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IN THE HIGH COURT OF JHARKHAND AT RANCHI
SANJAY KUMAR DWIVEDI
Amar Nath Gupta S/o Kashi Nath Shah – Appellant
Versus
Sohan Lal Mishra Son Late Mohan Lal Mishra – Respondent
| 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
Limitation remains a mixed question of fact and law in specific performance suits, necessitating evidence rather than being solely a question of law.
The principle of res judicata and the provisions of Order XIV Rule 2 of the Code of Civil Procedure, 1908 were central to the court's decision.
A disputed question cannot be decided as a preliminary issue.
The rejection of a plaint based on limitation and cause of action should not occur without allowing the parties to lead evidence on the issue of limitation.
Rejection of plaint under CPC without recording evidence is legally unsustainable, especially when the issue involves mixed questions of law and fact.
The Court clarified that mixed questions of fact and law, such as maintainability of a suit based on admissions, cannot be decided as a preliminary issue unless the facts are clear from the pleadings....
The question of limitation in a chitty transaction is a mixed question of fact and law and should be decided based on evidence, not as a preliminary issue.
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