writ petition it has been specifically pleaded that impugned order passed by the Financial Commissioner affirming the orders passed by the Courts below allowing the application filed for redemption of land in favour of respondents No. 5 and 6 is against law. In my opinion, any issue which is purely question of law can be covered in this ground. In present case, as observed supra, issue of limitation is purely question of law, and therefore, can be encompassed in ground (a) of para 7 of the writ petition and there was/is no necessity for filing present application much less to allow the same. Otherwise also, respondents themselves have canvassed that revision petition before the Financial Commissioner was admitted on the issue of six months limitation period for filing the application for redemption but the said issue was not raised at the time of final hearing. On this ground also, ground 7(a) of writ petition can be considered in continuity with issue raised before the revenue Courts. 19 Case law referred by the petitioners also does not warrant any amendment as sought in present application as such issue, in given facts and circumstances of the present case, can be raised without incorporating the proposed amendment in writ petition. 20 In view of above observations, I hold that in present case parties are at liberty to raise and defend the issue of limitation with respect to filing of application for redemption by respondent No. 6, on the basis of material already on record, at the time of final hearing of the case for which no amendment in pleadings is required and hence present application is dismissed. 21. Observations made in this order will not affect the merits of civil writ petition in any manner and will strictly confine for the disposal of this application.