The issue of limitation, when involving disputed facts and serious allegations, should not be treated as a preliminary issue and requires a full-fledged trial.

The present appeal is filed under Order 43 Rule 1(u) of CPC challenging the order of remand passed by the learned II Additional Senior Civil Judge, Belgaum in R.A.No.74/2010.

2. Heard the learned counsel for the appellant and perused the judgment of the trial Court passed by the IV Additional Civil Judge & JMFC, Belgaum in O.S.No.1148/2008 on 21.06.2010. Plaintiff had filed the suit initially for the relief of permanent injunction and later on got the suit converted into one for the main relief of declaration of title. On the basis of the written statement filed by the defendants therein, an issue regarding limitation has been framed and was heard as preliminary issue. The learned Judge of the trial Court has come to the conclusion that the suit filed in the year 2008 for the relief of declaration of title to the effect that the sale deed dated 12.05.1974 is null and void is barred by time. Hence, issue regarding limitation has been answered in the affirmative. This order dated 21.06.2010 passed on preliminary issue had been called in question before the II Additional Senior Civil Judge, Belgaum by filing a regular appeal under Section 96 of CPC in R.A.No.74/2010.

3. On hearing the counsel appearing for the parties and perusing the records of O.S.No.1148/2008, the learned Judge of the first appellate Court has come to the conclusion that question of limitation is a mixed question of both law and facts and hence such an issue should not have been treated as a preliminary issue. Therefore, the learned Judge of the first appellate Court has remanded the matter to the trial Court with a direction to consider the issue regarding limitation along with other issues after holding a full fledged trial. It is this order dated 21.01.2013 which is called in question on various grounds as set out in the appeal memo filed before this Court.

4. The learned Judge of the first appellate Court has elaborately dealt with the facts of the case and has come to the conclusion that issue regarding limitation should not have been treated as a preliminary issue and that necessary evidence is required, more particularly, in the light of a specific relief being sought to the effect that sale deed dated 12.05.1974 is the outcome of fraud and misrepresentation. Admittedly, the allegations of fraud and misrepresentation require full fledged evidence and such special pleas require necessary particulars. The burden of proof required to prove such allegations is almost akin to the burden of proof as is insisted in the trial of criminal cases. The assertion of plaintiff, as could be seen from the contents of the plaint, is that he has been in lawful possession of the suit property and that he has got the same renovated. Of course, this fact is denied in the written statement. Further allegation is that the father of the defendant No.1 was an influential and powerful politician and has played fraud on the plaintiff and has managed to obtain a sale deed. Therefore, such serious disputed facts cannot be decided in a preliminary issue regarding limitation.

5. Relying upon the decisions of the Apex Court reported in 2005(7) SCC 510 between Popat and Kotecha Property Vs. SBI, State Association, it is observed that disputed question regarding limitation will have to be gone into in a full fledged trial. It is useful to refer to paragraph 10 of the decision rendered in Popat and Kotecha Property’s case. Though Order 7 Rule 11(d) of CPC has been dealt with in the above case, it is virtually about the civil Court treating the aspect of limitation as a bar under law within the perview of Rule 11 (d) of Order 7 of CPC. Hence, paragraph 19 is very relevant and is reproduced below:

“Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only wh