N. Lakshmikantha Reddy 2 Others vs S.Mohammed Hussain Another
2023 Latest Caselaw 4959 AP

                                         1




            THE HON'BLE DR.JUSTICE K. MANMADHA RAO

                          C.R.P.No.4188 of 2016

ORDER:

Aggrieved by the orders dated 13.06.2016 passed in

C.F.R.No.3310 of 2016 in unnumbered suit, on the file of the

Court of Principal Junior Civil Judge, Kurnool, (in short 'the court

below') the present revision is filed.

2. The petitioners herein are the plaintiffs; respondents

herein are the defendants before the court below.

3. The petitioners herein has filed a suit for amendment of

registered sale deed No. 2904 of 2004, dated 18.03.2004. The

court below taken objection 06.04.2016 and returned the plaint

and the counsel for the petitioners represented the same, which

was taken up by the court below on 02.05.2016. The court below

after perusal of the plaint, came to conclusion that as per Article

137 of Limitation Act, when there is no specific provision in the

Act, for the relief 3 years is the limitation. Therefore as per

Limitation Act, the suit is not within time and that rejected the

plaint. Assailing the same, the present revision came to be filed.

4. Heard Mr. Shafath Ahmed Khan, learned counsel for the

petitioners and Mr. G. Sravan Kumar, learned counsel for the 1st

respondent. The 2nd respondent is shown as formal party to the

revision.

5. Learned counsel for the petitioners would contend that

the court below ought to have numbered the suit holding that the

question of limitation is mixed question of fact and law and such

issue of limitation has to be decided only after full trial, but not at

the threshold of numbering the suit. The court below went wrong

in taking the objection of the non issue of notice under Section 80

of CPC, when the 2nd defendant being the Government Servant is

the party but the court below ought to have held that no relief is

sought for against the 2nd defendant, but the 2nd defendant is

added as party proforma for which no such notice is necessary.

Therefore the impugned rejection order is liable to be set aside.

6. Whereas learned counsel for the 1st respondent would

contend that the court below rightly rejected the plaint on the

ground of limitation and vehemently opposed to allow the revision.

Learned counsel for the 1st respondent placed on record the

decision of the Hon'ble Apex Court in "Sukhbiri Devi and Others

v. Union of India and Others"1 wherein it was held as follows:

"15......In the said contextual situation it is worthy and appropriate to refer to Paragraphs 51, insofar as it is relevant, and 52 of the decision in Nusli Neville Wadia's case (supra) and they read thus:

"51. [..] As per Order 14 Rule of fact or arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and is the question of law arises which is dependent upon the outcome of admitted facts, it is open to the Court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order 14 Rule 2. In Order 14 Rule 2(1), the Court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order 14 Rule 2(2) makes a departure and the Court may decide the question of law as to jurisdiction of the Court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act.

52. [...] In a case, question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be

1 2022 (6) ALD 98 (SC)

determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed and the question of law is dependent upon the outcome of the investigation of the facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976" (Emphasis added).

7. Perused the record.

8. It is the contention of the petitioners that when the 1st

respondent has filed a suit in O.S.No.384 of 2012 on the file the

court of II Additional Junior Civil Judge, Kurnool against one B.

Krishna by suppression of material facts and which the registered

sale deed dated 18.03.2004 came into existence and that the

petitioners gave evidence on behalf of said B. Krishna in the said

suit. The 1st respondent has right only to an extent of Ac. 0.24

cents in Sy.No.327/3A3. Therefore the revision is liable to be

allowed.

9. In support of their contentions, learned counsel for the

petitioners placed on record the decision of the Hon'ble Apex Court

in "Balasaria Construction (P) Ltd., v. Hanuman Seva Trust

and Others"2, wherein it was held as follows:

"8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure".

10. As per Article 137 of Limitation Act, when there is no

specific provision in the Act, for the relief 3 years is the limitation

as held by the court below. Therefore the suit is not maintainable

as per the Limitation Act and rejected the plaint. As per the

decision relied by the learned counsel for the petitioners cited

supra-2, wherein it is categorically held that the suit could not be

dismissed as barred by limitation without proper pleadings,

framing of issue of limitation and taking of evidence. The question

2 (2006) 5 SCC 658

of limitation is a mixed question of law and fact and ex facie on

reading of the plaint, suit cannot be held to be barred by

limitation. In the instant case, the court below failed to take into

consideration such aspects and simply said that the suit is not

filed within time.

11. Therefore, there is an error committed by the court,

while rejecting the plaint. The decision relied by the learned

counsel for the petitioner is applicable to the facts of the case and

the court below is inevitably number the suit. The court went

beyond jurisdiction has dealt the issue at the stage of numbering

is unsustainable. The court below shall be taken into

consideration with regard to limitation aspect as a preliminary

issue while deciding the main suit, but not numbering stage,

particularly in a suit of this nature. Hence, the revision is liable to

be allowed.

12. Accordingly, the C.R.P is allowed. There shall be no

order as to costs.

As a sequel thereto, miscellaneous petitions, if any, pending

shall stand closed.

___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 13.10.2023.

Note: L.R.Copy marked.

B/o KK

THE HON'BLE DR.JUSTICE K. MANMADHA RAO

C.R.P.No.4188 of 2016

Date 13.10.2023.

Note: L.R.Copy marked.

B/o KK

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

+ C.R.P.No.4188 of 2016

% 13.10.2023

# N. Lakshmikantha Reddy and Others ... Petitioners

Vs.

$ S. Mohammed Hussain and another ... Respondents

! Counsel for the Appellant : Mr.Shafath Ahmed Khan

! Counsel for the Respondents : Mr.G. Sravan Kumar

< Gist:

> Head Note:

? Cases referred:

1. 2022 (6) ALD 98 (SC)

2. (2006) 5 SCC 658

DATE OF ORDER PRONOUNCED: 13.10.2023

* THE HON'BLE DR. JUSTICE K. MANMADHA RAO

1. Whether Reporters of Local newspapers Yes may be allowed to see the Judgments?

2. Whether the copies of judgment may be Yes Marked to Law Reporters/Journals.

3. Whether Their Ladyship/Lordship wish Yes to see the fair copy of the Judgment?

___________________________ DR.K. MANMADHA RAO, J