BANARSI DAS v. SETH KANSHI RAM & OTHERS
Citation: [1964] 1 S.C.R. 316; 1962 INSC 388
Court: Supreme Court of India
Bench: SYED JAFFER IMAM , K. SUBBA RAO, N. RAJAGOPALA AYYANGAR, J.R. MUDHOLKAR
Judgment date:
Case summary
1962 INSC 388. Supreme Court of India judgment dated 1962-12-17. BANARSI DAS v. SETH KANSHI RAM & OTHERS. Read the judgment and case details on LawSphereX.
Judgment text
1962 DtUm6,,, 17. 316 SUPREME COURT REPORTS[l964JVOL. BANARSI DAS "· SETH KANSHI RAM &: OTHERS (and Connected Appeals) (S. J. lMAll, K. SUBBA RAo, N. R. &J. a. GOPALA AYYANGAR and J. R. MoDHOLKAR,jj. ) Limitaaon-Dalt of diuol•A rial on record for as- certaining the date on which the last summons was served in this case. Since that date is not known or could have been known by · the High Court, it was in error in holding that the suit was barred by time. The High Court has overhoked the fact that even upon the argument addressed before it on behalf of Kanshi Ram, the question of limitation. was not one purely of law but was a mixed question of fact and law and, therefore, it was not proper for it to allow it to. be raised for the first time in argument. \Ve are satisfied that what the High Court has done has caused prejudice to some of the parties to the suit and on that ground alone, we would be justified in setting aside its decision. If the High Court felt overwhelmed . by the .
provisions of s. 3 of the Limitation Act, it should at least have given an opportunity to the parties which supported th!! 19&2 Banarsi Das v. Seth Kanshi Ram Mu. t! holl. ar~ J. 1962 Ronarri D•t v. Stth KanJhi Ram Af11Jllo/kar, J, 330 SUPREME COURT REPORTS [1964] VOL. decrre of the trial court to meet the plea of limita- tion by amending their pleadings. After allowing the pleadings to b.. , amcnckd, the lligh Court should have framed an issue and remitted it for a finding to the trial Court. I nstcad of doing so, it has chosen to treat the pleading of one of the defendants as conclusive not only on the question of fact but also on the question of law and dismissed the suit.
It is quite possible that had an opportunity been given to the defendants, they could have established, in addition to proving the dates on which the summon- ses were served, that the suit was not barred by time becai:sc of acknowledgment in the course of the discussion, the High Court had said that it was not sue:g~sted before it by anyone that the daim was not harrrcl by reason of acknowlcd~rncnts. Apparently, no s1ich :irgurncnt was advance'.! before it on behalf of the plaintiff and the defendant Banarsidas because the counsel were apparently taken by surprise and harl no opportunity to obtain instructions on this aspect of the case. \Ve arc clearly of opinion that the High Court was in error in allowing the plea of limitation to be raised before it particularly by defenrlants who had not even filed a written state- ment in the case. We do not think that this was a fit case for permitting an entirely new point to be raised by a non-contesting party to the suit.
In view of our decision on this point, it would follow that the High Court's decision must be set aside and that of the trial court restored. \Ve may, howe,·cr, mention that some of the parties including the appellant Banarsidas and the plaintiff-respon· dent, Kundenlal as well as the defendant-respondent Kanshi Ram were agreeable to certain variations in the decree. But as there were other parties besides them to whom these variations arc not acceptable, we arc bound to decide the appeals on merits. For the aforesaid reasons, we allow the appeals ofBanarsidas and Kundanlal and re. ~tore the dccrr,e of the tri:JI • 1 S. C. R. SUPREME COURT REPORTS 331 court, but make no order as to costs. Along with the appeals, we heard two Civil Miscellaneom Petitions, Nos. 1482 of 1~62 and 1534 of 1062. The first is to the effect that the lease granted by this Court during the pendency of these appeals should be termin:ited early.
It is said that the reason why the term of five years was fixed was that this Court was seized with the litigation and it was expected to last for five years. But as it happens, it has terminated within about a year and a half and therefore there is no reason for the lease to continue. Apart from the fact that it would not be in the interest of the parties to determine the lease before its expiry we doubt whether we can legally do so. We, therefore, reject this application. As regards the other application, it is agreed between parties that it should be considered by the Receiver when the assets are distributed. 'We may also mention that during arguments it was stated before us on behalf of Banarsidas that he had installed some ntw machinery for the efficient running of the mill and that before the mill is sold he should be allowed to remove "the machinery.
It was suggested that perhaps it would be in the interest of all the parties if the mill is sold along with the new machinery at the date of sale. The other parties, however said that it would be best if Banarsidas removes the machinery before the expiry of the lease. In the circumstances, we can give no direction in the matter. It will be open to the parties, however, to agree upon the course to be adopted when the Recei- ver sets about selling the machinery, or if they do not agree, to obtain directions from the High Court. While we dismiss the Civil Miscellaneous Petitions, we make no order as to costs. Appeals rilloineii, 1962 Rar1. 1 n-i na1 v. Seth l1"'an~lii Ram Afudholkar, /,
Source: Supreme Court eSCR. Dataset: Dattam Labs, CC BY 4.0. Text extracted automatically; compare with the source PDF for layout and accuracy.