- (1.) V. K. Gupta, C. J. With the consent of the learned coun sel for the parties, this writ petition is be ing disposed of today at the motion hear ing stage.
(2.) IT is a very peculiar case, where the respondent/plaintiff, by itself and through its counsel, as well as the learned court below have exhibited and demonstrated their total ignorance of law as far as the applicability of Section 5 Limitation Act is concerned. Actually, the learned court below has gone a step further by not only wrongly applying Section 5, but also al lowing the plaintiffs prayer for condonation of the delay without issuing any notice to the defendants in the suit. The respondent is a Financial Cor poration under the State Financial Corpo rations Act, 1951. It filed a suit for dec laration and injunction against the petition ers herein for setting aside a sale deed ex ecuted on 29th December, 1993 and for consequential relief of permanent injunc tion restraining the petitioners from selling, transferring etc. the property in question. The suit was filed in the month of March, 2007. Even though the sale deed, sought to be declared illegal, null and void etc. , was executed on 29th December, 1993, in the plaint, the plaintiff / respondent made an averment that it was in the month of August, 2006 that it learnt about the ex ecution of the aforesaid sale deed on 29th December, 1993. The premise of the suit, therefore, was the alleged knowledge by the plaintiff / respondent about the afore said sale deed having been acquired in the year 2006. [in para 20 of the plaint, an averment with respect to the accrual of cause of action also stated that the plain tiff came to know about the sale and transfer of the property, through the sale deed dated 29th December, 1993, in the month of September, 2006. Article 58 of the Schedule to the Limitation Act, which admittedly is the relevant Article applicable to this case, pre scribes a period of three years for Stain ing a declaration. The period of three years starts running from the time "when the right to sue first accrues". A plain reading of Article 58 (supra) leaves no one in any manner of doubt that the limitation to file a, suit for declaration for declaring a sale deed null and void does not start per se from the date of execution or registration of the sale deed, but actually it starts from the date when the plaintiff obtains the knowledge about this fact. Whether, in fact, the averments regarding the plaintiff having acquired the knowledge in August-September, 2006 is correct or not or whether it is false or true, is a pure ques tion of fact, which the plaintiff has to prove in the suit. the sale deed in question, admittedly, was executed and registered in the year 1993, very heavy onus lies upon the plaintiff to prove that the knowledge about its execution etc. was acquired by it in August-September, 2006. The burden of proof in this respect squarely lies upon the plaintiff. Even though the burden squarely lies upon the plaintiff, in view of the averments made in the plaint about the knowledge alleg edly having been acquired in the year 2006, the plaintiff s suit, on the face of it, cannot be held to be 'time-barred'. Whether ultimately it is held to be 'time-barred' or not, depending upon the evi dence which will be led, shall be decided by the court in due course, at the stage of final disposal of the suit. This of course shall be based upon the appreciation of the evidence, especially the evidence ad duced by the plaintiff about the knowledge having been acquired by it within three years prior to the presentation of the suit. This is one aspect of the matter.
(3.) SECTION 5 of the Limitation Act, 1963 reads thus: "5. Extension of prescribed period in certain cases - Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the pre scribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. " On its plain reading, this Section does not apply to suits. It applies only to appeals or applications: Whether the plaintiff or its counsel wrongly, invoked Section 5 for condonation of the delay despite the aforesaid averments in the plaintiff, is for the plaintiff or its counsel to ponder over. But the learned trial court ought to have known that Section 5 Limi tation Act is not applicable to suits. Yet' it received and entertained the application under Section 5 for condonation of the delay in filing the suit and, not only that, it condoned the delay also ex parte, with out issuing any notice to the defendants in the suit.;