$~J *IN THE HIGH COURT OF DELHI AT NEW DELHI. + IA 16973/2013 in CC 50/2013 in CS(OS) 626/2012. versus

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1 $~J *IN THE HIGH COURT OF DELHI AT NEW DELHI + IA 16973/2013 in CC 50/2013 in CS(OS) 626/2012 Date of Reserve: April 07, 2015 Date of Decision:July 31, 2015 JASBIR SINGH LAMBA & ORS... Plaintiffs Through Mr.S.S.Panwar and Ms.Nivedita Panwar, Advs. versus PHOOLWATI & ORS Through CORAM: HON'BLE MR. JUSTICE JAYANT NATH JAYANT NATH, J.... Defendants Mr.K.Venkataraman, Mr.Dinesh Kr.Chawla, Advs. 1. This application is filed under Order 7 Rule 11 CPC by the plaintiffs for rejection of the counter claim. 2. The plaintiffs have filed the present suit seeking a decree of declaration in favour of the plaintiffs declaring that the plaintiffs are the absolute owner of the suit property measuring 1000 Sq yds out of a plot of 1800 Sq. yds. comprising khasra no. 154 situated within the extended abadi of Village Mohammadpur Majri, Kanjhawala Road, Delhi and also for a decree of possession, permanent injunction and damages/mesne profits in respect of the suit property. 3. As per the averments in the plaint, the suit property was purchased by the plaintiffs vide three registered sale deeds all dated The plaintiffs filed an earlier suit for permanent injunction in Rohini Courts, CS(OS) 626/2012 Page 1 of 9

2 but the same was withdrawn with liberty to file a fresh suit. Hence the present suit. It is urged that the defendants have encroached upon the suit property in May, 2010 after removing the partition wall which was running in the suit property between the property of the plaintiffs and that of the defendants. It is further stated that the electricity meter of the plaintiff installed in their room was also secretly removed by the defendants behind the back of the plaintiffs. The defendants are said to be running a factory from the suit property for manufacturing wooden and steel furniture. Hence the present suit is filed seeking the aforenoted reliefs. 4. The defendants have filed their written statement. After filing of the written statement, they have also filed a counter claim. This court on permitted the defendants to file the counter claim after filing of the written statement. The counter claim which is numbered as 50/2013 seeks a decree in favour of the counter claimants and against the plaintiffs declaring the alleged sale deeds dated as fake and vague documents and not binding on the counter claimants. 5. It is the contention of the counter claimants/defendants that they are the owners of the suit property and in physical possession of the property in question. It is stated that counter claimants are illiterate persons and do not know how to read and write English and hence it is stated that taking advantage of this, one Sh. Madan Lal has in a fraudulent way, got prepared three sale deeds and in collusion with the deed writer, got them executed. The counter claimants are said to have signed the documents under the impression and belief that the deeds are mortgage deeds. CS(OS) 626/2012 Page 2 of 9

3 6. Learned counsel appearing for the plaintiffs has stated that the sale deeds are of It is urged that at no earlier stage have the defendants/counter claimants ever sought to challenge the sale deeds. Now in 2013 for the first time a challenge has been raised to the registered sale deeds. It is further pointed out that the signatures of the defendants are admitted on the deeds. Hence, it is urged that under Article 58 of the Schedule to the Limitation Act, the present counter claim is barred by limitation as the prescribed period for limitation is three years. 7. Learned counsel appearing for the defendants has however argued that the present application is liable to be dismissed as the counter claim is within limitation. It is urged that the cause of action arose for the first time only when the present suit was filed in 2012 seeking decree of possession i.e., the first time that cause of action arose within the meaning of Article 58 of the Limitation Act. Hence, it is urged that the present counter claim is within limitation. Learned counsel relies upon a judgment of this High court in Irshad Ali vs. Shahaba Begum, 67 (1997) DLT 576 where it was held by this Court that under Article 58 of the Limitation Act the cause of action for the first time will accrue to the plaintiffs when he was compelled to come to the Court by action of the defendants. 8. In rejoinder learned counsel appearing for the plaintiffs has argued that the plaintiffs had first wrongly filed a suit in the Rohini Court on based on the deeds in question. The defendants had filed written statements on The present counter claim has been filed on 22 nd May, Hence it is urged that the counter claim is filed even three years after the knowledge of the claim of the plaintiffs based CS(OS) 626/2012 Page 3 of 9

4 on the sale deed dated While considering an application under Order 7 Rule 11 CPC, the court can only look at the averments in the plaint/counter claim presuming them to be correct and the accompanying documents. In Tilak Raj Bhagat vs. Ranjit Kaur, 159 (2009) DLT 470 this court held as follows:- 6. It may be worthwhile to mention here that while considering an application under Order 7 Rule 11 CPC, the Court has to look at the averments made in the plaint by taking the same as correct on its face value as also the documents filed in support thereof. Neither defence of the defendant nor averments made in the application have to be given any weightage. Plaint has to be read as a whole together with the documents filed by the plaintiff. To the same effect are the judgements of the Division Bench of this Court in the case of Indian City Properties Ltd. Vs. Vimla Singh 198(2013) DLT 432 and in the case of Inspiration Clothes & U vs. Collby International Ltd., 88(2000) DLT Article 58 of the Limitation Act provides that a suit to obtain any declaration has to be filed within three years from the date when the right to sue first accures. It has now to be seen in the facts of this case as to when the cause of action first arose in favour of the defendants to file the counter-claim. 11. The cause of action para of the counter claim states that the cause of action arose only when the defendants had filed the present suit for possession. The counter claim makes a categorical averment that no consideration was ever received by the defendants and that they have continuously remained in physical possession of the suit land throughout CS(OS) 626/2012 Page 4 of 9

5 and are also still in possession of the suit property. In the light of the above averments in the counter claim, can the relief in the counter claim be stated to be barred by limitation at this stage. 12. This Court in the case of Irshad Ali vs. Shahaba Begum (supra) held as follows:- (6) It is well settled that what constitutes a proper cause of action must depend upon the entirety of facts mentioned in the plaint and a mere inaccuracy in stating the date of accrual of the cause of action cannot be given undue importance and considered in isolation. (See: Jethmal vs. Hiralal and others AIR 1972 RAJ 220). Though it is correct that the plaintiff in para 13 of the plaint has stated that the cause of action arose on 1st January, 1991 when the defendant disclosed the fact with regard to the execution of the Will of the mother, this statement of the plaintiff cannot be considered in isolation. The remaining facts stated in para 13 have also to be considered in conjunction with the entirety of facts stated in the plaint. In para 13 of the plaint it has also been stated that the cause of action arose on 16th March, 1994 when the defendant refused to talk to the plaintiff about the above said Will. It is further stated that the cause of action also arose on 4th January, 1995 when the defendant refused to part with monies received from the sale of the property of the mother. Para 11 of the plaint is also devoted to the sales made by the defendant. (7) In Mst. Rukhmabai vs. Lala Laxminarayan and others AIR 1960 SC 335, the Supreme Court while considering the interpretation of Article 120 of the Limitation Act, 1908 held that there cannot be any `right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe the right, by the defendant against whom the suit is instituted. The Supreme Court further held that, every threat by the defendant to such a right, however ineffective and innocuous it may be, cannot be CS(OS) 626/2012 Page 5 of 9

6 considered to be a clear and unequivocal threat so as to compel the plaintiff to file a suit. Therefore, it clearly follows that whether a particular threat gives rise to a compulsive cause of action depends upon the question whether that threat effectively invades or jeopardizes the right of the plaintiff; In other words cause of action for the first time will accrue to the plaintiff when he is compelled to come to the Court by the action of the defendant. 13. In the present case, the plaintiffs first filed a suit in the court of Senior Civil Judge, Rohini claiming a decree of perpetual injunction against the defendants herein from forcible dispossession of the alleged plaintiffs property. The suit was filed in February, The plaint contains a reference to the sale deed dated It is stated that the defendants filed a written statement on and hence as on that date they had knowledge about the sale deed and claim to the title of the plaintiffs to the suit land. It is urged that they have chosen to file the present counter claim only on or around In my opinion, the facts as pleaded by the plaintiffs cannot be accepted on the face of it. The written statement filed by the defendants before the Civil Judge, Delhi (copy of which is placed on record) no doubt states the date as However, the affidavit in support of the written statement is dated Hence was the Written Statement filed in March 2010 or June Defendants also claim to be illiterate pesons who cannot read English. Whether they comprehended contents of the plaint which is in English would be a disputed issue. These are the issues which have to be gone into at the time of evidence led by the parties. CS(OS) 626/2012 Page 6 of 9

7 15. The issue of limitation is a mixed question of law and fact. Reference may be had to the judgment of the Supreme Court in the case of Ramesh B. Desai and Ors.vs. Bipin Vadilal Mehta and Ors., AIR 2006 SC 3672: MANU/SC/2996/2006 where in para 16 the Court held as follows: 16. A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order VII Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two Judge Bench of this Court to which one of us was a member (Ashok Bhan J.) in Civil Appeal No of 2003 (Balasaria Construction Pvt. Ltd. v. Hanuman Seva Trust and Ors.) decided on and it was held: - After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the paint it cannot be held that the suit is barred by time. 16. It is not possible to accept the contentions of the plaintiffs about the counter claim being barred by limitation based only on the averments in the counter claim and the accompanying documents at this stage. The CS(OS) 626/2012 Page 7 of 9

8 application has no merits. 17. I am also persuaded to hold against the plaintiff on account of the nature of the pleadings made by the plaintiffs. The plaint is replete with details of various litigations pending or disposed off regarding the suit property without attempting to elaborate the complete details. The first reference is of course to suit No.87/2010 filed before Senior Civil Judge, Rohini titled as Jasbir Singh Lamba and others vs. Smt. Phoolwati and others which is said to have been withdrawn on There is then reference to a suit filed by the defendants against Smt. Ram Devi and one Shri Pawan Kumar Dabas being Suit No.540/1996 which was said to have been compromised on along with Suit No.324/2002 titled Phoolwati vs. Vinod Kumar pursuant to a settlement deed dated The defendants are said to have got the plot measuring 1800 Sq. yds. out of khasara no.154 pursuant to the said settlement deed. However, para nos. 4 and 5 of the plaint states that defendants 1 to 5 were owners and in possession of 1800 Sq. yds. out of khasara no.154 and hence on the alleged sale deed was executed in favour of the plaintiffs of the said plot. 19. In para 14 of the plaint there is a reference to a compromise deed executed by defendants 1, 3, 4 and 5 with the plaintiffs. There is a reference to another compromise deed dated during pendency of suit No.87/2010. It is the case of the plaintiffs that during pendency of said suit No.87/2010 defendants have encroached upon the suit property in May, 2010 after removing the partition wall. There is also a reference to a suit No.170/2001 filed by Shri Suresh against defendant No.1 which is said to have been decreed on CS(OS) 626/2012 Page 8 of 9

9 It is however claimed that the said suit was a conspiracy hatched by the defendants in collusion with Shri Suresh to achieve their ulterior motives. The plaint fails to give material and relevant details of these ligitations or explain the effect of the various compromises/decrees. These are material facts that may have a bearing on the merits of the suit/counter claim. 20. The present applicaton is without merits and is dismissed. CS(OS) 626/2012 List before the Roster Bench on JULY 31, 2015 raj /an (JAYANT NATH) JUDGE CS(OS) 626/2012 Page 9 of 9

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