Oral Judgment :
This appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the original defendant No.1 who is aggrieved by the judgment of the appellate Court dated 21/06/2010 in R.C.A. No.431/2008 whereby that appeal has been allowed and the suit filed by respondent Nos.1 and 2 herein seeking declaration that respondent No.1 was the legally wedded wife of deceased Pradip has been decreed.
2. The facts in brief are that it is the case of the plaintiff that on 14/04/1986 she was married with Pradeep Mandre and the plaintiff No.2 was the daughter from the said marriage. Said Pradeep Mandre expired on 29/07/2000 after which the present appellant-defendant No.1 along with her children had filed succession case No.98/2000 at Wardha. The plaintiff No.1 thereafter had also filed a succession case at Nagpur. In the proceedings filed by defendant No.1 the Court refused to accept the defendant No.1 as the legally wedded wife of deceased Pradeep. With a view to secure the service benefits of Pradeep the plaintiff No.1 withdrew the succession case filed by her and filed the present suit seeking a declaration that the plaintiff No.1 was the legally wedded wife of Pradeep and that plaintiff No.2 was their daughter. A further prayer was made for grant of
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various securities and amounts left by the deceased. The defendant No.1 in her written statement raised two preliminary objections. Firstly, it was stated that the suit was filed beyond the period of limitation and that it was also barred under provisions of Order-II Rule 2 of the Code of Civil Procedure, 1908 (for short, the Code). It was pleaded that defendant No.1 was the legally wedded wife in view of her marriage with Pradeep in the year 1985. The trial Court after considering the evidence on record held that though it was proved that the plaintiff No.1 was legally wedded wife and the plaintiff No.2 was their legitimate child, the suit was barred by limitation and it was also barred under provisions of Order-II Rule 2 of the Code. The plaintiffs filed an appeal and the appellate Court by the impugned judgment set aside the judgment of the trial Court and decreed the suit. It granted the declaration as sought. Being aggrieved the defendant No.1 has filed the present appeal.
3. The following substantial questions of law were framed when the appeal was admitted :
1] Whether the present suit filed by respondent Nos.1 and 2 against the appellant was barred by provisions of Order II Rule 2 of the Code of Civil Procedure, 1908 ?
2] Whether the suit was filed by respondent Nos.1 and 2 within the prescribed period of limitation ?
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4. Shri P. V. Ghare, learned counsel for the appellant submitted that the present suit filed by respondent Nos.1 and 2 herein was barred under provisions of Order-II Rule 2 of the Code. It was submitted that initially the plaintiff No.1 had filed R.C.S.No.2153/2000 in the civil Court seeking a declaration that the plaintiff was the owner and in possession of a house property to which she had a legal right and the defendant No.1 therein along with other family members of Pradeep had no right to enter the suit premises and disturb her possession. Though the plaintiff had sought a declaration as regards her ownership, the suit was not properly valued. Hence the trial Court directed the plaintiff to pay the requisite court fees for seeking such declaration. As that order was not complied with, the trial Court on 13/08/2003 directed that the relief of declaration could not be claimed in that suit as no court fees had been paid. According to the learned counsel the status of the plaintiff No.1 as a legally wedded wife of deceased Pradeep was challenged by the defendants therein and therefore it was necessary for the plaintiff No.1 to obtain a declaration as to her marital status. By failing to seek such declaration for which there was a cause of action, it was clear that the plaintiffs had failed to seek such relief. According to the learned counsel the bar under provisions of Order-II Rule 2 of the Code was clearly attracted and for that purpose the learned counsel placed reliance on the decision in Ananthula Sudhakar vs. P. Buchi Reddy (Dead) by LRs and ors. (2008) 4 SCC 594. It was thus submitted that the
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relief of declaration with regard to the marital status of plaintiff No.1 cannot be now sought.
The suit as filed was also barred by limitation inasmuch as the plaintiff No.1 had admitted in her cross-examination that on 30/10/2000 she was aware that the defendant No.1 as well as the family members of Pradeep had denied the marital status of the plaintiff No.1. The cause of action arose immediately inasmuch as on 04/10/2000 the defendant No.1 had filed Succession Case No.18/10/2000 and the plaintiff No.1 on 18/10/2000 had also filed a separate succession case. It was thus submitted that it was not open for the plaintiffs to take recourse to the orders passed in Succession Case No.256/2000 in which liberty was granted to file a substantive suit for declaration. In terms of Article 113 of the Limitation Act, 1963 (for short the Act of 1963) the suit was barred by limitation as it was filed only on 11/02/2005. It was thus submitted that the appellate Court by erroneously considering the aforesaid aspects had decreed the suit. The judgment of the trial Court was liable to be restored.
4. Shri Abdul Subhan, learned counsel for respondent Nos.1 and 2 supported the impugned judgment. According to him the bar under provisions of Order-II Rule 2 of the Code would not apply to the case in hand. The cause of action for filing the initial suit was the threat of dispossession at the hands of the defendants and hence the relief in that
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regard was sought in R.C.S. No.2153/2000. As the plaintiffs had claimed entitlement to the securities left behind by the deceased, the present suit came to the filed seeking such declaration. It was further submitted that in Succession Case No.256/2000 the plaintiff No.1 had filed an application below Exhibit-45 seeking permission to withdraw those proceedings with a liberty to file a suit for declaration. On 07/10/2004 that application was allowed and the present suit was filed immediately thereafter. In view of the liberty as granted, the relief of seeking declaration as regards marital status could not be said to be barred under provisions of Order-II Rule 2 of the Code. The learned counsel relied upon the decision in Gurbux Singh vs. Bhooralal AIR 1964 SC 1810. It was also submitted that the succession case filed by the appellant herein was pending till 02/03/2006 and therefore prior to that date the plaintiffs could not have sought declaration that was sought in the present suit.
It was submitted that the present suit was filed within limitation in the light of the fact that Succession Case No.256/2000 that was filed on 18/10/2000 was permitted to be withdrawn with liberty on 07/10/2004. The suit was filed on 11/02/2005. The period from 18/10/2000 till 07/10/2004 was liable to be excluded in the light of provisions of Section- 14(1) of the Act of 1963. It was thus submitted that the appellate Court rightly considered these aspects and decreed the suit. No interference was therefore called for.
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5. I have heard the learned counsel for the parties at length and with their assistance I have perused the records of the case. The filing of the proceedings between the parties is not in dispute. The record indicates that initially the defendant No.1 had filed Succession Case No.98/2000 and immediately thereafter the plaintiff No.1 had filed Succession Case No.256/2000. On 30/10/2000, R.C.S. No.2153/2000 was filed by the plaintiff seeking declaration that she was the owner and in possession of the two storied bunglow where she was residing. Perusal of the plaint in R.C.S.No.2153/2000 indicates that in paragraph 6 of the plaint it was pleaded that she was the owner of the house in question. In paragraph one of the plaint it was pleaded that she was the legally wedded wife of Pradeep while defendant No.6 therein was also claiming to be the wife of said Pradeep. In that suit the trial Court on 23/07/2003 directed the plaintiff to pay the requisite court fees for seeking declaration as to her ownership. As the necessary court fees were not paid the trial Court directed that such prayer regarding declaration of ownership would not be adjudicated. No leave of the Court was sought under provisions of Order-II Rule 2(3) of the Code and the suit came to be decreed on 30/10/2003. In the meanwhile in the Succession case filed by plaintiff No.1 application at Exhibit-45 was moved seeking permission to withdraw that case so as to file a suit for declaration of her marital status. It is thereafter that the present suit came to be filed.
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6. If the evidence of plaintiff No.1 at Exhibit-30 is perused it can be seen that in her cross-examination she has stated as under :
" On 30/10/2000, I filed Civil Suit No.2153/2000 for injunction. All my in-laws were party in that suit. As none of my in-laws was accepting me as wife of Pradeep I filed suit against them. On 30/10/2000 first time, I came to know that none of in-laws is accepting me as wife of Pradeep. I had not filed any succession application in the Court at Wardha. I have withdrawn the succession application filed in the Court at Nagpur."
7. From the aforesaid admission, it is clear that the plaintiff was aware that on 30/10/2000 when she had filed the earlier suit that her in- laws were not accepting her as the wife of Pradeep. In the light of the relief of declaration as to her ownership of the suit house coupled with the admission that on the day when she filed that suit she was aware that she was not being accepted as wife of Pradeep, the same gave her a cause of action to seek a declaration with regard to her marital status. In the light of provisions of Order-II Rule 2(1) of the Code the plaintiff is required to include in the suit the entire claim which the plaintiff is entitled to make in respect of the cause of action as accrued. Under provisions of Order-II Rule- 2(3) of the Code an omission to sue for one of the several reliefs available precludes the plaintiff from seeking that relief so omitted. The legal
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position in this regard is well settled. It is thus seen that on 30/10/2000 when the plaintiff had filed Civil Suit No.2153/2000 it was open for her to seek the relief of declaration as to her marital status. However, the same was not done. It is to be noted that the plaint in R.C.S. No.2153/2000 was on the record as Exhibit-62. Similarly, a copy of the judgment in that suit was at Exhibit-54 of the record. Thus all legal requirements as contemplated in Gurbux Singh (supra) were satisfied and the bar under provisions of Order-II Rule 2 of the Code was clearly established. The trial Court rightly appreciated this aspect of the matter. The appellate Court however, merely stated that there was no cause of action for seeking any declaration as regards marital status when the first suit was filed. In the light of the clear admission of the plaintiff in her cross-examination that she was aware that she was not being treated as legally wedded wife of Pradeep on 30/10/2000, the finding recorded by the appellate Court being incorrect cannot be sustained. Accordingly, substantial question of law No.[1] is answered by holding that the suit filed by respondent Nos.1 and 2 herein was barred by provisions of Order-II Rule 2 of the Code.
8. In so far as the aspect of limitation is concerned, it can be seen that the cause of action for seeking the declaration with regard to her matrimonial status arose on 30/10/2000 when R.C.S.No.2153/2000 came to be filed. This relief ought to have been sought in that suit especially when
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according to plaintiff No.1 she was the owner of the suit house by virtue of she being the legally wedded wife of Pradeep. However, the relief of declaration was given up by not paying the requisite court fees. The relief of declaration of ownership was also dependent on the declaration as to the marital status of plaintiff No.1. Said declaration had to be sought within limitation prescribed by Article 58 of the Act of 1963. It is not in dispute that the suit was filed on 11/02/2005.
9. The submission made on behalf of the plaintiff that the period from 18/10/2000 when Succession Case No.256/2000 was filed by plaintiff No.1 till it was permitted to be withdrawn on 07/10/2004 for filing suit for declaration ought to be excluded, cannot be accepted. The cause of action for seeking said declaration arose on 30/10/2000 when the suit was filed. Without seeking any leave of the Court, such relief was not prayed for. There is no legal basis to exclude this period of time from 18/10/2000 till 07/10/2004 by applying the provisions of Section 14(1) of the Act of 1963. The trial Court rightly considered this aspect and held the suit to be barred by limitation. The appellate Court without considering the aforesaid aspect and merely by referring to the adjudication in C.R.A.No.177/2004 proceeded to hold that the period when the Succession case was pending ought to be excluded. The cause of action having been found to have accrued on 30/10/2000 and no relief on that basis having been sought, the suit as filed
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on 11/02/2005 is clearly barred by limitation. Substantial question of law No.[2] is answered by holding that R.C.S.No.404/2005 was filed beyond the prescribed period of limitation.
10. In view of aforesaid adjudication the judgment in R.C.A. No.431/2008 dated 21/06/2010 is quashed and set aside. The judgment of the trial Court in R.C.S. No.404/2005 dated 24/03/2008 is restored. The Second Appeal is allowed in aforesaid terms with no order as to costs.
JUDGE
Asmita
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