LexKAMLESH BABU AND ORS. versus LAJPAT RAI SHARMA AND ORS.
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[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 E barred by limitation, it was the duty of First Appellate Court 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. D Allowing the appeal, the Court 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 B 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 c of the
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