Nikku Ram vs Hari Ram

Deepak Gupta, J.—The only point raised in this petition under Article 227 of the Constitution of India is that the suit filed by the Plaintiff was time barred. Both the Courts below held that the suit is within limitation.

It would be pertinent to mention that the learned Civil Judge (Sr. Judge) decided the suit on 27.4.2004 and with respect to issue No. 4 relating to limitation, he has specifically stated that neither any arguments were addressed, nor any evidence was adduced in support of this issue and therefore decided the issue in the negative. In the appeal filed before the learned District Judge there was no allegations that this point had been urged before the learned Trial Court, though it is a fact that it was again claimed that the suit was not within limitation. The learned Appellate Court has dealt with the case on merits and has passed a detailed judgment and in para No. 17 it has been stated that no other point was urged or argued in support of the appeal. This judgment was passed on 13.7.2005. Thereafter it appears that the Petitioner filed a Regular Second Appeal which was withdrawn since the valuation of the suit was less than Rs. 25,000/-and in terms of Section 102 of the CPC Code, a second appeal was not maintainable.

It would be pertinent to mention that this RSA was withdrawn after a written application was filed before the learned Single Judge and it was specifically prayed that liberty be reserved in favour of the applicant to file appropriate proceedings. The appeal was withdrawn on 21st September, 2007 and the present petition filed on 29.12.2009 two years later. No averments in the main petition were made in this regard but in the application u/s 5 of the Limitation Act, it was stated that counsel of the applicant did not bring this fact to the notice of the applicant that the appeal had been withdrawn. In the next sentence it was stated that the counsel had advised the applicant that he would after withdrawing the RSA file other proceedings and the Petitioner remained under the impression that the said petition has been filed and only in November, 2009 he came to know that actually nothing has been done.

It would be pertinent to note that affidavits have been filed of the counsel appearing before the Courts below that they had argued the issue of limitation. These affidavits are dated 27.6.2007. They were not placed on the record of the RSA which was dismissed on 21.9.2007. These affidavits cannot be looked into because in case a party wants to submit that it had urged certain points before a judicial authority, it must file an application before the same judicial authority and cannot be permitted to urge this point in appeal or revisional proceedings. The Petitioner cannot file such affidavits that too two years after the case had been disposed of.

In this view of the above discussion, I am of the considered view that that the Petitioner cannot be permitted to rake up the issue of limitation in these proceedings. Therefore the petition is rejected. No order as to costs.