RAMJI SINGH PATEL versus GYAN CHANDRA JAISWAL

Citation: [2018] 1 S.C.R. 688 · Decided: 11-01-2018 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 1 S.C.R.
RAMJI SINGH PATEL
v.
GYAN CHANDRA JAISWAL
(Civil Appeal No(s). 1799-1800 of 2018)
JANUARY 11, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Code of Civil Procedure, 1908 – s.100 – Second appeal –
Respondent ran the business of flour mill (Atta Chakki) etc., since
1990, which initially operated on electricity, from his residential
accommodation – Appellant, is the owner and resident of the
adjoining house, which has a common wall with the house of
respondent – Suit by appellant in 2004 for perpetual injunction
prohibiting the respondent from running the said business, as
according to the appellant from the year 2003 respondent started
operating the flour mill with machines, on diesel engine, which
started causing severe vibrations and air pollution – Suit decreed –
Decree upheld by first appellate court – High Court set aside the
orders of the Courts below – On appeal, held: Substantial question
of law formulated by High Court pertained to the issue of limitation
in filing the suit – No such plea was taken up by the respondent in
the written submissions filed by him in the suit and no evidence was
led by the parties on the issue – Thus, no issue on limitation came to
be casted – However, even in the absence of any specific issue of
limitation, such a plea could have been taken by the respondent in
second appeal before High Court only if the issue of limitation was
raised as a pure question of law – But, in the instant case the issue
of limitation was a mixed question of law and fact and, therefore, it
could not have been entertained by High Court for the first time in
the second appeal filed by the respondent – Further, even on merits
the approach of High Court was not correct – Impugned judgment
of High Court set aside – Decree passed by the Courts below is
restored – Limitation Act, 1963 – s.3 – Suit.
Limitation – Plea of – Question of law/fact – When can be
raised – Discussed.
Allowing the appeals, the Court
688
[2018] 1 S.C.R. 688
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HELD: 1.1 The judgment of the High Court has not
tinkered with any of the findings recorded by the Trial Court and
affirmed by the first appellate court. On the contrary, the
substantial question of law which was formulated by the High Court
pertained to the limitation in filing the suit. In the first instance
no such plea was taken up by the respondent in the written
submissions filed by him to the suit which was filed by the plaintiff/
appellant and no issue on limitation came to be casted. Obviously,
in the absence of any such issue framed, the parties did not lead
any evidence.  No doubt, even in the absence of any specific issue
of limitation, by virtue of Section 3 of the Limitation Act, 1963
power is cast on the Court to see whether the suit is within
limitation or time barred. However, such a plea could have been
taken by the respondent in the Second Appeal before the High
Court only if the issue of limitation was raised as a pure question
of law. In the instant case, it was a mixed question of law and fact
and, therefore, it could not have been entertained by the High
Court for the first time in the second appeal filed by the
respondent. [Paras 10, 12] [692-E; 693-B-D]
1.2  That apart, even on merits there is blemish in the
approach of the High Court. There are at least two reasons for
that which are as under:
a)  The explanation given by the appellant was justified. The cause
of action for filing the suit was the installation of DG Set which
was installed in the year 2003.  The suit was filed in the year
2004 and was, thus, well within time.
b) Furthermore, the High Court had taken a very myopic view of
the matter.  Once there were categorical findings that the flour
mill of the respondent was causing noise as well as air pollution,
it would be a continuing cause of action. Such a grave consequence
of running the mill should not have been ignored by the High
Court.   [Para 13] [693-E-G, H; 694-A]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1799-
1800 of 2018.
From the Judgment and Order dated 29.05.2012 by the High Court
of Judicature at Allahabad in Second Appeal No. 622 and 623 of 2013.
RAMJI SINGH PATEL v. GYAN CHANDRA JAISWAL
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SUPREME COURT REPORTS
[2018] 1 S.C.R.
Anurag Dubey, Ms. Anu Sawhney, Rajesh Pandey, Sanchit M.,
S. R. Setia, Advs. for the Appellant.
Mrs. Rachna Gupta, Anil Kumar Sinha, Siddhant S. Malik, Advs.
for the Respondent.
The Judgment of the Court was delivered

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