# SARANPAL KAUR ANAND v. PRADUMAN SINGH CHANDHOK AND OTHERS

- **Citation:** [2022] 19 S.C.R. 100
- **Court:** Supreme Court of India
- **Decided:** 2022-03-28
- **Case number:** Civil Appeal No. 2573 of 2022
- **Bench:** Sanjiv Khanna, Bela M. Trivedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/saranpal-kaur-anand-v-praduman-singh-chandhok-and-others-36194
- **Pages:** 49

## Headnote

Code of Civil Procedure, 1908: Or. VII r. 11(d), Or. XII r. 6 -
Rejection of plaint on the ground of limitation - Admission of fact
in the plaint - On facts, the appellant-plaintiff filed a suit against
respondent nos 1 to 9-defendant Nos. 1 to 9 seeking a decree of
declaration that the suit property is a joint undivided family property
of the plaintiff and defendant Nos. 3 to 9 being the successors of
the parents of the plaintiff; decree of declaration that the purported
sale deed dated 23.08.1969 executed by late mother of the plaintiff
through her alleged attorney in favour of her brother-defendant
no. 1 and the purported sale deed dated 12.10.1995 executed by
the brother in favour of his son-defendant no. 2 is null and void;
and a decree for permanent injunction against defendant Nos.1
and 2, restraining them from raising/constructing/adding/ altering
or entering into any agreement to sell or creating any third party
interest in respect of any portion of the suit property -Defendant
No. 1 and 2 filed written statements as also an application for
rejection of the plaint on the ground of limitation - Plaintiff filed
two applications u/Or. VI r. 17 seeking amendment of the plaint for
incorporating relief of possession and amending the cause of action
clause - Thereafter, the Single Judge of the High Court decided the
preliminary issue holding that the suit being barred by time, the
plaint was liable to be rejected; and the amendment applications
were dismissed as mala fide and not maintainable - Division Bench
upheld the said order - As regards the issue-whether the Single
Bench could have framed the preliminary issue u/Or. XIV r. 2 with
regard to the issue of limitation for rejecting the plaint u/Or. VII r.
11(d);whether the Division Bench could have taken recourse to Or.
XII r. 6, which was not the issue before the Single Bench, for rejecting
the plaint; and whether Single Bench and Division Bench erred in
referring to the written statements and the other documents which
were not part of the plaint while rejecting the plaint on the ground
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that the suit was barred by limitation, in view of difference of opinion
between two Hon'ble Judges, the matter to be placed before Hon'ble
the Chief Justice of India for directions.
Directing to place the matter before Hon'ble the Chief
Justice of India for appropriate orders/directions, the Court
HELD:
Per Sanjiv Khanna, J. :
1.1 A decision under clause (d) of Rule 11 to Order VII of
the Code of Civil Procedure, 1908 normally proceeds on
'demurrer'. This means that the party objecting to the legal action
assumes the truth of the matter alleged by the opposite party
and sets up that it is insufficient in law to sustain the claim or
there is some other defect on the face of the pleadings constituting
a legal reason why the proceedings should not be allowed to
proceed further. [Para 8][112-D-E]
1.2 As per Article 58 of the Schedule of the Limitation Act,
in a suit for declaration where Articles 56 and 57 do not apply,
the plaint should be filed within a period of three years when the
right to sue first accrues. On applying Article 58 to the prayer for
declaration, that the sale deed dated 23rd August 1969 is invalid,
the suit filed after 42 years on 27th March 2012 is clearly barred
by limitation. [Para 10][114-A-B]
1.3 The general principle, which also manifests itself in
Section 17 of the Limitation Act, is that every person is presumed
to know his own legal right and title in the property, and if he
does not take care of his own right and title to the property, the
time for filing of the suit based on such a right or title to the
property is not prevented from running against him. The
provisions of Section 17(1) embody fundamental principles of
justice and equity, viz. that a party should not be penalised for
failing to adopt legal proceedings when the facts or the documents
have been wilfully concealed from him and also that a party who
had acted fraudulently should

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[2022] 19 S.C.R. 100
100
SARANPAL KAUR ANAND
v.
PRADUMAN SINGH CHANDHOK AND OTHERS
(Civil Appeal No. 2573 of 2022)
MARCH 28, 2022
[SANJIV KHANNA AND BELA M. TRIVEDI, JJ.]
Code of Civil Procedure, 1908: Or. VII r. 11(d), Or. XII r. 6 -
Rejection of plaint on the ground of limitation - Admission of fact
in the plaint - On facts, the appellant-plaintiff filed a suit against
respondent nos 1 to 9-defendant Nos. 1 to 9 seeking a decree of
declaration that the suit property is a joint undivided family property
of the plaintiff and defendant Nos. 3 to 9 being the successors of
the parents of the plaintiff; decree of declaration that the purported
sale deed dated 23.08.1969 executed by late mother of the plaintiff
through her alleged attorney in favour of her brother-defendant
no. 1 and the purported sale deed dated 12.10.1995 executed by
the brother in favour of his son-defendant no. 2 is null and void;
and a decree for permanent injunction against defendant Nos.1
and 2, restraining them from raising/constructing/adding/ altering
or entering into any agreement to sell or creating any third party
interest in respect of any portion of the suit property -Defendant
No. 1 and 2 filed written statements as also an application for
rejection of the plaint on the ground of limitation - Plaintiff filed
two applications u/Or. VI r. 17 seeking amendment of the plaint for
incorporating relief of possession and amending the cause of action
clause - Thereafter, the Single Judge of the High Court decided the
preliminary issue holding that the suit being barred by time, the
plaint was liable to be rejected; and the amendment applications
were dismissed as mala fide and not maintainable - Division Bench
upheld the said order - As regards the issue-whether the Single
Bench could have framed the preliminary issue u/Or. XIV r. 2 with
regard to the issue of limitation for rejecting the plaint u/Or. VII r.
11(d);whether the Division Bench could have taken recourse to Or.
XII r. 6, which was not the issue before the Single Bench, for rejecting
the plaint; and whether Single Bench and Division Bench erred in
referring to the written statements and the other documents which
were not part of the plaint while rejecting the plaint on the ground
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that the suit was barred by limitation, in view of difference of opinion
between two Hon'ble Judges, the matter to be placed before Hon'ble
the Chief Justice of India for directions.
Directing to place the matter before Hon'ble the Chief
Justice of India for appropriate orders/directions, the Court
HELD:
Per Sanjiv Khanna, J. :
1.1 A decision under clause (d) of Rule 11 to Order VII of
the Code of Civil Procedure, 1908 normally proceeds on
'demurrer'. This means that the party objecting to the legal action
assumes the truth of the matter alleged by the opposite party
and sets up that it is insufficient in law to sustain the claim or
there is some other defect on the face of the pleadings constituting
a legal reason why the proceedings should not be allowed to
proceed further. [Para 8][112-D-E]
1.2 As per Article 58 of the Schedule of the Limitation Act,
in a suit for declaration where Articles 56 and 57 do not apply,
the plaint should be filed within a period of three years when the
right to sue first accrues. On applying Article 58 to the prayer for
declaration, that the sale deed dated 23rd August 1969 is invalid,
the suit filed after 42 years on 27th March 2012 is clearly barred
by limitation. [Para 10][114-A-B]
1.3 The general principle, which also manifests itself in
Section 17 of the Limitation Act, is that every person is presumed
to know his own legal right and title in the property, and if he
does not take care of his own right and title to the property, the
time for filing of the suit based on such a right or title to the
property is not prevented from running against him. The
provisions of Section 17(1) embody fundamental principles of
justice and equity, viz. that a party should not be penalised for
failing to adopt legal proceedings when the facts or the documents
have been wilfully concealed from him and also that a party who
had acted fraudulently should not be given the benefit of limitation
running in its favour by virtue of such frauds. When the plaintiff
relies on Section 17(1) (b) of the Limitation Act asserting fraud
or mistake, he has to state the date on which he has discovered
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the fraud or mistake, and also state that he could not have
discovered the fraud or mistake with reasonable diligence on a
date earlier than on which he has based his cause of action. [Paras
10 and 13][114-G; 115-A-B; 116-D-E]
1.4 Rules of pleadings relating to fraud and exemption from
law of limitation are set out in Order VI Rule 4 and Order VII
Rule 6 of the Code. When and to the extent Order VII Rule 6
and Order VI Rule 4 apply, these provisions being specific will
prevail over the general rule found in Order VI Rule 2 of the
Code. Nevertheless, the requirement of the Rules is to plead
specific facts with dates, but not the factual evidence on the basis
of which the plaintiff would ultimately seek to establish and justify
his claim for exemption of limitation. When the minimum threshold
required in terms of Order VI Rule 4 and Order VII Rule 6 is
satisfied and met, cannot be put in a straitjacket or rigid formula,
as it would depend upon the facts and circumstances including
antecedent facts, and in particular the relationship between the
parties or their predecessors and the period bygone without
challenge. While examining these aspects, especially at the initial
stage under clause (d) of Rule 11 to Order VII or Order XIV
Rule 2 of the Code, the court cannot proceed on the basis of the
assumption as to the evidence that would be led so as to record
a finding on the evidence. At the same time, an artifice or clever
drafting should not prevent the court from stopping plainly timebarred proceedings. The court can take benefit of Order XII Rule
6 of the Code when there are admissions made by the plaintiff in
the plaint and the documents which are admitted by the parties,
or there being no dispute which would require oral evidence in
the context of the documents. There is no bar against invoking
provisions of Order VII Rule 11 and Order XIV Rule 2 together,
or even applying Order XII Rule 6 while proceeding with
demurrer. Provisions of the Code are not watertight
compartments, unless such statutory construction is express or
manifestly prohibited. we would not in the absence of constraints,
deny the trial court or the appellate court flexibility in application
of the procedural law. Underlying objective of prescribing
procedure is to advance the cause of justice. Therefore unless
compelled by express language or clear intend barring a course,
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the provisions of the Code as a procedural enactment ought to
be construed to leave the court to meet and deal with situations
in the ends of justice. [Para 14][116-E; 117-D-G; 118-A-C]
1.5 The plaint state that defendant Nos. 1 and 2, along with
TK, had a mala fide and ulterior intention in usurping the suit
property and assets of the plaintiff and her family members.
Defendant Nos. 1 and 2 in their possession have certain blank
papers and other documents of other properties allegedly signed
by HK and other family members of the plaintiff and TK, and
based upon which they are now trying to forge and create fictitious
documents. The sale deed executed by HK in favour of TK and
the sale deed executed by TK in favour of defendant No.1 are
null and void, being vitiated by fraud, cheating, fraudulent
misrepresentation, forgery, illegality etc. and thus, inconsequential
in law. It is averred that HK could not have transferred a better
title in favour of TK, and further, TK could not have transferred
a better title than she had. The sale deeds are also fraudulent on
the count of being without consideration. They are a result of a
conspiracy hatched by the defendant Nos. 1 and 2 amongst
themselves with HK and TK with the sole and cheap objective
to usurp the lawful ownership and title of the plaintiff and the
defendant Nos. 3 to 9. The plaintiff's deceased mother could never
have and had no intent or purpose or necessity to execute the
sale deed in favour of TK. Defendant Nos. 1 and 2 are in
permissive possession, having limited and restricted rights to
use and occupy the property through late TK. The ownership,
title and interest claim predicated by them are based on
documents, mutations, etc., that are inconsequential in law, not
valid, being fraudulent, concocted act of forgery, fabrication,
misrepresentation, etc. Defendant Nos. 1 and 2 are liable to be
removed from the suit property once the purpose and object of
granting permissive possession, restricted and limited right to
use and occupy the suit premises has been served. It is claimed
that the plaintiff is entitled to seek recovery of mesne profits at
the rate of Rs. 1 lakh per year or such rate as determined by
courts from defendant Nos. 1 and 2 for the illegal, unlawful and
unauthorised use and occupation of the suit property. [Para
15.9][125-A-F]
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1.6 The language and the words used in the legal notices
on behalf of the plaintiff and other family members are admissions
of facts which uncover the illusion made by creative and crafty
narration to obfuscate the patent delay of over four decades. To
get over the admissions, the plaintiff has submitted that the word/
expression used in the notices is 'given' and not 'transfer/sale'.
That the word 'given' used is factually correct, albeit when one
reads the notices holistically it is lucid that the plaintiff, along
with her family members and defendant No.3, have accepted that
there was transfer of the suit property in favour of TK. [Para
18][127-F-G]
1.7 The assertions made in the plaint by the plaintiff against
her mother late HK that she had acted in an active and joint
concert, connivance and conspiracy with late TK are self-serving
and phantastic. As per need and factual background of the matter,
assertions in the pleadings have to be examined and understood
with other statements and documents relied by the plaintiff
without feeling helpless and paralysed by unclear, illusory or
contradictory drafting. Meaningful reading of the entire plaint
may be required when grossly implausible and dubious statements
are made. The idea is to check and weed out manifestly vexatious
and meritless cases at the threshold. [Para 19][128-C-E]
1.8 The plaint accepts the close relationship inter se the
parties as relatives and in business activities. The person who
had executed the sale deed in 1969 as attorney of HK is the
brother of the plaintiff with whom the plaintiff has no dispute. TK
and defendant Nos. 1 and 2 were residing in the suit property. No
claim was made until the death of the plaintiff's mother and
grandmother, HK and TK respectively, on 6th August 2005 and
24th July 2007. HS had died earlier in 1974. For 42 years post
the execution of the sale deed in 1969, there was no dispute and
challenge to the ownership of TK. In 2008, disputes had arisen
but regarding inheritance of the estate of TK however the plaintiff
and defendant No. 3 did not challenge the title and ownership of
TK. In this background, as the plea of lack of knowledge appears
to be conjured and unreal, the pleading and the documents are
read with discernment and perceptiveness without getting carried
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away by bald and pretentious accusations that do not infuse with
the accepted and 'admitted' facts. [Para 20][128-E-G; 129-A]
1.9 The notices dated 10th October 2008 and 24th October
2008 are admitted and referred to without reservation in the plaint.
They have been filed by the plaintiff with the plaint as relevant
documents relied upon by the plaintiff. The plaint does not dispute
or explain the contents and admissions made in the two notices.
On application of the principle of demurrer, it has to be held, on
the basis of the averments made in the plaint and the documents
relied upon and admitted by the plaintiff, that even prior to 2008,
the plaintiff was aware and had knowledge of the sale deed dated
23rd August 1969 by which the ownership rights were transferred
to TK. The plaintiff did not, in 2008, question and challenge the
transfer, though she was fully aware that TK had acquired
ownership rights. [Paras 21, 22][129-B-C]
1.10 The ambit and conditions of Section 17(1) of the
Limitation Act, which is to protect rights of a party defrauded
from lapse of time till he remains in ignorance of the fraud, or
with reasonable diligence could have discovered the fraud. Section
17(1) does not assist a person who merely shuts his eyes in spite
of circumstances requiring him to ascertain facts on which he
would have discovered the fraud. Section 17(1) of the Limitation
Act saves rights of the party defrauded from lapse of time as long
as the party is not at fault on his own account. On facts, it is
apparent that the plaintiff was aware and had knowledge in
October 2008 about execution and transfer of the ownership rights
in favour of late TK vide sale deed dated 23rd August 1969
executed by defendant No.3. Unadorned assertion in the plaint
feigning ignorance as to the sale deed would not help, as in the
facts as pleaded and accepted in the plaint, the plaintiff was
required to state and indicate that ignorance was not due to failure
to exercise reasonable diligence. [Para 23][129-D-F]
1.11 The judgment of the Single Judge and the Division
Bench of the High Court dismissing the suit as being barred by
limitation is upheld. The judgment of the Single Judge and the
Division Bench with regard to the dismissal of two applications
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filed by the plaintiff for amendment of pleadings under Order VI
Rule 17 of the Code, on the ground that when the suit itself has
been barred by limitation, amendments to such a suit will be
unnecessary, is affirmed. [Para 24][129-G-H; 130-A]
Per Bela M. Trivedi, J. (Dissenting) :
1.1 Though the defendant no. 2 had filed an application
seeking rejection of plaint under Order VII Rule 11(d) of CPC,
the Single Bench instead of deciding the said application, framed
a preliminary issue under Order XIV Rule 2, as to 'whether the
suit as framed is liable to be rejected under Order VII Rule 11(d)
of CPC on the ground of limitation'. The Single Bench then
decided the preliminary issue against the plaintiff holding that
the plaint was liable to be rejected under Order VII, Rule 11(d),
considering the written statement and other documents filed by
the concerned defendants, which were not part of the Plaint. The
Division Bench in the Regular Appeal filed by the appellantplaintiff against the judgment and order passed by the Single
Bench, committed further error by relying upon the provisions
contained in Order XII Rule 6 of CPC, which was not even the
issue before the Single Bench, and confirmed the order passed
by the Single Bench. The scope, ambit and parameters for deciding
an application under Order VII Rule 11(d) for the rejection of the
plaint; for raising a preliminary issue under Order XIV Rule 2(2);
and for passing the judgment on admission of fact in the pleading
or otherwise under Order XII Rule 6 being absolutely different
and mutually exclusive, all the three provisions could not be
interchangeably used for the purpose of rejecting the plaint under
Order VII Rule 11(d) of the CPC. [Para 9][136-B-E]
1.2 The basic postulate underlined in clause (a) and clause
(d) of Rule 11 Order VII is that while rejecting the plaint under
the said provisions, the court is required to see only the averments
made in the plaint and the documents, if any, annexed to the plaint,
and not to the written statement or other documents which are
not part of the plaint. For invoking Order VII Rule 11 (d), and for
the purpose of rejecting the plaint on the ground that the suit is
barred by any law, only the averments made in the plaint have to
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be referred to and that the defence taken by the defendant in the
written statement being wholly irrelevant, must not be
considered. [Paras 11, 15][137-G; 140-D]
1.3 As regards framing of preliminary issue under Order
XIV Rule 2(2) also, the legal position is well settled. Sub Rule 2
of Rule 2 of Order XIV specifies that where issues both of law
and of fact arises in the same suit and the court is of the opinion
that the case or any part thereof may be disposed of on an issue
of law only, it may try that issue first if the issue relates to - (a)
the jurisdiction of the court, or (b) a bar to the suit created by any
law for the time being in force. [Para 16][140-E]
1.4 A plea of limitation cannot be decided as an abstract
principle of law divorced from the 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 being mixed question of law
and fact cannot be decided as a preliminary issue under Order
XIV, Rule 2(2). [Para 20][144-C-D]
1.5 So far as pronouncing a judgement on admission under
Order XII Rule 6 is concerned, for an admission to qualify as a
valid admission, it necessarily has to be an unequivocal,
unambiguous and unconditional. [Para 21][144-D-E]
1.6 The Single Bench had rejected the plaint under Order
VII Rule 11(d) after framing a preliminary issue under Order XIV
Rule 2(2) of CPC. The Single Bench after taking into
consideration the written statement and other documents held
that the suit was barred by law of Limitation and rejected the
plaint under Order VII, Rule 11(d) CPC. Apart from the fact that
no preliminary issue could have been framed under Order XIV,
Rule 2(2) with regard to the issue of limitation which was a mixed
question of law and fact, the Single Bench erroneously considered
the written statement and the documents filed by the defendant
while rejecting the plaint under Order VII Rule 11(d) of CPC.
The Division Bench also fallaciously referred to the contentions
raised in the written statement and referred to the documents
namely Applications filed in some eviction proceedings, which
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were neither referred to in the plaint nor annexed to the plaint.
The Division Bench further erroneously relied upon some
statements made in the legal notices construing them as an
admission on the part of the plaintiff for passing judgment under
Order XII, Rule 6 against the plaintiff, while confirming the order
passed by the Single Bench rejecting the plaint of the plaintiff
under Order VII, Rule 11(d) CPC. In the opinion of the Court
there was no clear, unambiguous and unconditional admission
made by the plaintiff in any of the said legal notices which could
be termed as an admission of the claim made by the defendant
with regard to the knowledge of the plaintiff in respect of the
execution of the alleged sale deeds. On the contrary, the plaintiff
had pleaded fraud committed against her and other defendants
who were the legal representatives of HK. The Court at this
juncture is not inclined to go into the merits of the issues involved
in the suit. The Single Bench and the Division Bench passed the
impugned orders de hors the specific provisions of CPC and in
utter disregard of the position of law settled by this Court. Even
if, the Single Bench had found that the suit was filed misusing the
process of law or that an illusion was created with regard to the
cause of action by clever drafting, in that case also Order VII
Rule 11 could not have been resorted to. [Paras 24, 25][146-CH; 147-A]
1.7 The inherent jurisdiction under Section 151 CPC cannot
be exercised to nullify the provisions of the CPC. The inherent
powers of the court are in addition to the powers specifically
conferred on the court by the Code, and cannot be exercised in a
manner which will be contrary or different from the procedure
expressly provided in the Code. [Para 26][147-C-D]
1.8 The scope, ambit and parameters for deciding an
application for rejection of the plaint under Order VII Rule 11(d),
for deciding the preliminary issue on pure question of law under
Order XIV Rule 2(2) and for pronouncing a judgment on admission
under Order XII Rule 6 being absolutely different and
independent of each other, the Single Bench and the Division
Bench were required to strictly adhere to the procedures laid
down in the said provisions, and could not have exercised
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inherent powers or suo moto powers dehors the specific
provisions contained in the Code. The impugned orders passed
by the High Court being in utter disregard of the said provisions
and of the settled legal position, are quashed and set aside. The
suit is restored on the file of the Single Bench. [Para 27][147-FG; 148-A]
Nusli Neville Wadia v. Ivory Properties and Ors. (2020)
6 SCC 557 : [2019] 15 SCR 795; Chander Kanta
Bansal v. Rajinder Singh Anand (2008) 5 SCC 117 :
[2008] 4 SCR 748; Kamala and Ors. v. K.T. Eshwara
Sa and Ors. (2008) 12 SCC 661 : [2008] 7 SCR 39;
Shakti Bhog Food Industries Ltd. v. Central bank of
India and Anr. 2020 SCC Online SC 482; Satti Paradesi
Samadhi v. M. Sankuntala (2015) 5 SCC 574 : [2014]
1 SCR 249; Uttam Singh Dugal & Co. Ltd. v. United
Bank of India and Ors. 2000 (4) RCR Civil 89; Himani
Alloys Ltd. v. Tata Steel Ltd. 2011 (3) Civil Court Cases
721 - relied on.
Khatri Hotels Private Limited and Ors. v. Union of India
(UOI) and Ors. (2011) 9 SCC 126 : [2011] 15 SCR
299; Karam Kapahi and Ors. v. Lal Chand Public
Charitable Trust and Ors. (2010) 4 SCC 753 : [2010] 4
SCR 422; Charanjit Lal Mehra and Ors. v. Kamal Saroj
Mahajan and Ors. (2005) 11 SCC 279 : [2005] 2 SCR
661; T. Arivandandam v. T.V. Satyapal and Ors. (1977)
4 SCC 467 : [1978] 1 SCR 742; Saleem Bhai and Ors.
v. State of Maharashtra and Ors. (2003) 1 SCC 557 :
[2002] 5 Suppl. SCR 491; Soumitra Kumar Sen v.
Shyamal Kumar Sen and Ors. (2018) 5 SCC 644;
Srihari Hanumandas Totala v. Hemant Vithal Kamat and
Ors. (2021) 9 SCC 99; Ramesh B. Desai and Ors. v.
Bipin Vadilal Mehta and Ors. (2006) 5 SCC 638 : [2006]
3 Suppl. SCR 414; Uttam Singh Dugal and Co. Ltd. v.
Union Bank of India and Ors. 2000 (4) RCR Civil 89;
Arjun Singh v. Mohindra Kumar and Ors. AIR 1964
SC 993 : [1964] SCR 946; Pallav Sheth v. Custodian
and Ors. (2001) 7 SCC 549 : [2001] 1 Suppl. SCR
387; P. Radha Bai and Ors. v. P. Ashok Kumar and
Ors. (2019) 13 SCC 445 : [2018] 12 SCR 143;
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Madanuri Sri Rama Chandra Murthy v. Syed Jalal
(2017) 13 SCC 174 : [2017] 5 SCR 294; T.
Arivandandam v. T.V. Satyapal (1977) 2 SCC 467 :
[1977] 2 SCR 654 - referred to.
Case Law Reference
In the judgment of SANJIV KHANNA, J.
[2019] 15 SCR 795
relied on
Para 8
[2008] 4 SCR 748
relied on
Para 12
[1978] 1 SCR 742
referred to
Para 20
[2006] 3 Suppl. SCR 414
referred to
Para 8
[2018] 12 SCR 143
referred to
Para 11
[2017] 5 SCR 294
referred to
Para 19
[1977] 2 SCR 654
referred to
Para 19
In the judgment of BELA M. TRIVEDI, J.
[2019] 15 SCR 795
relied on
Para 19
[2008] 7 SCR 39
relied on
Para 11
[2014] 1 SCR 249
relied on
Para 17
[2011] 15 SCR 299
referred to
Para 7
[2010] 4 SCR 422
referred to
Para 23
[2005] 2 SCR 661
referred to
Para 23
[1978] 1 SCR 742
referred to
Para 25
[2002] 5 Suppl. SCR 491
referred to
Para 46
[2006] 3 Suppl. SCR 414
referred to
Para 18
[1964] SCR 946
referred to
Para 26
[2001] 1 Suppl. SCR 387
referred to
Para 10
[1977] 2 SCR 654
referred to
Para 7
The Judgment of the Court was delivered by
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2573
of 2022
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From the Judgment and Order dated 25.04.2016 of the High Court
of Delhi at New Delhi in RFA (OS) No. 54 of 2015.
Shyam Divan, Sr. Adv., Dinesh C. Pandey, Udayatiya Banerjee,
Piyush Sharma, Dushyant Dahiya, Advs. for the appellant.
P.S. Patwalia, Sr. Adv., Ms. Priyanka Tyagi, Surya Kant, Arun K.
Sinha, Advs. for the respondents.
The Judgments of the Court were delivered by
SANJIV KHANNA, J.
Leave granted.
2. The appellant before us, Saranpal Kaur Anand, is the plaintiff
who has filed a Civil Suit, C.S. (O.S.) No. 873 of 2012, seeking: a decree
of declaration that the suit property bearing No. 4-C/7, New Rohtak
Road, New Delhi, is a joint undivided family property of the plaintiff and
defendant Nos. 3 to 9 being the successors of late Harnam Singh Anand
and late Harbans Kaur; a decree of declaration that the purported sale
deed dated 23rd August 1969 executed by late Harbans Kaur through
her alleged attorney in favour of late Tej Kaur is a fictitious, sham,
incompetent, bad, illegal, null and void; a decree of declaration that the
purported sale deed dated 12th October 1995 executed by late Tej Kaur
in favour of Pervinder Singh Chandhok (defendant No. 2) is fictitious,
sham, incompetent, bad, illegal, nullity and void ab initio in law; and a
decree for permanent injunction restraining Praduman Singh Chandhok
and Pervinder Singh Chandhok (defendant Nos.1 and 2), their agents,
nominees, successors, assigns, representatives etc., from raising/
constructing/adding/ altering or entering into any agreement to sell or
creating any third party interest, claims, or parting with possession thereof,
in respect of any portion of the suit property besides seeking determination
of the amount of damages and mesne profits.
3. Defendant Nos. 1 and 2 filed their respective written statements
contesting the suit. They also filed an application for rejection of the
plaint on the ground of limitation.
4. By the order dated 7th February 2014, the Single Judge of the
High Court settled the preliminary issue of limitation as under:
"Whether the suit as framed is liable to be rejected under Order
VII Rule 11(d) of the CPC on the ground of limitation?"
SARANPAL KAUR ANAND v. PRADUMAN SINGH
CHANDHOK AND OTHERS
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SUPREME COURT REPORTS
[2022] 19 S.C.R.
5. Subsequently the plaintiff filed two applications for amendment
of the plaint to incorporate prayer for possession and amending the cause
of action clause, which were taken up for hearing along with hearing on
the preliminary issue.
6. By the order dated 6th April 2015 the Single Judge decided the
preliminary issue holding that the suit being barred by time, the plaint
was liable to be rejected. The applications for amendment filed by the
plaintiff were dismissed as mala fide and not maintainable.
7. The impugned order dated 25th April 2016 passed by the Division
Bench of the High Court dismissed the appeal preferred by the plaintiff
upholding the order rejecting the plaint on the ground that it was filed
beyond the period of limitation. The applications filed for amendment of
the plaint being unnecessary were, therefore, rightly rejected by the Single
Judge.
8. A decision under clause (d) of Rule 11 to Order VII1 of the Code
of Civil Procedure, 1908 (for short, 'the Code') normally proceeds on
'demurrer'. This means that the party objecting to the legal action assumes
the truth of the matter alleged by the opposite party and sets up that it is
insufficient in law to sustain the claim or there is some other defect on the
face of the pleadings constituting a legal reason why the proceedings should
not be allowed to proceed further.2 This is also the underlying principle
behind clause (d) of Order VII Rule 11 of the Code which applies when it
appears from a statement in the plaint that the suit is barred by any law.
The law would include the Limitation Act, 1963. Section 3 of the Limitation
Act mandates that every suit, appeal or application instituted, preferred or
filed after the prescribed period, and subject to provisions of Sections 4 to
24, shall be dismissed although limitation has not been set up as a defence.
Sub-rule (2) to Rule 2 of Order XIV3 of the Code lays down that where
1 "Order 7, Rule 11- Rejection of plaint - The plaint shall be rejected in the following
cases:- (d) where the suit appears from the statement in the plaint to be barred by any
law;"
2 See paragraph 14 in Ramesh B. Desai v. Bipin Vadilal Mehta & Ors. (2006) 5 SCC 638.
3 Order XIV Rule 2(2) Court to pronounce judgment on all issues. - (2) Where
issues both of law and of fact arise in the same suit, and the Court is of opinion that the
case or any part thereof may be disposed of on an issue of law only, it may try that
issue first if the issue relates to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose
may, if it thinks fit, postpone the settlement of the other issues until after that issue has
been determined, and may deal with the suit in accordance with the decision on that issue.
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issues of both law and fact arise in the same suit, and the court is of the
opinion that the case or any part thereof can be disposed of on an issue
of law only, it may try that issue first if the issue (a) relates to the
jurisdiction of the court, or (b) bar to the suit is created by any law for
the time being in force. Therefore, when decision on issues of law depend
upon decision on issues of fact, the issue of law should not be decided as
a preliminary issue4. However, when the issue of law can be adjudicated
on 'admitted facts', the court can decide the issue of law as a preliminary
issue under Order XIV Rule 2 of the Code. The position of law has been
succinctly stated in Nusli Neville Wadia v. Ivory Properties and
Others5 in the following words:
"51...As per Order 14 Rule 1, issues arise when a material
proposition of fact or law is affirmed by the one party and denied
by the other. The issues are framed on the material proposition,
denied by another party. There are issues of facts and issues of
law. In case specific facts are admitted, and if the question
of law arises which is dependent upon the outcome of
admitted facts, it is open to the court to pronounce the
judgment based on admitted facts and the preliminary
question of law under the provisions of Order 14 Rule 2. In
Order 14 Rule 2(1), the court may decide the case on a preliminary
issue. It has to pronounce the judgment on all issues. Order 14
Rule 2(2) makes a departure and the court may decide the question
of law as to jurisdiction of the court or a bar created to the suit by
any law for the time being in force, such as under the Limitation
Act."
(Emphasis added)
9. At the outset itself, it must be stated that unless the plaintiff
succeeds in grant of declaration whereby the validity of the sale deed
dated 23rd August 1969 executed and transferring the suit property in
favour of late Tej Kaur has been challenged, all other reliefs would fail
and cannot be granted. Thus, the question to be answered is whether
the prayer for grant of declaration that the sale deed dated 23rd August
1969 is null and void being fictitious, sham, incompetent, bad and illegal
is barred by limitation, can be decided as a legal issue without evidence
being led?
4 See paragraph 13 and 15 in Ramesh B. Desai (supra).
5 (2020) 6 SCC 557
SARANPAL KAUR ANAND v. PRADUMAN SINGH
CHANDHOK AND OTHERS [SANJIV KHANNA, J.]
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10. As per Article 586 of the Schedule of the Limitation Act, in a
suit for declaration where Articles 567 and 578 do not apply, the plaint
should be filed within a period of three years when the right to sue first
accrues. On applying Article 58 to the prayer for declaration, that the
sale deed dated 23rd August 1969 is invalid, the suit filed after 42 years
on 27th March 2012 is clearly barred by limitation. However, though not
adverted to in the impugned order of the Division Bench and the order
of the Single Judge of the High Court, it is apparent that the plaint, for
the purpose of decree of declaration that the sale deed dated 23rd August
1969 is invalid, relies on Section 17 of the Limitation Act, which deals
with the effect of fraud and mistake, and reads:
"17. Effect of fraud or mistake.-(1) Where, in the case of any
suit or application for which a period of Limitation is prescribed
by this Act,-
(a) the suit or application is based upon the fraud of the defendant
or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application
is founded is concealed by the fraud of any such person as
aforesaid; or
(c) the suit or application is for relief from the consequences of a
mistake; or
(d) where any document necessary to establish the right of the
plaintiff or applicant has been fraudulently concealed from him,
the period of Limitation shall not begin to run until the plaintiff or
applicant has discovered the fraud or the mistake or could, with
reasonable diligence, have discovered it; or in the case of a
concealed document, until the plaintiff or the applicant first had
the means of producing the concealed document or compelling its
production....."
The general principle, which also manifests itself in Section 17 of
the Limitation Act, is that every person is presumed to know his own
legal right and title in the property, and if he does not take care of his
own right and title to the property, the time for filing of the suit based on
6 To obtain any other declaration
7 To declare the forgery of an instrument issued or registered.
8 To obtain a declaration that an alleged adoption is invalid, or never, in fact, took place.
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such a right or title to the property is not prevented from running against
him. The provisions of Section 17(1) embody fundamental principles of
justice and equity, viz. that a party should not be penalised for failing to
adopt legal proceedings when the facts or the documents have been
wilfully concealed from him and also that a party who had acted
fraudulently should not be given the benefit of limitation running in its
favour by virtue of such frauds.9 However it is important to remember
that Section 17 does not defer the starting point of limitation merely
because the defendant has committed a fraud. Section 17 does not
encompass all kinds of frauds, but specific situations covered by clauses
(a) to (d) to Section 17(1) of the Limitation Act. Section 17(1)(b) and (d)
encompass only those fraudulent documents or acts of concealment of
documents which have the effect of suppressing knowledge entitling the
party to pursue his legal remedy. Once a party becomes aware of
antecedent facts necessary to pursue legal proceedings, the period of
limitation commences.10
11. Therefore in the event the plaintiff makes out a case that falls
within any or more of the four clauses to sub-section (1) to Section 17 of
the Limitation Act, the period of limitation for filing of the suit shall not
begin to run until the plaintiff or applicant has discovered the fraud/
mistake or could with reasonable diligence have discovered it or if the
document is concealed till the plaintiff has the means of producing the
concealed document or compelling its production a fortiori.
12. 'Diligence' as a word of common parlance means attention,
carefulness, and persistence in efforts of doing something.11 This Court
in Chander Kanta Bansal v. Rajinder Singh Anand,12 in reference to
proviso to Order VI Rule 17 of the Code, defined 'diligence' as:
"16...According to Oxford Dictionary (Edn. 2006), the word
"diligence" means careful and persistent application or effort.
"Diligent" means careful and steady in application to one's work
and duties, showing care and effort. As per Black's Law
Dictionary (18th Edn.), "diligence" means a continual effort to
accomplish something, care; caution; the attention and care
required from a person in a given situation..."
9 Pallav Sheth v. Custodian and Others, (2001) 7 SCC 549
10 P. Radha Bai and Others v. P. Ashok Kumar and Another, (2019) 13 SCC 445
11 P. Ramanatha Aiyar, The Major Law Lexicon (4th Edition, Lexis Nexis Publication)
12 (2008) 5 SCC 117.
SARANPAL KAUR ANAND v. PRADUMAN SINGH
CHANDHOK AND OTHERS [SANJIV KHANNA, J.]
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The word 'diligence' read with the word 'reasonable' in the context
of Section 17(1) of the Limitation Act is subjective and relative, and
would depend upon circumstances of which the actor called upon to act
reasonably, knows or ought to know. Vague clues or hints may not matter.
Whether the plaintiff/applicant had the means to know the fraud is a
relevant consideration. It is manifest that Section 17(1) of the Limitation
Act does not protect a party at fault for failure to exercise reasonable
diligence when the circumstances demand such exercise and on exercise
of which the plaintiff/applicant could have discovered the fraud. When
the time starts ticking subsequent events will not stop the limitation. The
time starts running from the date of knowledge of the fraud/mistake; or
the plaintiff/applicant when required to exercise reasonable diligence
could have first known or discovered the fraud or mistake. In case of a
concealed document, the period of limitation will begin to run when the
plaintiff/applicant had the means of producing the concealed document
or compelling its production.
13. Thus when the plaintiff relies on Section 17(1) (b) of the
Limitation Act asserting fraud or mistake, he has to state the date on
which he has discovered the fraud or mistake, and also state that he
could not have discovered the fraud or mistake with reasonable diligence
on a date earlier than on which he has based his cause of action.
14. Rules of pleadings relating to fraud and exemption from law
of limitation are set out in Order VI Rule 413 and Order VII Rule 614 of
the Code. Order VI Rule 4 lays down that in all cases where a party
pleading relies upon fraud, particulars with respect to the date and item,
if necessary, shall be stated in the pleadings. The fraud as alleged in the
plaint must state those facts which together taken as a whole, if proved,
would show and establish fraud. Pleading of fraud should be conspicuous
13 "Order VI Rule 4. Particulars to be given where necessary.-In all cases in which
the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default,
or undue influence, and in all other cases in which particulars may be necessary beyond
such as are exemplified in the forms aforesaid, particulars (with dates and items if
necessary) shall be stated in the pleading."
14 "Order VII Rule 6. Grounds of exemption from limitation law.
-where the suit is instituted after the expiration of the period prescribed by the law of
limitation, the plaint shall show the ground upon which exemption from such law is
claimed:
Provided that the Court may permit the plaintiff to claim exemption from the law of
limitation on any ground not set out in the plaint, if such ground is not inconsistent
with the grounds set out in the plaint."
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and palpable, and should not be predicated on mere suspicion and
conjecture.