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CASE NO.: Appeal (civil)  2370 of 1998

PETITIONER: Bhag Mal(alias) Ram Bux & Ors

RESPONDENT: Munshi(D) by Lrs

DATE OF JUDGMENT: 17/01/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA,  J :

                Interpretation of the provisions of the Punjab Limitation (Custom)  Act, 1920 falls for our consideration in this appeal which arises out of a  judgment and decree dated 2.5.1997 passed by a learned Single Judge of the  Punjab and Haryana High Court in RSA No.1951/79 reversing the judgment  and decree dated 26.3.1979 whereby affirming the judgment and decree  passed by the Subordinate Judge (Second Class), Gurgaon  dated 4.11.1978  decreeing the suit of the appellants herein in possession of 1102/1615 share  of the agricultural land as  specified in para no.1 of the plaint, was affirmed.

       The fact of the matter is not in dispute.  Appellants are sons of one  Sher Singh.  Sher Singh alienated the suit property to one Bansi by a  registered deed of sale dated 24.7.1953. The legality or validity of the said  deed of sale came to be questioned, inter alia, on the premise that the same  had been executed without any consideration and legal necessity by the  appellants herein, who are the legal heirs and representatives of the said Sher  Singh by filing a suit. The said suit was dismissed. However, on an appeal  preferred thereagainst by the appellants, the same was decreed by a  judgment and decree dated 11.4.1969. A Second Appeal thereagainst was  preferred by the respondents herein before the High Court which was  marked as RSA 1121 of  1969.

       Sher Singh died during  the pendency of the Second Appeal on  25.2.1973. Bansi also died during the pendency thereof on 4.10.1976.

        As the heirs and/or legal representatives of  Bansi were not brought  on record within the prescribed period of limitation, the appeal was  dismissed as having abated by an order dated 14.10.77. After the death of  Bansi, therefore, the appellants herein inherited the suit land. A suit for  possession in terms of the Punjab Limitation (Custom) Act, 1920 was filed  by the appellants herein on 3.11.1977 before the Sub- Judge, IInd Class  Gurgaon. The said suit was decreed. The appeal preferred theregainst was  dismissed by a judgment and decree dated 26.3.1979. In the Second Appeal  preferred by the respondents herein, the question which arose for  consideration before the High Court was as to whether having regard to the  fact that the order dated 14.10.1977  in terms whereof abatement of the  Second Appeal was recorded being not a decree within the meaning of Order  XXII of the CPC, the appellants were obligated to file a suit within a period  of three years  from the date of the judgment and decree passed by the First  Appellate Court or not.

       Opining that an order directing abatement of suit/appeal does not  amount to adjudication thereof on merit, it was held that the period of  limitation would start running from 11.4.1969, stating :

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       "Therefore, I find that the learned counsel  for the appellants has rightly argued that both the  Courts below fell in error in arriving at a  conclusion that the decrees passed by the Courts  below had merged with the decree of this Court  and that period of limitation is to be reckoned from  October 14, 1977when Judgment Exhibit P4 was  rendered. February 25, 1973 when Sher Singh died  is the date later than April 11, 1969 when the  respondents obtained decree from the learned  Additional District Judge,Gurgaon.Therefore, even  if period of limitation is reckoned from February  25, 1973, that period of three years for filing a  declaratory suit came to an end long before  November 3, 1977 when the suit was filed by the  respondents. Hence, the suit filed by the  respondents was clearly barred by limitation and  on that score, deserved to be dismissed. The view  taken by the Courts below ie erroneous in the eye  of law and cannot be allowed to sustain."         The appellants are, thus, before us.

       Submission of Mr. Sunil Kumar, learned senior counsel appearing on  behalf of the appellants in support of the appeal is that the High Court fell  into an error in passing the impugned judgment and decree so far as it failed  to take into consideration that abatement of an appeal before the High Court  gave rise to a cause of action for filing a suit for possession.  

       Mr. Gupta, learned counsel appearing on behalf of the respondent on  the other hand would submit that the Court cannot extend the period of  limitation and in any event, the order of abatement of a suit/appeal being not  a final order of adjudication under Article (2)(b) of 1920 Act, a fresh suit  will not be maintainable.                  The Punjab Limitation (Custom) Act, 1920 (The said Act) was  enacted to amend and consolidate the law governing the limitation of suits  relating to alienations of ancestral immovable property and appointment of  heirs by persons who follow custom in Punjab. It is not disputed before us  that the provisions of the said Act would be applicable in the instant case,  being a special law operating in the field.  

       Section 8 of the said Act reads as under:

" 8. Benefit of declaratory decree: When any  person obtains a decree declaring that an alienation  of ancestral immovable property  or the  appointment of an heir is not binding on him  according to custom, the decree shall enure for the  benefit of all persons entitled to impeach the  alienation or the appointment of an heir."

       Article 2 appended to the Schedule of the said Act reads as follows: "2. A Suit for possession of  ancestral immovable property   which has been alienated on  the ground that the alienation  is not binding on the plaintiff according to custom \026  (a) if no declaratory decree of  the nature referred to in  Article I is obtained.

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6 years

As above

(b) if such declaratory decree  is obtained 3 years The date on which the right  to sue accrues or the date  on which declaratory  decree is obtained,  whichever is latter."

       It is no doubt true that in terms of Section 3 of the Limitation Act,  1963 as also the provisions of the said Act, a suit must be filed within the   prescribed period of limitation. The Civil Court has no jurisdiction to extend  the same.                   However, the provisions of the Limitation Act should be construed in  a broad  manner. Different provisions of the Limitation Act may require  different constructions, as for example, the Court exercises its power  in a  given case liberally in condoning the delay  in filing an appeal under Section  5 of the Limitation Act. However, even for the purpose of delay and the  grounds for condonation of delay may have to be taken into consideration  for examining its correctness by the court in each case.  We, however, may  not be understood to lay down a law that the same principle would apply in  case of construction of Section 3 of the Limitation Act.

       The provisions of Article 2(b) of the 1920 Act provides for two  starting points of limitation; (1) the date on which the right to sue accures  and (2) the date on which declaratory decree is obtained, whichever is latter.  There is, therefore, no fixed period of limitation. The period of limitation,  thus, would be reckoned from the date on which the right to sue has accrued  or declaratory decree is obtained.  

       It is not in dispute that appellants are in possession of the suit  property.  Respondents herein filed a Second Appeal.  During pendency of  the Second Appeal, both the parties to the deed of sale dated 24.7.1953,  died. It has not been disputed before us that an application for substitution  was required to be filed so as to save the appeal from having become abated  within the prescribed period of limitation. The heirs and legal representatives  of Sher Singh were not necessary to be brought on record as they were  already on record. However, legal heirs and/or representatives of Bansi,  namely, the respondents herein were required to be brought on record by  them.                  Our attention has been drawn to an amendment of the Punjab and  Haryana High Court in Order XXII Rule 3 of the Civil Procedure  Code,which reads as under:

       " 2A.Every advocate appearing in the case  who becomes aware of the death of a party to the  litigation(where he appeared for him or not) must  give intimation about the death of a party t party to  the Court and to the person who is dominus litis.

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       2B. The duty to bring on record the legal  representatives of the deceased-defendant shall be  of the heirs of the deceased and not of the person  who is domimus litis."

       Indisputably, requirements of the law to bring the heirs and legal  representatives of the deceased on records, were not complied with.  

       The High Court, as noticed hereinbefore, proceeded on the basis that  the period of limitation would start running from the date on which  declaratory decree was passed. According to the High Court, as declaratory  decree was passed on 11.4.1969 and in any event, as Sher Singh had died on  25.2.1973, the suit was required to be filed by the appellants within three  years from the said date and in view of the fact that the suit was filed on  2.11.1977, the same was barred by limitation.  

       The question which arises for our consideration is as to what would be  the date on which declaratory decree can be said to have been obtained by  the appellants.

       Mr. Gupta, learned counsel appearing on behalf of the respondents  himself has relied upon a decision  in Abdulla Asghar Alia and Ors. Vs.  Ganesh Das Vig [AIR 1933 PC 68], wherein the judicial Committee, in no  uncertain terms stated the law as under:

       " In the case now before their Lordships it is  manifest that there was an order of the appellate  Court, and that it did deal judicially with the  matters before it. The Judicial Commissioner  considered the judgment debtor’s contention that  his appeal had not abated and held that it had. He  considered the prayer for revival of the arbitration  and refused it. He rejected the application to set  aside the abatement. Whether the order made was  right or wrong is immaterial, there was no appeal  against it and it was  in the circumstances clearly  final. Their Lordships think that when an order is  judicially made by an appellate Court, which has  the effect of finally disposing of an appeal, such an  order gives a new starting point for the period of  limitation prescribed by Article 182(2) of the Act  of 1908..."

                                      [Emphasis supplied]

       In Ajudhia Prasad v. The U.P. Government [AIR 1947 Allahabad  390], a Division Bench of the Allahabad High Court opined as follows:

"...I take up first the question of limitation. The  argument on behalf of the appellant is that there  was an automatic abatement of the proceedings on  the death of the defendant on 4.6.1939 and, as the  application for execution was made more than  three years from that date, it is time barred. No  doubt as the law is, there was an automatic  abatement on 4.6.1939, but where there has been  an order of the Court declaring an appeal to have  abated, the period of limitation under Article 182,  Limitation Act should be reckoned from that  date..."                  

       The question came up for consideration in a different context before a  three-Judge Bench of this Court in Shyam Sundar Sarma Vs. Pannalal

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Jaiswal and Ors. [(2005) 1 SCC 436] wherein P.K. Balasubramanyan, J.  speaking for the Bench opined that although an appeal was found to be  barred by limitation for the purpose of reckoning the period of limitation, the  date on which the appeal was dismissed by the Court, the same being barred,   shall be the relevant date stating :         " 9. The specific question involved came to  be considered by this Court in Mela Ram and Sons  Vs. CIT. This Court held that an appeal presented  out of time is an appeal and an order dismissing it  as time-barred is one passed in an appeal. This  Court referred to and followed the view taken by  the Privy Council and by this Court in the two  respective decisions above-referred to. This Court  quoted with approval the observations of Chagla,  C.J. In K.K. Porbunderwalla Vs. CIT(ITR p.66) to  the following effect: (SCR P.176)

       "Although the Appellate Assistant  Commissioner did not hear the appeal on  merits and held that the appeal was barred  by limitation his order was under Section 31  and the effect of that order was to confirm  the assessment which had been made by the  Income Tax Officer."

9.1 In Sheodan Singh Vs. Daryao Kunwar  rendered by four learned Judges of this Court, one  of the questions that arose was whether the  dismissal of an appeal from a decree on the ground  that the appeal was barred by limitation was a  decision in the appeal. This Court held:(SCR  pp.308 H-309 B)                  " We are therefore of opinion that  where a decision is given on the merits by  the trial court and the matter is taken in  appeal and the appeal is dismissed on some  preliminary ground, like limitation or default  in printing, it must be held that such  dismissal when it confirms the decision of  the trial Court on the merits itself amounts to  the appeal being heard and finally decided  on the merits whatever may be the ground  for dismissal of the appeal."

       Yet again in Union of India and Others Vs. West Coast Paper Mills  Ltd. And Anr. [(2004) 2 SCC 747], this Court had occasion to consider the  provisions of limitation contained in Section 46-A  of the Railways Act,  1890.  Therein this Court was considering the applicability of Article 113  vis-a-vis Article 58 of the Limitation Act, 1963.  In that case the plaintiff  had filed a suit for refund.  A claim was also preferred by the defendant  before the Railway Tribunal. The Tribunal was only entitled to make a  declaration that  freight charges are unreasonable or excessive. It did not  have the jurisdiction to execute its own order. Although the power of the  tribunal in terms of Section 46-A of the Railways Act was final, this Court  held that the jurisdiction of the Court under Article 136 thereby was not  taken away.  In relation to the subsequent suit filed by the plaintiff for  recovery of the amount after disposal of the appeal preferred by the plaintiff  therefrom, it was held that the period of limitation would start running from  the date on which this Court had delivered its judgment inter alia stating:

       " 21.  A distinction furthermore, which is  required  to be noticed is that whereas in terms of  Article 58 the period of three years is to be counted

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from the date when"the right to sue first accrues",  in terms of Article 113 thereof, the period of  limitation would be counted from the date "when  the right to sue accrues." The distinction between  Article 58 and Article 113 is, thus, apparent  inasmuch as the right to sue may accrue to a suitor  in a given case at different points of time and, thus,  whereas in terms of the Article 58 the period of  limitation would be reckoned from the date on  which the cause of action arose first, in the latter  the period of limitation would be differently  computed depending upon the last day when the  cause of action therefor arose."

       The Court while laying down the aforementioned principle applied the  doctrine of merger as laid down in the decision of this Court in  Kunhayammed and Ors. Vs. State of Kerala & Anr.[(2000) 6 SCC  359].

       In Mithailal Dalsangar Singh and Ors. v. Annabai Devram Kini and  Ors. [AIR 2003 SC 4244] this court observed the effect of abatement in the  following terms:

"In as much as the abatement results in denial of  hearing on the merits of the case, the provision of  abatement has to be construed strictly. On the  other hand, the prayer for setting aside an  abatement and the dismissal consequent upon an  abatement, have to be considered liberally, A  simple payer for bringing the legal representatives  on record without specifically praying for setting  aside of an abatement may in substance be  construed as a prayer for setting aside abatement."

       We need to read the liberal trend on setting aside the abatement and  the issue of ’finality of decision on abatement’ together. It is to be noted that  considerable leeway has been accorded to proceedings to set aside  abatement. Thus it follows that only because abatement leads to serious  consequences, the emphasis on ample opportunity to set aside abatement has  been laid down.  

       In circumstances where no such proceeding is initiated under Order  XII R. 9 (2) the abatement culminates into finally fixing the outcome of the  suit.   In that event the decision gains final shape at the precise juncture of  successful abatement and that point serves as the closure of suit.  Therefore  the order of abatement gives a new starting point for the period of limitation.  [See Abdullah Ashgar Alia (supra)]

       The provisions of statute of limitation cannot be construed in a  pedantic manner. This is now a well known principle of law. Had the appeal  been dismissed on merit, indisputably the period of limitation would have  started from the date of dismissal of the Second Appeal. The respondents  themselves preferred an appeal.  The appeal was a continuation of a suit.   Appellants herein could not, thus, have been held to be aware of the fact that  during pendency thereon Bansi would die or the appeal shall abate. Let us  consider a hypothetical situation.  An appeal abates after three years of the  judgment and decree passed by the first appellate court and in that situation  the appellant would have no chance to reap the benefit thereof, if the  submission of the learned counsel appearing on behalf of the respondent is  accepted.  The law, in our opinion, cannot be construed in a manner which  would defeat the ends of justice.    

       In fine, when an appeal/suit abates, the same may not amount to  adjudication of a decree on merit but indisputably it would attain finality.  Decision on merits is not the only test to determine the finality of decision.

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Finality gained due to abatement is an illustration of the aforementioned  variety. The declaratory decree, in that view of the matter passed in favour  of the respondents had attained finality only when the order dated  14.10.1977 was passed.

       Our attention was drawn by Mr. Gupta to a decision in   Harendra Lal  Roy Chowdhuri Vs. Haridasi Debi and Ors. [AIR 1914 PC 67].  Therein  a  mortgage suit was filed. The question which arose for consideration therein  was as to whether an order directing to amend the description of the parcel  which formed part of  the  decree came within the scope of the  suit which   was in no respect a suit for rectification. It was in the aforementioned fact  situation held :

"...The learned Judge accepted this contention and  accordingly held that property situate in Calcutta  was included in the mortgage and that he had  jurisdiction. No such decision, if erroneous, could  extend the jurisdiction of a Court of limited  territorial jurisdiction, and therefore the validity of  this decree is open to challenge by the present  defendants, who were no parties to proceedings.  Similarly, the direction of the said Judge that the  description of the parcel in question should be  amended (even if it was effective between the  parties to that suit) cannot affect the present  defendants, whose title is of earlier date, or render  valid the registration if they can maintain their  contentions relating thereto. It is difficult, indeed,  to see how the direction to amend the description  of the parcel which formed part of the decree came  within the scope of the suit, which was in no  respect a suit for rectification..."

                We are not  concerned herein with the effect of lack of territorial  jurisdiction of the Court. The said decision therefore, in our opinion, has no  application to the facts of the present case.  

       Reliance has also been placed by Mr. Gupta on Mamuda Khateen and  Ors. Vs. Beniyan Bibi and Ors. [AIR 1976 Calcutta 415], wherein it was  held that an order rejecting the memorandum of appeal following the  rejection of an application under Section 5 of the Limitation Act for  condonation of the delay in filing the appeal is not a decree but incidental to  an order against which an application in revision under Section 115 of the  Code  may lie but no appeal under Order 43 Rule 1 of the Code will be  maintainable. If the application under Section 5 is rejected, the order  rejecting the said application cannot be a decree and, thus, the order  rejecting the memorandum of appeal would merely be an incidental order.

       We have noticed hereinbefore that the said view has not been  accepted by this Court in Sohan Lal VS. Raghunath Prasad and Ors. [AIR  1981 Allahabad 235]  whereupon  Mr. Gupta, learned counsel placed strong  reliance. The question which arose for consideration therein was as to  whether an order of abatement would amount to a decree for the purpose of  maintainability of an appeal thereagainst although there existed no provision  therefor.

       For the reasons aforementioned, we are of the opinion that the High  Court was not correct in holding that the suit of the appellants was barred by  limitation. The appeal is allowed. There will, however, be no order as to  costs.