C.R. NO. 1557 of 2011

[1]

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH.

C.R. No. 1557 of 2011

Date of Decision: March 29, 2011

Anil Chaudhary

…..Appellant

Vs.

Kailash Chander Gupta and others

…..Respondents

CORAM:

HON’BLE MR. JUSTICE M.M.S. BEDI.

-.-

Present:-

Mr.Harkesh Manuja, Advocate

for the appellant.

-.-

M.M.S. BEDI, J. (ORAL)

This revision petition has been preferred under Article 227 of

the Constitution of India against the orders dated January 17, 2011 deciding

an issue of limitation on the basis of prima facie evidence in favour of

plaintiff- respondents safeguarding the rights of the defendant- petitioner by

observing in the order that nothing in the order shall preclude the

defendants from agitating the point of limitation at final stage of the suit

when the parties lead entire evidence in support of their respective claims.

C.R. NO. 1557 of 2011

[2]

The circumstances which led to the framing of preliminary issue are

required to be taken into consideration for adjudication of this revision

petition. The plaintiff- respondents had filed a suit for possession by way of

specific performance of an agreement of sale on September 1, 2001. The

plaintiff- respondents had pleaded that the earnest money and the money

towards final consideration had been paid vide different receipts dated

December 30, 2001, March 15, 2002 and June 28, 2002 allegedly executed

by defendant- Ravi Kumar Azad, non-petitioner. An application was filed

by the defendant- petitioner under Order 11 Rule 15 CPC for inspection/

production of the documents besides an application under Order 7 Rule 11

CPC for dismissal of the suit on the ground that suit was barred by law of

limitation. While deciding the applications under Order 11 Rule 15 CPC

and Order 7 Rule 11 CPC, the trial Court vide order dated December 20,

2010 framed the following preliminary issue:-

“i)

Whether the suit has been filed within time?

OPParties”

Without expression of any opinion on the validity of the order,

treating the abovesaid issue as preliminary issue, it is sufficient to observe

here that as per provisions of Order 14 Rule 2 CPC, a Court is required to

pronounce judgment on all the issues except in a case which could be

disposed of on preliminary issue. A preliminary issue, as per Order 14 Rule

2 (2) CPC could be an issue which is an issue of law only and where a suit

could be disposed of on that issue of law. The issue of limitation in the

circumstances of the present case is a mixed issue of law and fact. The trial

C.R. NO. 1557 of 2011

[3]

Court in an endeavour to adjudicate the issue of limitation permitted both

the parties to produce the evidence.

The main grievance of the counsel for the petitioner is that the

receipt dated June 28, 2002 by virtue of which the extension of limitation

had been sought has not been proved in accordance with law and has been

merely marked as Mark ‘C’ alleged to have been executed by vendor Ravi

Kumar, who has since died.

The trial Court on the basis of the evidence produced formed

opinion that since the time is not the essence of the contract and the period

of limitation stood extended by virtue of a document i.e. receipt dated June

28, 2002, the preliminary issue was required to be decided in favour of the

plaintiffs but the rights of the defendant- petitioner have been safeguarded

taking into consideration the circumstances of the case by observing that the

defendants will not be precluded from agitating the point of limitation at

final stage of the suit by leading entire evidence in support of their

respective claims. Since the defendant- petitioner had insisted for dismissal

of the suit by filing an application under Order 7 Rule 1 CPC claiming that

the suit was barred and thereafter sought framing of preliminary issue, the

trial Court in its wisdom had framed preliminary issue which was not a pure

question of law but involved mixed question of law a