In a second appeal under Section 100 CPC, the High Court dismissed the appeal, holding that the suit for declaration regarding disciplinary proceedings was barred by limitation under Article 58 of the Limitation Act due to a six-year delay.
The second appeal was dismissed, and the judgments and decrees of the courts below were confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
S.A.No.1185 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : Delivered on : 11.12.2023 13.12.2023
CORAM
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
S.A.No.1185 of 2007 and M.P.No.1 of 2007
1.Mumtaj,
5.Akbar Basha. ... appellants
-Vs-
S.A.Abdul Kareem (died)
4.G.Balakrishnan,
G.Chakrapani Naidu (died)
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S.A.No.1185 of 2007
5.R.Nallamuthu,
6.Y.Abdul Kareem,
7.D.Kesavalu. ... Respondents
Prayer:- Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 17.01.2006 in A.S.No.30 of 2004, passed by the Subordinate Judge, Kallakurichi, confirming the judgment and decree dated 30.06.2003 in O.S.No.913 of 1987 passed by the Principal District Munsif, Kallakurichi.
For Appellants : Mr.Krishnakumar For Respondents : No appearance
J U D G M E N T
The instant second appeal has been filed at the instance of the
legal heirs of the sole plaintiff. The respondents herein are the defendants before the Trial Court.
according to their litigative status as before the Trial Court.
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S.A.No.1185 of 2007
follows:
The brief facts, which give rise to the instant second appeal, are as follows:
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S.A.No.1185 of 2007
Societies or a person authorized by him alone would be empowered to conduct an enquiry. Hence, according to the plaintiff, the order passed by the Deputy Registrar, Co-operative Societies (Housing) was not in accordance with law. Therefore, the plaintiff came forward with this suit seeking for a declaration in respect of the orders dated 05.03.1980 and 22.01.1981 as illegal and void and also for restraining the defendants by way of permanent injunction from taking any further action.
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S.A.No.1185 of 2007
Enquiry Report, the plaintiff was placed under suspension and ordered domestic enquiry. The defendants contended that as per Section 100 of the Act, the Civil Court has no jurisdiction. Hence, they prayed to dismiss the suit.
Evidence and Documents:
Findings of both the Courts below:
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S.A.No.1185 of 2007
by relying upon the judgment of this Court reported in 1997 MLJ 479 held that Section 100 of the Act, is not a bar to file a suit. It was also found that there was no proof that the suspension order was passed based upon the authorization as per the Act, and that the action taken by the Deputy Registrar could not be termed as a legal one. Therefore, it was found that, Section 100 of the Act, is not a bar to institute a civil suit. However, the First Appellate Court found that the suit was filed after a long time. Hence, the First Appellate Court held that the dismissal of the suit by the Trial Court is well merited and thereby dismissed the First Appeal. Challenging the same, the legal heirs of the plaintiff are now before this Court by way of this second appeal.
Substantial questions of law:
“ 1.Whether the Lower Appellate Court is correct in law in non-suiting the plaintiffs by holding that the suit had become infructuous on account of the fact that
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S.A.No.1185 of 2007
further proceedings pursuant to the orders dated 22.01.1981 had taken place totally overlooking the fact that Ex.A16 is the primoridal proceedings and a declaration is sought to quash this proceedings?
2.Whether the Lower Appellate Court is correct in law in dismissing the suit filed by the plaintiffs after holding that the disciplinary action is vitiated by malafides on the apart of the 5th defendant totally overlooking the fact that the relief which is sought for in the above suit is one for a declaration that Ex.A16 initiated at the instance of the 5th defendant is invalid?
3.Whether the Lower Appellate Court is right in dismissing the suit after it rightly observed that the right to sue of the decreased 1st plaintiff would enure to the benefit of his legal heirs, the appellant?”
Submissions on behalf of the appellant:
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appointment on the compassionate ground. Hence, he prayed to allow this second appeal.
Analysis of the submissions:
that, when the finding of the First Appellate Court is that the suit is not barred, the suit ought to have been decreed. However, in view of the long delay between the cause of action and the date of filing of the suit, the First Appellate Court dismissed the appeal by confirming the order of the Trial Court.
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almost after six years. In this regard, this Court would like to rely upon Article 58 of the Limitation Act where, if the party wants to have any declaration, they must approach the Court within 3 years from the date when the right to sue first accrues. On perusal of the plaint averments, it is clear that there is no pleading as to the receipt of the notice at a later point of time. Therefore, this Court must hold that the orders which were challenged by the plaintiff, would have been served immediately. On such issuance, as rightly held by the First Appellate Court, there was a long delay of more than six years to institute the suit for declaration. Therefore, this Court is of the view that under Article 58 of the Limitation Act, the suit is barred and liable to be dismissed.
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the judgments and decrees passed by both the Courts below. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.
13.12.2023.
Internet : Yes Index : Yes/No Speaking order/Non-speaking order apd
To
3.The Section Officer, V.R.Section, High Court, Madras.
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S.A.No.1185 of 2007
C.KUMARAPPAN,J.
apd
S.A.No.1185 of 2007 and M.P.No.1 of 2007
13.12.2023
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3 issues framed by the court
Whether the suit for declaration was barred by limitation under Article 58 of the Limitation Act due to a delay of more than six years?
Whether the disciplinary proceedings against the plaintiff were vitiated by malafides?
Whether the right to sue of the deceased plaintiff enures for the benefit of his legal heirs?
Colour shows how this judgement treated each authority
_1997 MLJ 479_Referred¶49
Mumtaj
Saidq Basha
Farook Basha
Mubarak Basha
Akbar Basha
Kallakurichi Co-op Housing Society
C.KUMARAPPAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
