Captain Chand Singh vs Miss Preeti on 7 October, 1999

Allahabad High Court
Captain Chand Singh vs Miss Preeti on 7 October, 1999
Equivalent citations: 2000 (1) AWC 268
Bench: B K Roy, L Bihari


Binod Kumar Roy and Lakshmi Bihari, JJ.

1. This is an appeal under Section 19(1) of the Family Courts, Act against the order dated 7.9.1999 passed by Sri Z. Khan, Judge. Family Court. Agra, rejecting the appellant’s plaint registered as Original Suit No 304 of 1997 under Order VII, Rule 11, Code of Civil Procedure on account of it having been filed beyond the prescribed period of 3 Years limitation as envisaged under Article 58 of the Limitation Act. Under this section, an appeal lies against the judgment and order and not against the decree. Even though under the Code of Civil Procedure, an order rejecting the plaint is a decree, in view of sub-section (1) of Section 19, the application filed for grant of time for filing a certified copy of decree at the time of hearing of the appeal is thus dismissed.

2. Incidentally the Appellant’s Recall application dated 6.10,1999 seeking review of the order dated 12.5.1992 dismissing his earlier First Appeal No. 139 of 1992 has also been placed before us which we heard along with this appeal.

3. It appears that the respondent filed Suit No. 8 of 1989

against the appellant for grant of maintenance under Section 125 of the Code of Criminal Procedure claiming, inter alia, that she was married with him on 7.12.1988 ; that she has followed her duties as a faithful wife but later on it transpired that he is squandering his whole income in drinking wine and gambling ; at the time of her marriage goods worth Rs. 40,000 were given to him but he along with the members of his family has been pressurising for giving a sum of Rs. 30.000 in regard to which she expressed her inability and thereafter he started misbehaving her by indulging in cruelty and assault in January, 1989 ; he also snatched her jewellery and clothes and hence this action for giving her a sum of Rs. 500 towards maintenance. Despite notice, he did not appear to counter the proceedings. After holding that the notice was validly served, the proceedings continued ex parte. She examined herself as A. W. 1 in support of her prayer. Vide order dated 16.3.1990, the Court concerned accepted her testimony and directed the appellant to pay a sum of Rs. 500 towards maintenance.

3.1. The appellant on 11.10.1991 filed an application for setting aside that order dated 16.3.1990. Vide order dated 25.1.1992 the Appellant’s application dated 11.10.1991 was dismissed. The appellant moved this Court in First Appeal No. 139 of 1992 challenging the orders dated 16.3.1990 as well as 25.1.1992 both as it appears from the order dated 12.5.1992 passed by this Court while dismissing that appeal. The Division Bench while dismissing the appeal had held to the following effect :

(i) The appeal against the order dated 16.3.1990 is barred by limitation as no application under Section 5 of the Limitation Act has been filed for condoning the delay occurred in its filing in so far as it is against the said order. It is thus liable to be dismissed as barred by limitation.

(ii) The Court below rightly rejected the application of the appellant for setting aside the ex parte order, which was also belated when it was moved on 11.10.1991 as there was no valid reason assigned by the appellant for this delay.

3.2. The appellant thereafter filed the instant Suit No. 304 of 1997 in the Court of Judge, Family Court. Agra, under Section 34 of the Specific Relief Act, 1963 read with Section 7 of the Family Courts Act. 1984, for two declarations : (i) It be ordered that there was no marriage between him and the respondent according to law, and (ii) It be declared that the respondent is not entitled for grant of maintenance from him. By the impugned order, the suit has been dismissed as being barred by limitation in terms of Article 58 of the Limitation Act.

4. Sri Tej Pal, learned counsel, appearing in support of this appeal contended as follows :

(i) Article 58 of the Limitation Act was wrongly applied by the learned Judge. Family Court as non-payment of maintenance granted under Section 125 of the Code of Criminal Procedure by the appellant to his alleged wife was a continuous cause of action.

(ii) Section 125(3) of the Code of Criminal Procedure ultra vires Articles 14, 19, 20 and 21 of the Constitution of India and thus void and accordingly Article 58 of the Limitation Act will not come to play.

In support of his contentions he submitted that there is a Constitution Bench decision of the Supreme Court but on being asked as to what is the citation, he keeps mum. Then he states that his contention is supported by the decision of the Supreme Court in Minhu v. State, AIR 1983 SC 473. On being asked by us to read out the relevant passage, he says that he has not brought the book.

5. The short question involved in this appeal is as to whether the Appellant’s Suit No. 304 of 1997 has been rightly dismissed by the order impugned on account of 3 years period of limitation prescribed by Article 58 of the Limitation Act?

6. Article 58 of the Limitation Act reads thus :

“58. To obtain Three When the
any other years right to sue
declaration first accrues.

From a bare perusal of the aforementioned provision, it is crystal clear that the 3 years period of limitation will start running from the very first day when the right to obtain the declaration had accrued.

7. We have gone through a copy of the plaint of this suit, which has been appended as Annexure-1 to the affidavit attached with the stay application filed in this appeal. On going through the pleadings, we find that the cause of action, which means bundle of facts, had arisen by the very time when the appellant came to know of the respondent’s application for grant of maintenance.

7.1. We are not at all impressed by the argument of Sri Tej Pal that since appellant has not paid the maintenance amount, the nonpayment is a recurring cause of action and, therefore, Article 58 has been wrongly applied by the Judge, Family Court.

7.2. We also do not find any pleading taken by the appellant to show as to how Section 125(3) of the Code of Criminal Procedure is void being contrary to Articles 14, 19, 20 and 21 of the Constitution of India. We merely note that there is a presumption of validity and constitutionality of an Act. This presumption has not at all been discharged. The Criminal Procedure being a Parliamentary Act, a notice to the Attorney General/senior standing counsel for the Union for this Court/Union of India was also required to be given, but has not been given. Perhaps this argument has been made merely to be noted and

rejected by us which we hereby do so. We also do not find any vice of discrimination or arbitrariness in Section 125(3) of the Code of Criminal Procedure.

7.3. We find that a learned single Judge of this Court in R. P. Agrawal v. Smt. Urmila Devi, 1982 ALJ 260 : 1982 (8) ALR 156, had held as follows :

“…..On the language of
Article 58, the question is : when did the right to sue first accrue to the appellant. Although on the facts and in the circumstances of the case, it appears highly improbable, one may for the purposes of this case assume that the respondent asserted, that she was the lawfully wedded wife of the appellant, for the first time ever in the application made by her before the City Magistrate under Section 488 of the Cr. P.C. in the year 1965. The result would be that if the appellant was interested in denying that status to the respondent and wanted to have a negative declaration of the kind claimed by him and assuming that such a negative declaration could be made by the Court under Section 34 of the Specific Relief Act, the cause of action for a suit for such a declaration will be said to have first accrued to the appellant on the date when that assertion, made by the respondent in her application under Section 488 of the Cr. P.C., came to his knowledge…..”

We find that the view taken by the learned single Judge is absolutely correct.

7.4. Thus, no error of law has been committed by the Judge, Family Court in dismissing the suit on account of it being barred by limitation.

8. Consequently this appeal as well as the stay application both are dismissed.

9. Let a copy of this order be communicated to the Court below within one week from today.

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