TIKA Vs. RAM CHANDER

JUDGEMENT

(1.) THIS is plaintiff-appellants' appeal filed under Section 100 of Code of Civil Procedure, 1908 (for brevity, 'the Code'), challenging the concurrent findings of facts recorded by both the Courts below holding that the suit filed by the plaintiff-appellants was barred by limitation and they were estopped from filing that suit. The argument that no issue on the aforementioned two findings concerning limitation and estoppel was framed, was rejected by both the courts below opining that the parties in their pleadings have specifically raised the pleas and have led evidence being fully alive to the aforementioned issues. The views of the appellate Court on the question of limitation read as under :-

(2.) THE appellate Court has also concluded that the pleadings of the defendant-respondents were proved by adducing evidence on the aforementioned question and even in the cross-examination of the witnesses produced by the plaintiff-appellants, the questions with regard to limitation as well as estoppel were put to them. Therefore, there was no element of surprise for the plaintiff-appellants as it is a finding of fact recorded by both the court below that the parties were fully aware about the controversy and led their evidence on that basis. Even otherwise, it is evident that the decrees dated 23.5.1983, 25.3.1985 and 3.3.1982 were sought to be challenged by filing the suit in 1994. It is well-settled by a catena of judgments of the Supreme Court that once the parties go on trial being alive to the controversy between them even then, in the absence of a specific issue having been framed, the court is not precluded from recording a finding of fact on that controversy provided that the parties have pleaded the case and have led their evidence. In this regard, reference be made to the judgments of the Supreme Court in Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884, Kunju Kesavan v. M.M. Philip, AIR 1964 SC 164 and Savitri Pandey v. Prem Chandra Pandey, 2002(1) RCR(Civil) 719 (SC) : AIR 2002 SC 591. The view of their Lordships in Nedunuri Kameswaramma's case (supra) read as under :-