PROBLEM QUESTIONS

CPC and Limitation Act

FORMAT TO ANSWER
Facts of the case
Issues involved
Law applicable (section and case laws)
Application of law to the facts on hand.
Decision.

DO NOT ANSWER IN THE FIRST LINE WITH A

‘YES’ OR ‘NO’.
The first question has been answered in the format.
For the other question, key points have been
mentioned. PLEASE ELABORATE IT IN THE EXAM.
1
Shankar was the trustee of a trust. After
Shankar’s death, Anil wrongfully takes the
possession of the trust property. Rohan the
son of Shankar files a suit for recovery of
possession of the property against Anil as a
legal heir and in his individual capacity. But
Rohan did not succeed. Then Rohan files
another suit for recovery of trust property
against Anil in the capacity of a trustee, as he
is appointed as a trustee after the death of
Shankar. Can Rohan succeed in this case?
FACTS OF THE CASE
Shankar was the trustee of a trust. After Shankar’s
death, Anil wrongfully takes possession of the trust
property. Rohan the son of Shankar files a suit for
recovery of the possession of the property against Anil
as a legal heir and in his individual capacity. But Rohan
did not succeed. Then Rohan files another suit for
recovery of trust property against Anil in the capacity of
a trustee, as he is appointed as a trustee after the death
of Shankar.

ISSUES INVOLVED
Whether Rohan can succeed in the second suit?
 LAW INVOLVED
 Res Judicata – sec 11 - No court shall try any suit or issue in
which the matter directly and substantially in issue has been
directly and substantially in issue in a former suit between the
same parties, or between parties under whom they or any of
them claim, litigating under the same title, in court competent
to try such subsequent suit or the suit in which such issue has
been subsequently raised, and has been heard and finally
decided by such court.

 Same title
 Title refers to the capacity or interest of a party, i.e., whether
he sues or is sued for himself in his own interest or for himself
as representing the interest of another or as representing the
interest of others along with himself and it has nothing to do
with the particular cause of action on which he sues or is sued.
Where the matters are litigated under the same title, the
subsequent suit will be barred even though the right is
claimed on a different ground, but if litigated under
different titles, Res judicata is not applicable.

According to the illustration in C.K. Tawani

A sues for possession of Math property as an heir of the
Mahant. The suit is dismissed. A subsequent suit by A
against B as the manager of the math is not barred.

In Ram Gobinda v/s Bhaktbala – the test for res judicata
is the identity of title in the two litigations and not the
identity of the subject matter involved in the two cases.
 APPLICATION OF LAW TO FACTS
 In the present case on hand, Rohan the son of Shankar filed
a suit for recovery of the possession of the trust property
against Anil, in the capacity of a legal heir of Shankar
(individual capacity), but did not succeed.
 Then he files another suit for recovery of trust property
against Anil in the capacity of a trustee, after he is
appointed as a trustee on the death of Shankar.

 The doctrine of Res Judicta bars the subsequent suit filed

and litigated under the same title on the same subject
matter. Here though Rohan filed the subsequent suit on the
same subject matter, he has done so in two different
capacities, and thus has not litigated under the same title.
DECISION
Hence, it can be concluded that Rohan will
succeed in the subsequent suit as he has filed
it in a different capacity i.e., in the capacity of
a trustee and not in his individual capacity,
again.
2  A textile manufacturing company having its Head Office at
Bangalore, had branch offices at Hubli, Mysore and Mangalore. A
dispute cropped up between Mr. Babu and Prakash Transport
Company in respect of transaction through Hubli office. Mr. Babu
files a suit in respect of the dispute against the company in the
court of Mangalore. Is the court of Mangalore is competent to
decide the case? Give reason.

 ANS: No
 Explanation to Sec 20 – A corporation shall be deemed to carry
on business at its sole/principal office in India (or) in respect of any
cause of action arising at any place where it has also a subordinate
office, at such place.
 Patel Roadways v/s Prasad Trading Co. AIR 1992 SC 1514 –
held, if a corporation has got a principal office and also one or
more subordinate offices and cause of action arises at a place
where it has got a subordinate office then only that place will have
jurisdiction and not the place where it has principal office.
3
 A suit was instituted by the plaintiff firm alleging infringement by the
defendant company for using the trade name on their product with the
same combination as that of the plaintiff firm. A subsequent suit was
instituted in a different court by the defendant company stating the
same allegation. Advice the plaintiff firm with the step to be taken in
accordance with law.

 ANS: Sec 10 - Res Subjudice

 Stay of the subsequent suit needs to be sought by the plaintiff firm.
 Stay of suit.—No Court shall proceed with the trial of any suit in
which the matter in issue is also directly and substantially in issue in a
previously instituted suit between the same parties, or between parties
under whom they or any of them claim litigating under the same title
where such suit is pending in the same or any other Court in India have
jurisdiction to grant the relief claimed, or in any Court beyond the
limits of India established or continued by the Central Government and
having like jurisdiction, or before the Supreme Court.
 Explanation.—The pendency of a suit in a foreign Court does not
preclude the Courts in India from trying a suit founded on the same
cause of action.
4Rama filed a suit against Krishna for
declaration of ownership on the property
stating that he has purchased under a
registered sale deed. Subsequently he seeks
to amend the plaint claiming that the
property was granted to him by the
government. Can he succeed? Discuss.

 ANS: No
O6 R17 – amendment of pleadings
O6R7 – departure
Inconsistent pleas
Generally departure from pleading is not permissible,
and except by way of amendment, no party can
raise any ground of claim or contain any
allegation of fact inconsistent with his previous
pleadings. This rule provides against what is called
‘a departure of pleading’.

Mallamma v/s Nanjamma – where the plea of the

plaintiff in the plaint was that the partition deed
had been got executed by fraud and her thumb
impression was obtained by fraudulently, she cannot
take the plea that earlier partition was unequal one.
5
 Ramesh has instituted a suit against Santosh, seeking possession of a
house on the ground that he has purchased the same from Santosh.
Now he wants to amend the plaint to the effect that he is entitled to
the possession of the house as a tenant. Can he succeed?
 ANS: No.
 O6 R17 – amendment of pleadings
 O6R7 – departure
 Inconsistent plea

 Generally departure from pleading is not permissible, and except by

way of amendment, no party can raise any ground of claim or contain
any allegation of fact inconsistent with his previous pleadings.
 This rule provides against what is called ‘a departure of
pleading’

 Mallamma v/s Nanjamma – where the plea of the plaintiff in the

plaint was that the partition deed had been got executed by fraud and
her thumb impression was obtained by fraudulently, she cannot take
the plea that earlier partition was unequal one.
6
 Ramesh is a permanent resident of Belagavi and Ashok is a
permanent resident of Dharwad. Ramesh has taken a loan from
Ashok at Belagavi. He has not repaid the loan till today. Ashok has
instituted a suit for recovery of the said loan, against Ramesh at
Dharwad. Ramesh has raised objection as to the jurisdiction.
Decide. (2) (same problem - name changed)

 ANS: No jurisdiction at Dharwad.

 A- plaintiff (Dharwad), R- defendant (Belagavi)

 Sec 20 - In all other cases, the suit can be instituted:

 a) where the cause of action wholly/partly arises.
 b) where the defendant resides/carries on
business/personally works for gain.
 c) if there are 2 or more defendants, where either of them
resides/carries on business/personally works for gain – but you
either need the leave of the court or the acquiesce of the other
defendants in such a case.
7
 Mahesh had sued Anirudh for defamation. The suit was decided in
favor of Mahesh. Anirudh has preferred an appeal against the
judgement of the trial court. Mahesh died during the pendency
of appeal. LR’s of Mahesh have applied for being impleaded as
respondents. Decide.

 ANS: Yes
 Order 22 - creation, assignment and devolution of interest during
the pendency of suits.
 Rule 3. Procedure in case of death of one of several plaintiffs or of
sole plaintiff.—(1) Where one of two or more plaintiffs dies and the
right to sue does not survive to the surviving plaintiff or plaintiffs
alone, or a sole plaintiff or sole surviving plaintiff dies and the right
to the sue survives, the Court, on an application made in that
behalf, shall cause the legal representative of the deceased plaintiff
to be made a party and shall proceed with the suit.
 In case of personal actions ie., actions where the relief sought is
personal to the deceased or the rights intimately connected with
the individuality of the deceased (eg: suit for defamation), the
right to sue will not survive to or against his representatives.

 In these cases, the maxim actio personalis moritur cum persona

(a personal action dies with the person) applies. This
principles is found in sec 37 of the Indian Contract Act and Sec
306 of the Indian Succession Act.

 Exception : if a suit for defamation is decreed, and an

appeal is filed, then even after the death of the plaintiff, the LR’s
continue the appeal since the question relates to benefit or
detriment to the estate of the deceased. In such a case, the
cause of action merges with the decree.
8
 Mahesh had sued Anirudh for defamation. Mahesh died during
the pendency of suit. LR’s of Mahesh have applied for being
impleaded as plaintiffs. Decide.

 ANS: No, they cannot be impleaded, the suit will abate.

 Order 22 - creation, assignment and devolution of interest
during the pendency of suits.
 Rule 1 - No abatement by party's death if right to sue
survives.—The death of a plaintiff or defendant shall not cause
the suit to abate if the right to sue survives.

 In case of personal actions ie., actions where the relief sought is

personal to the deceased or the rights intimately connected with
the individuality of the deceased (eg: suit for defamation), the
right to sue will not survive to or against his representatives.
9
‘A’ residing in Delhi publishes in Calcutta, statements of
defamation against ‘B’. The newspaper is circulated in
Bombay, Madras and Raipur. ‘B’ wants to file a suit
against ‘A’. Where he can sue? Advise him. (2)

ANS: In any of the above places.

Sec 19 - Where a suit is for compensation for wrong
done to the person or to movable property, if the wrong
was done within the local limits of the jurisdiction of one
Court and the defendant resides, or carries on business,
or personally works for gain, within the local limits of the
jurisdiction of another Court, the suit may be instituted
at the option of the plaintiff in either of the said Courts.
B – Plaintiff
A – Defendant - resides in Delhi
Defamatory statement published in Calcutta
(CoA arose)
Circulated in Bombay, Madras, Raipur (CoA
arose)
10
‘A’ enters into an agreement jointly with ‘B’ and ‘C’ to sell
100 tins of oil. A thereafter refuses to deliver the goods. ‘B’
and ‘C’ together want to file a suit for damages against ‘A’.
Can they do so? Advise them.

 ANS: Yes
Order I rule 1 – Joinder of plaintiffs.
Rule 1
All persons may be joined in one suit as plaintiffs as the case
may be, where-
a. Any right to relief in respect of, or arising out of, the same
act or transaction or series of acts or transactions is
alleged to exist in/ against such persons, whether jointly or
severally or in the alternative; and
b. If such persons brought separate suits, any common
question of law or fact would arise.
Illustration:
‘A’ agrees to sell goods to (B and C). A later
refuses to deliver the goods. B and C can sue
A to recover damages as the right to sue
arises from the same transaction. There is
a breach of agreement and a common
question of law and fact. Therefore B and
C can file a suit jointly as plaintiffs against A
for damages.
11
 Subhash is a permanent resident of Ballary and Anand is a
permanent resident of Kolar. Subhash has made an agreement with
Anand at Ballary for supply of certain quantity of paper every month.
The parties to the agreement have agreed that if any dispute arises
between them, the same shall be subject to the jurisdiction of civil
court at Tumkur. Decide the validity of the agreement.

 ANS: Agreement is not valid.

 It is well settled that consent cannot confer nor oust jurisdiction
of a court.
 Ram Bahadur Thakur and Co. v/s Devidayal (Sales) Ltd (AIR
1954 Bom 176) – it is almost elementary that parties by their
agreement cannot confer jurisdiction on a court that has none nor
can they by their agreement oust the jurisdiction of the court when
the court possesses jurisdiction. But it is equally well settled that
parties can by a contract prefer one of the 2 competent courts.
 (also refer) ABC Laminart Pvt. Ltd. v/s A.P. Agencies, Salem
12
A sues B in a foreign court. The suit is
dismissed. Thereafter, A wants to file the
same suit against B in India on the same
cause of action. Whether he can institute a
suit – Decide. (2)

ANS: Sec 13 – conclusiveness of a foreign

judgment
Sec 11 Res judicata, Expl 1 – Former suit.
11. Res judicata.—No Court shall try any suit or
issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a
former suit between the same parties, or between
parties under whom they or any of them claim,
litigating under the same title, in a Court competent
to try such subsequent suit or the suit in which such
issue has been subsequently raised, and has been
heard and finally decided by such Court.
Explanation I.—The expression “former suit” shall
denote a suit which has been decided prior to a suit in
question whether or not it was instituted prior
thereto.
 13. When foreign judgment not conclusive.—
 A foreign judgment shall be conclusive as to any matter
thereby directly adjudicated upon between the same parties or
between parties under whom they or any of them claim
litigating under the same title except—
 (a) where it has not been pronounced by a Court of competent
jurisdiction;
 (b) where it has not been given on the merits of the case;
 (c) where it appears on the face of the proceedings to be
founded on an incorrect view of international law or a refusal
to recognise the law of India in cases in which such law is
applicable;
 (d) where the proceedings in which the judgment was obtained
are opposed to natural justice;
 (e) where it has been obtained by fraud;
 (f) where it sustains a claim founded on a breach of any law in
force in India.
A. He can institute a suit in India, if the suit
was dismissed for default, without
considering the merits of the case.

B. He cannot institute a suit in India on the

same subject matter, if it had been finally and
completely disposed off, on merits, by a
foreign court that was competent.
13
 A files a suit against B to recover money on a pronote. B
contends that the said pronote was obtained from him by
undue influence. Can B succeed in his contention? Discuss.

 ANS: Yes
 O8 R2 – WS – new facts must be specifically pleaded -
The defendant must raise by his pleading all matters which
show the suit not be maintainable, or that the transaction is
either void or voidable in point of law, and all such grounds
of defence as, if not raised, would be likely to take the
opposite party by surprise, or would raise issues of fact not
arising out of the plaint, as, for instance, fraud, limitation,
release, payment, performance, or facts showing illegality.
O6R4
In all cases in which the party pleading relies
on any misrepresentation, fraud, breach of
trust, willful default, or undue influence, and
in all other cases in which particulars may be
necessary beyond such as are exemplified in
the forms aforesaid, particulars (with dates
and items if necessary) shall be stated in the
pleading.
14
 Anil has instituted a suit against Suresh for the recovery of a
loan alleged to be advanced by him to Suresh. Suresh has
appeared in the suit, but has not presented his WS. Anil
contends that not presenting WS amounts to implied
admission of facts in the plaint.

 ANS: Yes
 O8R5(1) - Every allegation of fact in the plaint, if not denied
specifically or by necessary implication, or stated to be not
admitted in the pleading of the defendant, shall be taken to
be admitted except as against a person under disability :
 Provided that the Court may in it discretion require any fact
so admitted to be proved otherwise than by such admission.

 Shriram Surajmal v/s Shriram Jhunjhunwala (Bombay

HC) – held, non-filing of WS must be construed under this
provision (O8R5(1)) as an admission of plaint.
O8R10 - If the defendant fails to present
his WS within the time permitted or fixed
by the court either under rule 1 or rule 9,
the court will pronounce the judgment
against him or pass such order in relation to
the suit as it thinks fit and a decree will be
drawn up according to the said judgment.
15
 Ramesh has instituted a suit against Keshav for recovery of loan.
While instituting the suit he claimed only the principal amount,
omitting the interest by over sight. Now he wants to claim the
interest. Advise him.

 ANS: No, he cannot claim it.

 Order 2 Rule 2
 Sub rule (1) Every suit shall include the whole of the claim
which the plaintiff is entitled to make in respect of the cause of
action; but a plaintiff may relinquish any portion of his claim in
order to bring the suit within the jurisdiction of any Court.

 Sub rule (2) Relinquishment of part of claim- Where a plaintiff

omits to sue in respect of, or intentionally relinquishes, any
portion of his claim, he shall not afterwards sue in respect of the
portion so omitted or relinquished.
16
Santosh has taken a loan of Rs. 50,000/- from Citi
Bank on 10-05-2013. He had a fixed deposit of Rs.
75,000/- in the same branch of City Bank, which
matured on 16.10.17. The Bank deposited the
proceeds of the FD in the SB account of Santosh,
after deducting the loan amount and interest
thereon. Santosh wants to recover the amount so
adjusted by the Bank. Advise him.
ANS: No, he cannot recover it.
i) Order 8 rule 6 – set off
Bankers right of set off - The right of set off is also
known as the right of combination of accounts.
When the money is held by the bank in one account
and the payer in respect of these moneys owes to
the Bank on another account, the banker’s lien and
the right of the banker to set off the money by way
of adjustment of the accounts gives the bank a
charge on all the moneys of the payer in its hands,
so that they may be transferred to whatever account
the bank may choose to set off the debt.
This right of the banker to give effect to such a kind
of a set off by way of combination of the accounts
concerned is based on the principle of equity.
AND
ii) Limitation act only bars the remedy and not
the right.
 10-05-2013 – loan taken
 16.10.2017 – FD maturity date
 4 years and 5 months gap.
 Article 19. For money payable for money lent. Three years. Time
runs from when the loan is made.
 Sec 171 of Indian Contract Act. General lien of bankers,
factors, wharfingers, attorneys and policy-brokers.—
Bankers, factors, wharfingers, attorneys of a High Court and
policy-brokers may, in the absence of a contract to the contrary,
retain as a security for a general balance of account, any goods
bailed to them; but no other persons have a right to retain, as a
security for such balance, goods bailed to them, unless there is
an express contract to that effect.

 Right of the bank to recover the loan is not time barred, it

will have the right to resort to appropriate alternatives
available to it. It must be kept in mind that law of limitation
only curtails the remedy before court of law, and does not stop
the bank from obtaining any other relief which may be available
to it.
17
 ‘A’ filed suit for partition against his brothers ‘B’ and ‘C’. The Court
has passed the preliminary decree and final decree in the matter,
being aggrieved by the decree of the Court, ‘A’ preferred an appeal
against the final decree and raised question about correctness of the
preliminary decree. Whether the appeal is maintainable?

 ANS: No
 Sec 97 - Appeal from final decree where no appeal from
preliminary decree —Where any party aggrieved by a preliminary
decree passed after the commencement of this Code does not appeal
from such decree, he shall be precluded from disputing its correctness
in any appeal which may be preferred from the final decree.

 Any party being aggrieved by a preliminary decree must appeal

against that decree, if he fails to appeal against such a decree, the
correctness of such a decree cannot be challenged by way of an
appeal against the final decree which means that the preliminary
decree would be taken to have been correctly passed.
Kaushalya Devi And Others vs Baijnath
Sayal And Others - 1961 SCR (3) 769
The whole object of enacting s. 97 was to
make it clear that any party feeling aggrieved
by a preliminary decree must appeal against
that decree; if he fails to appeal against such
a decree the correctness of such a decree
cannot be challenged by way of an appeal
against the final decree, which means that
the preliminary decree would be taken to
have been correctly passed.
18
 The suit filed by ‘X’ is posted for cross examination of the plaintiff.
Defendant files application for adjournment on the ground that his
counsel is suffering from illness. Rejecting the application, court
directs him (defendant) to change the counsel and proceed with cross
examination. Whether order of the court is sustainable?
 ANS: Yes
 Order 17 Rule 1. Court may grant time and adjourn hearing.—
 (1) The court may, if sufficient cause is shown, at any stage of the
suit grant time to the parties or to any of them, and may from time to
time adjourn the hearing of the suit for reasons to be recorded in
writing: Provided that no such adjournment shall be granted more than
three time to a party during hearing of the suit.
 (2) Costs of adjournment.—In every such case the Court shall fix a
day for the further hearing of the suit, and shall make such orders as
to costs occasioned by the adjournment or such higher costs as the
court deems fit:
 Provided that,—
 (d) where the illness of a pleader or his inability to conduct
the case for any reason, other than his being engaged in
another Court, is put forward as a ground for adjournment,
the Court shall not grant the adjournment unless it is
satisfied that the party applying for adjournment could not
have engaged another pleader in time.

 General rule
 Where the court starts the hearing of the case (trial), it will
be continued on a day to day basis and adjournment should
be granted only for unavoidable reasons.

 Discretion of the court

 A party to the suit may however ask for an adjournment of
the matter. The court has the discretion to grant/refuse the
prayer.
 In the present case, the duration of the party’s knowledge
regarding the illness of the counsel is not clear.
 If the party had time to make alternative arrangements for
the new counsel to be engaged, for application for his mind to
pleadings, issues framed, the evidence already on record, it
would be not be difficult to proceed with the cross-examination,
and the order made by the court is sustainable.

 But if it came to his knowledge just a day before the case is

called on for cross-examination, it would be difficult for the
defendant to have another counsel engaged and given
instructions to the new counsel to proceed with the cross-
examination in the light of the pleadings and the issues framed
in that behalf. The court would be right in adjourning the matter.
19
 Rajesh instituted a suit against Shekhar for recovery of 1
lakh, in the court of the Senior Civil Judge. The suit is tried by
the court and at the stage of arguments Shekhar contends
that the court has no jurisdiction to decide the case. Decide.

 ANS: His objections are not to be taken into consideration.

 Sec 21. Objections to jurisdiction. —(2) No objection as to
the competence of a Court with reference to the pecuniary
limits of its jurisdiction shall be allowed by any Appellate or
Revisional Court unless such objection was taken in the Court
of first instance at the earliest possible opportunity, and, in
all cases where issues are settled, at or before such
settlement, and unless there has been a consequent failure
of justice.
 The Supreme Court in Harshad Chiman Lal Modi v. DLF
Universal Ltd., (2005) 7 SCC 791 laid down the law in
following terms :
 “The jurisdiction of a court may be classified into several
categories. The important categories are
 (i) Territorial or local jurisdiction;
 (ii) Pecuniary jurisdiction; and
 (iii) Jurisdiction over the subject matter.
 So far as territorial and pecuniary jurisdictions are
concerned, objection to such jurisdiction has to be taken
at the earliest possible opportunity and in any case at or
before settlement of issues. The law is well settled on the
point that if such objection is not taken at the earliest, it
cannot be allowed to be taken at a subsequent stage.
Jurisdiction as to subject matter, however, is totally distinct and
stands on a different footing. Where a court has no jurisdiction
over the subject matter of the suit by reason of any limitation
imposed by statute, charter or commission, it cannot take up
the cause or matter. An order passed by a court having no
jurisdiction is nullity.”
20
 In a suit the defendant refused to accept the summons which was issued to
him. The process server left the summons on a table in the defendant’s
house. Is the service valid?
 ANS: No
 Order V rule 17. Procedure when defendant refuses to accept service,
or cannot be found.—Where the defendant or his agent or such other
person as aforesaid refuses to sign the acknowledgment, or where the
serving officer, after using all due and reasonable diligence, cannot
find the defendant, who is absent from his residence at the time when
service is sought to be effected on him at his residence and there is no
likelihood of his being found at the residence within a reasonable time and
there is no agent empowered to accept service of the summons on his behalf,
nor any other person on whom service can be made, the serving officer
shall affix a copy of the summons on the outer door or some
other conspicuous part of the house in which the defendant
ordinarily resides or carries on business or personally works
for gain, and shall then return the original to the Court from
which it was issued, with a report endorsed thereon or
annexed thereto stating that he has so affixed the copy, the
circumstances under which he did so, and the name and
address of the person (if any) by whom the house was
21
 Ashok being a senior officer in XYZ Iron and Steel Co. Ltd., was in due
of promotion with all qualification. But one Guru next to Ashok was
promoted. Challenging it Ashok has filed a suit in the civil court. Can
he succeed?
 Ans: Yes
 Sec 9 – Suits of civil nature
 A suit is of a civil nature if the principal question therein relates
to the determination of a civil right and enforcement thereof.
 In law ‘civil’ is understood as an antonym of criminal. Historically the
two broad classifications were civil and criminal. Revenue, tax and
company etc. were added to it later. But they too pertain to the
larger family of civil. There is thus no doubt about the width of the
word civil. Its width has been stretched further by using the word
nature along with it. That is even those suits are cognizable which are
not only civil but are even of civil nature….
 Eg: labour laws, arbitration, intellectual property etc.
22
 Somappa filed a suit for declaration that he is entitled to certain lands as an
heir of Sheshappa. This suit was dismissed. Later Somappa filed another suit
claiming title to the said properties by adverse possession. Whether the suit is
maintainable?
 Ans: NO.
 1. Same title (Same capacity)
 To constitute the bar of res judicata is that the parties must have litigated
under the same title in the former suit. The expression “same title” means in
the same capacity. It means that the demand should be of the same quality
in the second suit as was in the first suit.

 If a right claimed is the same in both the suits; subsequent suit is barred,
even if the subsequent suit is tried to be established on different grounds.

 I. A sued B for possession as owner (suit dismissed)

 II. A again sues B for possession – adverse possession (here the suit is barred)
2. Explanation IV – Constructive res
judicata
An issue which ought to have been raised
earlier cannot be raised by the party in
successive round of litigation. It provides
that if a plea could have been taken by a
party in a proceeding between him and his
opponent, he should not be permitted to take
that plea against the same party in a
subsequent proceeding with reference to the
same subject matter.
 State of U.P. vs. Nawab Hussain- a P.S.I. was dismissed from service by
the D.I.G. He challenged the said decision by filing a writ petition in the
High Court on the ground and that he was not afforded a reasonable
opportunity, but the petition was dismissed.
 He then filed a suit and raised an additional plea that he was appointed
by I.G.P. and D.I.G. was not competent to pass an order against him.

 The State contended that the suit was barred by constructive res
judicata.
 All the Courts including the High Court held against the State and the
matter was taken to Supreme Court.

 Allowing the appeal and after considering all the leading cases on the
point, the Supreme Court held that the plea was clearly barred by the
principle of constructive res judicata as such plea was within the
knowledge of the P.S.I, and it could have been taken in the writ
petition but was not taken at that time.
23
 Chetan has taken a loan from Ganesh. He has given an
acknowledgment to Ganesh before the expiry of limitation
stating that “I owe you Rs. 50,000. But I refuse to pay the
same.” Examine the validity of the acknowledgment.
 ANS: It is valid.
 Sec 18, Sub section (1) - Where, before the expiration of
the prescribed period for a suit of application in respect of
any property or right, an acknowledgment of liability in
respect of such property or right has been made in writing,
signed by the party against whom such property or right is
claimed, or by any person through whom he derives his title
or liability, a fresh period of limitation shall be computed from
the time when the acknowledgment was so signed.
The acknowledgement must have been
made before the expiration of the period
prescribed.
The Hon’ble Supreme Court in “Sampuran
Singh and Ors. v. Niranjan Kaur and
Ors.─ (1999) 2 SCC 679”, observed that the
acknowledgment, if any, has to be prior to the
expiration of the prescribed period for filing
the suit, failing which it shall not lead to a
fresh trigger of limitation period.
 It has to be in writing and signed.
 It must be made by the party against whom the right is
claimed or by any person through whom he derives
title/liability.
 There must be an acknowledgment of liability.

 Explanation to sec 18 states that an acknowledgment may

be sufficient though it omits to specify the exact nature of
the property or right, or avers that the time for payment,
delivery, performance or enjoyment has not yet come or is
accompanied by a refusal to pay, deliver, perform or
permit to enjoy, or is coupled with a claim to set-off, or is
addressed to a person other than a person entitled to the
property or right.
24
 X takes the debt from Y under oral terms. X gives a written
acknowledgement after the expiry of 2 years. Then he pleads
sorry for not paying the debt yet. Determine the validity of
acknowledgment.

 ANS: Yes
 Sec 18, Sub section (1) - Where, before the expiration of
the prescribed period for a suit of application in respect of
any property or right, an acknowledgment of liability in
respect of such property or right has been made in writing,
signed by the party against whom such property or right is
claimed, or by any person through whom he derives his title
or liability, a fresh period of limitation shall be computed from
the time when the acknowledgment was so signed.
 The acknowledgement must have been made before the
expiration of the period prescribed.
 The Hon’ble Supreme Court in “Sampuran Singh and Ors.
v. Niranjan Kaur and Ors.─ (1999) 2 SCC 679”, observed
that the acknowledgment, if any, has to be prior to the
expiration of the prescribed period for filing the suit, failing
which it shall not lead to a fresh trigger of limitation period.
 It must be in writing and signed.
 It must be made by the party against whom the right is
claimed or by any person through whom he derives
title/liability.
 There must be an acknowledgment of liability. It is not
necessary that the acknowledgement must also contain or
import a promise to pay; a simple admission that debt
25
 Ramesh has taken a loan of Rs. 50,000/- from Ashok on 20/10/10. He
has not repaid the loan till today. Ashok has instituted a suit for
recovery of the said loan on 15/09/15. Ramesh has not raised objection
regarding limitation, in his WS. Can the court hear and decide the suit?

 ANS: No
 Sec 3 - Bar of limitation.—(1) Subject to the provisions contained in
sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and
application made after the prescribed period shall be dismissed,
although limitation has not been set up as a defence.

 In Union of India v. British India Corporation Ltd.

MANU/SC/1194/2003 : (2003) 9 SCC 505, it has been opined that
"the question of limitation is a mandate to the forum and, irrespective
of the fact whether it was raised or not, the forum must consider and
apply it.”
26
 Right to sue arises to P during his minority. P dies one day after
attaining majority. He is succeeded by his son K who is a minor.
Determine the effect of period of limitation. (2)
 ANS: Time has begun to run against K.
 Sec 9
 Continuous running of time.—Where once time has begun to run, no
subsequent disability or inability to institute a suit or make an
application stops it: Provided that where letters of administration to the
estate of a creditor have been granted to his debtor, the running of the
period of limitation for a suit to recover the debt shall be suspended
while the administration continues.
 Illustration
 A right to sue accrues to P during his minority. P dies only one day after
attaining majority and is succeeded by his son, K who is a minor. Time
begins to run against K from the date of death of P and K’s majority is
of no avail to him because when limitation has once begun to run, it
cannot be suspended by any disability subsequently arising.
27
 At the time when the cause of action arose, Mr. X was full of age and
sound mind. But the fact that he shortly afterwards became insane,
can this fact affect the running of time of limitation? Decide.
 ANS : No
 Sec 9
 Continuous running of time.—Where once time has begun to run,
no subsequent disability or inability to institute a suit or make an
application stops it: Provided that where letters of administration to
the estate of a creditor have been granted to his debtor, the running
of the period of limitation for a suit to recover the debt shall be
suspended while the administration continues.
 Illustration
 A right to sue accrues to P when he is under no disability, but
subsequently he became insane. Time runs against P as usual, from
the date of accrual of the right and his subsequent disability is no
bar to the running of time.
28
 The court is closed on the last date of limitation period. ‘Z’ seeks
extension of limitation period on that ground. Will he succeed?

 A’ wants to file a suit against ‘B’. As the court was closed due to the
holiday and that being the last day of the limitation, he could not file the
suit. Mr. A seeks extension of limitation period, will he succeed?

 Charan wants to file a case against Rahul. As the court was closed due to
the holiday and that being a last day of the limitation. Mr. Charan seeks
extension of limitation period on that ground, will he succeed?

 Ramesh has borrowed some money from Dinesh and failed to repay it.
Dinesh wants to file suit against Ramesh for recovery of money advanced.
The last day of limitation was Sunday therefore he filed the suit on the
next Monday and claims for extension of limitation as the last day of
limitation was Sunday being a holiday to the court. Can he succeed?
ANS: Yes
Sec 4 - Expiry of prescribed period when court
is closed—Where the prescribed period for any
suit, appeal or application expires on a day when
the court is closed, the suit, appeal or application
may be instituted, preferred or made on the day
when the court reopens.

Explanation.— A court shall be deemed to be

closed on any day within the meaning of this
section if during any part of its normal working
hours it remains closed on that day.
29
 ‘Q’ seeks condonation of delay for not preferring an appeal within
the period of limitation because of being engrossed in his wedding.
Is it condonable? (2)
 ANS: No.
 Condonation of delay
 Sec 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 (5 of
1908), may be admitted after the prescribed 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.
 Explanation.— The fact that the appellant or the applicant was
misled by any order, practice or judgment of the High Court in
ascertaining or computing the prescribed period may be sufficient
cause within the meaning of this section.
 If the aggrieved party can furnish “sufficient cause” for causing a
delay in institution of suit leading to the expiry of the limitation
period, the Court can, with discretionary jurisdiction disregard
the delay or “condone the delay” and proceed with the case.

 It must mean a cause which is beyond the control of the party

invoking the aid of the section.

 The Court has a wide discretion in determining what constitutes

as sufficient cause, depending upon the facts and circumstances
of each case. This principle has been advocated in furtherance of
pursuance of justice but it shouldn’t deny someone else of justice
either. A cause for delay which, by due care and attention, the
party could have avoided cannot be sufficient cause.

 In this case, the preparation for his wedding is not a cause

beyond his control, he could have filed the appeal inspite of
his wedding preparations. Hence the delay cannot be
condoned.
30
 A’s wife refused to return to her husband and allow him the exercise
of conjugal rights. What is the period of limitation for ‘A’? Decide.
 ANS:
 If either the husband or the wife, without reasonable excuses,
withdraws from the society of the other, the aggrieved party may
approach the Court for restitution of conjugal rights.
 The decree of restitution of conjugal rights cannot be executed by
forcing the party who has withdrawn from the society from the
other to stay with the person who institutes Petition for restitution.
The decree can be executed only by attachment of the properties of
the judgment debtor. The practice has shown that the decree of
restitution is a paper decree.
 However, if the decree of restitution of conjugal right is not
honored for a period of more than one year, subsequent to
the date of the decree, it becomes a ground for divorce.
Section 13(1A) in The Hindu Marriage Act, 1955
(1A) Either party to a marriage, whether solemnised before
or after the commencement of this Act, may also present a
petition for the dissolution of the marriage by a decree of
divorce on the ground—
(i) that there has been no resumption of cohabitation as
between the parties to the marriage for a period of one
year or upwards after the passing of a decree for judicial
separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as
between the parties to the marriage for a period of one year
or upwards after the passing of a decree for restitution of
conjugal rights in a proceeding to which they were parties.
31
Ketan is a tenant in the house of Sameer for the
last 30 years. Sameer is not in need of the house for his
own occupation. He has filed a petition for eviction
against Ketan. Ketan contends that he has become the
owner by adverse possession. Decide.
ANS: No
Adverse possession
Sec 25 of Limitation Act
If a person in hostile possession of the land though not
being the true owner, becomes the absolute owner if the
rightful owner of the said land does not come forward
within the statutory period of twelve years as provided
under the Limitation Act, 1963.
 Annasaheb Bapusaheb Patil v. Balwant (1995) 2 SCC 543
 Where the Apex Court elaborated the significance of a claim to
title viz.-a-viz. the claim to adverse possession over the same
property. The Court said that where possession can be
referred to a lawful title, it will not be considered to be
adverse. The reason being that a person whose possession can
be referred to a lawful title will not be permitted to show that his
possession was hostile to another’s title. One who holds
possession on behalf of another, does not by mere denial of that
other’s title make his possession adverse so as to give himself
the benefit of the statute of limitation. Therefore, a person who
enters into possession having a lawful title, cannot divest
another of that title by pretending that he had no title at
all.

 But here Ketan came into possession of the property lawfully. It

is authorised occupation that has been given to him by Sameer
the owner. It does not matter that he does not need the house for
his own occupation. Ketan cannot set up the claim of adverse
possession.
32
 Keshav is a tenant in Sunil’s house for the last 35 years.
Now Sunil wants the house for his own use. He has filed an
eviction petition against Keshav. Keshav contends that he
has become the owner of the house by adverse possession.
Decide.

 ANS: No
 Adverse possession
 Sec 25 of limitation Act
 If a person in hostile possession of the land though not being
the true owner, becomes the absolute owner if the rightful
owner of the said land does not come forward within the
statutory period of twelve years as provided under the
Limitation Act, 1963.
 Annasaheb Bapusaheb Patil v. Balwant (1995) 2 SCC 543
 Where the Apex Court elaborated the significance of a claim to
title viz.-a-viz. the claim to adverse possession over the same
property. The Court said that where possession can be referred
to a lawful title, it will not be considered to be adverse. The
reason being that a person whose possession can be referred to
a lawful title will not be permitted to show that his possession
was hostile to another’s title. One who holds possession on
behalf of another, does not by mere denial of that other’s title
make his possession adverse so as to give himself the benefit of
the statute of limitation. Therefore, a person who enters into
possession having a lawful title, cannot divest another of
that title by pretending that he had no title at all.

 But here Keshav came into possession of the property lawfully. It

is authorised occupation that has been given to him by Sunil the
owner, who now needs the house for his own occupation. Self-use
is a ground for seeking eviction of the tenant. Keshav cannot set
up the claim of adverse possession.
33
X has borrowed a sum of rupees 1,00,000/- against a
pronote. On failure of X to repay the loan, B filed a suit
and obtained a decree on 10.10.2015 with the direction
that X has to repay the loan amount together with an
interest @ 8%p.a. B came to know that X has some
immovable property as well as movable properties and
he is also working in a company as an officer. B is filing
an execution petition.
Answer the following
i) What is the time limit to execute the decree obtained
by B?
 ii) Draft the prayer with alternative remedies that may
be claimed by B in the execution petition of X.
 i)What is the time limit to execute the decree obtained by B?
 12 years

 ii) Draft the prayer with alternative remedies that may be claimed
by B in the execution petition of X.

 Draft the prayer by applying the below rule.

 Rule 30 Order XXI of Code of Civil Procedure 1908 "Decree
for payment of money"
 Every decree for the payment of money, including a decree for the
payment of money as the alternative to some other relief, may be
executed by
 the detention in the civil prison of the judgment-debtor, or
 by the attachment and sale of his property, or
 by both.
DOUBTS
An issue of fact is where a fact is alleged by one party and
denied by other party in the pleading in a civil case or alleged
by the prosecution and denied by the accused in a criminal
case. It is from such fact, either by itself or in connection with
other facts, that the existence or non-existence of a right or
liability necessarily follows.
Eg: Whether the plaintiff proves that he is the owner of the suit
schedule property?

Issue of law is a legal question which is the foundation of

a case. It requires a court’s decision. It can also refer to a point
on which the evidence is undisputed, the outcome of which
depends on the court's interpretation of the law.
Eg: Whether the suit is barred by limitation/ any law for time
being in force?
Mixed question of law and fact
In resolving a mixed question of law and fact, a reviewing
court must adjudicate the facts of the case and decide
relevant legal issues at the same time.
It requires the parties to adduce evidence regarding the
same in order to arrive at a conclusion. Where there is no
clarity on the face of it from the documents or pleadings,
parties will be allowed to lead evidence on the same. The
court will come to a conclusion after going through the
evidence.

Eg: Whether the suit is barred by limitation/ res judicata?

Principle of res judicata is a mixed question of law and

fact which may require not only examination of plaint
but also other evidence and order passed in earlier
suit may be taken up either as a preliminary issue
Preliminary issue - Issue relating to law in
respect of jurisdiction of Court and bar of suit
created by any law can be treated as
preliminary issue and suit can be disposed
of without recording evidence of parties.
Eg: Inherent lack of jurisdiction.