Extracted from the PDF above. The PDF is authoritative.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. :
42
of 2011 Reserved on : 3
rd August, 2026 Decided on
: 31
st August, 2026 Uploaded on : 31
st August, 2026 L.R. Kashyap
…Petitioner Versus Arun Sen …Respondent Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 yes For the petitioner : Mr. Sanjeev Kuthiala, Senior Advocate with Ms. Tamanna Sharma, Advocate. For the respondent : Mr. Bimal Gupta, Senior Advocate with Ms. Kusum Chaudhary, Advocate. Virender Singh, Judge Petitioner L.R. Kashyap has filed the present petition, under Section 115 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’), against the order dated 30.12.2010, passed by the learned Additional District Judge, Solan, District Solan (hereinafter referred to as ‘the First Appellate Court’), in Civil Appeal No.25S/14 of 2008, titled as ‘L.R. Kashyap versus Arun Sen’. 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
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2. By way of order dated 30.12.2010, learned First Appellate Court has dismissed the appeal preferred by the petitioner herein, against the order dated 15.09.2007, passed by the Court of learned Civil Judge (Junior Division), Solan, District Solan, (hereinafter referred to as ‘the trial Court’) in CMA No. 36/6 of 2006, which has been filed in Civil Suit No.612/1 of 2004, titled as L.R. Kashyap versus Arun Sen.
3. By way of order dated 15.09.2007, the learned trial Court has allowed the application, filed by defendant Arun Sen, under Order 7 Rule 11 of the CPC and the plaint has been ordered to be rejected.
4. Parties to the lis are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court.
5.
Brief facts, leading to filing of the present petition, before this Court, as borne out from the record, may be summed up, as under:
5.1. PlaintiffL.R. Kashyap has filed a suit for declaration and rendition of accounts, seeking the following relief:
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“a) The defendant be directed to render the accounts regarding the advanced loan of Rs.10 lacs. b) The agreement dated 26.04.04 be declared in operative null and void to the extent of Rs.3 lacs and compounded interest @18% P.A. which is neither due nor payable as having been never ever received by the plaintiff.”
6. The suit has been contested by the defendant, by filing written statement, taking preliminary objections that the plaintiff has no cause of action; plaintiff has not come to the Court with clean hands; suit of the plaintiff is not properly valued for the purpose of Court fee; the plaintiff has no locus standi to file the suit; plaintiff is estopped from filing the suit by his act and conduct; and the suit is not maintainable in the present form, as the suit is defective by omitting the information regarding the previous and present litigation between the parties. 7. Along with the written statement, the defendant has filed the application, under Order 7 Rule 11 CPC, with a prayer to reject the plaint, on the ground that the suit is not maintainable, as, the plaintiff has no right to receive the
4 amount from the defendant, because there is no relationship between the parties. 7.1. According to the defendant, parties to the lis are not partners, who, after dissolution of partnership, seek rendition of accounts or suit by a beneficiary against the trustee or is a suit by member of joint Hindu family, against the Karta, for partition of accounts, as such, plaintiff has no cause of action to file the present suit. 7.2. Reasserting the fact that the plaintiff has no right to receive the accounts from the defendant, a prayer has been made to reject the plaint. 8. This application has been contested by the plaintiff, by denying the averments, as made, in the application, on the ground, that the suit, filed by the plaintiff, is not only for rendition of accounts, but, also for the relief of declaration. 8.1.
Asserting the fact that the plaintiff has every right to seek rendition of accounts, according to the plaintiff, there is a dispute regarding the amount involved in the suit. Agreement dated 26.04.2004, is stated to have been obtained
5 by the defendant by using undue influence and pressure on the plaintiff and the veracity of the same is under challenge in the suit. Hence, a prayer has been made to dismiss the application. 9. Learned trial Court vide order dated 15.09.2007, has allowed the application, under Order 7 Rule 11 CPC. 10. As per the record, the said order has been assailed by the plaintiff, by filing the Civil Revision No.8 of 2008, as well as, FAO No.493 of 2008, before this Court, which were
disposed of, by this Court, on 16.10.2008, by passing the following orders:
“ Both this petitions and the appeal taken up together for decision. On the pleadings of the plaintiff before the learned trial Court, he has tentatively valued the suit for the purpose of pecuniary jurisdiction below Rs. 10 lac. In these circumstances, this Court would not have pecuniary jurisdiction to entertain this appeal arising out of the order passed on an application under Order 7 Rule 11 of the Code of Civil Procedure by the respondent. Admittedly, the pecuniary jurisdiction if any would be that of the District Judge. In these facts and circumstances, without entering into the respective merits of the case, as urged by the learned counsel appearing for parties, both this petition and the appeals are
disposed of. Liberty reserved to petitioner herein to move the learned District Judge in accordance with law. As and when any proceedings are filed,
6 the learned District Judge shall take into
consideration the pendency of Civil Revision/ Appeal before this Court for the purpose of limitation for the benefit claimed the petitioner of Section 14 of the Limitation Act. There shall be no
order as to costs. 11. Thereafter, the plaintiff has filed the appeal before the learned First Appellate Court on 19.11.2008, under Order 43 Rule 1 CPC, against the order dated 15.09.2007, passed by the learned trial Court, by virtue of which, the plaint has been rejected. 12. The said appeal has been dismissed by the learned First Appellate Court, vide order dated 30.12.2010, by holding that the appeal is barred by limitation. 13. Against the said order, the present revision petition has been filed, on the ground, that the plaintiff, after passing the order dated 15.09.2007, had filed the revision petition, as well as, FAO before this Court and both the said cases have been disposed of, by this Court, vide order dated 16.10.2008, by giving liberty to the plaintiff to approach the District Judge. 7
13.1. According to the petitioner, it has also been observed by this Court, that the learned District Judge shall take into consideration the pendency of Civil Revision/Appeal before this Court for the purpose of giving benefit under Section 14 of the Limitation Act to him. 13.2. Heavily relying upon the order, passed by this Court, the order passed by the learned First Appellate Court, has been assailed on the ground that there is no delay in filing the appeal, after excluding the period, under Section 14 of the Limitation Act and the learned first appellate Court has taken a hyper technical view. 13.3. In addition to this, the said order has also been assailed, on the ground, that there was no necessity for the plaintiff to file the application, under Section 5 of the Limitation Act, as, the High Court has granted the benefit under Section 14 of the Limitation Act to him. 13.4. Lastly, a prayer has also been made that the plaintiff has filed the present petition, under Section 115 CPC and in case, this Court comes to the conclusion that the petition, under Article 227 of the Constitution of India is
8 maintainable, the present petition may be treated a petition filed under Article 227 of the Constitution of India. Thus, a prayer has been made to allow the petition, by setting aside the order passed by the learned First Appellate Court. 14. The prayer, so made, has been opposed by Mr.
Bimal Gupta, learned Senior Counsel appearing for the respondent/defendant, on the ground, that neither appeal before the learned first appellate Court, nor, the present petition is maintainable, and the learned First Appellate Court has rightly rejected the appeal, being barred by limitation, as, no application, under Section 5 of the Limitation Act, claiming the benefit of Section 14 has been moved. As such, a prayer has been made to dismiss the present petition. 15. In this case, it is not in dispute that after rejection of the plaint, which falls within the definition of decree, as per Section 2(2) of the CPC, the plaintiff, instead of assailing the same, by way of appeal, under Section 96 of the CPC, had filed Civil Revision No.08 of 2008 and FAO No. 493 of 2008, before this Court. The revision, as well as, the appeal were disposed
9 of, by this Court, vide order dated 16.10.2008, reproduced above. 16. Admittedly, by way of order dated 16.10.2008, the plaintiff has been relegated to the Court of learned District Judge, Solan to assail the order, by virtue of which, his suit was ordered to be rejected, under the provisions of Order 7 Rule 11 of the CPC. 17. Appeal before the learned First Appellate Court was instituted on 19.11.2018, whereas, order was passed by this Court on 16.10.2018. 18. Admittedly, with the appeal, plaintiff has not filed any application, under Section 5 of the Limitation Act. Office of the learned First Appellate Court has made the office report, in which, objection, with regard to the limitation, has not been raised. Meaning thereby the appeal was within limitation. 19. Thereafter, the learned First Appellate Court has issued the notices. Subsequently, the said appeal was dismissed in default on 23.10.2009. Thereafter, the same was restored on 18.10.2010, after giving opportunity of filing the
10 reply to the defendant. The appeal was, later on, dismissed being barred by limitation on 30.12.2010. 20.
In this factual background, the first question, which arises for determination, before this Court, is as to whether the plaintiff was required to file the application, under Section 5, as well as, Section 14 of the Limitation Act, before the learned First Appellate Court or not. 21. At this juncture, before determining the said question, it is apt to discuss the case law relied upon by the
learned Counsel appearing for the defendant.
22.
Learned counsel for the defendant has relied upon the decision of the Hon’ble Delhi Court in RFA No.269 of 2011, titled as State Farms Corporation of India Ltd. & Another versus Dr. Mahendra Singh, and its connected matter, 2013 SCC Online Del 4889. Relevant paragraphs 22 and 24 of the judgment are reproduced as under:
22. For Section 14 of the Limitation Act to apply, pleading and proof of good faith is essential. The Division Bench of this Court in Debjyoti Gupta Vs. Indiabulls Securities Ltd. 202 (2013) DLT 563 has held that if a party seeks the benefit of exclusion which is permissible in accordance with any law akin to Section 14 of the Limitation Act, the onus
11 is upon such party to clearly plead and prove the attendant facts and circumstances and in the absence of any pleading, argument is without force. Reference in this regard may also be made to Nina Garments Pvt. Ltd. Vs. Unitech Ltd. 196 (2013) DLT 57, Alliance Paints & Varnish Works Pvt. Ltd. Vs. Hari Kishan Gupta 168 (2010) DLT 591 and Susanne Lenatz Vs. C.J. International Hotels Ltd. MANU/DE/8192/2007 where it was held that it is obligatory under Order VI Rule 7 of the CPC for a plaintiff to specifically plead such an exemption in the plaint and in the absence thereof, the Court under Section 3 of the Limitation Act, would be required to dismiss/reject the suit, if otherwise barred by time. In Paras Ram Vs. Sheoji Ram MANU/DE/1282/2010, this Court has held that a separate application under Section 14 of the Limitation Act is not mandatory to avail the benefit thereunder. Though some of the High Courts in Binodilal Vs. Satyendra Singh AIR 1956 MP 57, Patel Babu Lal Pranlal Brothers Vs. Pameric Export International, Cochin AIR 1999 Kerala 355 and Union Bank of India Vs. Suresh Bhailal Mehta AIR 1997 Gujarat 48 appear to have taken a different view but in the light of the judgments aforesaid of this Court, I am bound thereby though may observe that if the essential ingredients of Section 14 are found to be pleaded whether in the plaint or by way of a separate application, mere non reference thereto would not come in the way of the Court giving the relief thereunder. xxx xxx xxx
24.
Section 14 of the Limitation Act empowers the Court, in computing the period of limitation for any suit, to exclude therefrom the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant, where the proceeding relates to the same matter in issue and is
12 prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of like nature, is unable to entertain it. Thus, for Section 14 to apply, the plaintiff has to prove: (i) that he was prosecuting with due diligence; (ii) another civil proceeding against the defendant; (iii) relating to the same matter in issue; (iv) in good faith; and, (v) that Court from defect of jurisdiction or other cause of a like nature, was unable to entertain the said proceeding. Reference in this regard can be made to Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department (2008) 7 SCC
23. With due respect to the law laid down by the Delhi High Court, the same is not applicable to the facts and circumstances of the present case, as, while disposing of the Civil Revision and FAO, this Court has granted benefit of Section 14 of the Limitation Act, by holding that as and when, any proceedings are filed, the learned District Judge shall take into consideration the pendency of Civil Revision/Appeal, before this Court, for the purpose of limitation, for the benefit, as claimed, by the petitioner, under Section 14 of the Limitation Act. 13
24. In view of the order dated 16.10.2008, passed by this Court, it does not lie in the mouth of the defendant that the District Judge could decide the question of Limitation, as the order dated 16.10.2008, has not been assailed, by the defendant, before the Hon’ble Supreme Court or by way of intra Court appeal.
Liberty has been reserved to the plaintiff to move to the District Judge, in accordance with law, and with the directions to the learned District Judge to take into
consideration, the pendency of the Civil Revision and Appeal before the High Court, for the purpose of limitation.
25. Sections 5 and 14 of the Limitation Act, are reproduced, as under :
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“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. 14. Exclusion of time of proceeding bona fide in court without jurisdiction. — (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of subsection (1) shall apply in relation to a fresh suit instituted on
15 permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.—For the purposes of this section,— (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. 25.
The appellantplaintiff has not concealed anything from the scrutiny of the learned First Appellate Court, as, in the appeal it has specifically been mentioned that the order dated 15.09.2007, rejecting the plaint was assailed, before this Court by way of Civil Revision No.08 of 2008 and FAO No. 493 of 2008, which were decided, by this Court, on 16.10.2008 and liberty was given to the appellant to move to the District Court, in accordance with law. 26. Even otherwise, when, the learned First Appellate Court has issued the notices of the appeal, to the defendant, then, the delay, if any, is deemed to have been condoned, as, it
16 has been mandated that while condoning the delay, a liberal approach has to be adopted by the Courts. 27. The plaintiff, whose suit has been rejected, by the learned trial Court, has every right to get his appeal decided, on merits. Keeping in view the low legal literacy in the Indian masses, the poor plaintiff was forced to pursue his remedy before this Court, by way of Civil Revision and Appeal and when those were held to be not maintainable, on account of pecuniary jurisdiction, he was relegated back to the learned District Judge, where, despite issuance of notices of the appeal, instead of deciding the appeal, on merits, the learned First Appellate Court has adopted a shortcut method to dismiss the appeal, on the ground of limitation, ignoring the mandate of this Court, in Civil Revision No.08 of 2008 and FAO No. 493 of 2008, vide order dated 16.10.2008. 28. In this case, liberty to approach the learned First Appellate Court has been given vide order dated 16.10.2008, and the copy was applied on 17.10.2008, which was attested on 23.10.2008. The appeal before the learned First Appellate Court was filed on 19.11.2008.
Excluding the days, in
17 obtaining the copies, this Court is of the view that the appeal, preferred by the plaintiff, before the learned First Appellate Court, was within limitation. 29. Considering all these facts, the present petition is allowed; the order dated 30.12.2010, passed by the learned First Appellate Court is set aside and the matter is remanded back to the learned First Appellate Court with a request to decide the same, after affording the opportunity of hearing to both the parties. 30. Parties, through the learned counsel representing them, are directed to appear before the learned First Appellate Court on 22nd September, 2026. 31. Since, the matter is old one, as such, the learned First Appellate Court is requested to decide the appeal, preferably within a period of one month from the date of appearance of the parties, before it. Record be sent back. ( Virender Singh ) August 31, 2026( ps ) Judge