KAMLESH BABU AND ORS.versusLAJPAT RAI SHARMA AND ORS.

                             [2008] 6 S.C.R. 653

_.
                      KAMLESH BABU AND ORS.                               A
                                      V.
                    LAJPAT RA! SHARMA AND ORS.
                     (Civil Appeal No. 2815 of 2008)
                              APRIL 16, 2008
                                                                          B
             [A.K. MATHUR AND ALTAMAS KABIR, JJ.]

            Limitation Act, 1963 - s. 3(1) and Art. 59 - Property
      mutated in favour of Appellants on basis of registered Will -
      Respondent No. 1 filed suit for declaration that the said Will      c
      was procured by practicing fraud - Although, all issues in the
      suit decided against Respondent No. 1 and the suit dismissed,
      Trial Court a/so held that the suit was barred by limitation -
      First Appellate Court reversed the judgment of Trial Court
      without deciding the question of limitation - High Court
                                                                           D
      affirmed the judgment of First Appellate Court, again without
 ..   deciding the question relating to /imitation - On appeal, held:
      In the instant case, defence of limitation was set up in the written
      statement, though no issue was framed in that regard -
      However, wh;m Trial Court came to a finding that the suit was
      barred by limitation, it was the duty of First Appellate Court E
      and also of High Court to go into the said question and to
      decide the same before reversing the judgment of Trial Court
      on the various issues framed in the suit- Even though various
      issues were decided in favour of Respondent No. 1 both by
      the First Appellate Court and the High Court, the same were F
..    of no avail since the suit continued to remain barred under
      Art. 59 of the Limitation Act- Judgment bf High Court set aside
      - Suit remanded to First Appellate Court to decide the limited
      question as to whether the suit was barred by limitation as found
      by Trial Court - Code of Civil Procedure, 1908 - Or. 7, r.11 (d). G
           Property was mutated in favour of the Appellants on
      basis of a registered Will. Respondent No.1 filed suit for
      declaration that the said Will had been procured by
                                    653                                   H
    654      SUPREME COURT REPORTS              [2008] 6 S.C.R..


A practicing fraud. Although, all the issues in the suit were
  decided against Respondent No.1 and the suit was
  dismissed, in addition, the Trial Court also held that the
  suit was barred by limitation under Article 59 of the
  Limitation Act, 1963. The First Appellate Court reversed
B the judgment of Trial Court without deciding the question
  of limitation. High Court affirmed the judgment of the First
  Appellate Court.
       In appeal to this Court, it was submitted on behalf of
  the Appellant that both the First Appellate Court and the
C High Court erred in reversing the judgment of the Trial
  Court without deciding the question relating to limitation
  and on that ground alone their judgments were liable to
  be set aside.
          Allowing the appeal, the Court
D
        HELD: 1.1. S.3(1) of the Limitation Act, 1963 casts a
  duty upon the Court to dismiss a suit or an appeal or an
  application, if made after the prescribed period, although,
  limitation is not set up as a defence. Apart from s.3(1) of
E the Limitation Act, even Order 7 Rule 11 (d) of the Code of
  Civil Procedure casts a mandate upon the Court to reject
  a plaint where the suit appears from the statement in the
  plaint to be barred by any law, in this case by the law of
  limitation. [Paras 17, 21] [660-A, B; 661-8, C]
F      1.2. In the instant case, defence of limitation was set
  up in the written statement though no issue was framed
  in that regard. However, when the Trial Court had in terms
  of the mandate of s.3(1) come to a finding that the suit
  was barred by limitation, it was the duty of the First
G Appellate Court and also of the High Court to go into the
  said question and to decide the same before reversing
  the judgment of the Trial Court on the various issues
  framed in the suit. Even though the various issues were
  decided in favour of the plaintiff-Respondent No.1 both
H by the First Appellate Court and the High Court, the same
     KAMLESH BABU AND ORS. v. LAJPAT RAI SHARMA            655
                    AND ORS.

    were of no avail since the suit continued to remain A
    barred under Article 59 of the Limitation Act, 1963.
    [Para 18] [660-B, C, D]
          1.3. The submission of the Respondents that the plea
    of limitation not having been taken before the appellate
    forums, the same could not be taken before this Court in      B
    proceedings under Article 136 of the Constitution on the
    ground that the question of limitation was a mixed
    question of law and fact, stands nullified by the fact that
    the suit continued to remain barred by limitation after
    the decisions of the appellate Courts since such finding      c
    of the Trial Court had not been set aside either in the
    first appeal or by the High Court in second appeal. [Para
    19] [660-E, F]
          1.4. The judgment and decree of the High Court is D,
    set aside and the suit remanded to the First Appellate
    Court to decide the limited question as to whether the suit
    was barred by limitation as found by the Trial Court. If the
    suit is found to be so barred, the appeal is to be dismissed.
    If the suit is not found to be time-barred, the decision of
    the First Appellate Court on the other issues shall not be E
    disturbed. [Para 22] [661-F, G]
         State of Punjab v. Darshan Singh (2004) 1 SCC 328;
    Balasaria Construction {P) Ltd. v. Hanuman Seva Trust and
    Ors. (2006) 5 SCC 658; Name Rama Murthy v. Ravula             F
.   Somasundram and Ors. (2005) 6 SCC 614 and Lachhmi
    Sewak Sahu v. Ram Rup Sahu & Ors. AIR (1944) Privy
    Council 24 - referred to.
         CIVILAPPELLATE JURISDICTION : Civil Appeal No. 2815
    of 2008.                                                 G
         From the final Judgment and Order dated 06.02.2006 of
    the High Court of Judicature at Allahabad in Second Appeal
    No. 2281 of 1983.
         S.B. Sanyal, Naresh Kaushik, Salish Dayanandan, Manish   H
    656          SUPREME COURT REPORTS                  [2008) 6 S.C.R.


A Kaushik and Lalita Kaushik for the Appellants.
          Rachana Srivastava for the Respondents.
          The Judgment of the Court was delivered by
          ALTAMAS KABIR, J. 1. Leave granted.
B
         2. This appeal involves a dispute between the parties who
  are related to each other, having a common ancestor. The
  dispute involves a registered Will dated 5th August, 1972,
  executed in favour of the appellants by one Brijlal (deceased),
C who had four sons. Except for his youngest son, Onkar Prasad,
  all the other sons were allegedly separated from him and were
  staying separately. Brijlal was staying with Onkar Prasad and
  excluding the descendants of his other children executed the
  said Will dated 5th August, 1972, in favour of his grand-children
  through Onkar Prasad. Brijlal died on 5th November, 1976, and
D on the basis of the Will executed by him, the appellants moved
  an application for mutation of the bequeathed properties in their
  names. The respondent No. 1, who is one of the grand-sons of
  the testator through another son, Shanti Swarup, also filed an
  application for mutation, which was rejected. An appeal preferred
E therefrom was also dismissed. On 29th April, 1977, the Tehsildar
  passed an order for mutation of the properties in the name of
  the appellants on the basis of the aforesaid Will dated 5th August,
  1972.
        3. On 2nd January, 1978, the respondent No.1 herein filed
F a suit for declaration that the registered Will dated 5th August,
  1972, had been procured by practising fraud. The suit was duly
  contested by the appellants herein by filing written statement.
  On the basis of the pleadings, in order to arrive at a decision in
  the suit, the following issues were framed: -
G
          (i)    Whether the Will dated 5th August, 1972 executed by
                 Brijlal, in favour of defendants 2 to 6 is forged and
                 not binding upon the plaintiff?
          (ii)   Whether the plaintiff is entitled to get possession on
H                the disputed property of his share?
     KAMLESH BABU AND ORS. v. LAJPAT RAI SHARMA                       657
            AND ORS. [ALTAMAS KABIR, J.]

         (iii)   Whether the suit was undervalued and the court fee         A
                 paid is insufficient?
         (iv)    Whether Brijlal had got a right to execute the Will of
                 his property?

         (v)     Whether Brijlal was the exclusive owner of the             B
                 disputed property?

         (vi)    To what relief, if any, is the plaintiff entitled?

          4. All the aforesaid issues were decided against the
    plaintiff and the suit was dismissed by the Trial Court. While          c
    deciding issue No. 6, The Trial Court also held that the suit was
    barred under Article 59 of the Limitation Act, 1963, because
    the plaintiff had failed to prove that the Will was not within the
    knowledge of the plaintiff within three years of the filing of the
    suit.
                                                                            D
         5. Aggrieved by the decision in the suit, the plaintiff-
    respondent No. 1 herein, preferred an appeal before the Civil
    Judge, Aligarh, which was allowed and the judgment of the Trial
    Court was reversed without deciding the question of limitation
    which had been decided against the plaintiff-respondent No.1            E
    and in favour of the defendants-appellants herein.
         6. The defendants-appellants herein filed a second appeal
    before the Allahabad High Court on 3rd October, 1983, and the
    same was also dismissed on 61h February, 2006, affirming the
.   judgment and order of the Appellate Court.                              F
          7. In this appeal, the main point which was urged on behalf
    of the appellant is that although all the issues in the suit were
    decided against the plaintiff-respondent No.1 by the Trial Court,
    in addition, the Trial Court had also held that the suit was barred G
    by limitation. It was submitted that while reversing the judgment
    of the Trial Court, the First Appellate Court had neither gone
    into the question of limitation nor reversed the finding that the
    suit was barred by limitation under Article 59 of the Limitation
    Act. While affirming the judgment of the First Appellate Court, H
    658       SUPREME COURT REPORTS                    [2008] 6 S.C.R.


A   even the High Court appears to have lost sight of the said finding.

          8. Appearing in support of the appeal, Mr. S.B. Sanyal,
    learned senior advocate, submitted that both the First Appellate
    Court and the High Court erred in reversing the judgment of the
    Trial Court without deciding the question relating to limitation
8   and that the judgment both of the High Court as well as of the
    First Appellate Court were liable to be set aside on such ground
    alone.

          9. Appearing for the respondents, Ms. Rachana
c Srivastava, learned advocate, firstly submitted that the question
    now being raised on behalf of the appellants had not been raised
    on their behalf either before the First Appellate Court or before
    the High Court, which, therefore, had no opportunity to consider
    the same. Not having raised the said question before the First
    Appellate Court and the High Court, the appellants were not
0
    entitled to raise the same in this appeal.
          10. Ms. Srivastava also submitted that even before the
    Trial Court no specific issue had been framed regarding
    limitation and the purported finding of the Trial Court in respect
E   thereof was in the nature of an observation made in passing.
        11. In support of her submissions, learned counsel referred
  and relied upon the decision of this Court in State of Punjab vs.
  Darshan Singh [2004 (1) SCC 328] wherein while considering
  the lim[ts of the Court's powers under Section 152 of the Civil
F Procedure Code, this Court had occasion to consider whether
  a new plea in respect of which no specific issue had been framed
                                                                          .
  could be raised in second appeal or in a special leave petition
  before this Court. Ms. Srivastava submitted that this Court had
  categorically held that despite a plea with regard to limitation
G having been taken in the written statement, no specific issue
  had been framed in respect thereof, and no such plea having
  been taken before the High Court, this Court could not go into
  the said question in proceedings under Article 136 of the
  Constitution. Ms. Srivastava urged that apart from the above,
H the issue of limitation being a mixed question of law and fact,
      KAMLESH BABU AND ORS. v. LAJPAT RAI SHARMA                       659
             AND ORS. [ALTAMAS KABIR, J.]

     such a plea could not be raised before this Court under Article          A
     136 of the Constitution if not taken earlier. In support of her second
     submission, Ms. Srivastava relied upon a decision of this Court
     in Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust and
     Ors. [2006 (5) SCC 658] wherein it had been held that a suit
     could not be dismissed under Order 7 Rule 11(d) of the Code              B
     of Civil Procedure in the absence of proper pleadings relating
     to limitation, particularly when the question of limitation is a
     mixed question of law and fact and on a mere reading of the
     plaint the suit could not be held to be barred by limitation.
          12. A similar view was taken by this Court in Narne Rama            C
     Murthy vs. Ravula Somasundram and Ors. [2005 (6) SCC 614]
     where also the question of limitation was an inextricably mixed
     question of law and fact and the bar of limitation could not be
     decided without considering the related facts giving rise to such
     question.                                                                o
          13. Ms. Srivastava urged that in this appeal, the situation
     was no different and the plea of limitation now sought to be taken,
     being a mixed question of law and fact, the same cannot be
     allowed to be raised in view of the aforesaid decisions of this
     Court.                                                                   E
           14. Having considered the submissions made on behalf
     of the respective parties, the decisions cited by them and the
     relevant law on the subject, we are unable to accept Ms.
     Srivastava's submissions mainly on two counts.
                                                                              F
           15. Firstly, the facts disclosed clearly indicate that neither
     the First Appellate Court nor the High Court took notice of Section
     3(1) of the Limitation Act, 1963, which reads as follows:-
           "3. Bar of limitation. - (1) Subject to the provisions
           contained in Sections 4 to 24 (in-:lusive), every suit             G
           instituted, appeal preferred, and application made after
           the prescribed period shall be dismissed although
·'         limitation had not been set up as a defence."
          16. Even in the decision of this Court in Darshan Singh's
     case (supra) the said provision does not appear to have been             H
   660        SUPREME COURT REPORTS                   [2008] 6 S.C.R.


A brought to the notice of the Hon'ble Judges who decided the
  matter.
        17. It is well settled that Section 3(1) of the Limitation Act
  casts a duty upon the court to dismiss a suit or an appeal or an
  application, if made after the prescribed period, although,
B limitation is not set up as a defence.
        18. In the instant case, such a defence has been set up in
  the written statement though no issue was framed in that regard.
  However, when the Trial Court had in terms of the mandate of
C Section 3(1) come to a finding that the suit was barred by
  limitation, it was the duty of the First Appellate Court and also of
  the High Court to go into the said question and to decide the
  same before reversing the judgment of the Trial Court on the
  various issues framed in the suit. Even though the various issues
  were decided in favour of the plaintiff both by the First Appellate
D Court and the High Court, the same were of no avail since the
  suit continued to remain barred under Article 59 of the Limitation
  Act, 1963.
         19. Ms. Srivastava's submission that the plea of limitation
E not having been taken before the appellate forums, the same
  could not be taken before this Court in proceedings under Article
  136 of the Constitution on the ground that the question of
  limitation was a mixed question of law and fact, stands nullified
  by the fact that the suit continued to remain barred by limitation
  after the decisions of the appellate Courts since such finding of
F the Trial Court had not been set aside either in the first appeal
  or by the High Court in second appeal.
       20. It is quite obvious that this aspect of the matter had not
  been looked into either by the First Appellate Court or by the
G High Court, nor was it raised on behalf of the appellants herein.
  The question, therefore, which remains to be decided is whether
  such a plea can now be taken in the special leave proceedings.
       21. It is no doubt true, as was pointed out by this Court in
  the case of Balasaria Construction (P) Ltd. (supra) and also in
H Name Rama Murthy's case (supra), that if the plea of limitation
     KAMLESH BABU AND ORS. v. LAJPAT RAI SHARMA                     661
            AND ORS. [ALTAMAS KABIR,.J.]

    is a mixed question of law and fact, the same cannot be raised A
    at the appellate stage. We have no problem with the said
    proposition of law. What we are concerned with is whether the
    said proposition is applicable to the facts of this case. In this
    case the plea of limitation had been raised in the written
    statement and though no specific issue was framed in respect B
•   thereof, a decision was given thereupon by the learned Trial
    Court. Apart from Section 3(1) of the Limitation Act, even Order
    7 Rule 11 (d) of the Code of Civil Procedure casts a mandate
    upon the court to reject a plaint where the suit appears from the.
    statement in the plaint to be barred by any law, in this case by
    the law of limitation. Further, as far back as in 1943, the Privy C
    Council in the case of LaChhmi Sewak Sahu vs. Ram Rup Sahu
    & Ors. [AIR 1944 Privy Council 24] held that a point of limitation
    is prima facie admissible even in the court of last resort, although
    it had not been taken in the lower courts.
                                                                           D
          22. The reasoning behind the said proposition is that
    certain questions relating to the jurisdiction of a Court, including
    limitation, goes to the very root of the Court's jurisdiction to
    entertain and decide a matter, as otherwise, the decision
    rendered without jurisdiction will be a nullity. However, we are       E
    not required to elaborate on the said proposition, inasmuch as,
    in the instant case such a plea had been raised and decided by
    the Trial Court but was not reversed by the First Appellate Court
    or the High Court while reversing the decision of the Trial Court
    on the issues framed in the suit. We, therefore, have no hesitation
    in setting aside the judgment and decree of the High Court and         F
    to remand the suit to the First Appellate Court to decide the
    limited question as to whether the suit was barred by limitation
    as found by the Trial Court. Needless to say, if the suit is found
    to be so barred, the appeal is to be dismissed. If the suit is not
    found to be time-barred, the decision of the First Appellate Court     G
    on the other issues shall not be disturbed.
          The appeal is accordingly allowed, but there will be no order
    as to costs.
    B.B.B                                             Appeal allowed       H