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2007 Supreme(Pat) 329
PATNA HIGH COURT
Chandramauli Kumar Prasad, J.
Manorma Sinha
Versus
Krishna Sao
Civil Revision No. 2218 of 2005 ;
Decided On : FEBRUARY 13, 2007
The issue of limitation is a mixed question of law and fact and should be decided along with other issues at the time of final disposal of the suit.
Headnote:
Limitation - Civil Procedure - The court rejected the application to reject the plaint based on limitation as a preliminary issue, holding that the issue of limitation is a mixed question of law and fact and should be decided along with other issues at the time of final disposal of the suit.
Fact of the Case:
Defendants filed an application to reject the plaint based on limitation as a preliminary issue, which was rejected by the court. Defendants appealed, arguing that the court failed to exercise its jurisdiction by not deciding the question of limitation as a preliminary issue.
Finding of the Court:
The court found that the issue of limitation is a mixed question of law and fact and should be decided after the evidence is led by the party, along with other issues at the time of final disposal of the suit.
Issues: The main issue was whether the court should decide the question of limitation as a preliminary issue or along with other issues at the time of final disposal of the suit.
Ratio Decidendi: The court held that the issue of limitation is a mixed question of law and fact and should be decided along with other issues at the time of final disposal of the suit.
Final Decision: The application to reject the plaint based on limitation as a preliminary issue was dismissed by the court.
1. Defendants-petitioners, aggrieved by the order dated 22.8.2005 passed by the 2nd Munsif, Patna in T.S. No. 22 of 2000 dismissing the application filed under Order 7 Rule 11 of the Code of Civil Procedure for rejecting the plaint, has preferred this application.
2. Defendants-petitioners filed application under Order 7 Rule 11 of the Code of Civil Procedure for rejecting the plaint on the ground that the suit is barred by limitation. They prayed for the decision on the aforesaid question as a preliminary issue.
3. For the reason of the impugned order, said application has been rejected and it has been directed that the said issue shall be decided alongwith other issues at the time of disposal of the suit.
4. Mr. Keshav Srivastava, learned Counsel appearing on behalf of the petitioners, contends that the Court below failed to exercise its jurisdiction by not deciding the question of limitation as preliminary issue and as such, the order impugned is fit to be interfered with by this Court in exercise of its revisional jurisdiction. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of Saleem Bhai and Ors. vs. State of Maharashtra and Ors. (2003)1 SCC 557.
5. Mr. Kundan Bahadur Singh, however, appearing on behalf of the opposite party, contends that the question raised by the defendants-petitioners being the mixed question of fact and law, the Court below rightly decided to adjudicate the issue of limitation at the time of final disposal of the suit alongwith other issues.
6. Having appreciated the rival submission. I do not find any substance in the submission of Mr. Srivastava and the decision relied on is clearly distinguishable.
7. Here, in the present case, the Court below has found that the issue of limitation is a mixed question of law and fact and that can be decided after the evidence is led by the party. In such a situation, the direction given by the Court below to consider the said issue alongwith other issues at the time of final disposal of the suit, cannot be said to be illegal.
8. I do not find any merit in the application and it is dismissed accordingly.
