Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
2025 INSC 478
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5131 OF 2025
(Arising out of SLP (C) No. 36 OF 2021)
R. NAGARAJ (DEAD) THROUGH LRs.
AND ANOTHER ... APPELLANTS
VERSUS
RAJMANI AND OTHERS … RESPONDENTS
J U D G M E N T
R. MAHADEVAN, J.
Leave granted.
2. This appeal is directed against the judgment and decree dated 17.02.2020
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passed by the High Court of Judicature at Madras in Second Appeal No.406 of
1998. By the impugned judgment, the High Court allowed the second appeal,
thereby setting aside the judgment and decree passed by the Courts below, and
remitting the matter to the trial Court for framing additional issues in respect of
limitation. The trial Court was further directed to conduct the trial afresh on the
aspect of whether the suit was barred by limitation, and to complete it within a
period of six months.
Signature Not Verified
Digitally signed by
CHANDRESH
Date: 2025.04.09
18:00:11 IST
Reason:
1
Hereinafter referred to as “the High Court”
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3. The genesis of the litigation traces back to a joint Hindu family consisting
of Rangappa Gowdar and his sons, Dasappa Gowdar and Samiappan. Originally,
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the suit bearing O.S.No.851 of 1965 had been filed by the wife and daughter of
the said Samiappan viz. , Sunderammal and Vennila, who are Respondent Nos.6
and 7 herein, seeking maintenance against the said Samiappan and his father
Rangappa Gowdar and brother Dasappa Gowdar. The suit came to be decreed on
26.08.1965 and the suit properties were attached for the maintenance amount in
the execution proceedings initiated by the plaintiffs. During the pendency of the
execution proceedings, the said Rangappa Gowdar and Dasappa Gowdar died and
their legal heirs were brought on record. Through court auction, the suit ‘A’
schedule property was purchased by one Karivarada Gowdar and the sale was
confirmed by issuing certificate dated 25.09.1970 in E.P.No.424 of 1969 in
O.S.No.851 of 1965 by the Court of District Munsif, Coimbatore. Since the said
Samiappan tried to encroach the suit ‘A’ schedule property, the said Karivarada
Gowdar filed a suit viz ., O.S.No.1978 of 1972 for permanent injunction and the
same came to be decreed on 11.06.1973. Subsequently, the suit ‘A’ schedule
property was purchased by Respondent Nos.8 to 10 from the said Karivarada
Gowdar and they also filed a suit in O.S.No.3390 of 1981 seeking permanent
injunction, which came to be decreed on 24.07.1982. Thereafter, the suit ‘A’
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Hereinafter referred to as “the first suit”
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schedule property was purchased by Respondent No.11 and later-on, by
Appellant Nos.1 and 2.
4. In the above background, Respondent Nos.1 to 3 who are the daughters
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and wife of Dasappa Gowdar, instituted a suit bearing O.S.No.257 of 1982
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before the II Additional District Munsif, Coimbatore , to set aside the decree
passed by the Court of District Munsif, Coimbatore in O.S.No.851 of 1965 and
to partition the suit ‘A’ and ‘C’ schedule properties by metes and bounds in 12
equal parts and to allot the 5/12 shares to the plaintiffs and for permanent
injunction restraining the subsequent purchasers from in any manner disturbing
with the peaceful possession of the suit properties by the plaintiffs.
5. After trial, the suit was dismissed, by judgment dated 08.09.1994, against
which, Respondent Nos.1 to 3 filed Appeal Suit bearing No.207 of 1994 before
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the Additional District Judge, Coimbatore . By judgment dated 28.01.1997, the
appeal suit came to be dismissed. Challenging the same, Respondent Nos.1 to 3
went on further appeal viz ., S.A.No.406 of 1998, which was allowed by the High
Court, by judgment dated 17.02.2020. Aggrieved by the same, the appellants,
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Hereinafter referred to as “the second suit”
4
Hereinafter referred to as “the trial Court”
5
Hereinafter referred to as “the First Appellate Court”
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who are the subsequent purchasers of the suit ‘A’ schedule property, have
preferred this appeal before us.
6. On 25.01.2021, when the matter was taken up for consideration, this Court
passed the following order:
“Exemption from filing O.T. and c/c of the impugned order is granted.
Issue notice.
In the meantime, further proceedings in pursuance of the order dated
17.02.2020 passed by the High Court shall remain stayed.”
7. During the pendency of this appeal, Respondent Nos.1 and 2 have passed
away, and their legal representatives have been brought on record and
accordingly, the cause title has been amended. V ide order dated 21.10.2022
passed in Interlocutory Application No. 101397/2022, Respondent Nos. 4, 8, 9,
11, 14 and 18 to 21 have been deleted from the array of parties, since they are
proforma parties, and they do not have any surviving interest in the suit property.
Vide order dated 21.10.2022 passed in Interlocutory Application
No.101402/2022, the appellants have been exempted from the requirement of
substituting the legal representatives of deceased Respondent Nos.10 and 12.
Despite the service of notice, none appeared on behalf of the other proforma
respondents viz. , Respondent Nos.5 to 7, 13, 15, 16 and 17. Thus, Respondent
Nos.1 to 3 are the only contesting parties.
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8. Heard the learned counsel for the appellants and the learned counsel for the
contesting Respondent Nos.1 to 3 and also perused the materials available on
record.
9. The main contention of the learned counsel for the appellants is that
Respondent Nos.1 to 3 had been arrayed as respondents / judgment debtors in the
execution proceedings initiated in O.S.No.851 of 1965 and hence, they had the
knowledge of the proceedings even prior to filing of the suit in O.S.No.257 of
1982. Since the second suit was filed after a period of 17 years, it was hopelessly
barred by limitation. In such circumstances, the High Court ought not to have
allowed the second appeal and remitted the matter to the trial Court for
conducting trial afresh, on the aspect of limitation.
9.1. It is further submitted that the suit 'A' schedule property could no longer
remain as joint family property, when the same was brought into court auction
and the sale was confirmed and possession was also handed over to the auction
purchaser. However, Respondent Nos.1 to 3 did not take any steps to set aside the
said sale, but they conveniently filed the second suit bearing O.S. No. 257 of 1982
to set aside the decree dated 26.08.1965 passed in the first suit bearing O.S. No.
851 of 1965 without any subsisting legal right. Further, the documentary
evidence clearly proved that Respondent Nos. 1 to 3 were aware of the execution
proceedings and that, the courts below discussed the limitation point in detail
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before dismissing the suit / appeal suit filed by Respondent Nos.1 to 3, and
therefore, the necessity to frame an issue on limitation does not arise.
9.2. The learned counsel also pointed out that the suit was not dismissed solely
on the ground of limitation, but on merits as well, observing that Respondent Nos.
1 to 3 herein are not entitled to any relief, since they had knowledge about the
earlier suit.
9.3. It is further submitted that after admitting the second appeal, the High
Court ought to have decided the question of law relating to limitation, instead of
remitting the case to the trial Court, specially, after more than two decades from
the inception of the Second Appeal. Further, according to the learned counsel,
Respondent Nos. 1 to 3 herein, failed to approach the Court with clean hands and
abused the process of law by filing such frivolous suit.
9.4. Thus, the learned counsel submitted that the suit was rightly dismissed by
the trial Court as time-barred and the same was affirmed by the First Appellate
Court. As such, the decision of the High Court to remand the matter for framing
the issue of limitation and conducting trial afresh, is unwarranted and is liable to
be set aside.
10. Per contra, the learned counsel for Respondent Nos.1 to 3 submitted that
the High Court rightly allowed the second appeal filed by Respondent Nos. 1 to
3 and remitted the matter to the trial Court for fresh trial, after framing the issue
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of limitation. According to the learned counsel, the said issue is a mixed question
of fact and law; to decide the maintainability of the suit and without framing such
question, the trial Court and the First Appellate Court ought not to have come to
the conclusion that Respondent Nos.1 to 3 are not entitled to the relief to set aside
the decree passed in the first suit viz ., O.S. No. 851 of 1965 and to partition the
suit 'A' and 'C' schedule properties by metes and bounds in 12 equal parts and to
allot the 5/12 shares to Respondent Nos.1 to 3, and for a permanent injunction. In
this regard, reliance was placed on the decision of this Court in Vaish Aggarwal
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Panchayat v. Inder Kumar & Others .
10.1. The learned counsel further submitted that the trial Court as well as the
First Appellate Court without framing any issue, any pleadings, and without
leading any evidence, rejected the relief sought by Respondent Nos.1 to 3 as
barred by limitation. Therefore, the High Court rightly remanded the matter to
the trial Court to frame a specific issue with regard to limitation and decide the
matter afresh. Reliance was made to the decision of this court in Ramesh B. Desai
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& Ors. v. Bipin Vadilal Mehta & Others .
10.2. It is also submitted that the decree obtained in O.S. No. 851 of 1965 is an
asseveration of fraud and collusion.
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(2020) 12 SCC 809
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(2006) 5 SCC 638
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10.3. With these submissions, the learned counsel prayed for dismissal of this
appeal filed by the appellants.
11. Upon considering the rival submissions, the only question that arises for
our consideration is whether the High Court was justified in remanding the matter
to the trial Court for a fresh trial on the issue of limitation, despite the existence
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of concurrent findings, when Section 100 of the Code of Civil Procedure, 1908
empowered the High Court to decide the matter.
12. It is a well settled legal position that Section 100 CPC confers jurisdiction
on the High Court to entertain a second appeal, only when it is satisfied that the
case involves a substantial question of law. For better appreciation, the said
provision is extracted below:
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“ [100. Second appeal.—(1) Save as otherwise expressly provided in the body of
this Code or by any other law for the time being in force, an appeal shall lie to
the High Court from every decree passed in appeal by any Court subordinate to
the High Court, if the High Court is satisfied that the case involves a substantial
question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely
state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved
in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent
shall, at the hearing of the appeal, be allowed to argue that the case does not
involve such question:
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For short, “CPC”
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Substituted by Act 104 of 1976, sec.37, for section 100 (w.e.f. 1-2-1977)
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Provided that nothing in this sub-section shall be deemed to take away or abridge
the power of the Court to hear, for reasons to be recorded, the appeal on any
other substantial question of law, not formulated by it, if it is satisfied that the
case involves such question.]”
Thus, sub-section (1) of Section 100 says that the second appeal would be
entertained by the High Court only if the High Court is satisfied that the case
involves a substantial question of law. Sub-section (3) makes it obligatory upon
the appellant to precisely state in memo of appeal the “substantial question of
law” involved in the appeal. Sub-section (4) provides that where the High Court
is satisfied that any substantial question of law is involved in the case, it shall
formulate that question. In other words, once the High Court is satisfied after
hearing the appellant or his counsel, as the case may be, that the appeal involves
a substantial question of law, it has to formulate that question and then direct
issuance of notice to the respondent of the memo of appeal along with the
question of law framed by the High Court. Sub-section (5) provides that the
appeal shall be heard only on the question formulated by the High Court under
sub-section (4). In other words, the jurisdiction of the High Court to decide the
second appeal is confined only to the question framed by the High Court under
sub-section (4). The respondent, however, at the time of hearing of the appeal is
given a right under sub-section (5) to raise an objection that the question framed
by the High Court under sub-section (4) does not involve in the appeal. The
reason for giving this right to the respondent for raising such objection at the time
of hearing is because the High Court frames the question at the stage of
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admission, which is prior to issuance of the notice of appeal to the respondent. In
other words, the question is framed ex parte and, therefore, sub-section (5)
enables him to raise such objection at the time of hearing that the question framed
does not arise in the appeal. The proviso to sub-section (5), however, also
recognizes the power of the High Court to hear the appeal on any other substantial
question of law which was not initially framed by the High Court under sub-
section (4). However, this power can be exercised by the High Court only after
assigning the reasons for framing such additional question of law at the time of
hearing of the appeal [See: Surat Singh (Dead) v. Siri Bhagwan & Others
(2018) 4 SCC 562 ].
12.1. Furthermore, this Court has consistently underscored that under Section
100 CPC, the High Court possesses the authority to entertain second appeals
strictly on substantial questions of law. Upon admitting such an appeal, the High
Court is empowered to frame substantial questions and adjudicate them directly,
without the necessity of remanding the matter to the trial court. This approach
ensures judicial efficiency and prevents unnecessary prolongation of litigation. A
few decisions are outlined below:
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(i) Santosh Hazari v. Purushottam Tiwari (Deceased) by LRs
“16. Reverting to the facts of the case at hand, prima facie we find the first appellate
Court did not discharge the duty cast on it as a Court of first appeal. The
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(2001) 3 SCC 179
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High Court having noticed failure on the part of the appellant in not discharging
the statutory obligation cast on him by sub-section (3) of Section 100 of the Code,
on account of the substantial question of law involved in the appeal having not been
stated, much less precisely, in the memorandum of second appeal, ordinarily an
opportunity to frame such question should have been afforded to the appellant
unless the deficiency was brought to the notice of the appellant previously by the
High Court Registry or the court and yet the appellant had persisted in his default.
That was not done. In our opinion, the following substantial question of law does
arise as involved in the case and worth being heard by the High Court:-
“Whether on the pleadings and the material brought on record by the defendant,
the first appellate Court was right in holding that the case of adverse possession
was made out by the defendant and the suit filed by the plaintiff was liable to be
dismissed as barred by time under Article 65 of the Limitation Act, 1963, more so
when such finding was arrived at in reversal of the findings of the trial Court?”
17. The appeal is allowed. The case is remitted back to the High Court for hearing
and deciding the second appeal afresh.
18. We make it clear that we have not expressed any opinion either way on any of
the issues arising for decision in the case. We also make it clear that our framing
the question of law involved in the appeal shall not take away the jurisdiction of the
High Court vesting in it under proviso to sub-section (5) of Section 100 of the
C.P.C. to formulate any other question of law involved in the case The second
appeal shall be decided by the High Court uninfluenced by any of the observations
made hereinabove which have been made solely to support our opinion that the
appeal did not merit a summary dismissal by the High Court.”
(ii) Surat Singh (supra)
“29. The scheme of Section 100 is that once the High Court is satisfied that the
appeal involves a substantial question of law, such question shall have to be framed
under sub-section (4) of Section 100. It is the framing of the question which
empowers the High Court to finally decide the appeal in accordance with the
procedure prescribed under sub-section (5). Both the requirements prescribed in
sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the
manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide
the second appeal finally arises only after the substantial question of law is framed
under sub-section (4). There may be a case and indeed there are cases where even
after framing a substantial question of law, the same can be answered against the
appellant. It is, however, done only after hearing the respondents under sub-section
(5).”
12
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(iii) Mehboob-Ur-Rehman (Dead) Through Lrs. V. Ahsanul Ghani
“21. As per Section 100 CPC, the appeal would lie to the High Court from the
decree passed in appeal by any Court subordinate only if the High Court is satisfied
that the case involves a substantial question of law; such question is required to be
stated in the Memorandum of Appeal; the High Court is required to formulate the
question on being satisfied that the same is involved in the case; the appeal is to be
heard on the question so formulated; and at the time of hearing, the respondent
could urge that the case does not involve such a question. The proviso to sub-
section (5) of Section 100 CPC makes it clear that the Court could hear the appeal
on any other substantial question of law not formulated by it, but only after
recording the reasons that the case involves such a question. In Surat Singh (Dead)
v. Siri Bhagwan and others (2018) 4 SCC 562 this Court has pointed out the
contours of the powers of High Court under the proviso to sub-section (5) of Section
100 CPC as under:-
“21……… The proviso to sub-section (5), however, also recognises the power of
the High Court to hear the appeal on any other substantial question of law which
was not initially framed by the High Court under sub-section (4). However, this
power can be exercised by the High Court only after assigning the reasons for
framing such additional question of law at the time of hearing of the appeal”.
22. We are clearly of the view that the proviso to sub-section (5) of Section
100 CPC is not intended to annul the other requirements of Section 100 and it
cannot be laid down as a matter of rule that irrespective of the question(s)
formulated, hearing of the second appeal is open for any other substantial question
of law, even if not formulated earlier…”
(iv) This Court pointing out the principle laid down in Surat Singh case, set
aside the judgment of the High Court on the ground of violation of mandatory
procedure prescribed under section 100 CPC, and remanded the matter to the
High Court for deciding the appeal afresh on merits in accordance with law
[Refer: Vijay Arjun Bhagat and others v. Nana Laxman Tapkire and others ,
(2018) 6 SCC 727].
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AIR 2019 SC 1178/(2019) 19 SCC 413
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(v) This Court in Ramakrishnan Kadinhipally & Ors. v. P.T. Karunakaran
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Nambiar criticized the High Court for remanding a case to the trial court without
proper justification, especially when concurrent findings of fact existed. It
reiterated that in second appeals under Section 100 CPC, the High Court should
not interfere with concurrent findings unless there is a substantial question of law.
The relevant paragraphs read as under:
“7. By the impugned judgment and order and without answering anything on the
substantial questions of law framed/formulated, absolutely in a casual manner, the
High Court has allowed the Second Appeal and has set aside the concurrent
findings recorded by both the courts below and thereafter has remanded the matter
to the learned trial Court permitting the original plaintiff to amend the plaint and
pray for fixation of the boundary.
9. Having heard learned counsel for the respective parties and having gone through
the impugned judgment and order passed by the High Court, we are constrained to
observe that the manner in which the High Court has dealt with the Second Appeal
under Section 100 of the CPC is not appreciable at all. From the impugned
judgment and order passed by the High Court, it appears that the High Court has
exercised the powers as if the High Court was deciding the Writ Petition under
Article 226 of the Constitution of India. The High Court has not appreciated at all
that the High Court was deciding the Second Appeal under Section 100 of the CPC
and that too against the concurrent findings of fact by both the courts below, which
were, as such, on appreciation of evidence on record. Under the circumstances, the
impugned judgment and order passed by the High Court is unsustainable.
11. At the cost of repetition, it is observed that the High Court was dealing with the
Second Appeal under Section 100 CPC and the concurrent findings recorded by
both the courts below which were on appreciation of evidence on record. Neither
at the stage of deciding the suit nor even before the first Appellate Court even such
a prayer was made to amend the plaint, which is now permitted by the High Court,
despite the fact that earlier in the suit during the course of trial, the plaint was
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2023 SCC OnLine SC 323
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amended. Under the circumstances also, the impugned judgment and order passed
by the High Court is unsustainable.
12. Even for remand, a specific case is to be made out as per Order 41 Rule 23,
23A and 25 of the CPC. No findings are recorded by the High Court that the case
falls within Order 41 Rule 23, 23A and 25 of the CPC and the matter is required to
be remanded to the learned trial Court on setting aside the concurrent findings of
fact recorded by both the courts below. The High Court has mechanically remanded
the suit, which is wholly impermissible.
13. Even the substantial questions of law framed by the High Court, while admitting
the second appeal, which are reproduced herein above cannot be said to be as such
substantial questions of law at all. The same are on questions of fact. Under the
circumstances, the impugned judgment and order passed by the High Court
quashing and setting aside the concurrent findings recorded by both the courts
below, while exercising the powers under Section 100 CPC, is unsustainable.
14. In view of the above and for the reasons stated above, the present Appeal
succeeds. The impugned judgment and order passed by the High Court is hereby
quashed and set aside. The judgment and decree passed by the learned trial Court
confirmed by the first Appellate Court is, hereby, ordered to be restored.”
13. In the present case, evidently, the first suit viz. , O.S.No.851 of 1965 seeking
maintenance was decreed on 26.08.1965 in favour of the plaintiffs / Respondent
Nos.6 and 7 herein. Consequently, the suit properties were attached for realizing
the maintenance amount. In the court auction, the suit ‘A’ schedule property was
purchased by Karivarada Gowdar and the sale was confirmed vide certificate
(Ex.B1) dated 25.09.1970 and possession was also handed over to him on
22.12.1970. Patta book (Ex.B5) was also issued in his favour. Subsequently, the
suit ‘A’ schedule property was purchased by Respondent Nos.8 to 10 and
thereafter, by Respondent No.11 and thereafter, by the appellants herein. It is also
to be noted here that the subsequent purchasers filed two separate suits for
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permanent injunction restraining the defendants therein from interfering with
their possession of the suit ‘A’ schedule property and the same also came to be
decreed, in their favour. It is significant to point out at this juncture that though
the father of Respondent Nos.1 and 2 and the husband of Respondent No.3 viz .,
Dasappa Gowdar was party to the said suit, he did not contest the suit effectively.
After his death, Respondent Nos.1 to 3 were duly impleaded in the execution
proceedings and a court guardian was also appointed for the minor daughter of
the said Dasappa Gowdar. However, they did not take any immediate steps to set
aside the decree passed in the first suit. It was only in 1982, approximately
seventeen years after the first suit that Respondent Nos.1 to 3 filed the second suit
viz ., O.S.No.257 of 1982 seeking to set aside the decree in O.S.No.851/1965,
partition of the suit 'A' and 'C' schedule properties, permanent injunction, etc . As
such, it cannot be contended that Respondent Nos.1 to 3 were unaware of the first
suit and upon becoming aware of it, they filed the second suit after a period of 17
years. Further, in the second suit, Respondent Nos.1 to 3 did not specify when
they became aware of the decree passed in the first suit.
14. In the second suit viz ., O.S.No. 257 of 1982, Respondent Nos.1 to 3
predicated their case on allegations of fraud and collusion between the
defendants, claiming a lack of knowledge about the earlier proceedings. They
further asserted that Respondent No.3 was in mental distress following her
husband's death and that they were in continuous possession of the suit properties.
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15. The trial court, after a comprehensive examination of the evidence, both
oral and documentary, concluded that Respondent Nos.1 to 3 are not entitled to
any relief in the suit. On the pivotal issue of limitation, the trial court was of the
view that the action has to be taken to set aside the decree within a period of three
years, as per Article 59 of the Limitation Act, whereas the suit was filed after a
period of seventeen years and hence, the relief sought by Respondent Nos.1 to 3
to set aside the decree passed in the first suit was hit by the doctrine of limitation.
The relevant paragraphs of the judgment passed by the trial Court are reproduced
below for ready reference:
“12. From the date of Ex.A1 about 17 years later, the relief which is sought for, to
set aside the above said decree is hit by limitation is contended on the defendant's
side. The defendants did not mention specifically in the written statement filed by
them. If as per law a case is to filed within the stipulated period this court has the
power to dismiss the case, and even though the counter argument is not made in
this regard, the court has the power to dismiss the suit, as mentioned in the proviso
of Section 3 of Limitation Act was appointed out by the Learned Counsel for the
defendants. Therefore, considering the proviso of Section 3 of the above said Act,
it is necessary to peruse whether the relief sought for by the plaintiff to set aside
the order passed in O.S.No.851 of 1985 is made within the stipulated period, in this
case.
13. As mentioned in the Article 59 of the Limitation Act, the action has to be taken
to set aside the Ex.A 1 decree, within a period of three years. That is within three
years from the date of Ex.A1 the plaintiffs would have taken action for setting aside
the above said decree. I find that it is pertinent to mention the clause on page 634
of The Limitation Act, by B.B. Mitra. It is as follows:
12. Burden of proof. If a suit is prima facie within the time allowed by the Article
then if the defendant takes a plea that the suit is barred by limitation then it is for
the defendant to prove it. Where, however, on the averments of the plaint the suit
seems to barred it is for plaintiff to make out the circumstances to prove that the
suit is not barred by limitation. Mere assertion in the plaint that the plaintiff
acquired knowledge on particular date does not by itself establish that fact and if
on averments made in the plaint it is found that the plaintiff had acquired knowledge
beyond the period prescribed by this Article then the suit will be barred. If the suit
17
is prima facie within the time but the defendant takes plea that the plaintiff was
aware of the necessary facts to file the suit prior to the date when he admits in the
plaint such knowledge of facts then it is for the defendant to allege and prove that
the plaintiff had such knowledge prior to the period from which the time begins to
run.
rd
It is mentioned in the plaint that the 3 plaintiff is not aware of the Ex.Al decree
and the proceedings after this. It is not mentioned in the plaint as to when for the
first time, they knew about the Ex.A1 decree and the proceedings initiated
thereafter. In this connection, evidence was not let in by P.A.l in this court. As
already stated by me, this suit has been filed about 17 years later from the date of
the date of decree. It is the onus of the plaintiff to prove that the relief prayed for to
set aside the decree was filed within the stipulated time. Only through Dasappa
Gowdar, the plaintiffs claim the right over the suit A and C schedule properties. As
already stated by me the above said Dasappa Gowdar is aware of the Ex.Al decree
is revealed through the copy of the order Ex.A2. Even the above said Dasappa
Gowdar did not take any action to set aside the decree Ex.Al. Thereafter, after the
demise of Dasappa Gowdar, in the execution proceedings, these plaintiffs were
impleaded as legal heirs is revealed through Ex.B1. Therefore, the averment that
rd
the 3 plaintiff is not aware of the above said Ex.Al decree and the proceedings
thereafter, as mentioned in the plaint is not proved. Per contra, it is proved through
the documents in this case, that the plaintiffs are aware of the above said
proceedings. Therefore, I hold that the relief as prayed for by the Plaintiff to set
aside the exparte Decree Ex.Al is hit by the doctrine of limitation…”
16. The First Appellate Court also, upon a thorough analysis, affirmed the
judgment of the trial Court. Especially, with respect to the conclusion reached by
the trial Court on the aspect of limitation, the First Appellate Court was of the
opinion that the plaintiffs had slept over for 17 years and had chosen to come to
the court violating the mandate under Section 59 of the Limitation Act and
therefore, the suit was hopelessly barred by limitation as laid down by the trial
Court. The relevant paragraphs of the First Appellate Court’s judgment are
extracted below for ready reference:
18
th
“15.The 4 Defendant Sundarammal and her daughter Vennila have instituted a
rd
suit against samiappan the 3 Defendant herein in O.S.851/65 for maintenance and
also for creating a charge over the suit properties. The decree obtained by them in
th th
the above suit by the 4 Defendant and 5 Defendant was marked as Ex.A1.
Thereafter it is found that the Defendants 4 and 5 took the Execution Proceedings
against Samiappan and in his presence the sale of the A- schedule property was
rd
ordered by the Court under Exs.A-2 and A-3. It will have to be noted that the 3
Defendant Samiappan had contested the Execution Application filed by his wife and
daughter. After the demise of Rangan Gowder, the father of Samiappan, Kempakkal
the wife of Rangan Gowder and Subbammal the daughter of Rangan Gowder were
impleaded as legal representatives of Rangan Gowder as found from Ex.A.4. It
st
would be pertinent to note that the said Kempakkal is the 1 defendant and the said
Subbammal is the 2nd Defendant in this suit. It is not as if the Plaintiffs were in the
dark, while the proceedings for payment of maintenance were taken by
Sundarammal and Vennila Madammal in the name of Thoddammal and Rajamani
and Santhamani, the Plaintiffs herein have been impleaded as legal representatives
of Dasappan on his demise in the Execution Proceedings as found in Ex.B-1 to B-
th
3 would establish that the A-schedule property which was brought for sale for 4
th
and 5 Defendants was knocked down by one Kerivaratha Gounder.
17. Dasappan the husband of the 3rd Plaintiff has contested the Execution Petition
filed by Sundaramal and Vennila by engaging a counsel for him. It is not as if that
the parties had remained ex parte throughout the proceedings as contended by the
Plaintiffs. Ex.B-1 would reveal that Rajamani and Santhamani the minor children
of Dasappan were represented by a Court guardian appointed by the Court,
Subbammal the 2nd Defendant also has been added as a party to the Execution
Proceedings on the demise of Rangae Gowder apart from his wife 1st Defendant
having been impleaded as a party to the suit. The plaintiffs and Defendants 1 to 3
were aware of the proceedings taken by Sundarammal and Vennila.
19. D.W.2 in his cross-examination would state that in their families the eldest
female member would be called as Thoddammal. No wonder Madammal being the
oldest female member in the family of Dasappan has been so-called as
Thoddammal. Further Ex.B-9 the returned cover would show that the postman has
made and endorsement after enquiry that the addressee viz. Thoddammal, wife of
Dasappan was out of Station. If Thoddammal was not the wife of Dasappan, the
Postman would not have stated that Thoddammal wife of Dasappan has gone out.
Further it is not the case of the Plaintiffs that any other wife was there for
Dasappan. Therefore, accepting the explanation given by D.W.2 the Court comes
to the conclusion that Madammal was called as Thoddammal also and that,
therefore, it is false to say that Madammal was not aware of the proceedings taken
by Sundarammal. Further when Rajamani and Santhamani were represented by
Court guardian the court guardian could not have acted affectively unless
Madammal gave proper instructions to contest the Execution proceeding taken by
19
sundrammal. It is highly ridiculous to state that Madammal was totally out of
picture.
21. The execution Court while executing the decree obtained in O.S.No.851/65 has
chosen to sell away the A Schedule property to satisfy the maintenance decree
obtained by 4th and 5th Defendants through Court auction in the presence of all
the Defendants herein. When the coparceners have not taken steps to partition the
share of Samiappan at the time of the Execution proceeding taken by Defendants 4
and 5 the Execution Court did not find the other way except bringing one of the
schedule of properties for sale to satisfy the maintenance decree. I do not find any
lacuna in the above execution proceedings. The plaintiffs have not cared to mention
when they came to know of the maintenance decree obtained by 4th and 5th
Defendants and the sale of the A-schedule property in Court auction. Nor have they
stated anything about it in their evidence. For about 17 years, the Plaintiffs have
slept over and have chosen to come to the court violating the mandate found under
Sec.59 of the limitation Act. Therefore, the suit is hopelessly barred by limitation
as laid down by the Trial Court…”
17. Thereafter, when the concurrent findings were sought to be challenged by
way of second appeal, the High Court at the time of admission on 30.03.1998,
formulated the following substantial question of law:
“Whether the Court below was right in justifying the sale of the entire A schedule
properties, which were admittedly joint family properties and in which the second
rd
respondent has only 1/3 share, which alone would be liable to satisfy the decree
for maintenance obtained by his wife and daughters viz., respondents 3 and 4.”
Upon hearing the arguments of the counsel for both sides, the High Court
formulated the following additional substantial question of law:
" Whether the lower Court was right in its conclusion that the suit is barred under
Section 59 of the Limitation Act, when the appellants had no knowledge of the sale
proceedings till 1981, when they published the notice under Ex.A.6?"
Without deciding the substantial question of law involved in the second appeal,
the High Court only considered the additional substantial question of law,
20
observing that both the Courts failed to frame any issue in respect of the
limitation, though held that the suit was barred by limitation. Accordingly, the
High Court allowed the second appeal by setting aside the judgments passed by
the Courts below and remitted the matter to the trial Court for a fresh trial with a
direction to frame additional issue regarding limitation, let in evidence and decide
the matter after giving due opportunity to both sides, within a period of six
months. The relevant paragraphs of the High Court’s judgment are extracted for
ready reference:
“10. In this regard, it is relevant to extract the issues framed by the trial Court as
follows:
1) Whether the Plaintiff is entitled to the relief to the Judgement in O.S.851/2005?
2) Whether the Plaintiffs are entitled to 5/12 Shares in suit 'A' and 'C' schedule
properties?
3) Whether the Plaintiffs are entitled to the relied of permanent injunction as prayed
in the plaint?
4) Whether the Plaintiffs have paid sufficient correct fees?
5) What other reliefs are the Plaintiffs entitled to?
Though, the trial Court discussed in respect of the above issues and also about the
question of limitation, dismissed the suit as the suit itself barred by limitation.
11. The first appellate Court also framed the points for consideration as follows:
"1. Whether the plaintiffs are entitled to the relief of cancellation of the decree in
O.S.No.851/65 on the file of the District Munsif Court, Coimbatore?
2. Whether the plaintiffs are in possession and enjoyment of the A schedule and
consequently whether they are entitled to permanent injunction as prayed for by
them?"
The first appellate Court also discussed about the limitation and concluded that the
suit is filed after 17 years as such, violation of provision under Section 59 of the
Limitation Act and the suit is hopelessly barred by Limitation Act and dismissed.
21
12. Admittedly, both the Courts below did not frame any issue in respect of the
limitation. As rightly pointed out by the learned Senior Counsel appearing for the
plaintiffs, both the Courts failed to frame any issue in respect of limitation, though
both the Court hold as the suit is barred by limitation. The first appellate Court
also confirmed the judgment and decree passed by the trial Court without framing
point for limitation for determination in the first appeal. Therefore this Court
necessarily has to interfere with the finding of the Courts below. Accordingly, this
Court answered only on the additional substantial question of law formulated by
this Court in favour of the plaintiffs and against the defendants.
13. In fine, the second appeal stands allowed and the judgment and decree passed
by Courts below are set aside. However considering the facts and circumstances,
the suit is remitted back to the trial Court for fresh trial by framing additional issues
in respect of limitation and let in evidence on those aspects and decide the matter
after giving due opportunity to both sides in respect of the issue. Further the trial
Court is directed to complete the trial within a period of six months from the date
of receipt of the entire bundle. It is made clear that the trial court is directed to
conduct the trial uninfluenced by the observation made by this Court while deciding
the case. There is no order as to costs.”
18. In our opinion, the judgment of the High Court is unsustainable, applying
the legal principles as stated above that once the High Court is satisfied that the
appeal involves a substantial question of law, such question shall have to be
framed and finally decided on merits in accordance with the procedure laid down
under section 100 CPC. The High Court, has failed to decide the substantial
framed at the time of admission and went to decide, only the additional substantial
question of law, framed at the time of hearing. The first suit was decreed on
26.08.1965 and the auction purchaser got the suit ‘A’ schedule property on
22.12.1970 and thereafter, the appellants herein purchased the same from the
subsequent purchaser by name R.S.Ramaswamy / Respondent No.11; despite the
fact that the decree and sale were within the knowledge of the Respondent Nos.
22
1 to 3, they have thwarted the right of the purchasers over the suit ‘A’ schedule
property by filing second suit viz ., O.S. No.257 of 1982, that too, after a period
of 17 years and the decision of the High Court remanding the matter to the trial
Court for a fresh trial on the limitation aspect, without deciding the same on
merits, by holding that a separate issue ought to have been framed is unsustainable
and will certainly prolong the litigation without any useful purpose.
19. The object of framing an issue is to determine the material point of disputes
between the parties, for the purpose of adjudication. Issues can be framed on a
question of law or fact or a mixed question of law and fact. The decision on the
issue settles the lis in favour of either of the parties. A distinct issue is to be
formed when a material proposition of law or fact is affirmed by one party and
denied by another. Also, there is no necessity to frame an issue, when the parties
are not at dispute on a particular fact or law. At times, despite pleadings, when a
specific issue is not framed, but when both the parties to the lis have let in
evidence and rendered their arguments on a point, the decision on which is
intrinsically connected to the main issue, then the Court is bound to render a
finding on the point of dispute before deciding the connected issue, one way or
another. In that case, it becomes the duty of the Court to analyze the evidence
before it and render a decision on all disputed questions of fact or law, directly or
indirectly in issue, so as to put an end to the lis . The Limitation Act,1963 restricts
the right of a litigant by prescribing a time limit within which action must be
23
initiated. Its object is to provide a time or period, within which, the action has to
be initiated. The object of the Act is not to destroy a vested right available in law
but to prevent indefinite litigation and therefore, only prescribes a period for
initiation of the litigation. This Court has described the object of the Limitation
Act, 1963 in the following decisions:
(i) Bharat Barrel & Drum Mfg. Co. Ltd. and Another v. Employees State
13
Insurance Corporation :
“7. …… The object of the Statutes of Limitations is to compel a person to exercise
his rights of action within a reasonable time as also to discourage and suppress
stale, fake or fraudulent claims. While this is so, there are two aspects of the
Statutes of Limitation the one concerns the extinguishment of the right if a claim
or action is not commenced with a particular time and the other merely bar the
claim without affecting the right which either remains merely as a moral
obligation or can be availed of to furnish the consideration for a fresh enforceable
obligation. Where a statute prescribing the limitation extinguishes the right, it
affects substantive right while that which purely pertains to the commencement of
action without touching the right is said to be procedural”.
14
(ii) N. Balakrishnan v. M. Krishnamurthy
“that the Limitation Act is based upon public policy which is used for fixing a life
span of a legal remedy for the purpose of general welfare. It has been pointed out
that the Law of Limitation are not only meant to destroy the rights of the parties
but are meant to look to the parties who do not resort to the tactics but in general
to seek remedy. It fixes the life span for legal injury suffered by the aggrieved
person which has been enshrined in the maxim ‘interest reipublicae ut sit finis
litium’ which means the Law of Limitation is for general welfare and that the
period is to be put into litigation and not meant to destroy the rights of the person
or parties who are seeking remedy. The idea with regards to this is that every
legal remedy must be alive for a legislatively fixed period of time”.
13
AIR 1972 SC 1935
14
(1998) 7 SCC 123
24
20. Limitation, as we generally know is a mixed question of fact and law.
However, there is no hard and fast rule that every question of limitation is to be
treated as a mixed question of fact and law. In cases, where the action is initiated
after several years after the right to sue accrued, without any pleadings to explain
the reasons for delay or as to when the fraud was discovered, the question of
limitation is to be treated as a question of law. A recourse may be had to Order
VI Rules 4 and 10 CPC, which mandates that specific particulars would have to
be given in the pleadings. Once such a plea is raised in the pleadings, then the
burden lies on the person to prove that the delay was due to any plausible reason
and it is always well within the knowledge of the other party to contend and prove
that the opposite party had prior knowledge about the disputed fact and that his
right to sue or defend had also accrued by that date. Even in the absence of
specific pleadings regarding the limitation in the plaint or a plea of defense, there
is a bounden duty on every civil Court to ascertain as to whether the lis has been
initiated within the time prescribed under law, even if the parties to the lis had not
raised any objections. This right flows from the mandate of Section 3 of the
Limitation Act, 1963. A useful reference may be had to the judgment of this Court
on this aspect, in V.M. Salgaocar and Bros. v. Board of Trustees of Port of
15
Mormugao and another , wherein, it was held as follows:
“20. The mandate of Section 3 of the Limitation Act is that it is the duty of the
court to dismiss any suit instituted after the prescribed period of limitation
irrespective of the fact that limitation has not been set up as a defence. If a suit is
15
(2005) 4 SCC 613
25
ex facie barred by the law of limitation, a court has no choice but to dismiss the
same even if the defendant intentionally has not raised the plea of limitation.
21. This Court in Manindra Land & Building Corpn. Ltd. v. Bhutnath Banerjee
[(1964) 3 SCR 495 : AIR 1964 SC1336] held (AIR para 9):
“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 had set up the
plea of limitation or not. 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 had
no choice and if in construing the necessary provision of the Limitation Act or in
determining which provision 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 led the court to assume or not to assume the
jurisdiction to proceed with the determination of that matter.”
In cases, where the pleadings are silent, then it becomes the duty of the Court to
ascertain from the evidence and the overall facts of the case, as pleaded by either
party, and to render a finding on limitation where the question of limitation is to
be treated as a question of law, since the Court cannot entertain frivolous or stale
claims. It is also apropos to reiterate the settled position of law that a question of
law can be raised at any stage.
21. We have in earlier paragraph discussed the object of framing the issues.
We also held that there could be several points directly or indirectly connected
with the main issue that has been framed. In such cases, when the larger issue that
has been framed is wide enough to cover different points of disputes within it,
there is no necessity to frame a specific issue on that aspect. Further, when the
parties go to trial with the knowledge that a particular point is at lis , had full
opportunity to let in evidence, they cannot later turn back to say that a specific
26
issue was not framed. All that is required under law, is for the Court to render a
finding on the particular fact or law in dispute, on the facts of the case. However,
we make it clear that such evidence, in the absence of pleadings, cannot permit
either of the parties to make out a new case. It is pertinent to mention here that
the Courts are vested with powers to go into the question of law, touching upon
either the limitation or the jurisdiction, even if no plea is raised and not in cases,
where facts have to be pleaded and evidence has to be let in. The Civil Procedure
Code and the law of limitation, being procedural laws, meant to assist the Courts
in the process of rendering justice, cannot curtail the power of the Courts to render
justice. Procedural laws after all are handmaid of justice. What is to be seen is
whether any irregularity arising from a failure to follow procedure has caused
serious prejudice to the parties. It is not to be forgotten that the process of
adjudication is to discern the truth.
21.1. It will be useful to refer to certain judgments of this Court on violation of
procedural law, which are as follows:
(i) Sardar Amarjit Singh Kalra (Dead) by L.Rs. & Others v. Pramod Gupta (Smt.)
16
(Dead) by L.Rs. and Others :
“26. Laws of procedure are meant to regulate effectively, assist and aid the object
of doing substantial and real justice and not to foreclose even an adjudication on
merits of substantial rights of citizen under personal, property and other laws.
Procedure has always been viewed as the handmaid of justice and not meant to
hamper the cause of justice or sanctify miscarriage of justice........”
16
MANU/SC/1214/2002 : (2003) 3 SCC 272 (Constitutional Bench)
27
17
(ii) Kailash v. Nanhku and Ors. :
“28. All the Rules of procedure are the handmaid of justice. The language employed
by the draftsman of processual law may be liberal or stringent, but the fact remains
that the object of prescribing procedure is to advance the cause of justice. In an
adversarial system, no party should ordinarily be denied the opportunity of
participating in the process of justice dispensation. Unless compelled by express
and specific language of the statute, the provisions of Code of Civil Procedure or
any other procedural enactment ought not to be construed in a manner which would
leave the court helpless to meet extraordinary situations in the ends of justice. The
observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar
[MANU/SC/0028/1975 : (1975) 1 SCC 774] are pertinent: (SCC p. 777, paras 5-6)
The mortality of justice at the hands of law troubles a judge's conscience and points
an angry interrogation at the law reformer.
The processual law so dominates in certain systems as to overpower substantive
rights and substantial justice. The humanist Rule that procedure should be the
handmaid, not the mistress, of legal justice compels consideration of vesting a
residuary power in judges to act ex debito justitiae where the tragic sequel
otherwise would be wholly inequitable. ... Justice is the goal of jurisprudence --
processual, as much as substantive.
29. In State of Punjab v. Shamlal Murari [ MANU/SC/0494/1975 : (1976) 1 SCC
719 : 1976 SCC (L&S) 118] the Court approved in no unmistakable terms the
approach of moderating into wholesome directions what is regarded as mandatory
on the principle that: (SCC p. 720)
“Processual law is not to be a tyrant but a servant, not an obstruction but an aid to
justice. Procedural prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant in the administration of justice. In Ghanshyam Dass v.
Dominion of India [MANU/SC/0006/1984 : (1984) 3 SCC 46] the Court reiterated
the need for interpreting a part of the adjective law dealing with procedure alone
in such a manner as to subserve and advance the cause of justice rather than to
defeat it as all the laws of procedure are based on this principle.”
17
MANU/SC/0264/2005 : (2005) 4 SCC 480 (3 Judge Bench)
28
18
(iii) Sugandhi (Dead) by LRs & Others v. P. Rajkumar :
“9. It is often said that procedure is the handmaid of justice. Procedural and
technical hurdles shall not be allowed to come in the way of the court while doing
substantial justice. If the procedural violation does not seriously cause prejudice to
the adversary party, courts must lean towards doing substantial justice rather than
relying upon procedural and technical violation. We should not forget the fact that
litigation is nothing but a journey towards truth which is the foundation of justice
and the court is required to take appropriate steps to thrash out the underlying truth
in every dispute. Therefore, the court should take a lenient view when an application
is made for production of the documents under Sub-rule (3).”
22. In the present case, the trial Court though had not framed a specific issue
on “limitation”, the same could very well fall under the broader issue. The
question of limitation can be encompassed within the larger question determined
by the First Appellate Court for determination. The failure of the trial Court and
the First Appellate Court to formulate a separate issue, in the view of this Court,
is not fatal to the judgment rendered by them and has not caused any prejudice to
the parties. Further, the trial Court, in the performance of its duty, mandated
under Section 3 of the Limitation Act, 1963, has taken up the question of
limitation and upon perusal of the overall pleadings and evidence, has rightly
decided the same. Therefore, we do not agree with the decision of the High Court
in remanding the matter to the trial Court, that too after this length of time, when
all materials were available before it.
18
MANU/SC/0792/2020 : (2020) 10 SCC 706
29
23. As already indicated above, the concurrent findings of the Courts below
were sought to be challenged before the High Court. It is a general rule that High
Court will not interfere with the concurrent findings of the Courts below. In the
present case, both the trial Court and the First Appellate Court, after detailed
analysis of the oral and documentary evidence let-in by the parties, categorically
held that the suit was hopelessly barred by limitation. We also find that the
evidence produced would abundantly make it clear that Dasappa Gowdar and
thereafter, Respondent Nos.1 to 3 were well aware of the earlier proceedings and
the decree passed in the first suit. The auction purchaser's title was confirmed by
court orders, and subsequent transfers were properly registered and recorded.
Therefore, Respondent Nos.1 to 3, who have knowingly slept over their right to
challenge the sale and allowed further rights to flow, cannot later question the
sale of larger extent of share in an unpartitioned property. We also do not find
any plausible reasons for delay. It is reiterated at this juncture that limitation is a
matter of statute and must be strictly enforced, more so when the earlier
transaction or sale is well within the knowledge of the parties. This principle
assumes greater significance in the present case, where the delay extends to
seventeen years for filing the suit, despite the fact that they were arrayed as
respondents/Judgment Debtors in the execution proceedings. Furthermore,
protection of bona fide purchasers for value is a significant consideration, and
any disturbance to their rights or titles after such a long period, would create
uncertainty in property transactions and undermine the sanctity of court sale.
30
Therefore, we are of the view that the High Court was not justified in remanding
the matter to the trial Court for fresh trial solely with respect to the issue of
limitation; and that, the Courts below have rightly held that the suit was barred
by limitation and Respondent Nos.1 to 3 are not entitled for any relief.
24. In such view of the matter, the appeal is allowed. The impugned judgment
of the High Court is set aside. The judgment and decree of the trial court
dismissing the suit, as affirmed by the First Appellate Court, are restored. Parties
shall bear their own costs throughout.
25. Connected Miscellaneous Application(s), if any, shall stand disposed of.
……………………J.
[J. B. Pardiwala]
……………………J.
[R. Mahadevan]
NEW DELHI;
APRIL 09, 2025.
REPORTABLE
IN THE SUPREME COURT OF INDIA
2025 INSC 478
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5131 OF 2025
(Arising out of SLP (C) No. 36 OF 2021)
R. NAGARAJ (DEAD) THROUGH LRs.
AND ANOTHER ... APPELLANTS
VERSUS
RAJMANI AND OTHERS … RESPONDENTS
J U D G M E N T
R. MAHADEVAN, J.
Leave granted.
2. This appeal is directed against the judgment and decree dated 17.02.2020
1
passed by the High Court of Judicature at Madras in Second Appeal No.406 of
1998. By the impugned judgment, the High Court allowed the second appeal,
thereby setting aside the judgment and decree passed by the Courts below, and
remitting the matter to the trial Court for framing additional issues in respect of
limitation. The trial Court was further directed to conduct the trial afresh on the
aspect of whether the suit was barred by limitation, and to complete it within a
period of six months.
Signature Not Verified
Digitally signed by
CHANDRESH
Date: 2025.04.09
18:00:11 IST
Reason:
1
Hereinafter referred to as “the High Court”
2
3. The genesis of the litigation traces back to a joint Hindu family consisting
of Rangappa Gowdar and his sons, Dasappa Gowdar and Samiappan. Originally,
2
the suit bearing O.S.No.851 of 1965 had been filed by the wife and daughter of
the said Samiappan viz. , Sunderammal and Vennila, who are Respondent Nos.6
and 7 herein, seeking maintenance against the said Samiappan and his father
Rangappa Gowdar and brother Dasappa Gowdar. The suit came to be decreed on
26.08.1965 and the suit properties were attached for the maintenance amount in
the execution proceedings initiated by the plaintiffs. During the pendency of the
execution proceedings, the said Rangappa Gowdar and Dasappa Gowdar died and
their legal heirs were brought on record. Through court auction, the suit ‘A’
schedule property was purchased by one Karivarada Gowdar and the sale was
confirmed by issuing certificate dated 25.09.1970 in E.P.No.424 of 1969 in
O.S.No.851 of 1965 by the Court of District Munsif, Coimbatore. Since the said
Samiappan tried to encroach the suit ‘A’ schedule property, the said Karivarada
Gowdar filed a suit viz ., O.S.No.1978 of 1972 for permanent injunction and the
same came to be decreed on 11.06.1973. Subsequently, the suit ‘A’ schedule
property was purchased by Respondent Nos.8 to 10 from the said Karivarada
Gowdar and they also filed a suit in O.S.No.3390 of 1981 seeking permanent
injunction, which came to be decreed on 24.07.1982. Thereafter, the suit ‘A’
2
Hereinafter referred to as “the first suit”
3
schedule property was purchased by Respondent No.11 and later-on, by
Appellant Nos.1 and 2.
4. In the above background, Respondent Nos.1 to 3 who are the daughters
3
and wife of Dasappa Gowdar, instituted a suit bearing O.S.No.257 of 1982
4
before the II Additional District Munsif, Coimbatore , to set aside the decree
passed by the Court of District Munsif, Coimbatore in O.S.No.851 of 1965 and
to partition the suit ‘A’ and ‘C’ schedule properties by metes and bounds in 12
equal parts and to allot the 5/12 shares to the plaintiffs and for permanent
injunction restraining the subsequent purchasers from in any manner disturbing
with the peaceful possession of the suit properties by the plaintiffs.
5. After trial, the suit was dismissed, by judgment dated 08.09.1994, against
which, Respondent Nos.1 to 3 filed Appeal Suit bearing No.207 of 1994 before
5
the Additional District Judge, Coimbatore . By judgment dated 28.01.1997, the
appeal suit came to be dismissed. Challenging the same, Respondent Nos.1 to 3
went on further appeal viz ., S.A.No.406 of 1998, which was allowed by the High
Court, by judgment dated 17.02.2020. Aggrieved by the same, the appellants,
3
Hereinafter referred to as “the second suit”
4
Hereinafter referred to as “the trial Court”
5
Hereinafter referred to as “the First Appellate Court”
4
who are the subsequent purchasers of the suit ‘A’ schedule property, have
preferred this appeal before us.
6. On 25.01.2021, when the matter was taken up for consideration, this Court
passed the following order:
“Exemption from filing O.T. and c/c of the impugned order is granted.
Issue notice.
In the meantime, further proceedings in pursuance of the order dated
17.02.2020 passed by the High Court shall remain stayed.”
7. During the pendency of this appeal, Respondent Nos.1 and 2 have passed
away, and their legal representatives have been brought on record and
accordingly, the cause title has been amended. V ide order dated 21.10.2022
passed in Interlocutory Application No. 101397/2022, Respondent Nos. 4, 8, 9,
11, 14 and 18 to 21 have been deleted from the array of parties, since they are
proforma parties, and they do not have any surviving interest in the suit property.
Vide order dated 21.10.2022 passed in Interlocutory Application
No.101402/2022, the appellants have been exempted from the requirement of
substituting the legal representatives of deceased Respondent Nos.10 and 12.
Despite the service of notice, none appeared on behalf of the other proforma
respondents viz. , Respondent Nos.5 to 7, 13, 15, 16 and 17. Thus, Respondent
Nos.1 to 3 are the only contesting parties.
5
8. Heard the learned counsel for the appellants and the learned counsel for the
contesting Respondent Nos.1 to 3 and also perused the materials available on
record.
9. The main contention of the learned counsel for the appellants is that
Respondent Nos.1 to 3 had been arrayed as respondents / judgment debtors in the
execution proceedings initiated in O.S.No.851 of 1965 and hence, they had the
knowledge of the proceedings even prior to filing of the suit in O.S.No.257 of
1982. Since the second suit was filed after a period of 17 years, it was hopelessly
barred by limitation. In such circumstances, the High Court ought not to have
allowed the second appeal and remitted the matter to the trial Court for
conducting trial afresh, on the aspect of limitation.
9.1. It is further submitted that the suit 'A' schedule property could no longer
remain as joint family property, when the same was brought into court auction
and the sale was confirmed and possession was also handed over to the auction
purchaser. However, Respondent Nos.1 to 3 did not take any steps to set aside the
said sale, but they conveniently filed the second suit bearing O.S. No. 257 of 1982
to set aside the decree dated 26.08.1965 passed in the first suit bearing O.S. No.
851 of 1965 without any subsisting legal right. Further, the documentary
evidence clearly proved that Respondent Nos. 1 to 3 were aware of the execution
proceedings and that, the courts below discussed the limitation point in detail
6
before dismissing the suit / appeal suit filed by Respondent Nos.1 to 3, and
therefore, the necessity to frame an issue on limitation does not arise.
9.2. The learned counsel also pointed out that the suit was not dismissed solely
on the ground of limitation, but on merits as well, observing that Respondent Nos.
1 to 3 herein are not entitled to any relief, since they had knowledge about the
earlier suit.
9.3. It is further submitted that after admitting the second appeal, the High
Court ought to have decided the question of law relating to limitation, instead of
remitting the case to the trial Court, specially, after more than two decades from
the inception of the Second Appeal. Further, according to the learned counsel,
Respondent Nos. 1 to 3 herein, failed to approach the Court with clean hands and
abused the process of law by filing such frivolous suit.
9.4. Thus, the learned counsel submitted that the suit was rightly dismissed by
the trial Court as time-barred and the same was affirmed by the First Appellate
Court. As such, the decision of the High Court to remand the matter for framing
the issue of limitation and conducting trial afresh, is unwarranted and is liable to
be set aside.
10. Per contra, the learned counsel for Respondent Nos.1 to 3 submitted that
the High Court rightly allowed the second appeal filed by Respondent Nos. 1 to
3 and remitted the matter to the trial Court for fresh trial, after framing the issue
7
of limitation. According to the learned counsel, the said issue is a mixed question
of fact and law; to decide the maintainability of the suit and without framing such
question, the trial Court and the First Appellate Court ought not to have come to
the conclusion that Respondent Nos.1 to 3 are not entitled to the relief to set aside
the decree passed in the first suit viz ., O.S. No. 851 of 1965 and to partition the
suit 'A' and 'C' schedule properties by metes and bounds in 12 equal parts and to
allot the 5/12 shares to Respondent Nos.1 to 3, and for a permanent injunction. In
this regard, reliance was placed on the decision of this Court in Vaish Aggarwal
6
Panchayat v. Inder Kumar & Others .
10.1. The learned counsel further submitted that the trial Court as well as the
First Appellate Court without framing any issue, any pleadings, and without
leading any evidence, rejected the relief sought by Respondent Nos.1 to 3 as
barred by limitation. Therefore, the High Court rightly remanded the matter to
the trial Court to frame a specific issue with regard to limitation and decide the
matter afresh. Reliance was made to the decision of this court in Ramesh B. Desai
7
& Ors. v. Bipin Vadilal Mehta & Others .
10.2. It is also submitted that the decree obtained in O.S. No. 851 of 1965 is an
asseveration of fraud and collusion.
6
(2020) 12 SCC 809
7
(2006) 5 SCC 638
8
10.3. With these submissions, the learned counsel prayed for dismissal of this
appeal filed by the appellants.
11. Upon considering the rival submissions, the only question that arises for
our consideration is whether the High Court was justified in remanding the matter
to the trial Court for a fresh trial on the issue of limitation, despite the existence
8
of concurrent findings, when Section 100 of the Code of Civil Procedure, 1908
empowered the High Court to decide the matter.
12. It is a well settled legal position that Section 100 CPC confers jurisdiction
on the High Court to entertain a second appeal, only when it is satisfied that the
case involves a substantial question of law. For better appreciation, the said
provision is extracted below:
9
“ [100. Second appeal.—(1) Save as otherwise expressly provided in the body of
this Code or by any other law for the time being in force, an appeal shall lie to
the High Court from every decree passed in appeal by any Court subordinate to
the High Court, if the High Court is satisfied that the case involves a substantial
question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely
state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved
in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent
shall, at the hearing of the appeal, be allowed to argue that the case does not
involve such question:
8
For short, “CPC”
9
Substituted by Act 104 of 1976, sec.37, for section 100 (w.e.f. 1-2-1977)
9
Provided that nothing in this sub-section shall be deemed to take away or abridge
the power of the Court to hear, for reasons to be recorded, the appeal on any
other substantial question of law, not formulated by it, if it is satisfied that the
case involves such question.]”
Thus, sub-section (1) of Section 100 says that the second appeal would be
entertained by the High Court only if the High Court is satisfied that the case
involves a substantial question of law. Sub-section (3) makes it obligatory upon
the appellant to precisely state in memo of appeal the “substantial question of
law” involved in the appeal. Sub-section (4) provides that where the High Court
is satisfied that any substantial question of law is involved in the case, it shall
formulate that question. In other words, once the High Court is satisfied after
hearing the appellant or his counsel, as the case may be, that the appeal involves
a substantial question of law, it has to formulate that question and then direct
issuance of notice to the respondent of the memo of appeal along with the
question of law framed by the High Court. Sub-section (5) provides that the
appeal shall be heard only on the question formulated by the High Court under
sub-section (4). In other words, the jurisdiction of the High Court to decide the
second appeal is confined only to the question framed by the High Court under
sub-section (4). The respondent, however, at the time of hearing of the appeal is
given a right under sub-section (5) to raise an objection that the question framed
by the High Court under sub-section (4) does not involve in the appeal. The
reason for giving this right to the respondent for raising such objection at the time
of hearing is because the High Court frames the question at the stage of
10
admission, which is prior to issuance of the notice of appeal to the respondent. In
other words, the question is framed ex parte and, therefore, sub-section (5)
enables him to raise such objection at the time of hearing that the question framed
does not arise in the appeal. The proviso to sub-section (5), however, also
recognizes the power of the High Court to hear the appeal on any other substantial
question of law which was not initially framed by the High Court under sub-
section (4). However, this power can be exercised by the High Court only after
assigning the reasons for framing such additional question of law at the time of
hearing of the appeal [See: Surat Singh (Dead) v. Siri Bhagwan & Others
(2018) 4 SCC 562 ].
12.1. Furthermore, this Court has consistently underscored that under Section
100 CPC, the High Court possesses the authority to entertain second appeals
strictly on substantial questions of law. Upon admitting such an appeal, the High
Court is empowered to frame substantial questions and adjudicate them directly,
without the necessity of remanding the matter to the trial court. This approach
ensures judicial efficiency and prevents unnecessary prolongation of litigation. A
few decisions are outlined below:
10
(i) Santosh Hazari v. Purushottam Tiwari (Deceased) by LRs
“16. Reverting to the facts of the case at hand, prima facie we find the first appellate
Court did not discharge the duty cast on it as a Court of first appeal. The
10
(2001) 3 SCC 179
11
High Court having noticed failure on the part of the appellant in not discharging
the statutory obligation cast on him by sub-section (3) of Section 100 of the Code,
on account of the substantial question of law involved in the appeal having not been
stated, much less precisely, in the memorandum of second appeal, ordinarily an
opportunity to frame such question should have been afforded to the appellant
unless the deficiency was brought to the notice of the appellant previously by the
High Court Registry or the court and yet the appellant had persisted in his default.
That was not done. In our opinion, the following substantial question of law does
arise as involved in the case and worth being heard by the High Court:-
“Whether on the pleadings and the material brought on record by the defendant,
the first appellate Court was right in holding that the case of adverse possession
was made out by the defendant and the suit filed by the plaintiff was liable to be
dismissed as barred by time under Article 65 of the Limitation Act, 1963, more so
when such finding was arrived at in reversal of the findings of the trial Court?”
17. The appeal is allowed. The case is remitted back to the High Court for hearing
and deciding the second appeal afresh.
18. We make it clear that we have not expressed any opinion either way on any of
the issues arising for decision in the case. We also make it clear that our framing
the question of law involved in the appeal shall not take away the jurisdiction of the
High Court vesting in it under proviso to sub-section (5) of Section 100 of the
C.P.C. to formulate any other question of law involved in the case The second
appeal shall be decided by the High Court uninfluenced by any of the observations
made hereinabove which have been made solely to support our opinion that the
appeal did not merit a summary dismissal by the High Court.”
(ii) Surat Singh (supra)
“29. The scheme of Section 100 is that once the High Court is satisfied that the
appeal involves a substantial question of law, such question shall have to be framed
under sub-section (4) of Section 100. It is the framing of the question which
empowers the High Court to finally decide the appeal in accordance with the
procedure prescribed under sub-section (5). Both the requirements prescribed in
sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the
manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide
the second appeal finally arises only after the substantial question of law is framed
under sub-section (4). There may be a case and indeed there are cases where even
after framing a substantial question of law, the same can be answered against the
appellant. It is, however, done only after hearing the respondents under sub-section
(5).”
12
11
(iii) Mehboob-Ur-Rehman (Dead) Through Lrs. V. Ahsanul Ghani
“21. As per Section 100 CPC, the appeal would lie to the High Court from the
decree passed in appeal by any Court subordinate only if the High Court is satisfied
that the case involves a substantial question of law; such question is required to be
stated in the Memorandum of Appeal; the High Court is required to formulate the
question on being satisfied that the same is involved in the case; the appeal is to be
heard on the question so formulated; and at the time of hearing, the respondent
could urge that the case does not involve such a question. The proviso to sub-
section (5) of Section 100 CPC makes it clear that the Court could hear the appeal
on any other substantial question of law not formulated by it, but only after
recording the reasons that the case involves such a question. In Surat Singh (Dead)
v. Siri Bhagwan and others (2018) 4 SCC 562 this Court has pointed out the
contours of the powers of High Court under the proviso to sub-section (5) of Section
100 CPC as under:-
“21……… The proviso to sub-section (5), however, also recognises the power of
the High Court to hear the appeal on any other substantial question of law which
was not initially framed by the High Court under sub-section (4). However, this
power can be exercised by the High Court only after assigning the reasons for
framing such additional question of law at the time of hearing of the appeal”.
22. We are clearly of the view that the proviso to sub-section (5) of Section
100 CPC is not intended to annul the other requirements of Section 100 and it
cannot be laid down as a matter of rule that irrespective of the question(s)
formulated, hearing of the second appeal is open for any other substantial question
of law, even if not formulated earlier…”
(iv) This Court pointing out the principle laid down in Surat Singh case, set
aside the judgment of the High Court on the ground of violation of mandatory
procedure prescribed under section 100 CPC, and remanded the matter to the
High Court for deciding the appeal afresh on merits in accordance with law
[Refer: Vijay Arjun Bhagat and others v. Nana Laxman Tapkire and others ,
(2018) 6 SCC 727].
11
AIR 2019 SC 1178/(2019) 19 SCC 413
13
(v) This Court in Ramakrishnan Kadinhipally & Ors. v. P.T. Karunakaran
12
Nambiar criticized the High Court for remanding a case to the trial court without
proper justification, especially when concurrent findings of fact existed. It
reiterated that in second appeals under Section 100 CPC, the High Court should
not interfere with concurrent findings unless there is a substantial question of law.
The relevant paragraphs read as under:
“7. By the impugned judgment and order and without answering anything on the
substantial questions of law framed/formulated, absolutely in a casual manner, the
High Court has allowed the Second Appeal and has set aside the concurrent
findings recorded by both the courts below and thereafter has remanded the matter
to the learned trial Court permitting the original plaintiff to amend the plaint and
pray for fixation of the boundary.
9. Having heard learned counsel for the respective parties and having gone through
the impugned judgment and order passed by the High Court, we are constrained to
observe that the manner in which the High Court has dealt with the Second Appeal
under Section 100 of the CPC is not appreciable at all. From the impugned
judgment and order passed by the High Court, it appears that the High Court has
exercised the powers as if the High Court was deciding the Writ Petition under
Article 226 of the Constitution of India. The High Court has not appreciated at all
that the High Court was deciding the Second Appeal under Section 100 of the CPC
and that too against the concurrent findings of fact by both the courts below, which
were, as such, on appreciation of evidence on record. Under the circumstances, the
impugned judgment and order passed by the High Court is unsustainable.
11. At the cost of repetition, it is observed that the High Court was dealing with the
Second Appeal under Section 100 CPC and the concurrent findings recorded by
both the courts below which were on appreciation of evidence on record. Neither
at the stage of deciding the suit nor even before the first Appellate Court even such
a prayer was made to amend the plaint, which is now permitted by the High Court,
despite the fact that earlier in the suit during the course of trial, the plaint was
12
2023 SCC OnLine SC 323
14
amended. Under the circumstances also, the impugned judgment and order passed
by the High Court is unsustainable.
12. Even for remand, a specific case is to be made out as per Order 41 Rule 23,
23A and 25 of the CPC. No findings are recorded by the High Court that the case
falls within Order 41 Rule 23, 23A and 25 of the CPC and the matter is required to
be remanded to the learned trial Court on setting aside the concurrent findings of
fact recorded by both the courts below. The High Court has mechanically remanded
the suit, which is wholly impermissible.
13. Even the substantial questions of law framed by the High Court, while admitting
the second appeal, which are reproduced herein above cannot be said to be as such
substantial questions of law at all. The same are on questions of fact. Under the
circumstances, the impugned judgment and order passed by the High Court
quashing and setting aside the concurrent findings recorded by both the courts
below, while exercising the powers under Section 100 CPC, is unsustainable.
14. In view of the above and for the reasons stated above, the present Appeal
succeeds. The impugned judgment and order passed by the High Court is hereby
quashed and set aside. The judgment and decree passed by the learned trial Court
confirmed by the first Appellate Court is, hereby, ordered to be restored.”
13. In the present case, evidently, the first suit viz. , O.S.No.851 of 1965 seeking
maintenance was decreed on 26.08.1965 in favour of the plaintiffs / Respondent
Nos.6 and 7 herein. Consequently, the suit properties were attached for realizing
the maintenance amount. In the court auction, the suit ‘A’ schedule property was
purchased by Karivarada Gowdar and the sale was confirmed vide certificate
(Ex.B1) dated 25.09.1970 and possession was also handed over to him on
22.12.1970. Patta book (Ex.B5) was also issued in his favour. Subsequently, the
suit ‘A’ schedule property was purchased by Respondent Nos.8 to 10 and
thereafter, by Respondent No.11 and thereafter, by the appellants herein. It is also
to be noted here that the subsequent purchasers filed two separate suits for
15
permanent injunction restraining the defendants therein from interfering with
their possession of the suit ‘A’ schedule property and the same also came to be
decreed, in their favour. It is significant to point out at this juncture that though
the father of Respondent Nos.1 and 2 and the husband of Respondent No.3 viz .,
Dasappa Gowdar was party to the said suit, he did not contest the suit effectively.
After his death, Respondent Nos.1 to 3 were duly impleaded in the execution
proceedings and a court guardian was also appointed for the minor daughter of
the said Dasappa Gowdar. However, they did not take any immediate steps to set
aside the decree passed in the first suit. It was only in 1982, approximately
seventeen years after the first suit that Respondent Nos.1 to 3 filed the second suit
viz ., O.S.No.257 of 1982 seeking to set aside the decree in O.S.No.851/1965,
partition of the suit 'A' and 'C' schedule properties, permanent injunction, etc . As
such, it cannot be contended that Respondent Nos.1 to 3 were unaware of the first
suit and upon becoming aware of it, they filed the second suit after a period of 17
years. Further, in the second suit, Respondent Nos.1 to 3 did not specify when
they became aware of the decree passed in the first suit.
14. In the second suit viz ., O.S.No. 257 of 1982, Respondent Nos.1 to 3
predicated their case on allegations of fraud and collusion between the
defendants, claiming a lack of knowledge about the earlier proceedings. They
further asserted that Respondent No.3 was in mental distress following her
husband's death and that they were in continuous possession of the suit properties.
16
15. The trial court, after a comprehensive examination of the evidence, both
oral and documentary, concluded that Respondent Nos.1 to 3 are not entitled to
any relief in the suit. On the pivotal issue of limitation, the trial court was of the
view that the action has to be taken to set aside the decree within a period of three
years, as per Article 59 of the Limitation Act, whereas the suit was filed after a
period of seventeen years and hence, the relief sought by Respondent Nos.1 to 3
to set aside the decree passed in the first suit was hit by the doctrine of limitation.
The relevant paragraphs of the judgment passed by the trial Court are reproduced
below for ready reference:
“12. From the date of Ex.A1 about 17 years later, the relief which is sought for, to
set aside the above said decree is hit by limitation is contended on the defendant's
side. The defendants did not mention specifically in the written statement filed by
them. If as per law a case is to filed within the stipulated period this court has the
power to dismiss the case, and even though the counter argument is not made in
this regard, the court has the power to dismiss the suit, as mentioned in the proviso
of Section 3 of Limitation Act was appointed out by the Learned Counsel for the
defendants. Therefore, considering the proviso of Section 3 of the above said Act,
it is necessary to peruse whether the relief sought for by the plaintiff to set aside
the order passed in O.S.No.851 of 1985 is made within the stipulated period, in this
case.
13. As mentioned in the Article 59 of the Limitation Act, the action has to be taken
to set aside the Ex.A 1 decree, within a period of three years. That is within three
years from the date of Ex.A1 the plaintiffs would have taken action for setting aside
the above said decree. I find that it is pertinent to mention the clause on page 634
of The Limitation Act, by B.B. Mitra. It is as follows:
12. Burden of proof. If a suit is prima facie within the time allowed by the Article
then if the defendant takes a plea that the suit is barred by limitation then it is for
the defendant to prove it. Where, however, on the averments of the plaint the suit
seems to barred it is for plaintiff to make out the circumstances to prove that the
suit is not barred by limitation. Mere assertion in the plaint that the plaintiff
acquired knowledge on particular date does not by itself establish that fact and if
on averments made in the plaint it is found that the plaintiff had acquired knowledge
beyond the period prescribed by this Article then the suit will be barred. If the suit
17
is prima facie within the time but the defendant takes plea that the plaintiff was
aware of the necessary facts to file the suit prior to the date when he admits in the
plaint such knowledge of facts then it is for the defendant to allege and prove that
the plaintiff had such knowledge prior to the period from which the time begins to
run.
rd
It is mentioned in the plaint that the 3 plaintiff is not aware of the Ex.Al decree
and the proceedings after this. It is not mentioned in the plaint as to when for the
first time, they knew about the Ex.A1 decree and the proceedings initiated
thereafter. In this connection, evidence was not let in by P.A.l in this court. As
already stated by me, this suit has been filed about 17 years later from the date of
the date of decree. It is the onus of the plaintiff to prove that the relief prayed for to
set aside the decree was filed within the stipulated time. Only through Dasappa
Gowdar, the plaintiffs claim the right over the suit A and C schedule properties. As
already stated by me the above said Dasappa Gowdar is aware of the Ex.Al decree
is revealed through the copy of the order Ex.A2. Even the above said Dasappa
Gowdar did not take any action to set aside the decree Ex.Al. Thereafter, after the
demise of Dasappa Gowdar, in the execution proceedings, these plaintiffs were
impleaded as legal heirs is revealed through Ex.B1. Therefore, the averment that
rd
the 3 plaintiff is not aware of the above said Ex.Al decree and the proceedings
thereafter, as mentioned in the plaint is not proved. Per contra, it is proved through
the documents in this case, that the plaintiffs are aware of the above said
proceedings. Therefore, I hold that the relief as prayed for by the Plaintiff to set
aside the exparte Decree Ex.Al is hit by the doctrine of limitation…”
16. The First Appellate Court also, upon a thorough analysis, affirmed the
judgment of the trial Court. Especially, with respect to the conclusion reached by
the trial Court on the aspect of limitation, the First Appellate Court was of the
opinion that the plaintiffs had slept over for 17 years and had chosen to come to
the court violating the mandate under Section 59 of the Limitation Act and
therefore, the suit was hopelessly barred by limitation as laid down by the trial
Court. The relevant paragraphs of the First Appellate Court’s judgment are
extracted below for ready reference:
18
th
“15.The 4 Defendant Sundarammal and her daughter Vennila have instituted a
rd
suit against samiappan the 3 Defendant herein in O.S.851/65 for maintenance and
also for creating a charge over the suit properties. The decree obtained by them in
th th
the above suit by the 4 Defendant and 5 Defendant was marked as Ex.A1.
Thereafter it is found that the Defendants 4 and 5 took the Execution Proceedings
against Samiappan and in his presence the sale of the A- schedule property was
rd
ordered by the Court under Exs.A-2 and A-3. It will have to be noted that the 3
Defendant Samiappan had contested the Execution Application filed by his wife and
daughter. After the demise of Rangan Gowder, the father of Samiappan, Kempakkal
the wife of Rangan Gowder and Subbammal the daughter of Rangan Gowder were
impleaded as legal representatives of Rangan Gowder as found from Ex.A.4. It
st
would be pertinent to note that the said Kempakkal is the 1 defendant and the said
Subbammal is the 2nd Defendant in this suit. It is not as if the Plaintiffs were in the
dark, while the proceedings for payment of maintenance were taken by
Sundarammal and Vennila Madammal in the name of Thoddammal and Rajamani
and Santhamani, the Plaintiffs herein have been impleaded as legal representatives
of Dasappan on his demise in the Execution Proceedings as found in Ex.B-1 to B-
th
3 would establish that the A-schedule property which was brought for sale for 4
th
and 5 Defendants was knocked down by one Kerivaratha Gounder.
17. Dasappan the husband of the 3rd Plaintiff has contested the Execution Petition
filed by Sundaramal and Vennila by engaging a counsel for him. It is not as if that
the parties had remained ex parte throughout the proceedings as contended by the
Plaintiffs. Ex.B-1 would reveal that Rajamani and Santhamani the minor children
of Dasappan were represented by a Court guardian appointed by the Court,
Subbammal the 2nd Defendant also has been added as a party to the Execution
Proceedings on the demise of Rangae Gowder apart from his wife 1st Defendant
having been impleaded as a party to the suit. The plaintiffs and Defendants 1 to 3
were aware of the proceedings taken by Sundarammal and Vennila.
19. D.W.2 in his cross-examination would state that in their families the eldest
female member would be called as Thoddammal. No wonder Madammal being the
oldest female member in the family of Dasappan has been so-called as
Thoddammal. Further Ex.B-9 the returned cover would show that the postman has
made and endorsement after enquiry that the addressee viz. Thoddammal, wife of
Dasappan was out of Station. If Thoddammal was not the wife of Dasappan, the
Postman would not have stated that Thoddammal wife of Dasappan has gone out.
Further it is not the case of the Plaintiffs that any other wife was there for
Dasappan. Therefore, accepting the explanation given by D.W.2 the Court comes
to the conclusion that Madammal was called as Thoddammal also and that,
therefore, it is false to say that Madammal was not aware of the proceedings taken
by Sundarammal. Further when Rajamani and Santhamani were represented by
Court guardian the court guardian could not have acted affectively unless
Madammal gave proper instructions to contest the Execution proceeding taken by
19
sundrammal. It is highly ridiculous to state that Madammal was totally out of
picture.
21. The execution Court while executing the decree obtained in O.S.No.851/65 has
chosen to sell away the A Schedule property to satisfy the maintenance decree
obtained by 4th and 5th Defendants through Court auction in the presence of all
the Defendants herein. When the coparceners have not taken steps to partition the
share of Samiappan at the time of the Execution proceeding taken by Defendants 4
and 5 the Execution Court did not find the other way except bringing one of the
schedule of properties for sale to satisfy the maintenance decree. I do not find any
lacuna in the above execution proceedings. The plaintiffs have not cared to mention
when they came to know of the maintenance decree obtained by 4th and 5th
Defendants and the sale of the A-schedule property in Court auction. Nor have they
stated anything about it in their evidence. For about 17 years, the Plaintiffs have
slept over and have chosen to come to the court violating the mandate found under
Sec.59 of the limitation Act. Therefore, the suit is hopelessly barred by limitation
as laid down by the Trial Court…”
17. Thereafter, when the concurrent findings were sought to be challenged by
way of second appeal, the High Court at the time of admission on 30.03.1998,
formulated the following substantial question of law:
“Whether the Court below was right in justifying the sale of the entire A schedule
properties, which were admittedly joint family properties and in which the second
rd
respondent has only 1/3 share, which alone would be liable to satisfy the decree
for maintenance obtained by his wife and daughters viz., respondents 3 and 4.”
Upon hearing the arguments of the counsel for both sides, the High Court
formulated the following additional substantial question of law:
" Whether the lower Court was right in its conclusion that the suit is barred under
Section 59 of the Limitation Act, when the appellants had no knowledge of the sale
proceedings till 1981, when they published the notice under Ex.A.6?"
Without deciding the substantial question of law involved in the second appeal,
the High Court only considered the additional substantial question of law,
20
observing that both the Courts failed to frame any issue in respect of the
limitation, though held that the suit was barred by limitation. Accordingly, the
High Court allowed the second appeal by setting aside the judgments passed by
the Courts below and remitted the matter to the trial Court for a fresh trial with a
direction to frame additional issue regarding limitation, let in evidence and decide
the matter after giving due opportunity to both sides, within a period of six
months. The relevant paragraphs of the High Court’s judgment are extracted for
ready reference:
“10. In this regard, it is relevant to extract the issues framed by the trial Court as
follows:
1) Whether the Plaintiff is entitled to the relief to the Judgement in O.S.851/2005?
2) Whether the Plaintiffs are entitled to 5/12 Shares in suit 'A' and 'C' schedule
properties?
3) Whether the Plaintiffs are entitled to the relied of permanent injunction as prayed
in the plaint?
4) Whether the Plaintiffs have paid sufficient correct fees?
5) What other reliefs are the Plaintiffs entitled to?
Though, the trial Court discussed in respect of the above issues and also about the
question of limitation, dismissed the suit as the suit itself barred by limitation.
11. The first appellate Court also framed the points for consideration as follows:
"1. Whether the plaintiffs are entitled to the relief of cancellation of the decree in
O.S.No.851/65 on the file of the District Munsif Court, Coimbatore?
2. Whether the plaintiffs are in possession and enjoyment of the A schedule and
consequently whether they are entitled to permanent injunction as prayed for by
them?"
The first appellate Court also discussed about the limitation and concluded that the
suit is filed after 17 years as such, violation of provision under Section 59 of the
Limitation Act and the suit is hopelessly barred by Limitation Act and dismissed.
21
12. Admittedly, both the Courts below did not frame any issue in respect of the
limitation. As rightly pointed out by the learned Senior Counsel appearing for the
plaintiffs, both the Courts failed to frame any issue in respect of limitation, though
both the Court hold as the suit is barred by limitation. The first appellate Court
also confirmed the judgment and decree passed by the trial Court without framing
point for limitation for determination in the first appeal. Therefore this Court
necessarily has to interfere with the finding of the Courts below. Accordingly, this
Court answered only on the additional substantial question of law formulated by
this Court in favour of the plaintiffs and against the defendants.
13. In fine, the second appeal stands allowed and the judgment and decree passed
by Courts below are set aside. However considering the facts and circumstances,
the suit is remitted back to the trial Court for fresh trial by framing additional issues
in respect of limitation and let in evidence on those aspects and decide the matter
after giving due opportunity to both sides in respect of the issue. Further the trial
Court is directed to complete the trial within a period of six months from the date
of receipt of the entire bundle. It is made clear that the trial court is directed to
conduct the trial uninfluenced by the observation made by this Court while deciding
the case. There is no order as to costs.”
18. In our opinion, the judgment of the High Court is unsustainable, applying
the legal principles as stated above that once the High Court is satisfied that the
appeal involves a substantial question of law, such question shall have to be
framed and finally decided on merits in accordance with the procedure laid down
under section 100 CPC. The High Court, has failed to decide the substantial
framed at the time of admission and went to decide, only the additional substantial
question of law, framed at the time of hearing. The first suit was decreed on
26.08.1965 and the auction purchaser got the suit ‘A’ schedule property on
22.12.1970 and thereafter, the appellants herein purchased the same from the
subsequent purchaser by name R.S.Ramaswamy / Respondent No.11; despite the
fact that the decree and sale were within the knowledge of the Respondent Nos.
22
1 to 3, they have thwarted the right of the purchasers over the suit ‘A’ schedule
property by filing second suit viz ., O.S. No.257 of 1982, that too, after a period
of 17 years and the decision of the High Court remanding the matter to the trial
Court for a fresh trial on the limitation aspect, without deciding the same on
merits, by holding that a separate issue ought to have been framed is unsustainable
and will certainly prolong the litigation without any useful purpose.
19. The object of framing an issue is to determine the material point of disputes
between the parties, for the purpose of adjudication. Issues can be framed on a
question of law or fact or a mixed question of law and fact. The decision on the
issue settles the lis in favour of either of the parties. A distinct issue is to be
formed when a material proposition of law or fact is affirmed by one party and
denied by another. Also, there is no necessity to frame an issue, when the parties
are not at dispute on a particular fact or law. At times, despite pleadings, when a
specific issue is not framed, but when both the parties to the lis have let in
evidence and rendered their arguments on a point, the decision on which is
intrinsically connected to the main issue, then the Court is bound to render a
finding on the point of dispute before deciding the connected issue, one way or
another. In that case, it becomes the duty of the Court to analyze the evidence
before it and render a decision on all disputed questions of fact or law, directly or
indirectly in issue, so as to put an end to the lis . The Limitation Act,1963 restricts
the right of a litigant by prescribing a time limit within which action must be
23
initiated. Its object is to provide a time or period, within which, the action has to
be initiated. The object of the Act is not to destroy a vested right available in law
but to prevent indefinite litigation and therefore, only prescribes a period for
initiation of the litigation. This Court has described the object of the Limitation
Act, 1963 in the following decisions:
(i) Bharat Barrel & Drum Mfg. Co. Ltd. and Another v. Employees State
13
Insurance Corporation :
“7. …… The object of the Statutes of Limitations is to compel a person to exercise
his rights of action within a reasonable time as also to discourage and suppress
stale, fake or fraudulent claims. While this is so, there are two aspects of the
Statutes of Limitation the one concerns the extinguishment of the right if a claim
or action is not commenced with a particular time and the other merely bar the
claim without affecting the right which either remains merely as a moral
obligation or can be availed of to furnish the consideration for a fresh enforceable
obligation. Where a statute prescribing the limitation extinguishes the right, it
affects substantive right while that which purely pertains to the commencement of
action without touching the right is said to be procedural”.
14
(ii) N. Balakrishnan v. M. Krishnamurthy
“that the Limitation Act is based upon public policy which is used for fixing a life
span of a legal remedy for the purpose of general welfare. It has been pointed out
that the Law of Limitation are not only meant to destroy the rights of the parties
but are meant to look to the parties who do not resort to the tactics but in general
to seek remedy. It fixes the life span for legal injury suffered by the aggrieved
person which has been enshrined in the maxim ‘interest reipublicae ut sit finis
litium’ which means the Law of Limitation is for general welfare and that the
period is to be put into litigation and not meant to destroy the rights of the person
or parties who are seeking remedy. The idea with regards to this is that every
legal remedy must be alive for a legislatively fixed period of time”.
13
AIR 1972 SC 1935
14
(1998) 7 SCC 123
24
20. Limitation, as we generally know is a mixed question of fact and law.
However, there is no hard and fast rule that every question of limitation is to be
treated as a mixed question of fact and law. In cases, where the action is initiated
after several years after the right to sue accrued, without any pleadings to explain
the reasons for delay or as to when the fraud was discovered, the question of
limitation is to be treated as a question of law. A recourse may be had to Order
VI Rules 4 and 10 CPC, which mandates that specific particulars would have to
be given in the pleadings. Once such a plea is raised in the pleadings, then the
burden lies on the person to prove that the delay was due to any plausible reason
and it is always well within the knowledge of the other party to contend and prove
that the opposite party had prior knowledge about the disputed fact and that his
right to sue or defend had also accrued by that date. Even in the absence of
specific pleadings regarding the limitation in the plaint or a plea of defense, there
is a bounden duty on every civil Court to ascertain as to whether the lis has been
initiated within the time prescribed under law, even if the parties to the lis had not
raised any objections. This right flows from the mandate of Section 3 of the
Limitation Act, 1963. A useful reference may be had to the judgment of this Court
on this aspect, in V.M. Salgaocar and Bros. v. Board of Trustees of Port of
15
Mormugao and another , wherein, it was held as follows:
“20. The mandate of Section 3 of the Limitation Act is that it is the duty of the
court to dismiss any suit instituted after the prescribed period of limitation
irrespective of the fact that limitation has not been set up as a defence. If a suit is
15
(2005) 4 SCC 613
25
ex facie barred by the law of limitation, a court has no choice but to dismiss the
same even if the defendant intentionally has not raised the plea of limitation.
21. This Court in Manindra Land & Building Corpn. Ltd. v. Bhutnath Banerjee
[(1964) 3 SCR 495 : AIR 1964 SC1336] held (AIR para 9):
“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 had set up the
plea of limitation or not. 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 had
no choice and if in construing the necessary provision of the Limitation Act or in
determining which provision 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 led the court to assume or not to assume the
jurisdiction to proceed with the determination of that matter.”
In cases, where the pleadings are silent, then it becomes the duty of the Court to
ascertain from the evidence and the overall facts of the case, as pleaded by either
party, and to render a finding on limitation where the question of limitation is to
be treated as a question of law, since the Court cannot entertain frivolous or stale
claims. It is also apropos to reiterate the settled position of law that a question of
law can be raised at any stage.
21. We have in earlier paragraph discussed the object of framing the issues.
We also held that there could be several points directly or indirectly connected
with the main issue that has been framed. In such cases, when the larger issue that
has been framed is wide enough to cover different points of disputes within it,
there is no necessity to frame a specific issue on that aspect. Further, when the
parties go to trial with the knowledge that a particular point is at lis , had full
opportunity to let in evidence, they cannot later turn back to say that a specific
26
issue was not framed. All that is required under law, is for the Court to render a
finding on the particular fact or law in dispute, on the facts of the case. However,
we make it clear that such evidence, in the absence of pleadings, cannot permit
either of the parties to make out a new case. It is pertinent to mention here that
the Courts are vested with powers to go into the question of law, touching upon
either the limitation or the jurisdiction, even if no plea is raised and not in cases,
where facts have to be pleaded and evidence has to be let in. The Civil Procedure
Code and the law of limitation, being procedural laws, meant to assist the Courts
in the process of rendering justice, cannot curtail the power of the Courts to render
justice. Procedural laws after all are handmaid of justice. What is to be seen is
whether any irregularity arising from a failure to follow procedure has caused
serious prejudice to the parties. It is not to be forgotten that the process of
adjudication is to discern the truth.
21.1. It will be useful to refer to certain judgments of this Court on violation of
procedural law, which are as follows:
(i) Sardar Amarjit Singh Kalra (Dead) by L.Rs. & Others v. Pramod Gupta (Smt.)
16
(Dead) by L.Rs. and Others :
“26. Laws of procedure are meant to regulate effectively, assist and aid the object
of doing substantial and real justice and not to foreclose even an adjudication on
merits of substantial rights of citizen under personal, property and other laws.
Procedure has always been viewed as the handmaid of justice and not meant to
hamper the cause of justice or sanctify miscarriage of justice........”
16
MANU/SC/1214/2002 : (2003) 3 SCC 272 (Constitutional Bench)
27
17
(ii) Kailash v. Nanhku and Ors. :
“28. All the Rules of procedure are the handmaid of justice. The language employed
by the draftsman of processual law may be liberal or stringent, but the fact remains
that the object of prescribing procedure is to advance the cause of justice. In an
adversarial system, no party should ordinarily be denied the opportunity of
participating in the process of justice dispensation. Unless compelled by express
and specific language of the statute, the provisions of Code of Civil Procedure or
any other procedural enactment ought not to be construed in a manner which would
leave the court helpless to meet extraordinary situations in the ends of justice. The
observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar
[MANU/SC/0028/1975 : (1975) 1 SCC 774] are pertinent: (SCC p. 777, paras 5-6)
The mortality of justice at the hands of law troubles a judge's conscience and points
an angry interrogation at the law reformer.
The processual law so dominates in certain systems as to overpower substantive
rights and substantial justice. The humanist Rule that procedure should be the
handmaid, not the mistress, of legal justice compels consideration of vesting a
residuary power in judges to act ex debito justitiae where the tragic sequel
otherwise would be wholly inequitable. ... Justice is the goal of jurisprudence --
processual, as much as substantive.
29. In State of Punjab v. Shamlal Murari [ MANU/SC/0494/1975 : (1976) 1 SCC
719 : 1976 SCC (L&S) 118] the Court approved in no unmistakable terms the
approach of moderating into wholesome directions what is regarded as mandatory
on the principle that: (SCC p. 720)
“Processual law is not to be a tyrant but a servant, not an obstruction but an aid to
justice. Procedural prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant in the administration of justice. In Ghanshyam Dass v.
Dominion of India [MANU/SC/0006/1984 : (1984) 3 SCC 46] the Court reiterated
the need for interpreting a part of the adjective law dealing with procedure alone
in such a manner as to subserve and advance the cause of justice rather than to
defeat it as all the laws of procedure are based on this principle.”
17
MANU/SC/0264/2005 : (2005) 4 SCC 480 (3 Judge Bench)
28
18
(iii) Sugandhi (Dead) by LRs & Others v. P. Rajkumar :
“9. It is often said that procedure is the handmaid of justice. Procedural and
technical hurdles shall not be allowed to come in the way of the court while doing
substantial justice. If the procedural violation does not seriously cause prejudice to
the adversary party, courts must lean towards doing substantial justice rather than
relying upon procedural and technical violation. We should not forget the fact that
litigation is nothing but a journey towards truth which is the foundation of justice
and the court is required to take appropriate steps to thrash out the underlying truth
in every dispute. Therefore, the court should take a lenient view when an application
is made for production of the documents under Sub-rule (3).”
22. In the present case, the trial Court though had not framed a specific issue
on “limitation”, the same could very well fall under the broader issue. The
question of limitation can be encompassed within the larger question determined
by the First Appellate Court for determination. The failure of the trial Court and
the First Appellate Court to formulate a separate issue, in the view of this Court,
is not fatal to the judgment rendered by them and has not caused any prejudice to
the parties. Further, the trial Court, in the performance of its duty, mandated
under Section 3 of the Limitation Act, 1963, has taken up the question of
limitation and upon perusal of the overall pleadings and evidence, has rightly
decided the same. Therefore, we do not agree with the decision of the High Court
in remanding the matter to the trial Court, that too after this length of time, when
all materials were available before it.
18
MANU/SC/0792/2020 : (2020) 10 SCC 706
29
23. As already indicated above, the concurrent findings of the Courts below
were sought to be challenged before the High Court. It is a general rule that High
Court will not interfere with the concurrent findings of the Courts below. In the
present case, both the trial Court and the First Appellate Court, after detailed
analysis of the oral and documentary evidence let-in by the parties, categorically
held that the suit was hopelessly barred by limitation. We also find that the
evidence produced would abundantly make it clear that Dasappa Gowdar and
thereafter, Respondent Nos.1 to 3 were well aware of the earlier proceedings and
the decree passed in the first suit. The auction purchaser's title was confirmed by
court orders, and subsequent transfers were properly registered and recorded.
Therefore, Respondent Nos.1 to 3, who have knowingly slept over their right to
challenge the sale and allowed further rights to flow, cannot later question the
sale of larger extent of share in an unpartitioned property. We also do not find
any plausible reasons for delay. It is reiterated at this juncture that limitation is a
matter of statute and must be strictly enforced, more so when the earlier
transaction or sale is well within the knowledge of the parties. This principle
assumes greater significance in the present case, where the delay extends to
seventeen years for filing the suit, despite the fact that they were arrayed as
respondents/Judgment Debtors in the execution proceedings. Furthermore,
protection of bona fide purchasers for value is a significant consideration, and
any disturbance to their rights or titles after such a long period, would create
uncertainty in property transactions and undermine the sanctity of court sale.
30
Therefore, we are of the view that the High Court was not justified in remanding
the matter to the trial Court for fresh trial solely with respect to the issue of
limitation; and that, the Courts below have rightly held that the suit was barred
by limitation and Respondent Nos.1 to 3 are not entitled for any relief.
24. In such view of the matter, the appeal is allowed. The impugned judgment
of the High Court is set aside. The judgment and decree of the trial court
dismissing the suit, as affirmed by the First Appellate Court, are restored. Parties
shall bear their own costs throughout.
25. Connected Miscellaneous Application(s), if any, shall stand disposed of.
……………………J.
[J. B. Pardiwala]
……………………J.
[R. Mahadevan]
NEW DELHI;
APRIL 09, 2025.