Condonation of delay beyond a period of limitation, even when applicant the State, delay is owing to administrative difficulties would be impermissible: Justices Rajeev Ranjan Prasad, Kumar Mainsh

In The Union of India through the General Manager, East Central Railway, Hazipur Bihar & Anr. vs. M/s. Oberoi Thermit Pvt. Ltd. through its Authorized representative Sri Arjun Rajput (2026), Patna High Court's Division Bench of Justices Rajeev Ranjan Prasad and Kumar Manish delivered a 13-page long judgement, dated June 25, 2026, wherein it concluded:"....we are of the considered opinion that the learned District Judge is correct in taking a view that the miscellaneous arbitration application preferred by the present appellant was hopelessly barred by limitation. In view of the clear mandate of subsection (3) of Section 34 of the Act of 1996, the learned Court could not have condoned the delay of more than 30 days from the date of expiry of the prescribed period of limitation of three months. Thus, no illegality or infirmity may be found in the impugned order. 16. This appeal fails." The judgement was authored by Justice Prasad.  

The judgement was delivered upon hearing a commercial appeal which had been preferred seeking setting aside of the order dated August 17, 2023 passed by the District Judge, Patna in a Miscellaneous (Arbitration) Case  (Union of India through the General Manager, East Central Railways, Hazipur, Bihar and Anr. vs. M/s. Oberoi Thermit Private Limited) whereby and whereunder the District Judge had dismissed the application under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘the Act of 1996’ as amended upto date) read with Section 151 of the Code of Civil Procedure filed on behalf of the petitioners-respondents for setting aside the arbitral award dated December 14, 2021 passed by a sole Arbitrator in a Arbitration Case of 2019 which arose out of Request Case of 2019. 

The application was preferred by the appellant for setting aside the arbitral award was rejected on the ground of the same being hopelessly barred by limitation. The Sheristedar’s report was that there was a delay of 222 days in filing of the application. 

An application seeking condonation of delay was filed. It was pointed out to the trail court that due to the COVID period delay was caused in preparation of the draft and its approval. It was submitted that after taking approval and sanction from the competent authority of the Railways, the matter was sent to Railway Lawyers for drafting the challenge petition in May, 2022 and the department was waiting for the final drafting of the petition. It was also stated that the counsel for the East Central Railways was delisted from its panel by the order of Ministry of Law and Justice and thereafter the deponent assigned the work to one of the learned Standing Government Counsel after approval of the same from the competent authority. It was finally submitted that the Supreme Court had also given a direction to condone the delay, if any, and after March 1, 2022, there was a delay of only 89 days in filing of the present application.

The District Judge had taken note of report of Sheristedar which showed that there was a delay of 222 days in filing of the present case. The Court had also taken note of subsection (3) of Section 34 of the Act of 1996 and held that the delay of 222 days in filing of the case cannot be condoned. 

The counsel for the appellants argued before the High Court that the District Judge, Patna had not considered the order passed by the High Court as well as the Supreme Court during the COVID period in Suo Motu Writ Petition (Civil) No. 03 of 2020 in which the period between March 15, 2020 and February 28, 2022 had been excluded in reckoning of the period of limitation. It was submitted that the trail court had merely considered the Sheristedar’s report and based on that the impugned order was passed. The impugned order suffers from non-consideration of the materials, therefore, it was liable to be set aside.

The counsel for the respondent submitted that on a bare perusal of the impugned order it was evident that the District Judge had duly considered the scope and ambit of subsection (3) of Section 34 of the Act of 1996. So far as Sheristedar’s report is concerned, there was no contest that the appeal was filed on October 22, 2022 for setting aside of the arbitral award delivered on December 14, 2021. It was submitted that if the overall period is computed, the Sheristedar’s report was correct. So far as the COVID period was concerned, no doubt the District Judge had not specifically taken note of the said report in the impugned order but that would not make any change in the opinion of the court and the same would be totally irrelevant so far as the present case is concerned. Even if the period between December 14, 2021 and February 28, 2022 was excluded in reckoning the period of limitation, the fact remains that the application under Section 34(1) was preferred after eight months. The District Judge could not have condoned the delay of more than 30 days from the date of expiry of the period of limitation i.e. three months from the date of receipt of the arbitral award by the party making the application.

Justice Prasad observed:"The facts are not in dispute. The arbitral award has been delivered on 14.12.2021. It is not the case of the appellant that the Award was served on the appellant on any other date. Thus, the period of limitation of three months for filing of an application under Section 34(1) of the Act of 1996 would have expired on 14th March, 2022. By virtue of the order of the Hon’ble Supreme Court in Suo Motu Writ Petition (Civil) No. 03 of 2020 the period between 15.03.2020 and 28.02.2022 were liable to be excluded. In this case, the last date for filing of the application under subsection (1) of Section 34 of the Act of 1996 was due to expire on 14th March, 2022. The period between 14th December, 2021 and 15th March, 2022 are liable to be excluded for the purpose of filing of the application.  10. The application was not filed within a period of three months even if the period between 14th December, 2021 and 15th March, 2022 are excluded, still on showing sufficient cause for not preferring the application within the prescribed period of limitation, the appellant would have got a condonation of another thirty days. Unfortunately, the appellant being such a big organisation having battery of lawyers, law officers and the senior officers dealing with the matter did not take care of the period of limitation and the mandatory nature of subsection (3) of Section 34 of the Act of 1996. They have to blame themselves for this gross negligence on their part in not attending their matter within time. 

This is not the solitary case in which such inordinate delay has taken place. It is for the Railways to set their house in order and the means and ways by which it is to be taken care of or the responsibilities are to be fixed are in the domain of Railways." 

Sub-section (1) and sub-section (3) of Section 34 of the Act of 1996 reads: “34. Application for setting aside arbitral award.-(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).(2) …...(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.”

Justice Prasad relied on the two judgments of theSupreme Court on this issue. In Simplex Infrastructure Ltd. vs. Union of India reported in (2019) 2 SCC 455, the Supreme Court has held that condonation of delay beyond a period of limitation, even when applicant is the State and delay is owing to the administrative difficulties would be impermissible and in such cases, there would be no application under Section 5 of the Limitation Act. It reads: “11. Section 5 of the Limitation Act, 1963 deals with the extension of the prescribed period for any appeal or application subject to the satisfaction of the court that the appellant or applicant had sufficient cause for not preferring the appeal or making the application within the prescribed period. Section 5 of the Limitation Act, 1963 has no application to an application challenging an arbitral award under Section 34 of the 1996 Act. This has been settled by this Court in its decision in  Union of India vs. Popular Construction Company, (2001) 8 SCC 470 wherein it held as follows : (SCC pp. 474-75, paras 12 &14) “12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are “but not thereafter” used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase “but not thereafter” wholly otiose. No principle of of interpretation would justify such a result. 

The history and scheme of the 1996 Act supports the conclusion that the time-limit prescribed under Section 34 to challenge an award is absolute and unextendable by court under Section 5 of the Limitation Act. Section 14 of the Limitation Act, 1963 reads “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 23 of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on 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.”

Section 14 of the Limitation Act deals with the “exclusion of time of proceeding bona fide” in a court without jurisdiction, subject to satisfaction of certain conditions. The question whether Section 14 of the Limitation Act would be applicable to an application submitted under Section 34 of the 1996 Act has been answered by this Court in Consolidated Engg. Enterprises v. Irrigation Deptt., (2008) 7 SCC 169. 

Supreme Court observed:“23. At this stage it would be relevant to ascertain whether there is any express provision in the 1996 Act, which excludes the applicability of Section 14 of the Limitation Act. On review of the provisions of the 1996 Act, this Court finds that there is no provision in the said Act which excludes excludes the applicability of the provisions of Section 14 of the Limitation Act to an application submitted under Section 34 of the said Act. On the contrary, this Court finds that Section 43 makes the provisions of the Limitation Act, 1963 applicable to arbitration proceedings. The proceedings under Section 34 are for the purpose of challenging the award whereas the proceeding referred to under Section 43 are the original proceedings which can be equated with a suit in a court. Hence, Section 43 incorporating the Limitation Act will apply to the proceedings in the arbitration as it applies to the proceedings of a suit in the court. Sub-section (4) of Section 43, inter alia, provides that where the court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the court shall be excluded in computing the time prescribed by the Limitation Act, 1963, for the commencement of the proceedings with respect to the dispute so submitted. If the period between the commencement of the arbitration proceedings till the award is set aside by the court, has to be excluded in computing the period of limitation provided for any proceedings with respect to the dispute, there is no good reason as to why it should not be held that the provisions of Section 14 of the Limitation Act would be applicable to an application submitted under Section 34 ofthe 1996 Act, more particularly where no provision is to be found in the 1996 Act, which excludes the applicability of Section 14 of the Limitation Act, to an application made under Section 34 of the Act. It is to be noticed that the powers under Section 34 of the Act can be exercised by the court only if the aggrieved party makes an application. The jurisdiction under Section 34 of the Act, cannot be exercised suo motu. The total period of four months within which an application, for setting aside an arbitral award, has to be made is not unusually long. Section 34 of the 1996 Act would be unduly oppressive, if it is held that the provisions of Section 14 of the Limitation Act are not applicable to it, because cases are no doubt conceivable where an aggrieved party, despite exercise of due diligence and good faith, is unable to make an application within a period of four months. From the scheme and language of Section 34 of the 1996 Act, the intention of the legislature to exclude the applicability of Section 14 of the Limitation Act is not manifest. It is well to remember that Section 14 of the Limitation Act does not provide for a fresh period of limitation but only provides for the exclusion of a certain period. Having regard to the legislative intent, it will have to be held that the provisions of Section 14 of the Limitation Act, 1963 would be applicable to an application submitted under Section 34 of the 1996 Act for setting aside an arbitral award.”

Justice Prasad observed: "14. The position of law is well settled with respect to the applicability of Section 14 of the Limitation Act to an application filed under Section 34 of the 1996 Act. By applying the facts of the present case to the well-settled position of law, we need to assess whether the learned Single Judge of the High Court was justified in condoning the delay for filing an application under Section 34 of the 1996 Act.”

In Union of India vs. Popular Construction Co., reported in (2001) 8 SCC 470, the Supreme Court has held that the application challenging the award filed beyond the period mentioned in Section 34(3) would not be an application “in accordance with” subsection (3) as required under Section 34(1).

Justice Prasad concluded: 13. This Court has discussed both the judgments with the learned counsel for the appellant. Even as we have noticed that in its application under Section ‘5’ of the Limitation Act, 1963 filed before the learned District Judge, the appellant took a plea that the Hon’ble Supreme Court has directed for condonation of delay, if any, we are of the view that the blanket plea taken by the appellant before the learned District Judge has no basis to stand."

Justice Sunil Dutta Mishra dismisses civil review at the stage of admission in a case under Section 16(c) of the Specific Relief Act, 1963

In Radha Krishna Prasad vs. Ram Bilash Prasad & Ors. (2026), Patna High Court's Justice Sunil Dutta Mishra delivered a 10-page long judgement dated January 30, 2026.  The review application was filed under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 against the judgment dated October 21, 2024 passed by the High Court in a First Appeal of 2008 whereby the appeal preferred by the review petitioner/appellant was dismissed affirming the judgment and decree dated November 29, 2007 passed by the Trial Court in a Title Suit of 2004 filed by the review petitioner/appellant. 

Justice Mishra judgement concluded:"13. This Court also finds no merit in the submission that the impugned judgment suffers from an error apparent on the face of the record. The findings returned in the First Appeal are reasoned findings based on appreciation of evidence and application of settled legal principles governing suits for specific performance. An alleged erroneous conclusion or a possible alternative view does not constitute an error apparent warranting review under Order XLVII Rule 1 of the C.P.C. 14. In view of the foregoing discussion, this Court is of the considered opinion that none of the grounds urged in the review application satisfies the statutory parameters laid down under Order XLVII Rule 1 of the C.P.C. The petitioner has failed to point out any error apparent on the face of the record or any other sufficient reason warranting interference with the judgment under review. Consequently, the review petition is devoid of merit and is liable to be dismissed. 15. Accordingly, the instant civil review is dismissed at the stage of admission. 16. There shall be no order as to costs."

The Court recorded that it was apparent from the record that the review petitioner/appellant had filed the suit for specific performance of contract for sale on the basis of agreement for sale dated January 25,  2002 claiming that defendants/respondents failed to comply the terms of the said contract and avoided the execution and registration of sale deed, while the plaintiff (petitioner/appellant) was always willing and ready to perform his part of contract to pay the balance consideration of money. As per the defendants, defendant no.1 had received Rs.60,000/- as advance from plaintiff and executed an agreement for sale dated 18.09.2001 in his favour for a total sum of Rs.2,70,000/-. The said agreement was prepared in duplicate, one copy remained with plaintiff and one copy with defendant. The case of the defendant was that he signed the document dated January 25, 2002 for extension of period believing the words of plaintiff and he had not received any amount of Rs.60,000/- as advance from the plaintiff. The Trial Court dismissed the Title Suit of 2004 on contest filed by petitioner/appellant/plaintiff vide judgment and decree dated November 29, 2007 wherein it was held that the agreement for sale of the suit land between the parties was executed on September 18, 2001 after receiving Rs.60,000/- as advance amount, for consideration amount of Rs.2,70,000/- for two kattha i.e. at the rate of Rs.1,35,000/- per kattha and alleged agreement of sale dated January 25, 2002 was indirectly extension of time period of the agreement of sale dated September 18, 2001 which was done taking trust under the circumstances whereby inserting the less rate of agreed consideration amount and accordingly, the agreement of sale dated January 25, 2002 was not a valid and legal document.  

The First Appeal No.15 of 2008 was filed by the petitioners was dismissed by the High Court vide a 25-page long judgment dated October 21, 2024 by Justice Mishra. He had relied on the decision of the Supreme Court in Aloka Bose vs. Parmatma Devi & Ors. reported in AIR 2009 SC 1527 wherein it was noted that all agreements of sale are bilateral contracts as promises are made by both. The vendor agreeing to sell and purchaser agreeing to purchase. It cannot be said that unless agreement is signed both by vendor and purchaser, it is not a valid contract. Even an oral agreement of sale is valid. If so, a written agreement signed by one of the parties, if its evidences such as oral agreement will also be valid. Moreover, in India, an agreement of sale signed by vendor alone and delivered to the purchaser and accepted by the purchaser has always been considered to be a valid contract and in the event of breach by the vendor, it can be specifically enforced by the purchaser. He had observed: "23. The law is now well settled that even where the agreement of sale is not registered, the document can be received as evidence for considering the relief of specific performance and the inadmissibility will confine only to the protection sought under Section 53-A of the Transfer of Property Act. The Hon’ble Supreme Court in R. Hemlata Vs. Kashturi reported in 2023 SCC OnLine 381 observed that unregistered agreement to sell in question shall be admissible in evidence in a suit for specific performance and the proviso is exception to the first part of Section 49. In K.B. Saha and Sons Pvt. Limited Vs. Development Consultant Limited reported in (2008) 8 SCC 564, the Hon’ble Supreme Court held that a document is required to be registered, but if unregistered can still be admitted in evidence of a contract in a suit for specific performance." 

In P. Ravindranath & Anr. vs. Sasikala & Ors. reported in 2024 SCC OnLine SC 1749, teh Supreme Court observed: “Relief of specific performance of contract is a discretionary relief. As such, the courts while exercising power to grant specific performance of contract, need to be extra careful and cautious in dealing with the pleadings and the evidence in particular led by the plaintiffs. The plaintiffs have to stand on their own legs to establish that they have made out case for grant of relief of specific performance of contract. The Act, 1963 provides certain checks and balance which must be fulfilled and established by the plaintiffs before they can become entitled for such a relief. The pleadings in a suit for specific performance have to be very direct, specific and accurate. A suit for specific performance based on bald and vague pleadings must necessarily be rejected. Section 16(c) of the 1963 Act requires readiness and willingness to be pleaded and proved by the plaintiff in a suit for specific performance of contract. The said provision has been widely interpreted and held to be mandatory.”  

The law is well settled that relief of specific performance, the plaintiff has to prove that he was ready and willing to perform the part of contract. It has been held in U.N. Krishnamurthy (since deceased) thr. LRs. Vs. A.M. Krishnamurthy (2022) SCC OnLine SC 840. 

Supreme Court in His Holiness Acharya Swami Ganesh Dassji Vs. Sita Ram Thapar reported in (1996) 4 SCC 526 has made a distinction between ‘readiness’ and ‘willingness’ and the manner in which the said parameters are to be scrutinized in deciding a suit for specific performance. It is observed therein that by readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price for determining his willingness to perform his part of the contract, the conduct has been properly scrutinized. The factum of readiness and willingness to perform plaintiff’s part of contract is to be adjudged with respect to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances where the plaintiff was ready and was always ready and willing to perform his part of the contract. Both readiness as well as willingness have to be established by the plaintiff on whom the burden is cast in a suit for specific performance of an agreement. Therefore, the question would arise as to “whether the plaintiff discharged such burden in the instant case”. The plaintiff has failed to discharge his burden to prove that he was ready and willing to perform his part of contract. The plaintiff never agreed to pay the remaining consideration amount i.e. Rs.2,10,000/- as per the agreement of sale dated 18.09.2001.

Supreme Court in K.S. Vidyanadam & Ors. vs. Vairavan reported in (1997) 3 SCC 1 has held that every suit for specific performance need not be decreed because it is filed within the period of limitation by ignoring the time limits stipulated in the agreement. The Court will also “frown” upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait 1 or 2 years to file a suit and obtain specific performance. The three-year period is intended to assist the purchasers in special cases as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser. These observations were reiterated in Saradamani Kandappan vs. S. Rajalakshmi and Ors. reported in (2011) 12 SCC Justice Mishra noted: "32. In my view, the conduct of plaintiff was not reflective of his readiness as well as willingness on his part to pursue the agreement of sale of the suit land, in terms of Section 16(c) of the Act." 

Section 16(c) of the Specific Relief Act, 1963 mandates “readiness and willingness” on part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. The Courts will apply greater scrutiny and strictness when considering whether the purchaser was ready and willing to perform his part of contract.

The Supreme Court in Basavaraj vs. Padmavathi & Anr. reported in (2023) 4 SCC 239 referred to the judgment in  Ramrati Kuer vs. Dwarika Prasad Singh reported in AIR 1967 SC 1134 : 1967 (1) SCR 153, Indira Kaur & Ors. vs. Sheo Lal Kapoor reported in (1988) 2 SCC 488 and subsequent decision in Beemaneni Mahalakshmi vs. Gangumalla Appa Rao (since dead) by LRs. reported in (2019) 6 SCC 233 (para-14) on the aspect of readiness and willingness on the part of buyer. It was observed and held that unless the plaintiff was called upon to produce the passbook, accounts or documentary evidence either by the defendant or the Court orders him to do so, no adverse inference can be drawn against the plaintiff as to whether he had the means to pay the balance consideration. 

Upon perusal of judgment of the Trial Court, considering facts and circumstances of the case and materials available on record, the High Court had upheld the judgment of the Trial Court that the agreement of sale (Bai Beyana) with respect to suit land was executed by defendant in favour of the plaintiff on September 18, 2001 in which consideration amount with respect to the suit land was Rs.1,35,000/- per kattha. It was observed by this Court that the petitioner herein was not entitled to get the decree of specific performance on the basis of alleged agreement of sale dated January 25, 2002 and accordingly, the suit was liable to be dismissed. The counsel for the petitioner submitted that the impugned judgment suffered from error apparent on the face of the record and was passed with material irregularity in exercise of its jurisdiction. The counsel assailed the finding recorded by the High Court in the First Appeal to the effect that the  Trial Court had rightly held the agreement for sale dated September 18, 2001, fixing the consideration at Rs.1,35,000/- per kattha and that the plaintiff was not entitled to a decree for specific performance on the basis of the agreement dated January 25, 2002. It was submitted that the said finding suffers from an error apparent on the face of the record inasmuch as this Court proceeded on the erroneous premise that the agreement for sale dated January 25, 2002 on which the plaintiff case is based is not a valid and enforceable document and the original agreement for sale dated September 18, 2001 was a valid document. 

A supplementary affidavit has been filed on behalf of petitioner in the Review Application to bring on record a copy of “List of Document produced by the accused (defendant/respondent no.1) on September 16, 2004 in Complaint Case of 2003” to show that original copy of Bai Beyana deed dated September 18, 2001 was in custody of defendant no.1 and falsify the case of defendant no.1 that he executed Bai Beyana deed on September 18, 2001 in favour of plaintiff and handed over the original copy of the same to the plaintiff. 

The counsel for the petitioner submitted that the original copy of alleged Bai Beyana deed dated September 18, 2001 was never given to the plaintiff and the same is false and fabricated by defendant no.1 and the plaintiff did not conceal the fact regarding the previous agreement to sell. He also submitted that the finding in para 36 of the judgment with respect to concealment of fact regarding the previous agreement to sell was apparently an error on the face of record. He further submitted that non-consideration of this crucial circumstance materially affected the finding recorded in the impugned judgment and, therefore, the present case squarely falls within the permissible parameters of review.

The settled legal position is that the scope of review under Order XLVII Rule 1 of the C.P.C. is extremely limited, and that a review court does not sit in appeal over its own judgment, nor can it re-appreciate evidence or correct an alleged erroneous decision on merits, unless the error complained of is manifest, patent, and apparent on the face of the record. A judgment may be reviewed only on discovery of new and important matter or evidence, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason analogous thereto.

In Malleeswari vs. K. Suguna & Anr. reported in 2025 SCC OnLine SC 1927, the Supreme Court  enumerated the scope of civil review under Order XLVII Rule 1 read with Section 114 of the C.P.C. as herein under:
“15. It is axiomatic that the right of appeal cannot be assumed unless expressly conferred by the statute or the rules having the force of a statute. The review jurisdiction cannot be assumed unless it is conferred by law on the authority or the Court. Section 114 and Order 47, Rule 1 of CPC deal with the power of review of the courts. The power of review is different from appellate power and is subject to the following limitations to maintain the finality of judicial decisions:
15.1 The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC.
15.2 Review is not to be confused with appellate powers, which may enable an appellate court to correct all manner of errors committed by the subordinate court.
15.3 In exercise of the jurisdiction under Order 47 Rule 1 of CPC, it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered, has a limited purpose and cannot be allowed to be an appeal in disguise. 
15.4 The power of review can be exercised for the correction of a mistake, but not to substitute a view. Such powers can be exercised within the limits specified in the statute governing the exercise of power.
15.5 The review court does not sit in appeal over its own order. A rehearing of the matter is impermissible. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. Hence, it is invoked only to prevent a miscarriage of justice or to correct grave and palpable errors. 
16. To wit, through a review application, an apparent error of fact or law is intimated to the court, but no extra reasoning is undertaken to explain the said error. The intimation of error at the first blush enables the court to correct apparent errors instead of the higher court correcting such errors. At both the above stages,
detailed reasoning is not warranted.
17. Having noticed the distinction between the power of review and appellate power, we restate the power and scope of review jurisdiction. Review grounds are summed up as follows:
17.1 The ground of discovery of new and important matter or evidence is a ground available if it is demonstrated that, despite the exercise of due diligence, this evidence was not within their knowledge or could not be produced by the party at the time, the original decree or order was passed.
17.2 Mistake or error apparent on the face of the record may be invoked if there is something more than a mere error, and it must be the one which is manifest on the face of the record. Such an error is a patent error and not a mere wrong decision. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.
17.3 Lastly, the phrase ‘for any other sufficient reason’ means a reason that is sufficient on grounds at least analogous to those specified in the other two categories.”
10. This Court has given anxious consideration to the submissions advanced on behalf of the petitioner and has carefully examined the supplementary affidavit, perused the materials on record and considered the settled principles governing the scope of review jurisdiction.

Drawing on these parameters, Justice Mishra observed:"....this Court finds that the document filed and relied upon by the petitioner herein in this review application, i.e., ‘List of Document produced by defendant in Complaint Case No.291(C) of 2003’ to show that the original Bai Beyana dated 18.09.2001 was in custody of defendant no.1, does not conclusively establish that the agreement for sale dated 18.09.2001 was not executed or that it was fabricated, nor does it, by itself, dislodge the concurrent findings recorded by the learned Trial Court and affirmed by this Court in the First Appeal. The mere fact that the original Bai Beyana deed was produced from the custody of the opposite party no.1/defendant at a later point of time or was summoned from another court does not necessarily negate its execution or invalidate the findings arrived at on the basis of oral and documentary evidence already considered. Such a contention, in substance, seeks a re-evaluation of evidence and reassessment of factual conclusions, which is impermissible within the limited scope of review jurisdiction. 12. Furthermore, this Court is of the considered view that the said document filed on behalf of petitioner in this Review Application by way of supplementary affidavit does not have such determinative evidentiary value as would have inevitably altered the conclusion reached in the First Appeal. The findings recorded therein were based on a holistic appreciation of pleadings, evidence and surrounding circumstances, and not solely on the aspect of custody of the original agreement dated 18.09.2001." 

Period for limitation would be counted from the date of grant of probate: Patna High Court

In Gupteshwar Prasad vs. Dina Nath Prasad (2025), Patna High Court's Justice Anshuman as part of the Division Bench along with Justice Bibek Chaudhary delivered a 29-page long judgment dated December 18, 2025, wherein, he concluded:"Article 137 of the Limitation Act, 1963 is applicable on application for issuance Probate/Letters of Administration and application for revocation of Probate/Letters of Administration. An application for issuance of probate/letters of administration under Article 137 of the Limitation Act does not create any absolute bar; rather it confers a continuous right, which may be exercised at any time after the death of the deceased as long as right to do so survives. But, Article 137 creates a situation wherein a delay beyond three years after death of the deceased give rise to suspicion, and greater the delay, greater would be the suspicion. But such delay must be explained in accordance with the provisions laid down in Sections 4 and 5 of the Limitation Act, 1963. Once execution and attestation are proved, suspicion of delay no longer operates. But, on the other hand, application for cancellation or revocation for grant of probate/letters of administration shall create absolute bar if the concerned party does not approach the court of law within the period of limitation, and the period of limitation shall be counted from the date of grant of probate due to the reason that the grant of probate by a competent Court operates as a judgment in rem and once the probate or Will is granted, such probate is good with respect to parties to the proceeding as well as for the whole world. The reference is hereby answered. 15. After answering the reference it shall be appropriate for this Court to direct the office to place all the first appeals before appropriate Bench for consideration on merit." 

Justice Dr. Anshuman relied upon the decision of the Supreme Court in Lynette Fernandes vs. Gertie Mathias, (2018) 1 SCC 271 ::2018 (1) BLJ 92 (SC), wherein it dealt with the precise issue of the period of limitation applicable for an application for cancellation of a probate or letters of administration. This court held as follows:
"One must keep in mind that the grant of probate by a Competent Court operates as a judgment in rem and once the probate to the Will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation Under Article 137 of the Limitation Act in proceedings for revocation of probate. In this matter, as mentioned supra, the Appellant was a minor at the time of grant of probate. She attained majority on 09.09.1965. She got married on 27.10.1965. In our considered opinion, three years limitation as prescribed Under Article 137 runs from the date of the Appellant attaining the age of majority i.e. three years from 09.09.1965. The Appellant did not choose to initiate any proceedings till the year 25.01.1996 i.e., a good 31 years after she attained majority. No explanation worthy of acceptance has been offered by the Appellant to show as to why she did not approach the Court of law within the period of limitation. At the cost of repetition, we observe that the Appellant failed to produce any evidence to prove that the Will was a result of fraud or undue influence. The same Will has remained unchallenged until the date of filing of application for revocation. No acceptable explanation is offered for such a huge delay of 31 years in approaching the Court for cancellation or revocation of grant of probate.

In paragraph-17 of the said judgment it has been held that the petition for revocation of letters of
administration was time barred. Upon bare reading of the above mentioned discussion of all the decisions, particularly, three Judges Bench, it transpires to us that the following types of petitions are filed under the Succession Act, particularly, relating to issuance of probate/letters of administration:
I. Application for issuance of probate;
II. Application for issuance of letters of administration;
III. Application for revocation of probate;
IV. Application for revocation of letter of administration;

Dr. Anshuman observed:"14. So far as the right to apply for probate accrues on the date of death of testator, the application for grant of probate or letters of administration is not an application in law, but is an application for grant of probate or letters of administration for the Court’s permission to perform a legal duty created by a Will or for recognition as a testamentary trusty. It is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed. So far as the restriction casted in the judgment of Kunvarjeet Singh Khandpur (supra) and Krishna Kumar Sharma (supra), it is only to the extent that Article 137 of the Limitation Act shall not create any absolute bar on an application for grant of probate or letters of administration; rather it is a continuous right which can be exercised any time after death of the deceased as long as the right to do so survives. Delay beyond three years after death of the deceased would create suspicion, and greater the delay, greater would be the suspicion. Such delay must be explained but cannot be equated with an absolute bar of limitation and once execution and attestation are proved, suspicion of delay no longer operates. But Hon’ble three Judges Bench in Ramesh Nivrutti Bhagwat (supra) creates absolute bar in filing of an application for cancellation or revocation for grant of probate. If the concerned party does not approach the court of law within the period of limitation, then, according to law laid down by Hon’ble Supreme Court, the petition for revocation of letters of administration would be time barred and period for limitation would be counted from the date of grant of probate, as the grant of probate by a competent Court operates as a judgment in rem. Once the probate to the Will is granted, then such probate is good not only in respect of the parties to the proceeding but also against the world at large and if probate is granted, the same operates from the date of grant of probate for the purpose of limitation under Article 137 of the Limitation Act in proceeding for revocation of probate as held in Lynette Fernandes (supra)." 

Notably, the First Appeal was filed in 2001 against the Judgment and decree dated June 22, 2001 passed by the District Judge, Gopalganj, in a Title Suit of 1987. First Appeal was filed against the judgment and decree dated June 22, 2001 passed by the District Judge, Gopalganj, in Probate Case of 1997 and First Appeal of 2003 was filed against the judgment and decree dated May 28, 2003 passed in the Title Suit of 1992, which arose out of Probate case of 1990 by the 1st Additional District Judge, Buxar, by which the suit was allowed in favour of the plaintiff-respondent by granting probate to the defendant-appellant. 

Consequent thereupon, the matter relating to date of reckoning, needs authoritative adjudication in consonance with the event of accrual of cause of action and found plausible in view of Section 211(2) as well as 213 of the Act and for that question was formulated in a 27-page long order dated February 27, 2020 by Justice Aditya Kumar Trivedi, the Single Bench. The formulated question reads:“What would be meaning of accrual of cause of action for the purpose of reckoning the period in the background of intricacies having been referred hereinabove in the context of principle laid down by the Apex Court as referred hereinabove relating to applicability of Article 137 of the Limitation Act, 1963 relating to a petition for probate/letter of administration?”.

The question which was framed and the matter was placed before the Division Bench after taking permission of the Chief Justice, these appeals came before the Division Bench for answering those questions of reference, which was acknowledged in order by the Division  Bench of Justices Bibek Chaudhuri and Dr. Anshuman dated November 17, 2025 that is to say applicability of Article 137 of the Limitation Act, 1963 as well as relating to the starting point of applicability in a petition for probate/letters of administration under Indian Succession Act. This order was authored by Justice Chaudhary, who noted that Justice Trivedi, the Single Bench had referred the matter on the question of applicability of Article 137 of the Limitation Act relating to the starting point of applicability in a petition for probate/letters of administration under Indian Succession Act. 

The First Appeal was filed and registered in the High Court on August 30, 2001.  

Limitation on Suits, Appeal Suits and Applications and Computation of Period of Limitation

In Bombay Dyeing and Manufacturing Company vs. the State of Bombay (1957), the Supreme Court established a crucial legal principle that the statute of limitations acts as a bar to legal remedies rather than extinguishing underlying rights. This means that while the passage of time may prevent someone from seeking a remedy through legal action, it does not nullify or erase their fundamental legal entitlements or claims.

The limitation period starts from the date the "cause of action" arises, which is the date when the right to sue accrues. The Supreme Court in Trustee’s Port Bombay vs. The Premier Automobile (1971) held that the starting point of limitation is the accrual of the cause of action. 

In certain situations, the court may condone a delay in filing an appeal or application, if there are sufficient cause. Section 31 of the ‘Limitation Act’ provides for the retrospective and prospective effect of the act.  

The Supreme Court in Thirumalai Chemicals Ltd vs. Union of India (2011) observed that statutes of limitation are retrospective so far as they apply to all legal proceedings brought after their operations for enforcing causes of action accrued earlier.

The limitation on suits, appeal suits, and petitions is governed by the Limitation Act, 1963, which specifies different time frames depending on the type of claim, with common periods including 3 years for most contract-related claims, 12 years for suits related to immovable property possession, and a 90-day window for most appeals to the High Court from a lower court decision. Most laws either specifically mention that the provisions of the Limitation Act willy apply or they specify the limitation period. Foe example, Section 24 of the Recovery of Debts and Bankruptcy Act, 1993 states that the "provisions of the Limitation Act shall, as far as may be, apply to an application made to a Tribunal." 

The law of limitation only bars the judicial remedy and does not extinguish the right. In other words, the statute of limitation prescribesonly the period within which legal proceedings must be initiated. In the case of Punjab National Bank and Ors vs. Surendra Prasad Sinha (1992), the Supreme Court held that the rules of limitation are not meant to destroy the rights of the parties. Section 3 only bars the remedy but does not destroy the right which the remedy relates to. Section 3 of the Limitation Act bars remedies but preserves the enforceability of rights, emphasizing that while access to legal recourse may expire, the fundamental entitlements endure beyond the specified time frame.

The Limitation Act is divided into five parts. It has one Schedule. Originally, it had 32 Sections but later Sections 28 and 32 were repealed. 

Part I has 2 Sections which deal with title, extent, commencement and definitions (Sections 1-2). Section 2 (j) of the Limitation Act, 1963, defines ‘period of limitation’. It means the period of limitation prescribed for any suit, appeal or application by the Schedule, and ‘prescribed period’ means the period of limitation computed in accordance with the provisions of the Act.

Part II has 9 Sections which deal with limitation on suits, appeals, and applications, bar of limitation, expiry of prescribed period when court is closed, extension of prescribed period in certain cases, legal disability, disability of one of several persons, special exceptions, continuous running of time, suits against trustees and their representatives and suits on contracts entered into outside the territories to which the Act extends (Sections 3-11). 

Part III has 13 Sections which deal with computation of period of limitation, exclusion of time in legal proceedings, exclusion of time in cases where leave to sue or appeal as a pauper is applied for, exclusion of time of proceeding bona fide in court without jurisdiction, exclusion of time in certain other cases, effect of death on or before the accrual of the right to sue, effect of fraud or mistake, effect of acknowledgment in writing, effect of payment on account of debt or of interest on legacy, effect of acknowledgment or payment by another person, effect of substituting or adding new plaintiff or defendant, continuing breaches and torts, suits for compensation for acts not actionable without special damage and computation of time mentioned in instruments (Sections 12-24).

Part IV has 3 Sections which deal with acquisition of ownership by possession, acquisition of easements by prescription, exclusion in favour of reversioner of servient tenement and extinguishment of right to property (25-27).

Part V has 5 Sections but two of its Sections have been repealed. It deals with savings, provision for suits, etc., for which the prescribed period is shorter than the period prescribed by the Indian Limitation Act, 1908 and provisions as to barred or pending suits, etc. 

Section 29 of the Limitation Act reads: ''Savings.—(1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872). (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. (3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law. (4) Sections 25 and 26 and the definition of “easement” in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend.''

The Schedule provides description of suit, period of limitation and time from which period begins to run. It contains 137 Articles in the act which provide for periods of limitation. These 137 Articles in total are contained in three divisions:
First Division - Suits (Article 1-113), Second Division - Appeals (Articles 114-117) and Third Division - Applications (Articles 118-137). 

The law relating to Law of Limitation in India is the Limitation Act, 1859 and subsequently Limitation Act, 1963 which was enacted on October 5, 1963 came into force from January 1, 1964 for the purpose of consolidating and amending the legal principles relating to limitation of suits and other legal proceedings. 

Examples of limitation periods
Suit for recovery of money due on a contract: 3 years
Suit for possession of immovable property: 12 years
Suit for compensation for tort (personal injury): 1 year
Appeal to High Court from a District Court: 90 days

Positive exercise of discretion for condonation of delay should not be normally disturbed by superior court: Supreme Court

In Principal Secretary Road Construction Department, Government of Bihar & Ors. vs. Punam Kumari Sharma & Ors. (2025), Patna High Court's Justice Khatim Reza condoned the delay in filing the memo of appeal in positive exercise of discretion in his judgement dated January 20, 2025. Punam Kumari Sharma from Muzaffarpur filed a Special Leave of Appeal (Civil) on February 14, 2025 in the Supreme Court. It was registered on February 27. The case was last listed on March 7, 2025 before Court's Division Bench of Justices J.K. Maheshwari and and Prashant Kumar Mishra. It is likely to be listed on April 8, 2024.

In his order, Justice Reza has relied on the decision of the Supreme Court in Balakrishnan vs. M. Krishnamurthy reported in 1998 (7) SCC 123, wherein it has been held as follows:-"It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court." The other three appellants in the case are: Engineer in Chief Road Construction Department, Superintending Engineer Road Construction Department, Muzaffarpur and Executive Engineer Road Construction Department, Muzaffarpur. The two other respondents are: State of Bihar through District Collector, Muzaffapur and the Circle Officer, Kanti, Muzaffarpur. The case was filed and registered in the High Court on November 27, 2018.  

The following cases were relied upon by the counsels during the course of hearing in the High Court:

In Pathapati Subba Reddy (Died) By L.Rs. & Ors. vs. The Special Deputy Collector (LA) decided on April 8, 2024 wherein in paragraph no. 26, the Supreme Court has held that “On a harmonious consideration of the provision of law and the law laid down by this Court, it is evident that:-

(i). Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;

(ii). A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;

(iii). The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;  

(iv). In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; 

(v). Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;  

(vi). Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;

(vii). Merits of the case are not required to be considered in condoning the delay; and

(viii). Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.”

In Ajay Dabra vs. Pyare Ram reported in 2023 SCC Online SC 92, Supreme Court has held as follows:-"13. This Court in the case of Basawaraj vs. Special Land Acquisition Officer [(2013) 14 SCC 81] while rejecting an application for condonation of delay for lack of sufficient cause has concluded in Paragraph 15 as follows: 'The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the 'sufficient cause' which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamount to showing utter disregard to the legislature.'  Thus, it is crystal clear that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case and that, the expression 'sufficient cause' cannot be liberally interpreted, if negligence, inaction or lack of bona fides is attributed to the party."

In Majji Sannemma @ Sanyasirao vs. Reddy Sridevi & Ors. reported in 2021 SCC Online SC 1260, Supreme Court has held that “even though limitation may harshly affect the rights of a party, it has to be applied with all its rigour when prescribed by statute.” 

In Municipal Council Ahmed Nagar & anr. vs. Shah Haidar Beg & Ors. reported in 2000 (2) SCC 48, the Supreme Court observed: "The real test for the sound exercise of discretion by the High Court in this regard is not the physical running of time as such but the test is whether by reason of delay, there is such negligence on the part of the appellant so as to infer that he has given up his claim or where the appellants have moved the writ court, the rights of third party have come into being which should not be allowed to be disturbed unless there is reasonable explanation for the delay.” 

 Also read: Patna High Court's Division Bench sets aside judgement of High Court's Single Judge Bench on law of limitation on delay

Suit for negative declaration that defendant is not legally married to plaintiff is maintainable: Bombay High Court

In Haridas Mahadev Sasne vs. Tejasvini Krushna Bhosale (2025), Bombay High Court's Justice N.  J. Jamadar held that "a suit for a negative declaration that the defendant is not legally married to the plaintiff is maintainable Consequently, the civil Judge can not be said to have committed any error in rejecting the application for rejection of the plaint" and rejected the civil revision application in its order dated March 6, 2025. The case was filed on February, 6, 2024. 

It is a case wherein the plaintiff, the complainant sought a declaration that no marriage occurred between her and the defendant, who falsely claimed marital status. 

The Court observed: the submission that a suit for mere declaration without any consequential relief, is not maintainable also does not carry much conviction. In a case of the present nature, the declaration about the marital status itself assumes the character of a substantive relief. The plaintiff in such a case is not required to seek any further relief. The declaration of marital status bears upon the rights and obligations of the parties and also serves the purpose of vindication of legal character."

A pivotal question of law which arose for consideration, in the revision application, was “whether a suit for declaration simpliciter that there is no marital relationship between the plaintiff and the defendant, is maintainable” ? 

The plaintiff and the defendant were residents of the same village. They were acquainted with each other. The defendant took undue advantage of the proximity, and falsely claimed that defendant’s marriage was solemnized with the plaintiff on September 21, 2018 at Janjagruti Matrimonial Alliance Center, Chiplun. Asserting that no valid marriage was ever solemnized between the plaintiff and the defendant and the latter was falsely claiming that the plaintiff is the wife of the defendant, the plaintiff instituted a suit for a declaration that no marriage was solemnized between the plaintiff and the defendant on September 21, 2018 or on any other day, at Janjagruit Matrimonail Alliace Center, Chiplun or at any other place. The defendant appeared and resisted the suit. The defendant also filed an application for rejection of the Plaint under Order VII Rule 11 of the Civil Procedure Code asserting that the plaintiff was seeking a negative declaration that no marriage was solemnized between the plaintiff and the defendant. Such a negative declaration cannot be granted under the provisions of Section 34 of the Specific Relief Act 1963. Thus, there was a bar to the Suit seeking negative declaration. Resultantly, the Plaint was liable to be rejected under Order VII Rule 11 of the Code.

The plaintiff resisted the application for rejection of the Plaint contending that if the averments in the plaint are read as a whole, it cannot be said that the plaintiff is seeking a negative declaration. Moreover, the Suit cannot be said to have been instituted under the provisions of Section 34 of the Act of 1963 only. The plaintiff was entitled to seek declaratory relief under Section 9 and Order VII Rule 7 of the Code de hors the provisions contained in Section 34 of the Act of 1963. At any rate, the plaintiff was seeking a declaration as to her status, and, therefore, the purported bar under Section 34 of the Act of 1963 was inapplicable. 

The civil judge was persuaded to reject the application observing that a suit of the present nature for negative declaration was maintainable. The relief sought by the plaintiff was of a substantive nature. Thus, there was no substance in the application. Being aggrieved, the defendant has invoked the revisional jurisdiction.

The counsel for the respondent took the Court through the Plaint, averments in the application for rejection of the Plaint and the reply. He urged

that a person is not entitled to seek a negative declaration under Section 34 of the Act of 1963. It was submitted that the text of Section 34 of the Act of 1963 warrants that the person seeking a declaration must claim to be entitled to any legal character, status or right. A declaration that the plaintiff is not married to the defendant does not

fall within the ambit of the main part of Section 

In the case at hand, the plaintiff is seeking a mere declaration without any consequential relief. Therefore, the proviso to Section 34 of the Act, 1963 precludes the Court from granting a mere declaration. In these circumstances, according to counsel for the respondent a declaratory suit of the present nature is clearly barred. He urged that though there is a conflict of views of the different High Courts on the aspect of maintainability of such a suit, a Division Bench Judgment of Karnataka High Court in the case of Bhuvaneshwari vs . Revappa Alias Rani Siddaramappa Kolli (Since Deceased) by L.Rs 2009 SCC OnLine Kar 738 has categorically ruled that a relief seeking negative declaration as to marriage is beyond the scope of the provisions contained in Section 34 of the Act of 1963. The decision to the contrary by Calcutta High Court in the case of Joyita Saha vs. Rajesh Kumar Pande, AIR 2000 Calcutta 109 does not adequately deal with this aspect. Therefore, the decision in the case of Bhuvaneshwari case commands more persuasive value.

The counsel for the respondent, submitted that the declaration sought in the instant case cannot be said to be negative in character. Section 34 of the Act of 1963 is not the sole source of a declaratory relief. Section 9 of the Code is expansive enough to include a Suit for declaration that the defendant, who falsely claims to be married to the plaintiff, is not the husband of the plaintiff. Therefore, the very premise of the application for the rejection of the Plaint on the count that Section 34 of the Act of 1963 bars a Suit of the present nature, is flawed. He also submitted that the judgment of the Karnataka High Court can not be construed to lay down the ratio that a Suit for a declaration that the plaintiff is not married to the defendant cannot be instituted. The controversy in the case before the Karnataka High Court was regarding the maintainability of a Suit seeking a declaration that the defendant was not the wife of the plaintiff, before the Family Court. Adverting to the provisions contained in Section 7 of the Family Courts Act, 1984 the Karnataka High Court ruled that a relief in the nature of a negative declaration in respect of a marriage does not fall within the ambit of the provisions contained in the Explanation to Section 7 of the Family Courts Act, 1984. 

He further submitted that the Division Bench of Karnataka High Court has made a passing observation that the relief of the instant nature is beyond the scope of section 34 of the Act, 1963. The Court has not considered the issue elaborately. The provisions and precedents which govern the field have not been considered. Thus, the said decision can be said to be a precedent sub silentio. To this end, reliance was placed on a Supreme Court judgment in the case of A-One Granites vs. State of U.P. and Ors. (2001) 3 SCC 537.

According to him, as a matter of principle, it cannot be said that a suit for negative declaration is not at all maintainable. The Court essentially deals with the legal character, right or status. The form of declaration is not material. He placed reliance on a judgment of Andhra Pradesh High Court in the case of Narhar Raj (died) by L.Rs and Ors. vs. Tirupathybibi and Anr. 2002 SCC OnLine AP 1032. wherein the Andhra Pradesh High Court held that a suit for a relief of negative declaration is maintainable.

The Court took note of the nature and contours of a declaratory decree. A declaratory decree, in effect, cements and strengthens the legal character, right or status a person asserts, and denied by another. A declaration as to legal character or status protects from adverse attacks on title to such right, character or status and obviates further litigation by putting a judicial imprimatur over such right, character or status. Ordinarily a declaratory relief is accompanied by the consequential relief. However, it is not inconceivable that, in a given case, declaration itself assumes the character of a substantive relief. Undoubtedly, in a vast majority of cases, declaratory relief is sought under section 34 of the Act, 1963. However, that is not the sole repository of the power to grant a declaration. A civil Court in exercise of its ordinary civil jurisdiction, referable to section 9 of the Code, may grant a declaration dehors the provisions contained in section 34 of the Act, 1963.

In order to appreciate the submissions of the  counsel for the applicant, the provisions of section 34 of the Specific Relief Act, 1963 was cited. It reads: "Discretion of court as to declaration of status or right.—Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its

discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

A bare perusal of the provision indicates that any person entitled to any legal character or any right in relation to any property, may sue for declaration. The words “character” and “property” are of expansive nature. To illustrate,

“character” may include the status and relation qua another person. The character may encompass within its scope an office, privilege and position with regard to a given entity. All attributes which the law vests in a person on account of an office, position, status or relation may fall within the ambit of the term “legal character”.

Secondly, the declaration can be sought against any person denying the first person’s title to such character or right, and also against any person interested to deny first person’s title to such legal

character or right.

Thirdly, the proviso to section 34, precludes the Court from granting a declaration simpliciter where the plaintiff though able to seek further consequential relief, than a mere declaration omits to do so. The proviso thus warrants a further inquiry whether in the facts of the case, the plaintiff is able to seek further consequential relief and yet omitted to do so. Obliviously the necessity and adequacy of consequential relief, in addition to declaration, would hinge upon the facts and circumstances of each case.

The declaration under section 34 of the Act, 1963 is, however, not exhaustive of the power of the civil Court to grant declaratory reliefs. A profitable reference, in this context, can be made to a judgment of the Supreme Court in the case of Vemareddi Ramaraghava Reddy and Ors. vs. Konduru Seshu Reddy and Ors. AIR 1967 Supreme Court 436 wherein the Supreme Court traced the development of the law with regard to declaratory action and enunciated that section 42 of the Specific Relief Act, 1877 (Old), was not exhaustive of cases in which a declaratory decree may be made and the civil Courts have the power to grant such declaration independent

thereof. The observation in the paragraph 11 reads: "In our opinion, s. 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the section. It follows, therefore, in the present case that the suit of the

plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of S. 42 of the Specific Relief Act."

The Supreme Court further expounded the law in the case of M/s. Supreme General Films Exchange Ltd. vs. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Ors. AIR 1975 Supreme Court 1810.  The Court enunciated that section 42 of the Specific Relief Act, 1877 merely gives statutory recognition to well recognized type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside Section 42.

The edifice of the submission of counsel for the applicant is that section 34 of the Act, 1963, bars the declaration, as sought in the instant case, and, therefore, the plaint deserves to be rejected stands dismantled. A civil Court is competent to grant a declaration regarding the marital status dehors the provisions contained in section 34 of the Act, 1963.

The Court examined as to whether a negative declaration as to marital status can be granted. First and foremost, from the phraseology of section 34 of the Act, 1963, an inexorable inference can not be drawn that such a negative declaration, cannot be made. The term legal character is of wide amplitude. The ‘marital status’ as a personal attribute and qua a particular person, squarely falls within the ambit of legal character. If a person can seek a declaration that he is legally weeded to the defendant, a fortiori , there does not seem any impediment in seeking a declaration that he is not married to the defendant. The negative form

of declaration is nothing but assertion of a particular positive marital status. If the defendant denies or is interested in denying such marital status asserted by the plaintiff, a declaration can be legitimately sought under the provisions of section 34 of the Act, 1963 itself.

The Court observed: "there seems to be a cleavage in the judicial opinion of the High Courts on the tenability of such a suit for negative declaration as to marital status." In the case of Bhuvaneshwari which constituted the sheet anchor of submission of counsel of the applicant, a Division Bench of Karnataka High Court while deciding the question as to whether a suit seeking declaration that the defendant is not the wife of the plaintiff is maintainable before the Family Court, after considering the provisions contained in section 7 of the Family Courts Act, 1984 which confers the jurisdiction upon a Family Court, held that the relief in the nature of negative declaration in respect of a marriage, is not tenable before the Family Court. After recording this view, the Division Bench ventured to add that the relief of such nature was even beyond the scope of section 34 of the Act, 1963. The observations in paragraph 22 of the judgment are relevant and hence extracted. It reads:-"In fact, we find a relief of this nature is even beyond the scope of Section 34 of the Specific Relief Act as a negative declaratory relief to declare that the marriage had never taken place, is not one that can come within scope of Section 34 of the Specific' Relief Act. Accordingly, when it is a relief that cannot be granted in law, there is no way the civil court can grant a declaratory relief."

A Division Bench of Calcutta High Court, in the case of Joyita Saha case ruled that since the marriage itself was denied and the prayer was made in the suit for a declaration that there was no marriage between the parties, the suit as framed was quite maintainable in law. The controversy, however, seems to have been settled by a decision of the Supreme Court in the case of Balram Yadav vs. Fulmaniya Yadav (2016) 13 SCC 308. In this case, the High Court of Chattisgarh had allowed an appeal against a decree passed by the Family Court to the effect that the respondent was not the legally married wife, on the ground that a negative declaration was outside the jurisdiction of the Family Court. Referring to the provisions contained in sections 7 and 8 of the Family Court Act, 1984 the Supreme Court held that in case there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative or negative relief. What is important is a declaration regarding marital status. 

The observations in paragraph 7 are material and hence it is extracted. It reads: "Under Section 7(1) Explanation (b), a Suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view which we have taken, since the Family Courts Act, 1984, has an overriding effect on other laws."

The counsel of the applicant attempted to distinguish this judgment by canvassing a submission that the ratio in this decision is restricted to the Family Court, and that a civil Court would not be empowered to grant negative declaration as to marital status. 

Bombay High Court observed: "The submission simply does not merit countenance." The High Court underlined that "the civil Court has power to grant declaratory relief even independently of section 34 of the Act, 1963. The principle that the form of declaration does not matter and it is the status or legal character with regard to which the Court makes the declaration that is of substance, applies with even greater force to the proceedings before the civil Court which has inherent jurisdiction to decide all suits of civil nature unless their cognizance is either expressly or impliedly barred."