Case Note & Summary
The present Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) arises from a suit for permanent injunction filed by the original plaintiff (since deceased, represented by legal representatives) against the Town Municipal Council, Mudhol. The plaintiff claimed that the defendant municipal council had no right to interfere with his possession over a certain property and sought a permanent injunction restraining the defendant from interfering with his possession. The trial court, in O.S. No. 197/2003, decreed the suit in favor of the plaintiff, granting the permanent injunction. Aggrieved, the defendant municipal council filed an appeal before the Additional Civil Judge (Senior Division), Jamakhandi, sitting at Mudhol, in R.A. No. 51/2005. The lower appellate court allowed the appeal and set aside the trial court's judgment and decree, holding that the suit was barred by limitation under Article 58 of the Limitation Act, 1963. The lower appellate court reasoned that the plaintiff's right to sue accrued in 1995-96 when the municipal council allegedly encroached upon the property, and the suit filed in 2003 was beyond the three-year limitation period. The plaintiff then filed the present second appeal before the High Court. The High Court framed a substantial question of law: whether the suit was barred by limitation. The High Court examined the pleadings and evidence and found that the plaintiff's case was that the defendant municipal council first interfered with his possession in the year 2003, and the suit was filed in the same year. The High Court held that the right to sue for a permanent injunction accrues when there is a clear and unequivocal threat to the plaintiff's right, and in this case, the threat occurred in 2003. The lower appellate court's finding that the suit was barred by limitation was perverse and not based on the evidence on record. The High Court allowed the appeal, set aside the judgment and decree of the lower appellate court, and restored the trial court's decree granting permanent injunction in favor of the plaintiff.
Headnote
A) Limitation Act, 1963 - Article 58 - Suit for Permanent Injunction - Right to Sue Accrues - The right to sue for a permanent injunction accrues when there is a clear and unequivocal threat to the plaintiff's right. In the present case, the plaintiff's suit was based on the defendant municipal council's interference with possession in the year 2003, and the suit was filed in 2003. The lower appellate court erred in holding that the suit was barred by limitation by taking the date of alleged encroachment as 1995-96. The High Court held that the limitation under Article 58 begins when the right to sue accrues, which is when the defendant first interferes with the plaintiff's possession, and not from the date of any prior alleged encroachment by the municipal council. (Paras 10-12) B) Code of Civil Procedure, 1908 - Section 100 - Regular Second Appeal - Substantial Question of Law - The High Court framed a substantial question of law regarding limitation. The lower appellate court's finding that the suit was barred by limitation was perverse and not based on proper appreciation of evidence. The High Court set aside the judgment and decree of the lower appellate court and restored the trial court's decree granting permanent injunction in favor of the plaintiff. (Paras 8, 13-14)
Issue of Consideration
Whether the suit for permanent injunction filed by the plaintiff against the Town Municipal Council was barred by limitation under Article 58 of the Limitation Act, 1963?
Final Decision
The High Court allowed the appeal, set aside the judgment and decree of the lower appellate court dated 27.09.2007 in RA No.51/2005, and restored the judgment and decree of the trial court dated 28.02.2005 in OS No.197/2003, thereby granting permanent injunction in favor of the plaintiff.
Law Points
- Limitation Act
- 1963
- Article 58
- Right to sue accrues when there is a clear and unequivocal threat to right
- Suit for permanent injunction against municipal council
- Section 100 CPC
- Substantial question of law
