S. No. 201
After Notice Cause List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Video Conferencing)
CR No. 11/2016
Rehman and Ors. .....Petitioner(s)
Through: Mr. Showkat Ali Khan, Advocate
V/s
Nisar Ahmad Hajam and Ors. ..... Respondent(s)
Through: None
CORAM:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
ORDER
19.04.2021
1. This Civil Revision petition is against the order dated 22.04.2015, whereby Trial Court has deferred decision on the issue of limitation on the ground that same is a mixed question of law and fact.
2. The only ground urged in the instant revision petition before this Court and Trial Court is that suit claim is barred by limitation as there is admission on the part of plaintiffs that they got knowledge in the year 2007, but they have not filed the suit till 2011.
3. Perusal of plaint reveals that plaintiffs have challenged the compromise decree passed on 29.09.1975 on the ground that they approached the Court for procuring a copy of impugned judgment in 2007 through an application, but they were told that no such record was lying in the record room at Anantnag. Thereafter, they again made an application in this regard on 23.06.2010, but the officers of record room again on 26.06.2010 made an endorsement that no such file was placed in the record room. The plaintiffs again approached the Court of Munsiff, Tral, with same prayer that neither record of the year 1975 nor its receipt for deposition is available in the office. The plaintiffs alleged in the suit that compromise deed had been manufactured by the defendants and having managed to place the same on record.
4. This would reveal that when respondents approached the Court for obtaining a copy of judgment, it was reported to them that no such record existed there, so they were not in a position to challenge the same. As per report of the record room, record of the said file was not lying in the record room. The issue of limitation raised by the defendants in the suit, is an issue, which requires recording of evidence because it is not a pure question of law, but is a mixed question of law and fact. The ground of limitation is not a question of law, but it is a mixed question of law and fact. A similar question came up before the Division Bench of the Apex Court in Vaish Agarwal Panchayat and Ors. v. Inder Kumar and Ors., reported in AIR 2015 SC 3357, whereby Division Bench of the Apex Court on reference to a larger Bench held that limitation is not a pure question of law, but it is a mixed question of law and fact.
5. In case titled Madanuri Sri Rama Chandra Murthy v. Syed Jalal , reported in AIR 2017 SC 2653, the Apex Court had an occasion to rejection of a plaint based on limitation and concluded that when claim in the plaint is barred by limitation and when Court found that it has no jurisdiction, the Court is bound to reject the plaint, but this principle has no application to the present facts of the case for the reason that the judgment of Apex Court with more strength has held question of limitation is a mixed question of law and fact.
6. In view of judgments of the Apex Court referred supra, it is clear that plaint could not be dismissed as barred by limitation without taking evidence, for, question of limitation is a mixed fact and law and on ex- facie reading of plaint, it could not be held that the suit was barred by time.
7. For the foregoing reasons, I do not find any merit in this revision petition and the same is, accordingly, dismissed. However, the Trial Court shall make all endeavor to dispose of the suit which is pending before it expeditiously. The Trial Court shall not give any unnecessary adjournments without any plausible cause to either of the parties. The Trial Court shall make every endeavor to decide and dispose of the suit within a period of one year from today.
(VINOD CHATTERJI KOUL) JUDGE SRINAGAR 19.04.2021 "Manzoor"
MANZOOR UL HASSAN DAR 2021.04.23 12:27