LACHHMAN SINGH (DECEASED) THROUGH LEGAL REPRESENTATIVES & ORS. versus HAZARA SINGH (DECEASED) THROUGH LEGAL REPRESENTATIVES & ORS.

Citation: [2008] 7 S.C.R. 828 · Decided: 06-05-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Case Partly allowed

Judgment (excerpt)

(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 
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. 
H 
A suit for redemption of the said mortgage was filed 
828 
r 
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 
be barred by limitation. [Para 9] [833-C] 
G 
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 

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