Arun Kumar Deshmukh vs Jhamit Bai and Another

T.P. Sharma, J.—This appeal u/s 19 of the Family Courts Act, 1984 is directed against the order dated 01.05.2007 passed by third Additional Principal Judge, Family Court, Durg in civil case No. 23-A/2006, whereby learned Additional Principal Judge, Family Court has dismissed the suit filed by the Appellant after framing the additional issues.

The present appeal has been preferred with delay of 43 days. The Appellant has filed applications for condonation of delay in filing the appeal as LA. Nos. 1 & 2. We are satisfied as the Appellant has satisfactorily explained the delay in filing the appeal. Accordingly, LA. Nos. 1 & 2 are allowed. Delay in filing the appeal is condoned.

Learned Counsel for the Appellant submitted that the Appellant has initially filed a civil suit for declaration and permanent injunction praying that the Respondent No. 2 herein is not the son of the Appellant/Plaintiff and permanent injunction be granted against them. During the course of trial, on an application of the Respondents/Defendants, one preliminary objection relating to maintainability of the suit on the ground of limitation was framed and after affording opportunity of hearing to the parties, learned Additional Principal Judge, Family Court has dismissed the suit.

Learned Counsel for the Appellant argued that the question of limitation shall be considerably decided on the basis of the allegation, made in the plaint and question of limitation cannot be decided as preliminary issue.

Learned Counsel for the Appellant further argued that the Appellant has pleaded in paras 3 & 4 of the plaint that on 29.09.1993, the Respondent No. 1 has specifically admitted that the Respondent No. 2 is not the son of the Appellant but, on 12.10.1993 in caste meeting, she denied the same and stated for the first time that the Respondent No. 2 is the son of the Appellant. The Appellant requested for D.N. A. test of Respondent No. 2 before the community Panchayat and submitted an application before caste meeting on 1.7.2003, the Appellant requested for decision on his application regarding D.N. A test of the Respondent No. 2, but the members of the caste meeting did not decide and finally after filing the application on 1.7.2003, he filed the suit on 21.08.2003 which is well within the limitation, but the Family Court has dismissed the suit holding that the same is barred by limitation.

On the other hand, learned Counsel for the Respondent vehemently opposed the argument while submitting that the order passed by the learned Court below is a well reasoned order and the suit has rightly been dismissed on the ground of Limitation. It is argued that the cause of action firstly arose on 12.10.1993 therefore, the limitation for declaration under Article 5 8 of Limitation Act, 1963 would be three years and the suit has been filed in the year 2003, after ten years of the cause of action, therefore, the suit is barred by limitation.

Learned Counsel for the Appellant placed reliance in the matter of Ramesh B. Desai and Others Vs. Bipin Vadilal Mehta and Others, in which the apex Court has held that in the facts and circumstances of case the question of limitation is a mixed question of law and fact which cannot be decided as an abstract principle of law divorced from facts as in every case, the starting point of limitation has to be ascertained which is entirely a question of fact.

Para 3 & 4 of the plaint reveals that on 12.10.1993, Respondent No. 1 has made specific claim to the Appellant before the caste meeting that Respondent No 2 is the son of the Appellant. The Appellant contested that the Respondent No. 2 is not his son and the Respondent No. 1 stated for the first time before the caste meeting that Respondent No. 2 is the son of the Appellant although the caste meeting was not deciding forum his name came on record on 12.10.1993. It also appears that in para 4 of the plaint that for the first time cause of action arose on 12.10.1993. According to the Appellant again, the cause of action arose on 5.11.1995 when he deposited Rs. 501/- to the caste meeting for conducting D.N.A. Test. The Appellant filed an application on 1.7.2003 before the caste meeting and again requested for D.N.A. test, but the same was not decided, therefore, he filed the suit on 21.08.2003, which is within 3 years as provided under Article 58 of the Limitation Act, 1963. The cause of action arose on 12.10.1993, but the Appellant has not filed the suit within three years from 12.10.1993. In the case of Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta and Ors. (supra), it was held that question of limitation is a mixed question of law and facts. In para 19 of the aforesaid decision, it has been held that unless it becomes apparent from the reading or the company petition that the same is barred by limitation the petition cannot be rejected under Order 7 Rule 11(d) of Code of Civil Procedure.

In the present case. It appears from the plaint itself that the first cause of action arose in the year 1993 and the suit was filed in the year 2003 i.e. after a lapse of 10 years, which is hopelessly barred by limitation. Considering the facts and circumstances of the case, we are of the opinion that the appeal is devoid of merit and the suit is barred by limitation, which is accordingly dismissed with costs. No order as to costs.

Advocate fees as per schedule.