Holding

Limitation is a question of jurisdiction; the plaintiff must prove the suit is within the limitation period, and the court may admit additional evidence under Order 41 Rule 27 when required for a just decision.

Summary

The appellant sought a decree for redemption of a mortgage whose deed was registered in 1913, but the exact execution date was unknown. The suit was filed on 30 December 1970 and was dismissed by the trial court and first appellate court as barred by limitation. The High Court reversed, holding that the relationship between mortgagor and mortgagee was proved and that the onus to show limitation was on the defendants. The Supreme Court held that limitation is a question of jurisdiction; under Section 3 of the Limitation Act the plaintiff must establish that the suit is within the prescribed period, and the court may admit additional evidence under Order 41 Rule 27 when necessary. Assuming the mortgage was executed on 20 February 1913, the suit filed in 1970 fell within the seven‑year limitation period applicable after the 1963 Act, so the appeal was partly allowed and the matter remitted to the High Court to record the additional evidence.

Issues considered

Whether limitation is a question of jurisdiction and the onus to prove a suit is within the limitation period lies on the plaintiff.
Whether the suit for redemption of mortgage filed in 1970 is barred by limitation given the unknown exact date of the mortgage but a mutation date of 1913.
Whether additional evidence, namely the registered mortgage deed, can be adduced under Order 41 Rule 27 of the CPC in appellate proceedings.

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rule 27, s. Order 41 Rule 28
Limitation Act, 1963s. 3

Subjects

limitationjurisdictionmortgage redemptionadditional evidenceOrder 41 Rule 27civil procedureburden of proof

Judgment

(2008] 7 S.C.R. 828

A LACHHMAN SINGH (DECEASED) . ._ •
THROUGH LEGAL REPRESENTATIVES & ORS.
v.
HAZARA SINGH (DECEASED)
THROUGH LEGAL REPRESENTATIVES & ORS.
B (Civil Appeal No. 3322 of 2008)
MAY 6, 2008 ~~

[S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.]

c Limitation Act, 1963:
s.3 - Suit - Barred by limitation - Onus of proof - High
Court held that onus to prove that suit was filed beyond the
period of limitation, was on the defendants - Correctness of -
Held: Not correct - Limitation is a question of jurisdiction -
D s. 3 puts an embargo on the Court to entertain a suit if it is
found to be barred by limitation - Code of Civil Procedure,
1908- s.9.
Code of Civil Proceaure, 1908:
E 0. 41 r. 27 (1 )(a) and (aa) -Additional evidence -Adducing
of - Suit for redemption filed in 1970 - Plea of respondent
that a registered mortgage deed was executed in 1913 -
Respondent seeking permission for production of mortgage r
deed in order to establish that suit was within period of limitation
F - Held: In peculiar facts and circumstances of the case,
respondent permitted to adduce evidence.
A transaction of mortgage in respect of the suit
property was entered into by and between the
predecessors in interest of the parties. The actual date of
G execution of the deed of mortgage was not known to the
plaintiffs-respondents. However, the said mortgaged
properties were mutated in the name of the mortgagee
on or about 19.3.1913.
A suit for redemption of the said mortgage was filed
H 828
LACHHMAN S. (0) TH. LEGAL REP. & ORS. v. HAZARA 829
S. (0) TH. LEGAL REP. & ORS.
i )! by the respondents on 30.12.1970. The trial court, as also A
the First Appellate Court, dismissed the said suit as being
barred by limitation opining that the actual date of
mortgage being not known, a decree for redemption of
mortgage could not be passed.
High Court allowed the appeal holding that in view B
I .. ~ of the fact that the relationship between the parties as
mortgagor and mortgagee was proved, the onus to prove
that suit was barred by limitation was on the defendants.
In appeal to this Court, appellant contended that the c
question of limitation being one of jurisdiction, the High
court committed a serious error in allowing the second
appeal and that as the date of mutation was not the date
of mortgage, the suit should have been held to be barred
by limitation.
0
Respondents contended than an application was
~ )'!-"
filed by the respondent for adduction of additional
evidence, as envisaged under Order 41 Rule 27 CPC on
premise that the deed of mortgage which was registered
could be procured by the respondents which, if taken into E
consideration, would clearly establish that the suit was
within the prescribed period of limitation having been
executed on 20.2.1913.
Partly allowing the appeal, the Court
F
HELD: 1. The High Court was entirely wrong in
' "Y holding that the onus to prove that the suit was beyond
the period of limitation was on the defendants. Limitation
is a question of jurisdiction. S.3 of the Limitation Act puts
an embargo on the court to entertain a suit if it is found to G
be barred by limitation. [Para 9] [833-C]
2.1. No order was passed by High Court on an
' application for adduction of additional evidence.
~
Respondents have made out a case for adduction of
additional evidence. It was stated that the mortgage deed H
830 SUPREME COURT REPORTS [2008] 7 S. C.R.

A was registered in the year 1913 in the District of Lahore. "'
There cannot be any doubt whatsoever that the court
should be loathed to entertain such an application but
the respondents have made out adequate grounds
therefor. As it is a registered document, this Court in a
B situation of this nature, keeping in view the findings of
the courts below, should allow the said application.
[Paras 10, 11] [833-D, E]
2.2 The jurisdiction of the Appellate Court is to be
exercised not only when clause (a) or clause (aa) of sub-
C rule (1) of Rule 27 of Order 41 is attracted but also when
such a document is required by the appellate Court itself
to pronounce judgment or for any other substantial cause.
If what the respondents contended is correct, namely, the
mortgage was executed in 1913, the period of limitation
D having been prescribed under the old Limitation Act,
namely, 60 years being the period of limitation having
regard to the provisions of the new Limitation Act, the suit
could be filed within a period of seven years from 1.1.1964,
i.e. upto 1.1.1971. As the suit was filed on 30.12.1970, it
E may be held to be within the prescribed period of limitation.
Keeping in view the peculiar facts and circumstances of
the case, the respondents should be permitted to adduce
evidence. [Paras 11, 12] [833-G-H; 834-A-C]
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3322
F of 2008.
From the Judgment and Order dated 19.7.2006 of the High
Court of Pubjab and Haryana at Chandigarh in RSA No. 1340/
1980.
G Shambhu Prasad Singh, Prem Sunder Jha and K.C. Maini
for the Appellants.
Manoj Swarup for the Respondents.
The Judgment of the Court was delivered by
H
iAC!iHMAN S (DJ TH. LEGAL REP. & ORS. v. HAZARA 831
S. (D) tli LEGAL REP. & ORS. [S.S. SINHA, J.)

S.B. SINHA, J. 1. Leave granted. A
2. What would be the period of limitation in a suit for
redemption of mortgage in the factual matrix involved in the
present case is the question in this appeal which arises out of a
judgment and order dated 19. 7 .2006 passed by the High Court
of Punjab and Haryana in RSA No.1340 of 1980. B

3. A transaction of mortgage in respect of the suit property
admeasuring 58 kanals 11 marlas was entered into by and
between the predecessors in the interest of the parties herein.
The actual date of execution of the deed of mortgage was not c
known to the plaintiffs-respondents. However, the said
mortgaged properties were mutated in the name of the
mortgagees on or about 19.3.1913.
4. A suit for redemption of the said mortgage was filed by
the respondents on or about 30.12.1970. The learned trial court, D
t ~ as also the First Appellate Court, dismissed the said suit as
being barred by limitation opining that the actual date of
mortgage being not known, a decree for redemption of mortgage
could not be passed.
5. The High Court, however, in the second appeal preferred E
thereagainst by the respondent herein, formulated the following
substantial questions of law :
f
"1. Whether the finding recorded by the learned first
Appellate Court regarding relationship is F
,,.. ~..,.
sustainable?
2. Whether the suit for possession by way of redemption
is within the period of limitation?"
6. It was held that in view of the fact that the relationship G
between the parties as mortgagor and mortgagee was proved,
the onus to prove that suit was barred by limitation was on the
defendants.
The said Second Appeal on the said finding was allowed.
H
832 SUPREME COURT REPORTS [2008] 7 S.C.R.

A 7. Mr. Shambhu Prasad Singh, learned counsel appearing
on behalf of the appellant, would submit that the question of
limitation being one of jurisdiction, the High Court committed a
serious error in allowing the said second appeal. It was
submitted that as the date of mutation was not the date of
B mortgage, the suit should have been held to be barred by
limitation.

8. Mr. Manoj Swarup, learned counsel appearing on behalf
of the respondents, on the other hand, has drawn our attention
to an application filed by the respondent for adduction of
C additional evidence, as envisaged under Order 41 Rule 27 of
the Code of Civil Procedure and submitted that the deed of
mortgage which was registered in Village Pangota, Tehsil Taran
Taran in the District of Amritsar, now in Pakistan, could be
procured by the respondents which, if taken into consideration,
D would clearly establish that the suit was within the prescribed
period of limitation having been executed on 20.2.1913.
The relationship between the parties is not in dispute.
Respondents filed the aforementioned suit for a decree for
redemption of mortgage on payment of a sum as may be found
E due to the appellants herein. The details of the mortgage were
furnished but the actual date of mortgage being not known could
not be furnished.
Sohan Singh and Bahadur Singh were the original
F mortgagors. Sohan Singh is said to have been not seen 10
years prior to the institution of the suit and, thus, presumed to
be dead. Respondents are said to have inherited the properties
of the said mortgagors and, thus, stepped into their shoes. In
the written statement, the respondent denied and disputed the
G relationship between the parties, stating :
"1. Para No.1 of the plaint is wrong and incorrect. The
suit land is not of the plaintiffs. Rather the total land is
under the permanent continuing possession of defendant
No.1. The land in dispute as mentioned in para No.1 of
H the plaint filed by the plaintiffs never mortgaged with the
LACHHMAN S. (D) TH. LEGAL REP. & ORS. v. HAZARA 833
S. (D) TH. LEGAL REP. & ORS. [S.8. SINHA, J.]
' .A
defendants and the facts mentioned in para No.1 of the A
plaint regarding the alleged mortgaged are forged and
fictitious one and the plaint is not with me."
9. The defendant claimed the ownership as also
possession of the suit land in himself. The courts below, as
noticed hereinbefore, found that there existed a relationship of 8
I . .I.
mortgagor and mortgagee between the parties to the lis. The
suit was dismissed only on the ground of being barred by
limitation.
The High Court was, in our opinion, entirely wrong in holding c
that the onus to prove that the suit was beyond the period of
limitation was on the defendants. Limitation is a question of
jurisdiction. Section 3 of the Limitation Act puts an embargo on
the court to entertain a suit if it is found to be barred by limitation.
10. It appears that before the High Court also, an D
~ /"' application for adduction of additional evidence was filed. No
order thereupon was passed. Respondents, in our opinion, have
made out a case for adduction of additional evidence.
It was stated that the mortgage deed was registered in
the year 1913 in the District of Lahore. As it is a registered E
document, this Court in a situation of this nature, keeping in
view the findings of the courts below, should allow the said
application.
11. There cannot be any doubt whatsoever that the court F
. ~
should be loathed to entertain such an application but the
respondents have herein made out adequate grounds therefor.
The jurisdiction of the Appellate Court is to be exercised
not only when clause (a) or clause (aa) of sub-rule (1) of Rule 27
of Order 41 of the Code is attracted but also when such a G
document is required by the appellate Court itself to pronounce
I
judgment or for any other substantial cause. If what the
...( respondents contended is correct, namely, the mortgage was
executed in 1913, the period of limitation having been
H
834 SUPREME COURT REPORTS [2008] 7 S.C.R.

A prescribed under the old Limitation Act, namely, 60 years being
the period of limitation having regard to the provisions of the
new Limitation Act, the suit could be filed within a period of seven
years from 1.1.1964, i.e. upto 1.1.1971. As the suit was filed on
30.12.1970, it may be held to be within the prescribed period
B of limitation.
.... . i
12. We are of the opinion that keeping in view the peculiar
facts and circumstances of this case, the respondents should
be permitted to adduce evidence. We, therefore, set aside the
impugned judgment and rt:imit the matter back to the High Court
C directing it to take the additional evidence on record either
allowing the parties to adduce evidence before it or to prove
the said documents by ti1e trial judge in terms of Order 41 Rule
28 of the Code. Appeal is allowed to the above extent. No costs.
D.G. Appeal partly allowed.
0

I .