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2025 Supreme(Jhk) 693
IN THE HIGH COURT OF JHARKHAND AT RANCHI
SANJAY KUMAR DWIVEDI, J.
Amar Nath Gupta S/o Kashi Nath Shah - Appellant
Versus
Sohan Lal Mishra Son Late Mohan Lal Mishra - Respondent
C.M.P. No. 1251 of 2023
Decided On : 18-03-2025
Advocate Appeared:
For the Appellant : Atanu Banerjee
For the Respondent: Onkar Nath Tiwary
Limitation remains a mixed question of fact and law in specific performance suits, necessitating evidence rather than being solely a question of law.
Headnote:(A) Constitution of India - Article 227 - Limitation Act - The court addressed the issue of limitation in a suit for specific performance, clarifying that limitation may require factual evidence; it cannot be purely determined as a question of law when facts are in dispute. (Paras 3, 6, 10)
(B) Civil Procedure Code - Order 14, Rule 2 - The court upheld the dismissal of the application under this rule, emphasizing the necessity of establishing limitation through mixed facts and law. (Paras 2, 8)
Facts of the case:
The petitioner challenged the dismissal of a petition regarding limitation in a specific performance suit, arguing it should be addressed at the outset due to being a pure question of law, relying on case law to support this claim.
Findings of Court:
The learned court concluded that the limitation issue involves mixed questions of fact and law, necessitating evidence, thus upholding the previous decision.
Issues: The main issues included whether limitation is a pure question of law and the propriety of the court's management of pending matters related to limitation.
Ratio Decidendi: The court highlighted that a limitation plea cannot be addressed without evidence in mixed fact and law cases, maintaining that due process was followed in hearings.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. factual basis for the petition. (Para 2) |
| 2. arguments regarding application of limitation. (Para 3 , 4) |
| 3. court's findings on limitation as mixed question of law and fact. (Para 5 , 6 , 7 , 8 , 9) |
| 4. conclusion dismissing the petition. (Para 10) |
JUDGMENT :
SANJAY KUMAR DWIVEDI, J.
1. Heard. Mr. Atanu Banerjee, learned counsel for the petitioner and Mr. Onkar Nath Tiwary, learned counsel for the opposite party.
2. This petition has been filed under Article 227 of Constitution of India for setting aside order dated 02.09.2023 passed by the learned Civil Judge (Senior Division)-VII, Deoghar in Original Suit No. 306 of 2022 whereby application under Order 14, Rule 2 of C.P.C. read with Article 137 of the LIMITATION ACT filed by the defendant has been dismissed. Further prayer has been made to allow the application under Order 14, Rule 2 of C.P.C.
3. Mr. Atanu Banerjee, learned counsel for the petitioner submits that Original Suit No. 306 of 2022 was instituted for specific performance in accordance with contract which is time barred inspite of that learned court proceeded in the matter. He further submits in that view of the matter the petition has been filed under Order 14, Rule 2 of C.P.C. read with Article 137 of the LIMITATION ACT and the learned court has wrongly dismissed the same. He further submit that limitation is pure question of law in view of that the learned court was first required to decide the said issue and thereafter to proceed. He relied in the case of S. Shivraj Reddy Vs. S. Raghuraj Reddy and others ,(2024) SCC Online SC 963 and submits that if pure question of law is there, the petition can be decided in view of that the learned court has wrongly proceeded with the suit. He submits that the said petition may kindly be restored. He further relied in the case of M/s Mongia Realty and Buildwell Private Limited Vs. Manik Sethi (Civil Appeal No. 814 of 2022) and submits that if admitted documents are there then limitation can be decided at the earliest. On these grounds he submits that the impugned order may kindly be set aside.
4. Mr. Onkar Nath Tiwary, learned counsel for the opposite party submits that belatedly the said petition has been filed before the learned court and the learned court proceeded with the matter and this point was not pointed out before the learned court. He further submits that the petitioner/defendant has filed also filed a petition dated 14.02.2023 under section 20 of C.P.C. read with order 7 rule 11 of C.P.C. before the learned Civil Judge (Senior Division)-VII, Deoghar and the said petition was dismissed by order dated 29.03.2023 and that order has not been challenged before any higher court and subsequently present petition has been filed under Order 14, Rule 2 of C.P.C. which has been decided by the learned court. He further submits that now the trial has already been concluded and the limitation is one of the issue to be decided in the trial. He submits that argument of both sides has been conclude on 17.08.2024 and the learned court has directed both the sides to file written notes of argument. He submits that there are mixed question of facts and law and in view of that the learned court has rightly passed the impugned order.
5. From the record, it transpires that the learned court has framed eight issues and Issue No. 3 is with regard to the limitation. The petitioner has filed petition earlier under 20 of C.P.C. read with order 7 rule 11 of C.P.C which was rejected by order dated 29.03.2023 thereafter the petition has been filed belatedly. If the suit is barred by limitation that is required to the decided at the earliest but either of the parties has not pointed out before the learned court and the learned court proceeded with the matter and this petition has been filed and issue of limitation was also framed and notice of power of attorney has been issued on 05.04.2022 upon the sole opposite party and it has been contended in the plaint that cause of action has a
