2018 (5) TMI 2149 - HC - Indian Laws

Suit seeking declaration, partition, possession and injunction dismissed - dismissal on the ground that the same was barred by limitation - suit have not been properly appreciated and examined - principles of natural justice - HELD THAT - The first and foremost argument of the learned counsel of the appellant is that the learned Single Judge ought to have followed the mandate of Section 26 of CPC and issued the summons to the respondents. By not doing so and dismissing the suit at the initial stage, he has acted in violation of the provisions of CPC and, therefore, the findings need to be set aside on this ground alone - There is no doubt that Section 26 of CPC requires that when a suit has been instituted on the presentation of a plaint, the summons be issued to the respondents in terms of Section 27 of CPC. The mandate of Section 26 of CPC is to issue summon when a plaint is presented, supported by an affidavit. The stage for issuance of summons to the opposite party arises only when the Court is satisfied that the suit is 'duly instituted. A suit which is barred by limitation, or does not disclose any cause of action, i.e. if it is barred by provisions of Order VII Rule 11 of CPC or any other law cannot be said to be a suit which is duly instituted and Courts are not bound to issue summons in such cases and are within their power to dismiss the same in limine. The contention, therefore, that the learned Single Judge could not have dismissed the suit at the initial stage, has no merit - There is no dispute that while arriving at the conclusion under Order VII Rule 11 of CPC, the Court has to rely solely on the averments in the plaint and also the documents relied upon by the petitioner in support of his/her contentions in the plaint. It is a well settled principle of law. The claim of the appellant that the period of limitation is to be reckoned from the date of cause of action i.e. when there arose a need to challenge the instrument, has no force in it. The period of limitation to challenge the instrument once start running does not stop. The plaint is bereft of any facts, showing as to why it should be reckoned from the date of alleged cause of action and not from the date of execution of the instrument. There are no illegality or perversity in the impugned order. The impugned order needs no interference - appeal dismissed.

Summary

Issues Involved:
1. Barred by Limitation
2. Issuance of Summons
3. Rejection of Plaint
4. Period of Limitation
5. Knowledge of Instrument
6. Cause of Action

Issue-wise Detailed Analysis:

1. Barred by Limitation:
The appellant challenged the dismissal of her suit seeking declaration, partition, possession, and injunction regarding a property, which was dismissed at the threshold by the Single Judge on the ground that it was barred by limitation. The court emphasized that under Section 3 of the Limitation Act, every suit instituted after the prescribed period must be dismissed, even if limitation is not set up as a defense.

2. Issuance of Summons:
The appellant argued that the Single Judge violated Section 26 of the CPC by not issuing summons to the respondents before dismissing the suit. Section 26 requires that every suit be instituted by presenting a plaint, and facts must be proved by affidavit. However, the court clarified that the stage for issuance of summons arises only when the suit is "duly instituted," meaning it is not barred by any law, including limitation.

3. Rejection of Plaint:
The court discussed Order VII Rule 11 of CPC, which allows the rejection of a plaint if it does not disclose a cause of action or is barred by any law. The court reiterated that it is duty-bound to reject a plaint if it is barred by the provisions of the Limitation Act, even at the initial stage, without issuing summons.

4. Period of Limitation:
The appellant contended that the suit was governed by Article 59 of the Limitation Act, which provides a three-year limitation period from the date the facts entitling the plaintiff to have the instrument canceled first became known. The court found that the appellant failed to plead any facts in the plaint regarding the period of limitation or any exemption to exclude certain periods while calculating the limitation period.

5. Knowledge of Instrument:
The court noted that the appellant did not disclose the date on which she gained knowledge of the settlement deed dated 11.11.1980. The appellant signed the deed, and in the absence of any pleadings to the contrary, the knowledge of the deed was assigned to the date it was signed, i.e., 11.11.1980. The court emphasized that once the period of limitation begins, it does not stop, and no subsequent disability or inability stops it.

6. Cause of Action:
The appellant argued that the cause of action arose when there was a need to challenge the instrument. However, the court held that the period of limitation to challenge the instrument starts running from the date of execution, not from the date of the alleged cause of action. The court found that the appellant's claim that the period of limitation should be reckoned from the date of cause of action had no merit.

Conclusion:
The court concluded that the appellant's suit was barred by limitation and dismissed it with exemplary costs. The impugned order was found to be legal and not perverse, and the appeal was dismissed along with pending applications with no order as to costs.