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M.R. Sethi Vs. Gurmauj Saran Baluja - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 27 of 1971
Judge
Reported inILR1972Delhi137
ActsLimitation Act, 1963 - Sections 22 and 30
AppellantM.R. Sethi
RespondentGurmauj Saran Baluja
Advocates: N.D. Bali,; K.L. Budhiraja and; P.P. Juneja, Advs
Cases ReferredMadras v. Sri Athi V. Ramachandra Chettiar and
Excerpt:
.....force but the suit was instituted after the commencement of the limitation act, 1963 and where the period of limitation prescribed by the later act was shorter than the period of limitation prescribed by the earlier act. in cases where the cause of action arose and the suit was also filed after the commencement of the limitation act, 1963, section 30 will have no application.; (ii) limitation act (1963) - section 22 & article 113--continuing tort--limitation for.; where the appellant continuously parked his car at a place not within his tenancy thereby causing obstruction to the respondent's free passage.; that the act constituted a continuing wrong as it was a case of obstruction to a right to way and not a case of ouster. section 22 of the act would apply to such a case and not..........that barring the building on the ground floor, the other areas on the ground floor including the open spaces in 'this plot were in his possession; that in order to harass and annoy the respondent the, appellant placed an old, out of order and used ford car bearing no. dlc 7525 in one of the open spaces at the place marked 'x' in the plan attached to the plaint and. that in spite of a notice given, the appellant did not remove the car giving rise to the cause of action for the suit. in the written statement the case of the appellant was that in addition to the building on the ground floor, the courtyard and other open spaces formed part of the tenancy premises in which the respondent had only aright of passage to the garage and servant quarters etc. through the main gates. 'the.....
Judgment:

S.N. Andley, J.

(1) The respondent is the owner of the building on plot No. 12/18, Western Extension Area, Karol Bagfa, New Delhi, comprising of three floors. The ground floor of this building is in the occupation as a tenant of the appellant while the entire remaining building is in the occupation of the respondent. The aforesaid plot has some open spaces in the front and on two sides of the said building. The respondent filed the suit which has given rise to this second appeal on May 15, 1968 which was decided by Mr. M. S. Saini Subordinate Judge 1st Class, Delhi, by his order dated April 7, 1970.

(2) The respondent's case was that barring the building on the ground floor, the other areas on the ground floor including the open spaces in 'this plot were in his possession; that in order to harass and annoy the respondent the, appellant placed an old, out of order and used Ford car bearing No. Dlc 7525 in one of the open spaces at the place marked 'X' in the plan attached to the plaint and. that in spite of a notice given, the appellant did not remove the car giving rise to the cause of action for the suit. In the written statement the case of the appellant was that in addition to the building on the ground floor, the courtyard and other open spaces formed part of the tenancy premises in which the respondent had only aright of passage to the garage and servant quarters etc. through the main gates. 'The appellant also pleaded that he had been parking the car in the courtyard for the last six or seven years. The written statement was filed on August 7, 1968, .and' the case of the appellant, thereforee. appears to be that he had been parking the car since '1961-62.

(3) On the pleadings of the parties, the trial Court framed the following two issues apart from the issue of relief:-

1.Does the open space marked 'X' in the plan attached with the plaint not form part of the tenancy of the defendant 2. If Issue No. 1I is not proved, is the plaintiff entitled to the relief of injunction as prayed?

On the first Issue, the trial Court held that the open space marked 'X' did not form part of the tenancy of the appellant. On Issue No. 2, the trial Court held: that the car had not been placed by the appellant in such a way as to, obstruct the respondent's way or passage and that the respondent was not, thereforee, entitled to any injunction. The trial Court also found that the suit was barred by limitation and this finding was given although there was no plea of limitation. As a result the suit was dismissed.

(4) The respondent filed an appeal in the Court of the Senior Subordinate Judge, Delhi. The first appellate Court held that the open space on the ground floor was not a part of the tenancy premises of the appellant. To come to this conclusion, the first appellate Court relied upon the statement of the appellant that the respondent 'could use the premises in his occupation even without use of the open space in front of the verandah' and upon the certified copy of an earlier application for ejectment and the plan annexed thereto wherein the tenancy premises of the appellant were described as five .rooms, two kitchens, two bath rooms and WCs, two verandahs and open space as per plan attached whereon they had been indicated in red colour and wherein the open space with which the present suit is concerned was not indicated as a part of the tenancy premises. From these circumstances, the first appellate Court-gave the finding that the open space marked 'X' on the plan did not form part of the tenancy premises of the appellant and the tenancy premises only constitute that which had been shown in red colour in the aforesaid plan Exhibit D-2. On this finding, the first appellate Court was of the view that the respondent was entitled to an injunction. It repelled the contention on behalf of the appellant of alleged acquiescence by the respondent. The first appellate Court then considered the question of limitation and found that Article 113 of the Limitation Act, 1963, prescribing a period of three years was applicable but by reason of section 30 of this Act, as it stood on the material, date, a suit could be filed within 5 years after the commencement of this Act. The first appellate Court, thereforee, accepter the appeal of respondent and decreed the suit.

(5) The appellant has filed this second appeal. The first and the main contention which has been urged by Mr. N.D. Bali. learned counsel for the appellant, is that the first appellate Court was wrong in applying section 30 of the Limitation Act, 1963 to this case on the ground that that section would apply only in cases where cause of action had accrued prior to the coming into force of the Limitation Act, 1963 and the period of limitation preiscribed by the Indian Limitation Act, 1908, was larger than the period of limitation, prescribed by the Limitation Act, 1963. The appellant has relied upon the finding of the first appellate. Court that the car had been,parked at the site in dispute in or around March,1964 while the 'suit had been filed on May 15, 1968, within four years of the parking of the car. For the finding that the car had been parted at the site in dispute in or around March, 1964, the first appellate Court relied upon (the statement-of the appeillant made on March 20, 1970, that the car had been lying in. the front portion for the last 6 years and also the statement of the respondent made on April 16, 1969, that the car had been parked for four or five years.

(6) It cannot be doubted nor has it been disputed by the respondent that the 'law 'of limitation is a law of procedure and the period prescribed for suits in the Limitation Act, 1963, would normally apply to suits filed after this 'Act came into force on January 1, 1964. It is, however, contended by the respondent on the basis of the views expressed in the Joint Committee Report that section 30 would apply even to suits instituted after the coming into force of the Limitation Act, 1963. These views are quoted at page 618 of Volume 13 of the A. I. R. Manual and are in these words:-

'the Committee are of the view that as substantial changes are being being in the existing law of limitation, it is desirable to give litigants sufficient time for getting familiar with the new law. Hence the period of two years provided in part (a) of the clause has been extended to five years and the period of thirty days has been extended to ninety days in part(b) of the clause.....................'.

I do not think it is legitimate for the respondent to rely upon these views because after the Act has been placed on the statute book, only the provisions of the statute have to be looked at for their interpretation. Section 30 in so far as it is material and as it stood prior to its amendment in 1969 states:-

'c anything contained in this Act,- (a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of 5 years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier: (b) ...........................'

In my view, section 30 will not have any relevance to a suit the cause of action turn which arose after its commencement on January 1, 1964. This section provides for situations where the cause of action arose when the Indian Limitation Act, 1908, was in force but the suit was instituted after the commencement of the Limitation Act, 1963 and where the period of limitation prescribed by the later Act was shorter than the period of limitation . prescribed by the earlier Act. The Limitation Act prescribes a period of limitation for suits with reject to the accrual of the cause of action for that suit. To invoke the period of limitation prescribed by any Limitation Act, 'it is necessary that the cause of action accrued when such Limitation Act was in force. thereforee, the period of limitation prescribed by the Indian Limitation Act, 1908, would apply only if the cause of action accrued when this Act was in force. Section 30 is intended to cover situations where the cause of action accrued when the Indian Limitation Act, 1908, was in force but the suit was filed after its repeal when the Limitation Act, 1963, was in force and where the period prescribed by the later Act was shorter than the period prescribed by the earlier Act. I, thereforee, do not find any substance in the contention of the respondent that section 30 will apply to all cases irrespective of whether the cause of action for a suit filed after the commencement of the Limitation Act, 1963, arose before or after such commencement. In cases where the cause of action arose and the suit was also filed after the commencement of the Limitation Act, 1963, section 30 will have no application. There is a passing observation in the case reported in 1965 (1) Madras Law Journal 31 in re: The. Cemmissoner of lncome tax Madras v. Sri Athi V. Ramachandra Chettiar and another (1) saying,-

'eqially simple will be the ease where the right to sue, appeal or apply accrues after the new Act comes-into force. In the latter case, it will only be the new Act that will have application. But where time to file an application or appeal had commenced to run under the old Act, but had not run out before the new Act commenced, there will arise a problem as to whether the provisions of the old or new Act should be applied......................... But where there is shorter period under the later enactment for presentation of suits, appeals or applications than the one provided for under the repeated Act, a hardship will undoubtedly be caused to the litigant. It is to provide for such a case that such a transitional provision is enacted in section 30 of the new Act.'

I am in respectful agreement with these views and hold that if the cause of action for a suit arises after the commencement of the Limitation Act, 1963, there will be no occasion to apply section 30 of this Act.

(7) The question then arises as to when the cause of action for this suit arose. As already stated, the finding of the first appellate Court is that the cause of action arose in or around March, 1964. This finding is based upon the statements of the appellant as well as the respondent which have been adverted to earlier. It is contended on behalf of the respondent that this finding is erroneous because it is the case of the appellant himself in his written statement filed on August 7, 1968, that 'the car is being parked in the courtyard within the tenancy of the defendant since over 6/7 years' i.e. since 1961-62 and upon this admission of the appellant, section 30 of the Limitation Act, 1963, will have application and the present suit would be within time.

(8) The question as to when the cause of action accrued is a question of fact and, in second appeal, this Court is bound by a finding of fact unless it is shown to be perverse or without evidence. It is true that there is an apparent conflict between the statements of the parties in Court and the aforesaid admission of the appellant in his written statement. If I were to resolve this conflict in evidence, I will be determining a question of fact which is the province of the first appellate Court. conflict would not entitle me to say that the finding of the first appellate Court is either perverse or without evidence so as to call for in rference in second appeal. I am, thereforee, bound by the finding of the first appellate Court that the cause of action accrued in or around March, 1964 i.e. after the commencement of the Limitation Act, 1963, and, thereforee, this suit would be governed by the Limitation Act, 1963.

(9) It is thn contended by the respondent that Article 113 of the Limitation Act, 1963, which has been applied by the courts below, will not apply to this case because the act of the appellant. amounted to a continuing tort and, thereforee, section 22 of the Limitation Act, 1963 (equivalent to section 23 of the Indian Limitation Act, 1908) would apply. This section provides:-

'22.In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.'

(10) The Supreme Court construed section 23 of the Indian Limitation Act, 1908, in the case : AIR1959SC798 in re: Balakrishna Savalram Pajari Waghmare and others v. Shree Dhavaneshwar Maharaj Sansthan and others (2) and observed:- '

'SECTION 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an. injury which is complete, there is no continuing wrong even though-the damage resulting from the act may continue. If, however, a wrongful act is of such a characterthat the injury caused by it itself continues, then the act constitutes a continuing, wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked. Where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application Section 23 in such a case.'

The question is whether the act of the appellant in parking his car is a wrongful act of such a character that the injury caused by it continues so as to make it a continuing Wrong or whether it amounts to ouster. Upon the finding of the first appellate Court that the open space marked 'X' in the plan annexed to the plaint is not a part of the tenancy premises of the appellant, it must follow that the act of the appellant in parking his car in such open space was a wrongful act. The injury caused by such parking is that the respondent cannot use the space, being a part of the open space where the car has been parked by the appellant and this injury will continue so long as the car remains parked. In my opinion, thereforee, the wrongful act of the appellant is of such a character that the injury caused by it itself continues and, thereforee, the act of parking of the car constitutes a continuing wrong. It is not a case of ouster but only a case of obstruction to a right of way. That being so, section 22 of the Limitation Act, 1963, would apply fully and there is no question of the application of Article 113 of the Limitation Act, 1963. The first appellate Court was not, thereforee, right in holding that the suit of the respondent was barred by limitation.

(11) With regard to the question on merits, Mr. Ball argued that the open space is appurtenant to the building on the ground floor which is in the tenancy of the appellant and, thereforee, must be a part of the tenancy premises within the meaning of section 2(i) of the Delhi Rent Control Act, 1958, which defines 'premises' in which are included the garden, grounds and out-houses, if any appertaining to such building or part, of the building. This argument was never addressed before the courts below nor was any plea teken in the written statement where the only plea was that the open space is a part of the tenancy premises of the appellant. On this question, the finding of the first appellate Court is clear and that is that the open space is not a part of the tenancy premises of the appellant.

(12) This finding has not been shown to be either perverse or without evidence and cannot be interfered with in second appeal nor can the appellant be heard to raise this plea here in view of his admission that the respondent had a right to use the open space and the garages and other buildings on the ground floor.

(13) Mr. Bali, learned counsel for the appellant, also attempted to argue that .the, suit having , filed after four years, no injunction should be, issued in favor .of the respondent by reason of acquiescence and delay. On this question, the first appellate Court has given a finding, which again is a finding of fact binding on this Court, that there was no acquiescence on the part of the respondent. This argument cannot, thereforee, be advanced in this Court.

(14) In the result, the appeal fails and is dismissed with costs.


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