INDU GULANI AND ORS. Vs. SANT PAL SINGH

JUDGEMENT

(1.) CHALLENGE by means of this petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) is to the impugned order of the trial court dated 21.8.2014 by which the trial court rejected an application filed by the petitioners/defendant Nos. 2 & 3 for rejecting the plaint under Order VII Rule 11 CPC on the ground that the suit is barred by time. Before this Court, it is additionally argued that along with the suit, an application under Section 5 of the Limitation Act, 1963 was filed, and since there can be no condonation of delay for filing of a suit, the suit/plaint had to be rejected as being barred by law of limitation.

(2.) THE facts of the present case are that both the petitioners are Advocates. The petitioners were representing the father of the respondent/plaintiff, late Sh. Giri Lal @ Girwar Singh in a suit against a tenant in the property bearing No. WZ -1646 (previous address WZ -233), Gali Tara Chand/Gher, Nangal Raya, New Delhi, being part of khasra No. 632/462/176 admeasuring 775 sq. yds. The case of the respondent/plaintiff was that on one date of hearing in the suit filed against the tenant, the petitioners/advocates suddenly came up with the plea that the father of the respondent/plaintiff, who had filed the earlier suit against the tenant, had sold the portion of the suit property to the petitioners/advocates through a general power of attorney and a Sale Deed dated 28.10.1998. The general power of attorney holder is the defendant No. 3 in the present suit, and the petitioner No. 2 herein. The application under Order XXII Rule 10 CPC which was filed by the petitioners/advocates in the earlier suit seeking their substitution in place of the father of the plaintiff/respondent was dismissed by the court. The father of the respondent/plaintiff took up a specific stand that the alleged sale deed was bogus, forged and fabricated. The father of the respondent/plaintiff however subsequently expired on 14.10.2004, and therefore no further action was taken as regards the forged and fabricated sale deed.

(3.) IN my opinion, the impugned order of the trial court has to be sustained not only because of the reasons which have been given in the impugned order, but also for the reasons which I am stating in the present judgment and which reasons I can give in exercise of powers under Order XLI Rule 24 CPC. Firstly I would like to note that the Supreme Court recently in the judgment in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors. : (2010) 12 SCC 112 has held that if a person is not a party to a document i.e. document is not admitted to be signed by him, then in such a case there is no need of seeking relief of cancellation of the document and it is enough if declaration is sought for. The difference between seeking relief of cancellation of the document and for declaration as regards the invalidity of the document has the affect as held by the Supreme Court on the court fees to be payable in the suit because if the suit is for cancellation of the sale deed, court fees will have to be paid as per the value of the sale deed, but in a suit for declaration that the sale deed is void, court fees has to be paid only on the amount at which relief sought is valued in the plaint. Besides the aspect of difference in court fees, there is also an aspect of difference in the period of limitation in a suit for declaration qua invalidity of the sale deed and in a suit filed for cancellation of the sale deed. In my opinion, there can be separate periods of limitation which may arise on different occasions with respect to seeking declaration with respect to the pleaded invalidity of a sale deed, and cause of action arises qua the plaintiff when the disputed sale deed/document is sought to be got declared null and void in the eyes of law.