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2024 DIGILAW 1135 (PNJ)

Anil Kumar v. Jasbir Singh (Deceased)

2024-08-07

DEEPAK GUPTA

body2024
JUDGMENT Mr. Deepak Gupta, J. Petitioner before this Court is one of the plaintiff in Civil Suit bearing CNR No.PBSA02-000492-2017 titled as "Anil Kumar and others v. Jasveer Singh and another". He is aggrieved by the order dated 21.02.2024 (Annexure P-16) passed by learned Additional Civil Judge, Senior Division, SAS Nagar, Mohali, whereby the plaint has been rejected under Order 7, Rule 11 CPC on the application moved by the defendants. Under challenge is also the order dated 04.05.2024 (Annexure P-18), whereby Civil Appeal No.66 of 2024 (CNR No.PBSA01-002179-2024) filed by the plaintiffs against the aforesaid order was dismissed by learned Additional District Judge, SAS Nagar, Mohali. 2. Contention of learned counsel for the petitioner is that plaint has been rejected on the ground that it was barred by limitation. It is despite the fact that the dispute related to the genuinity of the impugned allotment letters, was continuously pending before the Consumer Fora since 2008. 3. The case as pleaded by the plaintiffs Anil Kumar and others in the plaint (Annexure P-5) is that one of the plaintiffs (Anil Kumar) was abducted by defendants (respondents herein) and some other unidentified persons on 09.07.2006, regarding which FIR No. 183 dated 26.09.2007 was registered at Police Station, Zirakpur under Sections 364-A, 382, 420, 467 IPC etc. It had been alleged in the FIR that during his kidnapping period, the defendants alongwith other accused had snatched his various documents including original sale deed of various properties etc. at gun point and had obtained his signature and also that of his wife on various blank papers on the letter heads of company of plaintiff No.1 and on some blank papers forcibly under the fear of death. The forged and fabricated allotment letters were later on recovered during the investigation of FIR No. 183 (supra). 3.1 On the other hand, in 2008 the two defendants filed separate complaints before the District Consumer Forum at Chandigarh seeking refund of the amount as deposited by them allegedly with the plaintiffs for allotment of the two flats and that the possession of the two flats had not been delivered to them. Those consumer cases were contested by the petitioner on the ground that these were based upon the forged and fabricated documents. Those consumer cases were contested by the petitioner on the ground that these were based upon the forged and fabricated documents. The District Forum dismissed the consumer complaints as filed by the defendants-respondents, holding that the allotment letters were not adequate to prove the payment of deposit and allotment of flats vide order dated 08.12.2008 (Annexure P-2). However, the State Commission vide its order dated 04.11.2010 (Annexure P-3) allowed the appeals, as filed by the consumers/ defendants/respondents herein by relying upon the allotment letters. 3.2 In the meantime, in the criminal case as lodged on the complaint of the petitioner, the defendants as well as other accused were arrested and separate challans qua them were filed from time to time. The respondents were acquitted of the charges on 24.03.2015 by the trial Court. The appeal as filed by the petitioner against the acquittal was dismissed by this High Court on 29.03.2017 vide Annexure P4 and it was opined that even if the accused were convicted, the petitioner would have to approach the Civil Court to declare the alleged draft allotment letters as forged and fabricated. 3.3 It is contended that subsequent to the observations made by the High Court, petitioner filed the present civil suit against the defendants for setting aside the draft allotment letters to be forged and fabricated documents. 3.4 In the meantime, against the order of the State Consumer Commission, appeal was filed by the petitioner before the National Consumer Dispute Redressal Commission, where issue of jurisdiction was formulated on 25.07.2018, as to whether the dispute pertaining to the forgery of the documents could be determined through summary trial under the 1986 Act i.e. Consumer Protection Act. 3.5 The present civil suit as filed by the plaintiffs was decreed ex parte on 17.05.2019 vide Annexure P7. In the parallel proceedings, which were pending before the National Commission Dispute Redressal Commission, it was concluded vide order dated 17.6.2020 (Annexure P8) that the dispute pertaining to the forgery of documents could not be summarily tried under the Consumer Protection Act, 1986 and the parties were directed to approach the Civil Court. In the parallel proceedings, which were pending before the National Commission Dispute Redressal Commission, it was concluded vide order dated 17.6.2020 (Annexure P8) that the dispute pertaining to the forgery of documents could not be summarily tried under the Consumer Protection Act, 1986 and the parties were directed to approach the Civil Court. However, since on the one hand, defendants and other accused were acquitted in the criminal case and on the other hand, the civil suit filed by the plaintiff was decreed ex parte, therefore, it was opined that till the ex parte order was set aside, the proceedings shall remain pending before the National Commission and the matter was adjourned for a period of another six months. 3.6 Later on, vide an order dated 07.10.2021 (Annexure P11) in the revision petition, it was opined by the National Consumer Commission that the Commission had jurisdiction in the matter and that Civil Suit No.48 of 2017 had been wrongly decreed ex parte by the Civil Judge. 3.7 Against the order of the National Commission, petitioner filed civil writ petitions before Delhi High Court, which are still pending. 3.8 The ex parte judgment and decree passed in the civil suit was set aside by the trial Court on 20.09.2023 on application under 9 Rule 13 CPC and thereafter, the respondents-defendants moved application under Order 7, Rule 11 CPC for rejection of the plaint on the ground of limitation and absence of cause of action. Objection to this application was raised by the plaintiffs to the effect that limitation could not be decided as a preliminary issue without allowing him to lead evidence. However, the Court of learned Additional Civil Judge rejected the plaint under Order 7, Rule 11 CPC vide impugned order dated 21.02.2024 (Annexure P-16) by holding that suit was clearly bared by limitation. The said order has been upheld by the Appellate Court vide impugned order dated 04.05.2024 (Annexure P-18). 4. However, the Court of learned Additional Civil Judge rejected the plaint under Order 7, Rule 11 CPC vide impugned order dated 21.02.2024 (Annexure P-16) by holding that suit was clearly bared by limitation. The said order has been upheld by the Appellate Court vide impugned order dated 04.05.2024 (Annexure P-18). 4. Assailing the aforesaid orders, the sole contention raised by learned counsel for the petitioner is that since the issue of genuinity of the impugned allotment letters in favour of the defendants was continuously pending before the Consumer Fora since 2008, therefore, Civil Court could not hold the suit to be beyond limitation, especially in view of Section 14 of the Limitation Act and that in the peculiar facts and circumstances of the case, the point of limitation could not be decided as a preliminary issue, without affording opportunity to the petitioner-plaintiff to produce evidence in this regard. Learned counsel has referred to "Trai Foods v. National Insurance Company and Others", an order passed by Hon'ble Supreme Court of India on 31.01.2003 and also "UOI v. State Commissioner, Consumer Protection", decided by Allahabad High Court on 15.03.2011. 5. Strongly opposing the petition, it is contended by learned counsel for respondents that both the Courts below have rightly come to the conclusion that the suit was barred by limitation and therefore, the plaint was rightly rejected, by relying upon the judgment of Hon'ble Supreme Court rendered in "Raghwendra Sharan Singh v. Ram Prasanna Singh" Law Finder Doc Id # 13952025. 5.1 Learned counsel has also drawn attention towards to the final order as passed by the National Consumer Commission, in which it was specifically observed that the remedy available under the Consumer Protection Act could not be allowed to be frustrated by filing frivolous and false civil and criminal cases and that Limitation Act, 1963 provided three years limitation for filing a suit for cancellation of a document and that petitioner Anil Kumar was contesting the consumer complaints since 2008 and had the knowledge of allotment letters dated 04.03.2006 at least from the date of filing the written reply in the consumer complaints. It was held that Civil Suit No.48 of 2017 was long barred by limitation and ought to have been dismissed as time barred in lieu of the legislative mandate under section 3 of the Limitation Act, 1963 and that issue of limitation is an issue of jurisdiction. It was held that Civil Suit No.48 of 2017 was long barred by limitation and ought to have been dismissed as time barred in lieu of the legislative mandate under section 3 of the Limitation Act, 1963 and that issue of limitation is an issue of jurisdiction. Civil Court had no jurisdiction to decree the suit and that ex parte decree dated 17.05.2019 passed in the Civil Suit No.48 of 2017 was a nullity. 5.2 Learned counsel contends that from the findings of the Hon'ble National Commission, it is clear that plaintiff wants to harass and usurp the hard earned money invested by the defendants-respondents with the plaintiff-petitioner by filing time barred suit, which are false and frivolous. Learned counsel has also drawn attention towards the fact that as many as nine similar FIRs are pending against the plaintiff and his brothers and other Directors of the Shivalik Company. He has also given details of those FIRs. Prayer is made for dismissal of the petition. 6. Replying to the aforesaid contention, it is contended by learned counsel for the petitioner that National Consumer Commission has exceeded its jurisdiction in holding the present suit to be barred by limitation and that order is already under challenge before Delhi High Court. 7. I have considered submissions of both the sides and have perused the paper-book. 8. Subject matter of dispute are the allotment letters dated 06.03.2006 and 04.03.2006 respectively in favour of defendant No.2 and deceased defendant No.1, who is now represented through his legal representatives, in respect of two flats bearing flat No.101 and 104 situated in Shivalik Apartments, Kharar. Plaintiffs alleged these allotment letters to be forged and fabricated documents, having been prepared by the defendants by converting the blank signed papers, which were procured from the plaintiff No.1/petitioner Anil during his kidnapping period, regarding which he had lodged an FIR No.183 dated 26.09.2007 at Police Station, Zirakpur. It is not in dispute that in 2008, consumer complaints were filed by the defendants seeking refund of their amount of Rs. 11,00,000/- each, which they had paid towards allotment of the flats and as the possession of the flats had not been delivered to them. It is not in dispute that in 2008, consumer complaints were filed by the defendants seeking refund of their amount of Rs. 11,00,000/- each, which they had paid towards allotment of the flats and as the possession of the flats had not been delivered to them. Reply to those complaints was filed by the plaintiffs in 2008 itself and as such, the courts below have rightly observed that at least in 2008, it had come to the knowledge of the plaintiffs that the allotment letters were being relied by the defendants. In case, the stand of plaintiffs was that those allotment letters were forged and fabricated documents, he could have sought the annulment/cancellation thereof by bringing a suit for declaration in this regard within three years from the date of his knowledge. However, the present suit has been filed in 2017 i.e. after a gap of almost nine years. 9. The contention of the petitioner that since the matter was pending before the Consumer Fora since 2008, therefore, the time spent thereat should be excluded under Section 14 of the Limitation Act, has no merit. This is true that at one point of time, vide its order dated 17.06.2020, the National Consumer Commission, took note of the fact that in the proceedings of the criminal case, it was observed by the High Court that hand-writing expert had opined that the signature of Anil Kumar on the allotment letter was genuine and on the other hand, the Additional Civil Judge (Senior Division) while decreeing the suit ex parte had held the two draft allotment letters with forged and fabricated documents and by noticing these contrary findings, it was opined by the National Consumer Commission that since the matter had gone to the Civil Court in respect of genuinity of two draft allotment letters, so it was needed to be decided finally, as order of Civil Court was only ex parte order and it was in these circumstances that six months' time was given to the consumers/defendants so as to get the issue of genuinity of the draft allotment letter decided by the Civil Court on contest. However, later on vide its final order dated 07.10.2021 (copy Annexure-P-11) in Revision Petition No. 4377 of 2010, the National Consumer Dispute Redressal Commission, New Delhi observed as under: "10. However, later on vide its final order dated 07.10.2021 (copy Annexure-P-11) in Revision Petition No. 4377 of 2010, the National Consumer Dispute Redressal Commission, New Delhi observed as under: "10. Anil Kumar filed another civil suit i.e. Civil Suit No. 48 of 20.04.2017, against Jasbir Singh and Kuldeep Singh, concealing the material facts of filing Civil Suit i.e. RT No. 845 of 07.11.2006/ 14.03.2007 as well as criminal case, which resulted in acquittal. In this suit, services of summons were affected through publication and exparte decree was passed on 17.05.2019. On coming to know about the ex-parte decree, the complainants Jasbir Singh and Kuldeep Singh filed an application under Order 9, Rule 13 C.P.C., on 28.01.2020, for seeing aside ex-parte decree, dated 17.05.2019. The application could not be heard till today, due to Covid-19 and still pending. 11. Anil Kumar did not challenge the genuineness of his signature on allotment letter dated 06.03.2006, which contained his acknowledgment of receipt of Rs. 11 lakh. He took the plea that his signatures have been obtained on blank papers, during his abduction, which have been utilised for fabricating allotment letters. High Court in its order dated 29.03.2017, passed in Criminal Appeal D-531 DB of 2015, has specifically held that the prosecution had failed to prove that allotment letters were fabricated documents. In such circumstances, State Commission has not committed any error in directing Anil Kumar to refund the money recovered from the complainant as mentioned in allotment letter. State Commission has also recorded finding that Anil Kumar was in habit of cheating various consumers by collecting money from them and issuing such allotment letters, for which several criminal cases were lodged against him. This finding has not been challenged at all. The argument that highly complicated issue of fact is involved in the complaint is not liable to be accepted. 12. By virtue of section 3 of Consumer Protection Act, 1986, a consumer is provided additional speedy and inexpensive remedy to approach Consumer Forum. The consumer is a dominus litus and has right to choose his forum. The remedy available under Consumer Protection Act, 1986 cannot be allowed to be frustrated by filing frivolous and false criminal and civil cases. Limitation Act, 1963, provides three years limitation, for a suit for cancellation of a document. The consumer is a dominus litus and has right to choose his forum. The remedy available under Consumer Protection Act, 1986 cannot be allowed to be frustrated by filing frivolous and false criminal and civil cases. Limitation Act, 1963, provides three years limitation, for a suit for cancellation of a document. Anil Kumar was contesting consumer complaints, since 2008 and had knowledge of allotment letters dated 06.03.2006, at least from the date of filing his written reply in the consumer complaints. Civil Suit No. 48 of 20.04.2017 was long barred by limitation and ought to have been dismissed as time barred in view of legislative mandate under section 3 of the Limitation Act, 1963. Issue of limitation is an issue of jurisdiction. Civil Judge had no jurisdiction to decree the suit and the ex-parte decree dated 17.05.2019, passed in Civil Suit No.48 of 20.04.2017 is nullity." 10. It is, thus, clear that the National Consumer Commission held that the consumer being the dominus litus had a right to choose his Forum and that remedy was available to him under the Consumer Protection Act, which could not be allowed to be frustrated by filing false and frivolous civil or criminal cases. It was also observed that the Limitation Act, 1963 provided three years limitation for a suit for cancellation of a document. As Anil Kumar plaintiff was contesting the consumer complaints since 2008 and had knowledge of the allotment letter dated 06.03.2006, so at least from the date of filing of the written reply in the consumer complaints, he had the knowledge of the same and as such, the present civil suit was long barred by the limitation and ought to have been dismissed as time barred in view of the legislative mandate under Section 3 of the Limitation Act. 11. As far as the contention of counsel for the petitioner that the National Consumer Commission has exceeded its jurisdiction in making the aforesaid observations, the said issue is still under consideration before Delhi High Court in civil writ petitions filed by the petitioner. 11. As far as the contention of counsel for the petitioner that the National Consumer Commission has exceeded its jurisdiction in making the aforesaid observations, the said issue is still under consideration before Delhi High Court in civil writ petitions filed by the petitioner. As of now, the position is that the National Consumer Commission has come to the conclusion that it had jurisdiction in the matter and as such, it cannot be pleaded by the petitioner that since the matter was pending before the Consumer Fora 2008, therefore, he did not file the suit since 2008 or that the present suit is within limitation by excluding the intervening period under Section 14 of the Limitation Act. 12. It may be noted here itself that when the suit was filed in 2017, the matter was still pending before the National Consumer Commission and therefore, at that time, there was no such issue that as to whether the Consumer Fora had the jurisdiction or not. Meaning thereby the plaintiffs-petitioners intentionally and deliberately so as to delay the proceedings, brought the present suit after nine years of gaining knowledge about the matter in question. 13. In the aforesaid facts and circumstances, it cannot be pleaded that the issue of limitation was a mixed question of facts and law. The suit was clearly barred by limitation, as has been rightly observed by both the Courts below, which have rightly referred to the judgment under Supreme Court as rendered in "Raghwendra Sharan Singh v. Ram Prasanna Singh" (supra), wherein it was held as under: "Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the case of Ram Prakash Gupta (supra), considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7, Rule 11 (d) of the CPC. In view of the above and for the reasons stated above, we are of the opinion that both the High Court as well as the learned trial Court have erred in not exercising the powers under Order 7, Rule 11 of the CPC and in not rejecting the plaint in exercise of powers under Order 7, Rule 11 of the CPC. For the reasons stated above, the impugned judgment and order passed by the High Court as well as the trial Court cannot be sustained and the same deserve to be quashed and set aside. Consequently, the impugned judgment and order passed by the High Court dated 12.03.2013 as well as the order passed by the Munsif, Danapur rejecting the Order 7, Rule 11 application filed by the original defendant are hereby set aside. Consequently, the application submitted by the appellant herein original defendant to reject the plaint under Order 7, Rule 11 of the CPC is hereby allowed and the plaint, being Title Suit No. 19 of 2003 is hereby rejected. The present appeal is allowed accordingly in terms of the above. No costs." 14. Consequent to the entire discussion as above, this court does not find any illegality in the impugned orders as passed by the courts below. Holding the present revision to be devoid of any merit, the same is hereby dismissed.