SUKHBIRI DEVI & ORSversusUNION OF INDIA & ORS.

                        [2022] 13 S.C.R. 523                              523


                     SUKHBIRI DEVI & ORS.                                 A
                                  v.
                    UNION OF INDIA & ORS.
                  (Civil Appeal No. 10834 of 2010)
                       SEPTEMBER 29, 2022                                 B
       [AJAY RASTOGI AND C. T. RAVIKUMAR, JJ.]
       Code of Civil Procedure, 1908 – Or.XIV, r.2(2) – Whether the
issue of limitation can be determined as a preliminary issue u/Or.
XIV, r.2(2) – Held: Yes – The issue of limitation can be framed and
                                                                          C
determined as a preliminary issue u/Or. XIV, r.2(2)(b), CPC in a
case where it can be decided on admitted facts – In the present
case, the findings of the Trial Court with respect to preliminary issue
of limitation are based on the relevant dates revealed from the
pleadings of the plaintiffs in the plaint itself – ‘Statements’ by a
party to proceedings are admissions and facts admitted need not be        D
proved – The manner of consideration by the Trial Court which
ultimately resulted in dismissal of the suit reveals that it had
determined the preliminary issue regarding the period of limitation
with reference to the averments in the plaint and the dismissal of the
suit was in accordance with the decision on the said preliminary
                                                                          E
issue – No perversity or illegality in the concurrent findings of the
courts below warranting interference – Limitation Act,1963 – Article
136, 17, 65 – Evidence Act, 1872 – ss.17, 18, 58.
      Constitution of India – Article 136 – Scope of, against
concurrent findings – Held: Interference with the concurrent
                                                                          F
findings in an appeal u/Article 136 is to be made sparingly, that too
when the judgment impugned is absolutely perverse – On
appreciation of evidence, possibility of another view also cannot
be a reason for substitution of a plausible view taken and confirmed.
      Deeds and documents – Relinquishment deed – Held:
Consideration of validity of a relinquishment deed and consideration      G
of the period of limitation with reference to the same are different
and distinct.
      Practice and Procedure – Non-mentioning of provision in the
order – Held: Misquoting or non-quoting of a provision by itself
                                                                          H
                                 523
524            SUPREME COURT REPORTS                     [2022] 13 S.C.R.


A     will not make an order bad so long as the relevant enabling provision
      is in existence and it was correctly applied though without
      specifically mentioning it.
           Words & Phrases – “admitted facts”, “admission” –
      Discussed – Evidence Act, 1872 – ss.17, 18, 58.
B           Dismissing the appeal, the Court
            HELD: 1.1 Interference with the concurrent findings in an
      appeal under Article 136 of the Constitution is to be made
      sparingly, that too when the judgment impugned is absolutely
      perverse. On appreciation of evidence another view is possible
C     also cannot be a reason for substitution of a plausible view taken
      and confirmed. We will now, bearing in mind the settled position,
      proceed to consider as to whether the said appellate power invites
      invocation in the case on hand. [Para 4][530-H; 531-A-B]
             1.2 ‘Statements’ by a party to proceedings are admissions
D     and facts admitted need not be proved. The appellants cannot
      legally have any dispute or grievance in taking their statements
      in the plaint capable of determining the starting point of limitation
      for the purpose of application of Order XIV, Rule 2(2)(b) of the
      CPC. Though, limitation is a mixed question of law and facts it
E     will shed the said character and would get confined to one of
      question of law when the foundational fact(s), determining the
      starting point of limitation is vividly and specifically made in the
      plaint averments. In such a circumstance, if the Court concerned
      is of the opinion that limitation could be framed as a preliminary
      point and it warrants postponement of settlement of other issues
F     till determination of that issue, it may frame the same as a
      preliminary issue and may deal with the suit only in accordance
      with the decision on that issue. It cannot be said that such an
      approach is impermissible in law and in fact, it is perfectly
      permissible under Order XIV, Rule 2(2)(b), CPC and legal in such
G     circumstances. The issue limitation can be framed and determined
      as a preliminary issue under Order XIV, Rule 2(2)(b), CPC in a
      case where it can be decided on admitted facts. [Paras 17 and
      18][536-D-G]


H
     SUKHBIRI DEVI & ORS. v. UNION OF INDIA & ORS.                        525


       1.3 A perusal of Article 136 of the Limitation Act would           A
reveal the indubitable position that it applies only when an
application for execution of any decree (other than a decree
granting a mandatory injunction) or order of any Civil Court is to
be filed. In the instant such a stage for application of Article 136
of the Limitation Act had not reached and, in troth, the question
                                                                          B
involved is relatable only to the time restriction for initiating legal
proceedings to seek the alleged legal right. In the said
circumstances, the inevitable conclusion can only be that Article
136 got no application in the case on hand and as such the
Appellants could not claim for a larger period of limitation of 12
years. [Paras 19-21][538-F-H; 539-A]                                      C
      1.4 The findings of the Trial Court with respect to
preliminary issue of limitation are based on the relevant dates
revealed from the pleadings of the plaintiffs in the plaint itself.
True that in the plaint it is repeatedly alleged that the
relinquishment deed was obtained fraudulently by the 5th                  D
respondent. However, conspicuously its date was not mentioned.
But then the plaint averment is that their predecessor-in-interest
Shri ‘NS’, on coming to know about the use of the said
Relinquishment Deed, had preferred an objection on 05.04.1991
to the authorities whereunder he sought not only for its
cancellation but also on the ground of obtainment by playing fraud        E
for refraining them from issuing allotment of the alternative plot
in the exclusive name of the 5th respondent. In this context it is
also relevant to note that going by the plaint averments after the
death of Shri ‘NS’ on 14.05.1993 the original first plaintiff, who is
none other than one of the sons of Shri ‘NS’, filed representations       F
on the lines of the objection taken up by his father. Even if non-
mentioning of the date of Relinquishment Deed is not taken as
purposeful that cannot and will not therefore save the plaintiffs
from the inescapable, adverse finding on the question of limitation
to bring in a suit against the said Relinquishment Deed. Evidently,
Suit No.410 of 2000 was filed only on 14.06.2000. Thus, it is very        G
much clear from the plaint averments that the Relinquishment
Deed is anterior to the date of letter of intimation to the 5th
respondent (08.03.1991) and obviously, the date of objection
against the same was firstly preferred by deceased ‘NS’ viz.,
05.04.1991. Evidently, the aforesaid two dates specifically               H
526            SUPREME COURT REPORTS                    [2022] 13 S.C.R.


A     mentioned in the plaint were taken into account by the Trial Court
      as also by the First Appellate Court and the High Court in the
      matter of consideration of the question “whether the suit was
      barred by limitation.” The manner of consideration by the Trial
      Court which ultimately resulted in dismissal of suit No.410/2000
      would reveal, as stated hereinbefore, that it had determined the
B
      preliminary issue regarding the period of limitation with reference
      to the averments in the plaint. The dismissal of the suit was in
      accordance with the decision on the said preliminary issue. [Para
      22][539-B-H]
             1.5 Coming to the judgment of the First Appellate Court
C     whereby it dismissed the appeals of the plaintiffs and confirmed
      the judgment and decree of the Trial Court it is evident that the
      various contentions raised by the appellants therein were
      considered in detail by the First Appellate Court. The First
      Appellate Court correctly exposited the legal position that the
D     question of limitation is to be considered not with reference to
      the validity of the Relinquishment Deed. In this context it is also
      to be noted that despite taking up a specific allegation that the
      Relinquishment Deed was fraudulently obtained by the 5th
      respondent, the plaintiffs had not chosen to assail and seek for
      its setting aside. Even after seeking for cancellation of the
E     relinquishment deed before the authorities as early as on
      05.04.1991 the predecessor-in-interest had not chosen to get it
      set aside by approaching a competent civil court during his
      lifetime. Upon his death on 14.05.1993, though the period of
      limitation for seeking to set it aside did not get arrested and ran
F     against the plaintiffs who stepped into the shoes of ‘NS’, none of
      them seek to get it set aside by moving a civil court, within the
      period of limitation. The pleadings in this appeal and the arguments
      advanced would show that till date with such a prayer no competent
      civil court was moved by the original plaintiffs and also the
      appellants herein. In short, in the absence of any successful
G     challenge against the validity of the said Relinquishment Deed
      by making proper prayer in an appropriate proceedings, and that
      too within the prescribed period of limitation, the conclusion and
      finding of the First Appellate Court, as aforesaid, cannot be said
      to be perverse or illegal as there can be no doubt with respect to
H     the position that consideration of validity of a relinquishment deed
     SUKHBIRI DEVI & ORS. v. UNION OF INDIA & ORS.                        527


and consideration of the period of limitation with reference to           A
the same are different and distinct. [Para 23][540-A-G]
       1.6 The challenge against the impugned judgment of the
High Court is that it wrongly applied Article 58 of the Limitation
Act while confirming the concurrent decisions of the First
Appellate Court and the Trial Court. In this context, it is relevant      B
to note the prayers made in the suit by the plaintiffs which were
extracted hereinbefore. Undoubtedly, the plaintiffs sought for
declarations and thereby, made the nature of the suit as
declaratory. This position is indisputable. It is true that the Trial
Court though found the period of limitation as three years taking
into account the nature of the reliefs it did not specifically mention    C
the relevant provision in its judgment. There can be little doubt
with respect to the position that misquoting or non-quoting of a
provision by itself will not make an order bad so long as the
relevant enabling provision is in existence and it was correctly
applied though without specifically mentioning it. The High Court         D
had only referred to the relevant, applicable provision under the
Limitation Act upon considering the nature of the suit and the
reliefs sought for, in the plaint. There is no perversity or illegality
in the finding of the High Court for sustaining the concurrent
findings with respect to the issue whether the suit was barred by
limitation. [Paras 25][541-B-F]                                           E

      1.7 The relief sought for, in suit No.410/2000 would reveal
that the first prayer, which is the main prayer, is declaratory in
nature. Even according to the plaintiffs, as revealed from the plaint
the second prayer is only consequential relief. A perusal of the
same would undoubtedly show that it is consequential and not an           F
independent one and therefore the courts below are right in
holding that the said prayer is grantable only if the first prayer is
granted. In this case based on the determination on the
preliminary issue of limitation and in accordance with the decision
on that preliminary issue the suit was dismissed. The provisions          G
under Order XIV Rule 2(1) and Rule 2(2)(b) permit to deal with
and dispose of a suit in accordance with the decision on the
preliminary issue. In the case on hand in view of the nature of the
finding on the preliminary issue and the consequential

                                                                          H
528           SUPREME COURT REPORTS                   [2022] 13 S.C.R.


A     consideration of the suit in terms of Order XIV Rule 2(2)(b) and
      taking note of the fact that the suit do not survive after such
      consideration there is no reason to consider the contention of
      the appellants with reference to Order VII Rule 11 based on the
      decisions relied on by them. So also, the contentions of the
      appellants based on Articles 17 and 65 also would pale into
B
      insignificance and warrant no consideration at all, in the
      circumstances. There is absolutely no perversity or illegality in
      the concurrent findings of the courts below warranting
      interference in invocation of the power under Article 136 of the
      Constitution of India. [Paras 26, 27][541-F-H; 542-A-C]
C          Nusli Neville Wadia v. Ivory Properties (2020) 6 SCC
           557 : [2019] 15 SCR 795; National Insurance Co. Ltd.
           Vs. Rattani (2009) 2 SCC 75 : [2008] 17 SCR 1251;
           Ranganayakamma & Anr. v. K.S. Prakash (Dead) By
           LRs. & Ors. (2008) 15 SCC 673 : [2008] 9 SCR 297
D          and Vimal Chand Ghevarchand Jain & Ors. v. Ramakant
           Eknath Jadoo (2009) 5 SCC 713; State of Rajasthan v.
           Shiv Dayal (2019) 8 SCC 637 : [2019] 10 SCR 243 –
           relied on.
           C. Natarajan v. Ashim Bai & Anr. (2007) 14 SCC 183 :
E          [2007] 11 SCR 33; Popat And Kotecha Property v. State
           Bank of India Staff Assn (2005) 7 SCC 510 : [2005] 2
           Suppl. SCR 1030; Daya Singh & Anr. v. Gurdev Singh
           (Dead) by LRs. & Ors. (2010) 2 SCC 194; Mt. Bolo v.
           Mt. Koklan (2010) 2 SCC 194 : [2010] 1 SCR 194;
           Mst. Rukhmabai v. Lala Laxminarayan [1960] 2 SCR
F          253; Mongin Realty and Build Well Private Limited v.
           Manik Sethi 2022 SCC Online SC 156; Bikoba Deora
           Gaikwad & Ors. v. Hirabai Marutirao Ghorgare & Ors.
           (2008) 8 SCC 198 : [2008] 9 SCR 1038; Narinder Kaur
           & Anr. v. Amar Jeet Singh Sethi & Anr. 2000 III A D
G          (Delhi), 599; M/s Crescent Petroleum Ltd. v. M. V.
           Monchegorsk & Ors. AIR 2000 Bombay 161 – referred
           to.



H
     SUKHBIRI DEVI & ORS. v. UNION OF INDIA & ORS.                             529


                         Case Law Reference                                    A
[2019] 10 SCR 243                 relied on            Para 3
[2007] 11 SCR 33                  referred to          Para 11
[2005] 2 Suppl. SCR 1030          referred to          Para 11
[2010] 1 SCR 194                  referred to          Para 11                 B
[1960] 2 SCR 253                  referred to          Para 11
[2019] 15 SCR 795                 relied on            Para 15
[2008] 17 SCR 1251                relied on            Para 16
                                                                               C
[2008] 9 SCR 297                  relied on            Para 16
[2008] 9 SCR 1038                 referred to          Para 20
        CIVIL ORIGINAL JURISDICTION: Civil Appeal No. 10834 of
2010.
      From the Judgment and Order dated 25.08.2009 of the High Court           D
of Delhi at New Delhi in R.S.A. No. 79 of 2007.
      Arvind Kumar, Chiranjeev Johri, Mrs. Laxmi Arvind, Advs. for
the Appellants.
     Anupam Lal Das, Sr. Adv., Ms. Anirudh Singh, Krishanu Barua,
                                                                               E
Rahul Pratap, Anish Kumar Gupta, Ms. Archana Preeti Gupta, G. S.
Makkar, Mrs. Anil Katiyar, Ms. Binu Tamta, Dhruv Tamta, Pradeep
Kumar Mathur, Advs. for the Respondents.
        The Judgment of the Court was delivered by
        C. T. RAVIKUMAR, J.                                                    F
       1. This appeal by Special Leave is directed against the judgment
and order in RSA No.79/2007 dated 25.08.2009 passed by the High Court
of Delhi. The appellants were plaintiffs in Suit No.410 of 2000 on the file
of the Court presided over by Shri Vidya Prakash, Civil Judge, Delhi,
(hereinafter referred to as ‘the Trial Court’), filed seeking reliefs mainly   G
against the 5 th Respondent. The Trial Court framed a preliminary issue on
the question of limitation, evidently, upon forming the opinion that case
may be disposed of on an issue of law and that it warrants postponement
of settlement of other issues until after that issue has been determined
and to deal with the suit in accordance with the decision on that issue.
                                                                               H
530                SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A     Accordingly, the Trial Court framed a preliminary question as to “whether
      the Suit is within the limitation”. Upon answering the same in the negative,
      in accordance with the said decision, the suit was dismissed as per
      judgment dated 13.05.2005. The defendants challenged the said judgment
      and decree before the Court presided over by Shri Sukhdev Singh,
      Additional District Judge, Delhi, (hereinafter referred to as the ‘First
B
      Appellate Court’) in Civil Appeal No.99/2005 and it dismissed the appeal
      and confirmed the judgment and decree of the Trial Court, as per judgment
      dated 08.12.2006. Thereupon, they took up the matter in second appeal
      before the High Court. As per the impugned judgment dated 25.08.2009
      the High Court concurred with the findings and dismissed the appeal
C     answering the question of law against the appellants. Leave was granted
      in Special Leave Petition No.34648 of 2009 filed against the stated
      judgment of the High Court and in this civil appeal, the respondents were
      granted liberty to file counter affidavits.
            2. We have heard the learned counsel appearing for the appellants
D     and also the learned counsel appearing for the respective respondents.
            3. At the outset, it is to be noted that the challenge in this appeal is
      against concurrent findings by three Courts, as mentioned hereinbefore.
      The scope of an appeal by special leave under Article 136 of the
      Constitution of India against the concurrent findings is well settled. In
E     State of Rajasthan vs. Shiv Dayal1 reiterating the settled position, this
      Court held that a concurrent finding of fact is binding, unless it is infected
      with perversity. It was held therein:-
               “When any concurrent finding of fact is assailed in second appeal,
               the appellant is entitled to point out that it is bad in law because it
F              was recorded de hors the pleadings or it was based on no evidence
               or it was based on misreading of material documentary evidence
               or it was recorded against any provision of law and lastly, the
               decision is one which no Judge acting judicially could reasonably
               have reached. (see observation made by learned Judge Vivian
               Bose, J. as His Lordship then was a Judge of the Nagpur High
G              Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath
               Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43).”
            4. Thus, evidently, the settled position is that interference with the
      concurrent findings in an appeal under Article 136 of the Constitution is
      1
H         (2019) 8 SCC 637.
     SUKHBIRI DEVI & ORS. v. UNION OF INDIA & ORS.                               531
                 [C. T. RAVIKUMAR, J.]

to be made sparingly, that too when the judgment impugned is absolutely          A
perverse. On appreciation of evidence another view is possible also
cannot be a reason for substitution of a plausible view taken and
confirmed. We will now, bearing in mind the settled position, proceed to
consider as to whether the said appellate power invites invocation in the
case on hand.
                                                                                 B
       5. For making a consideration as mentioned above, it is only
apposite to make a brief reference to the facts involved in the case
revealed from the averments in the plaint. The predecessor-in-interest
of the appellants, viz., Shri Rama Nand, was the bhumidar of certain
extent of agricultural land situated in Village Naraina in Delhi. The said
plot of agricultural land was acquired and Award No.19/75-76 was passed          C
in relation to its acquisition on 09.01.1976. Subsequently, Rama Nand
died, leaving behind his widow, two sons – Nahar Singh and Dhan Singh
and four daughters - Smt. Shakuntala Devi, Smt. Krishna Devi, Smt.
Parvati Devi and Smt. Santhosh. Later, the widow of Shri Rama Nand
also died. As per the policy, whereunder the land was acquired, the              D
bhumidar was entitled to allotment of alternative residential plot in lieu of
the acquired land. Later, the alternative plot was allotted by respondent
Nos.1 to 4 in the exclusive name of Dhan Singh, upon his production of
registered Relinquishment Deed, as per letter No.F- 31(11)/8/87/L&B/
ALT/8226 dated 08.03.1991. The said letter dated 08.03.1991 to the 5th
respondent for allotment of an alternative residential plot in his name,         E
based on the Relinquishment Deed issued by the other legal heirs in his
favour, came to the notice of Shri Nahar Singh, who thereupon filed an
objection on 05.04.1991, before respondent Nos.1-4 stating that alternative
plot shall not be allotted in the exclusive name of Dhan Singh. Further,
it was stated therein that the Relinquishment Deed produced before the           F
Authorities was obtained fraudulently by Dhan Singh. Subsequently,
Nahar Singh died on 14.05.1993. Thereupon, his widow and children
stepped into his shoes. Furthermore, it is averred in the plaint that
thereupon, the original plaintiff No.1 submitted similar representations to
the Authorities in a bid to make them refrain from allotting the alternative
plot in the exclusive name of the 5th respondent. It is thereafter that they     G
instituted Suit No.410 of 2000, on 14.06.2000. All these averments are
specifically made in the said plaint. At this juncture, it is to be noted that
the four sisters of Nahar Singh who are also the legal heirs of deceased
Rama Nand did not join them for instituting the suit against Dhan Singh
                                                                                 H
532             SUPREME COURT REPORTS                             [2022] 13 S.C.R.


A     (the 5th respondent in the Suit) and virtually, they were made proforma
      defendants therein.
             6. A bare perusal of the plaint would reveal that the suit was
      instituted for declaratory reliefs, inter alia, stating that the cause of action
      arose when application for alternative plot was made by the Defendant
B     No.5 by playing fraud and claiming himself to be the sole and exclusive
      heir of deceased Rama Nand and further when objections through
      representations were made to the wrongful application of allotment, on
      number of dates.
             Based on such averments it was prayed for a decree declaring
C     that the Plaintiffs are the co- owners in the allotment of the suit Plot
      No.13, Type A-I in Sector 26, Rohini, New Delhi (allotted in lieu of
      permanent acquisition of the lands of Shri Rama Nand, s/o Bhupan) and
      the Defendant No.5 is not the exclusive allotted/owner of the said
      residential plot in suit. The further relief sought for is entirely dependant
      on the above declaratory relief.
D
              7. Defendant Nos.1,2 and 4 (respondent Nos.1,2 and 4 herein)
      filed a joint written statement and the fifth respondent filed it separately.
      In view of the nature of the judgment of the Trial Court, the Appellate
      Court and the High Court and also nature of consideration, which we are
      intending to undertake, it is absolutely unnecessary to delve into their
E     pleadings.
            8. Based on the impugned judgment, the rival pleadings and the
      arguments advanced before us, following substantial questions call for
      consideration:-

F           (a) Whether the issue of limitation can be determined as a
      preliminary issue under Order XIV, Rule 2(2) of the Code of Civil
      Procedure (for short ‘CPC’)?
             (b) Whether a larger period of limitation of 12 years would be
      available to the plaintiffs to bring in a suit by virtue of application of
      Article 136 of the Limitation Act, 1968 (for short ‘The Act’), as contended
G
      by the appellant and in the facts and circumstances obtained in this case?
            (c) Whether Article 17 or Article 65 of the Act got any application,
      as contended by the appellants, in view of the plaint averments, in case
      Article 136 of the Act is found inapplicable?
H
     SUKHBIRI DEVI & ORS. v. UNION OF INDIA & ORS.                                 533
                 [C. T. RAVIKUMAR, J.]

       9. As relates the first question bifold contentions have been raised        A
by the appellants. Limitation being a mixed question of law and facts, in
view of the provisions under Order XIV, Rule 2(2), the course adopted
by the Trial Court and confirmed by the Appellate Court and the High
Court, is absolutely impermissible in law, it is contended. If at all that
preliminary issue was to be considered it ought to have been made
                                                                                   B
under Rule 11, Order VII, CPC and then, subject to its outcome, at the
worst, the plaint could have been rejected in terms of Clause (d) of
Rule 11 of Order VII, CPC, it is further contended.
        10. The contentions raised in resistance on behalf of the
5th respondent appears to be syllogistic. According to him, the foundational
facts for determining the nature of Suit No.410/2000 as declaratory suit           C
and the starting point of limitation as relates a declaratory suit are available
in the plaint averments themselves. The second proposition is that despite
coming to know about the registered Relinquishment Deed dated
21.10.1985, the predecessor- in-interest of the plaintiffs Shri Nahar Singh
and/or the plaintiffs did not resort to civil remedy to get it set aside           D
evenafter maintaining the stand that it was fraudulently obtained. The
third proposition is that repeated representations or applications to
respondent Nos.1 to 4 would not extend the period of limitation. To wit,
according to the 5th respondent the suit was barred by limitation on those
counts and, it was rightly dismissed as nothing further could survive for
adjudication in the suit thenceforth.                                              E

      11. Citing various decisions, such as C. Natarajan Vs. Ashim
Bai & Anr.2, Popat And Kotecha Property Vs. State Bank of India
Staff Assn3, Daya Singh & Anr. Vs. Gurdev Singh (Dead) by LRs.
& Ors.4, Mt. Bolo vs. Mt. Koklan5 and Mst. Rukhmabai Vs. Lala
Laxminarayan6 the appellants attempted to drive home their points.                 F

       12. In C. Natarajan’s case 2 and in Popat And Kotecha
Property’s case3 the plaints were rejected on the ground of being barred
by Order VII, Rule 11(d), CPC unlike the case on hand where the suit
was dismissed in accordance with the decision on the preliminary issue.
This Court held that Order VII, Rule 11(d) would apply if the averments            G
in the plaint were given face value and taken to be correct in their entirety
2
  (2007) 14 SCC 183
3
  (2005) 7 SCC 510
4
  (2010) 2 SCC 194
5
  AIR 1930 PC 270
6
  1960 (2) SCR 253                                                                 H
534               SUPREME COURT REPORTS                        [2022] 13 S.C.R.


A     appear to be barred by any law. Furthermore, it was held that in that
      regard the Court would not be entitled to consider the case of the defence.
             13. The Privy Council in the decision in Mt. Bolo’s case5 held
      that there could be no ‘right to sue’ until there is an accrual of the right
      asserted in the suit and its infringement or at least a clear and unequivocal
B     threat to infringe that right by the defendant against whom the suit is
      instituted. In Daya Singh’s case4 the question was with respect to the
      ‘right to sue’ for declaration. This Court, after referring to the decision
      in Mt. Bolo’s case5, held that a mere adverse entry in revenue records
      would not give rise to cause of action and it would accrue only when
      right asserted in the suit is infringed or when there is a clear and
C     unequivocal threat to infringe that right.
             14. In Mst. Rukhmabai’s case6, involving question of limitation
      in a suit for declaration of a deed as sham, this court considered the
      question of limitation under Article 120 of the Limitation Act, 1908 and
      held that the ‘right to sue’ would accrue when the defendant clearly and
D     unequivocally threatened to infringe the right asserted by the plaintiff in
      the suit. Further it was held that every threat to such a right would not
      amount to a clear and unequivocal threat to compel him to file a suit and
      whether any particular threat would give rise to a compulsory cause of
      action would depend on the question as to whether that threat effectively
E     invades or jeopardise the said right. In case on further deliberation a
      consideration of the case on hand in the light of the above decisions
      became inevitable, then we will undertake such an exercise.
             15. Now, we will consider the first question: ‘whether the issue of
      limitation can be determined as a preliminary issue under Order XIV,
F     Rule 2, CPC’. It is no longer res integra. In the decision in Mongin
      Realty and Build Well Private Limited vs. Manik Sethi7, even while
      holding that the course of action followed by the learned Trial Judge of
      directing the parties to address arguments on the issue of limitation as
      irregular since it being a case where adduction of evidence was required,
      a two-Judge Bench of this Court referred to a three-Judge Bench
G     decision of this Court in Nusli Neville Wadia Vs. Ivory Properties8
      observing that the issue therein was whether the issue of limitation could
      be determined as a preliminary issue under Order XIV, Rule 2, CPC.
      After taking note of the fact that going by the decision in Nusli Neville
      7
          2022 SCC Online SC 156
      8
H         [(2020) 6 SCC 557]
     SUKHBIRI DEVI & ORS. v. UNION OF INDIA & ORS.                               535
                 [C. T. RAVIKUMAR, J.]

Wadia’s case8, in a case where question of limitation could be decided           A
based on admitted facts it could be decided as a preliminary issue under
Order XIV, Rule 2(2)(b), CPC., the two- Judge Bench held that in the
case before their Lordships the question of limitation could not have
been decided as a preliminary issue under Order XIV, Rule 2 of CPC as
determination of the issue of limitation in that case was not a pure
                                                                                 B
question of law. In the said contextual situation it is worthy and appropriate
to refer to paragraphs 51, in so far as it is relevant, and 52 of the decision
in Nusli Neville Wadia’s case8 and they read thus:-
       “51.[…] As per Order 14 Rule 1, issues arise when a material
       proposition of fact or law is affirmed by the one party and denied
       by the other. The issues are framed on the material proposition,          C
       denied by another party. There are issues of facts and issues of
       law. In case specific facts are admitted, and is the question of law
       arises which is dependent upon the outcome of admitted facts, it
       is open to the court to pronounce the judgment based on admitted
       facts and the preliminary question of law under the provisions of         D
       Order 14 Rule 2. In Order 14 Rule 2(1), the court may decide the
       case on a preliminary issue. It has to pronounce the judgment on
       all issues. Order 14 Rule 2(2) makes a departure and the court
       may decide the question of law as to jurisdiction of the court or a
       bar created to the suit by any law for the time being in force, such
       as under the Limitation Act.                                              E

       52. […] In a case, question of limitation can be decided based on
       admitted facts, it can be decided as a preliminary issue under
       Order 14 Rule 2(2)(b). Once facts are disputed about limitation,
       the determination of the question of limitation also cannot be made
       under Order 14 Rule 2(2) as a preliminary issue or any other such         F
       issue of law which requires examination of the disputed facts. In
       case of dispute as to facts, is necessary to be determined to give
       a finding on a question of law. Such question cannot be decided as
       a preliminary issue. In a case, the question of jurisdiction also
       depends upon the proof of facts which are disputed and the                G
       question of law is dependent upon the outcome of the investigation
       of the facts, such question of law cannot be decided as a preliminary
       issue, is settled proposition of law either before the amendment of
       CPC and post amendment in the year 1976.”
                                                          (Emphasis added)       H
536             SUPREME COURT REPORTS                         [2022] 13 S.C.R.


A           16. In view of the legal position obtained from the decision in
      Nusli Neville Wadia’s case 8 the following decisions also assume
      relevance. In the decision in National Insurance Co. Ltd. Vs. Rattani 9
      this Court held that an admission made in the pleadings by a party is
      admissible in evidence proprio vigore. Equally well settled is the principle
      of law that an admission made by a party in his pleadings is admissible
B
      against him proprio vigore (see the decisions in Ranganayakamma &
      Anr. Vs. K.S. Prakash (Dead) By LRs. & Ors.10 and Vimal Chand
      Ghevarchand Jain & Ors. Vs. Ramakant Eknath Jadoo11.
             17. In the context of the usage of the expression “admitted facts”
      in paragraph 52 of the decision in Nusli Neville Wadia’s case8 and
C     the word ‘admission’ employed the National Insurance CO. Ltd. case9
      a reference to Sections 17, 18 and 58 of the Indian Evidence Act would
      not be inappropriate. A conjoint reading of the said provision would reveal
      that ‘statements’ by a party to proceedings are admissions and facts
      admitted need not be proved.
D            18. We referred to the said provisions and decisions only to stress
      upon the point that the appellants cannot legally have any dispute or
      grievance in taking their statements in the plaint capable of determining
      the starting point of limitation for the purpose of application of Order
      XIV, Rule 2(2)(b) of the CPC. Though, limitation is a mixed question of
E     law and facts it will shed the said character and would get confined to
      one of question of law when the foundational fact(s), determining the
      starting point of limitation is vividly and specifically made in the plaint
      averments. In such a circumstance, if the Court concerned is of the
      opinion that limitation could be framed as a preliminary point and it
      warrants postponement of settlement of other issues till determination
F     of that issue, it may frame the same as a preliminary issue and may deal
      with the suit only in accordance with the decision on that issue. It cannot
      be said that such an approach is impermissible in law and in fact, it is
      perfectly permissible under Order XIV, Rule 2(2)(b), CPC and legal in
      such circumstances. In short, in view of the decisions and the provisions,
G     referred above, it is clear that the issue limitation can be framed and
      determined as a preliminary issue under Order XIV, Rule 2(2)(b), CPC
      in a case where it can be decided on admitted facts.

      9
        [(2009) 2 SCC 75]
      10
         [(2008) 15 SCC 673]
H     11
         [(2009) 5 SCC 713]
     SUKHBIRI DEVI & ORS. v. UNION OF INDIA & ORS.                                 537
                 [C. T. RAVIKUMAR, J.]

       19. With the above observations and conclusions we will now,                A
refer to the findings returned by the Trial Court on the stated preliminary
issue of limitation, with a view to answer the question as to whether the
impugned judgment confirming the First Appellate Court which, in turn,
confirmed the judgment and decree of the Trial Court, requires
intervention. In that regard it is only apposite to refer to the following
                                                                                   B
recital from the Trial Court’s judgment carrying plaint averments
indicating the starting point of limitation and also findings on the preliminary
issue:
       “As per averments made in para 8 of the plaint plaintiffs
       themselves have mentioned that their predecessor in interest
       alongwith defendants Nos. 6 to 9 had executed relinquishment                C
       deed in favour of defendant no. 5. Although they have also taken
       the plea that same was obtained defendant no. 5 by playing fraud
       on the pretext of mutation of residential house in MCD records.
       Such averments made in the said para goes to show that Ld.
       Predecessor in interest of plaintiffs was very well aware about             D
       the execution of registered release deed since date of its execution.
       Even if it be considered that defendant no. 5 had played fraud
       upon predecessor in interest of plaintiffs and the said fraud came
       to the knowledge of Sh. Nahar Singh through letter dated. 8.3.1991
       then the period of limitation for seeking said relinquishment deed
       as null and void started the said date i.e. 8.3.1991. The reason            E
       being that plaintiffs are seeking declaration to the effect that they
       are co-owners of the suit plot and defendant no. 5 is not the
       exclusive owner thereof. The said relief can be granted by the
       court only when the relinquishment deed dated 21.10.1985 is held
       to be illegal null and void and not binding upon them. In other             F
       words, unless and until the said relinquishment deed is held to be
       illegal and not binding on the executants, the plaintiffs cannot be
       declared as co-owners of the suit plot along with defendants no. 5
       to 9. Therefore, the plaintiffs are also seeking declaration regarding
       cancellation of release deed dated 21.10.1985 indirectly which is
       being alleged as having been obtained through fraud and which               G
       fact admittedly came to their knowledge on 8/3/1991. Plaintiffs
       are claiming their title through Sh. Nahar Singh one of the legal
       heirs of deceased Sh. Rama Nand. Once Sh. Nahar Singh came
       to know about the fraud and illegality of the release deed the period
       of limitation started running from the said date of cancellation and        H
538                SUPREME COURT REPORTS                            [2022] 13 S.C.R.


A               mere factum regarding death of Sh. Nahar Singh would not stop
                the period of limitation once it has been started. Plaintiffs have
                stepped into the shoes of Sh. Nahar Singh and were, therefore,
                required to challenge the release deed within the period of limitation
                prescribed by law. It is needless to mention here that period of
                limitation prescribed for filing such a suit for declaration challenging
B
                the release deed in question is three years from the date of accrual
                of cause of action which in the present case arose, in the opinion
                of the court, on 8/3/1991 when Sh. Nahar Singh came to know
                about the alleged fraud being played by defendant no. 5 upon him
                along with defendants no. 6 to 9. The present suit has been filed
C               only on 14.6.2000, therefore, the present suit is barred by limitation.
                Hence, court finds merit in the arguments raised on behalf of
                defendants that the present suit is not maintainable being barred
                by limitation. The submissions made on behalf of plaintiffs that
                there were several representations being submitted before various
                Authorities by plaintiffs from time to time and period of limitation
D
                was continuing during all these period is without any merit as mere
                sending representations on behalf of plaintiffs with authorities
                cannot extend period of limitation. The plaintiffs slept over their
                right during the whole period of limitation and therefore they cannot
                be permitted to plead that the present suit is within the period of
E               limitation due to sending of representations with the departments.
                Hence, for all these reasons it is held that the present suit is barred
                by limitation. Accordingly, issue is decided against the plaintiffs.”
             20. Before proceeding further with the above- mentioned issues
      and the findings returned, it is only proper to consider the contention of
F     the Appellants regarding the applicability of Article 136 of the Limitation
      Act. According to us, the contention is jesuitical. A perusal of Article
      136 of the Limitation Act would reveal the indubitable position that it
      applies only when an application for execution of any decree (other than
      a decree granting a mandatory injunction) or order of any Civil Court is
      to be filed. (See the decision of this Court in Bikoba Deora Gaikwad
G     & Ors. vs. Hirabai Marutirao Ghorgare & Ors.12
             21. In the instant such a stage for application of Article 136 of the
      Limitation Act had not reached and, in troth, the question involved is
      relatable only to the time restriction for initiating legal proceedings to

H     12
           (2008) 8 SCC 198
     SUKHBIRI DEVI & ORS. v. UNION OF INDIA & ORS.                                539
                 [C. T. RAVIKUMAR, J.]

seek the alleged legal right. In the said circumstances, the inevitable           A
conclusion can only be that Article 136 got no application in the case on
hand and as such the Appellants could not claim for a larger period of
limitation of 12 years.
        22. The findings of the Trial Court with respect to preliminary
issue of limitation are based on the relevant dates revealed from the             B
pleadings of the plaintiffs in the plaint itself. True that in the plaint it is
repeatedly alleged that the relinquishment deed was obtained fraudulently
by the 5th respondent. However, conspicuously its date was not
mentioned. But then the plaint averment is that their predecessor-in-
interest Shri Nahar Singh, on coming to know about the use of the said
Relinquishment Deed, had preferred an objection on 05.04.1991 to the              C
authorities whereunder he sought not only for its cancellation but also
on the ground of obtainment by playing fraud for refraining them from
issuing allotment of the alternative plot in the exclusive name of the 5th
respondent. In this context it is also relevant to note that going by the
plaint averments after the death of Shri Nahar Singh on 14.05.1993 the            D
original first plaintiff, who is none other than one of the sons of Shri
Nahar Singh, filed representations on the lines of the objection taken up
by his father. Even if non-mentioning of the date of Relinquishment Deed
is not taken as purposeful that cannot and will not therefore save the
plaintiffs from the inescapable, adverse finding on the question of limitation
to bring in a suit against the said Relinquishment Deed. Evidently, Suit          E
No.410 of 2000 was filed only on 14.06.2000. Thus, it is very much
clear from the plaint averments that the Relinquishment Deed is anterior
to the date of letter of intimation to the 5th respondent (08.03.1991) and
obviously, the date of objection against the same was firstly preferred by
deceased Nahar Singh viz., 05.04.1991. Evidently, the aforesaid two dates         F
specifically mentioned in the plaint were taken into account by the Trial
Court as also by the First Appellate Court and the High Court in the
matter of consideration of the question “whether the suit was barred by
limitation.” The manner of consideration by the Trial Court which ultimately
resulted in dismissal of suit No.410/2000 would reveal, as stated
hereinbefore, that it had determined the preliminary issue regarding the          G
period of limitation with reference to the averments in the plaint. The
dismissal of the suit was in accordance with the decision on the said
preliminary issue. Since we have already extracted the operative portion
of the Trial Court judgment, we do not think it necessary to refer to its
reasons and findings.                                                             H
540                 SUPREME COURT REPORTS                         [2022] 13 S.C.R.


A             23. Coming to the judgment of the First Appellate Court whereby
      it dismissed the appeals of the plaintiffs and confirmed the judgment and
      decree of the Trial Court it is evident that the various contentions raised
      by the appellants therein were considered in detail by the First Appellate
      Court. The judgment would reveal that before the First Appellate Court,
      besides reiterating the contentions unsuccessfully raised before the Trial
B
      Court, the appellants therein / the plaintiffs had contended, relying on the
      decision in Narinder Kaur & Anr. Vs. Amar Jeet Singh Sethi &
      Anr.13, that Relinquishment Deeds do not relinquish the share of executant
      but would have only the effect of transferring the shares. Paragraph 17
      of the judgment of the First Appellate Court would reveal that it correctly
C     exposited the legal position that the question of limitation is to be considered
      not with reference to the validity of the Relinquishment Deed. In this
      context it is also to be noted that despite taking up a specific allegation
      that the Relinquishment Deed was fraudulently obtained by the 5th
      respondent, the plaintiffs had not chosen to assail and seek for its setting
      aside. As noted earlier, even after seeking for cancellation of the
D
      relinquishment deed before the authorities as early as on 05.04.1991 the
      predecessor-in-interest had not chosen to get it set aside by approaching
      a competent civil court during his lifetime. Upon his death on 14.05.1993,
      though the period of limitation for seeking to set it aside did not get
      arrested and ran against the plaintiffs who stepped into the shoes of
E     Nahar Singh, none of them seek to get it set aside by moving a civil
      court, within the period of limitation. The pleadings in this appeal and the
      arguments advanced would show that till date with such a prayer no
      competent civil court was moved by the original plaintiffs and also the
      appellants herein. In short, in the absence of any successful challenge
      against the validity of the said Relinquishment Deed by making proper
F
      prayer in an appropriate proceedings, and that too within the prescribed
      period of limitation, the conclusion and finding of the First Appellate
      Court, as aforesaid, cannot be said to be perverse or illegal as there can
      be no doubt with respect to the position that consideration of validity of
      a relinquishment deed and consideration of the period of limitation with
G     reference to the same are different and distinct.
            24. It is also evident that another contention was raised on behalf
      of the appellants before the First Appellate Court relying on M/s
      Crescent Petroleum Ltd. Vs. M.V. Monchegorsk & Ors. 14 that
      13
           [2000 III A D (Delhi), 599]
      14
H          [AIR 2000 Bombay 161]
     SUKHBIRI DEVI & ORS. v. UNION OF INDIA & ORS.                               541
                 [C. T. RAVIKUMAR, J.]

power of dismissal of suit on the ground of absence of cause of action           A
shall be exercised by courts sparingly and cautiously and the benefit of
doubt must go to the plaintiff. This contention was rightly repelled by
the First Appellate Court holding that in the case on hand the question
was not one of dismissal on the ground of absence of cause of action
but, on the ground of being barred by limitation, reckoning the nature of
                                                                                 B
the suit as declaratory.
       25. The challenge against the impugned judgment of the High
Court is that it wrongly applied Article 58 of the Limitation Act while
confirming the concurrent decisions of the First Appellate Court and the
Trial Court. In this context, it is relevant to note the prayers made in the
suit by the plaintiffs which were extracted hereinbefore. Undoubtedly,           C
the plaintiffs sought for declarations in the manner referred above and
thereby, made the nature of the suit as declaratory. This position is
indisputable. It is true that the Trial Court though found the period of
limitation as three years taking into account the nature of the reliefs it
did not specifically mention the relevant provision in its judgment. There       D
can be little doubt with respect to the position that misquoting or non-
quoting of a provision by itself will not make an order bad so long as the
relevant enabling provision is in existence and it was correctly applied
though without specifically mentioning it. The High Court had only
referred to the relevant, applicable provision under the Limitation Act
upon considering the nature of the suit and the reliefs sought for, in the       E
plaint. We do not find any perversity or illegality in the finding of the
High Court for sustaining the concurrent findings with respect to the
issue whether the suit was barred by limitation.
       26. The relief sought for, in suit No.410/2000 would reveal that
the first prayer, which is the main prayer, is declaratory in nature. Even       F
according to the plaintiffs, as revealed from the plaint the second prayer
(extracted hereinbefore) is only consequential relief. A perusal of the
same would undoubtedly show that it is consequential and not an
independent one and therefore the courts below are right in holding that
the said prayer is grantable only if the first prayer is granted. In this case   G
based on the determination on the preliminary issue of limitation and in
accordance with the decision on that preliminary issue the suit was
dismissed. As held by the three-judge Bench in the decision in Nusli
Neville Wadia’s case (supra) the provisions under Order XIV Rule
2(1) and Rule 2(2)(b) permit to deal with and dispose of a suit in
                                                                                 H
542             SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A     accordance with the decision on the preliminary issue. In the case on
      hand in view of the nature of the finding on the preliminary issue and the
      consequential consideration of the suit in terms of Order XIV Rule 2(2)(b)
      and taking note of the fact that the suit do not survive after such
      consideration we find no reason to consider the contention of the appellants
      with reference to Order VII Rule 11 based on the decisions relied on by
B
      them and referred hereinbefore. So also, the contentions of the appellants
      based on Articles 17 and 65 also would pale into insignificance and
      warrant no consideration at all, in the circumstances.
             27. The upshot of the above discussion is that there is absolutely
      no perversity or illegality in the concurrent findings of the courts below
C     warranting interference in invocation of the power under Article 136 of
      the Constitution of India. In the result, the appeal stands dismissed with
      costs.
             28. All pending applications are disposed of.

D
      Divya Pandey                                                Appeal dismissed.
      (Assisted by : Deepak Panwar, LCRA)




E




F




G




H