WPMS/1309/2006 of M/S ADARSH COLONIZERS and ORS Vs N.K. PALIWAL

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALWrit Petition (M/S) No. 1309 of 2006

M/s Adarsh Colonizers and others ...Petitioners

Versus

Shri N.K. Paliwal and others …Respondents

Present: Mr. Tapan Singh, Advocate for the petitioners. Mr. Pankaj Miglani, Advocate for respondent no. 1.

Hon’ble Sudhanshu Dhulia, J. (Oral)

1.Respondent no. 1 had filed suit for specific performance in which present petitioners were defendant nos. 1 to 4. The trial court framed two preliminary issues – (a) regarding the jurisdiction of the court and (b) regarding limitation. Both these issues were decided in favour of the plaintiff/respondent no. 1. Consequently, the defendants (i.e. present petitioners) filed revision against the said order. The revision was allowed and the revisional court gave finding that the suit is barred by limitation.

2. Aggrieved, respondent no. 1 filed writ petition before this Court being Writ Petition (M/S) No. 977 of 2002 stating that the jurisdiction in fact lies with the court of Delhi and not with the court of Haridwar. This point of the respondent did not find favour with this Court and the writ petition of the respondent was rejected on the same ground. Aggrieved the respondent filed Special Leave Petition before the Hon’ble Apex Court which was dismissed on 16.8.2005. The order dated 16.8.2005 passed by the Hon’ble Apex Court in aforesaid Special Leave Petition reads as under :-

“Heard learned senior counsel appearing for the parties.

No merits.

The special leave petition is dismissed.”

3. Respondent no. 1 subsequently moved an application before the Civil Judge (Jr. Division), Haridwar under Order 7 Rule 10 CPC before whom the suit was filed praying that his plaint be returned. The said application was allowed by the Civil Judge (Jr. Division), Haridwar vide order dated 17.12.2005. The plea taken by respondent before the Court was that it has been decided by the highest court that this jurisdiction does not lie with the court of Haridwar and therefore the plaint be returned to him so that he may file plaint before the court of Delhi. Aggrieved the petitioner filed an appeal before the appellate court which was dismissed. He has now filed the writ petition before this Court.

4. The revisional court has passed an order holding that the suit of the plaintiff is barred on jurisdiction as well as on limitation. The writ petition against the said order was also dismissed. Consequently the Special Leave Petition was also dismissed by the Hon’ble Apex Court holding that the Special Leave Petition has no merits.

5. The only point canvassed before this Court by the counsel for respondent no. 1 is that the order of the revisional court passed in Civil Revision No. 319 of 1986 as well as the order of the High Court passed in writ petition (M/S) No. 977 of 2002 are not correct orders inasmuch as once it was held that the court had no jurisdiction in the matter it should not have proceeded with the matter and they could not have adjudicated it on the point of limitation. In support of his submission, the learned counsel for respondent no. 1 has relied upon two

judgments : AIR 2009 SC 713 Ramesh Chandra Sankla etc. v. Vikram Cement etc. and AIR 2008 SC 1315 Chief Engineer, Hydel Project & Ors. v. Ravinder Nath & Ors.

6. At this stage, though this point being raised by the counsel for the respondent cannot be looked into for the simple reason that against the order of the revisional court dated 31.5.1989 which was upheld in the writ petition, the Special Leave Petition was also dismissed by the Hon’ble Apex Court and therefore any interference by this Court will not be proper. Moreover, this is an absolutely new plea being raised by the counsel for respondent no. 1 in order to support the two orders impugned in the present writ petition. Such plea that the courts were barred from adjudicating upon the point of limitation has never been raised by respondent no. 1 at any stage. Now when the matter stands settled right upto the Apex Court, it is not given to the respondent to raise such plea.

7. Under the circumstances the plaint was not liable to be returned to the plaintiff as the suit had already been dismissed as it was beyond the period of limitation.

8. Writ petition is therefore allowed. Orders dated 17.12.2005 and 26.7.2006 (Annexure Nos. 8 and 9 to the writ petition respectively) are hereby set aside.

9. No order as to costs.

Avneet

(Sudhanshu Dhulia, J.)

5.3.2013