Goutam Roy vs Vandana Jalan Nee Bajoria And Ors
2023 Latest Caselaw 2718 Cal/2

OD 10


                IN THE HIGH COURT AT CALCUTTA
              ORDINARY ORIGINAL CIVIL JURISDICTION
                         ORIGINAL SIDE

                          CS/100022/1996
IA NO: GA/1/1997(Old No:GA/914/1997), GA/2/1997(Old No:GA/929/1997),
  GA/9/2012(Old No:GA/642/2012), GA/10/2015(Old No:GA/3835/2015),
            GA/11/2018(Old No:GA/3494/2018), GA/14/2023



                          GOUTAM ROY
                              VS
               VANDANA JALAN NEE BAJORIA AND ORS

 BEFORE:
 The Hon'ble JUSTICE SUGATO MAJUMDAR
  Date :27th September, 2023.

                                                         APPEARANCE:
                                          Mr. Ranjan Bachawat,Sr. Adv.
                                            Mr. Dhruba Ghosh,Sr. Adv.
                                         Mr. Biswanath Chatterjee,Adv.
                                                Mr. Rohit Banerjee,Adv.
                                       Mr. Subhankar Chakraborty,Adv.
                                       Mr. Saptarshi Bhattacharjee,Adv.
                                                          ...for plaintiff.

                                                   Mr. A.Agarwalla,Adv.
                                                 Mr. Varun Kothari,Adv.
                                                   Ms. D. Mukherji,Adv.
                                        ...for def. nos. 1 (b), 1( c ) & 1(d).

                                      Mr. Anindya Kumar Mitra,Sr. Adv.
                                       Mr. Soumya RoyChowdhury,Adv.
                                               Mr. Samriddha Sen,Adv.
                                            Ms. Neelina Chatterjee,Adv.
                                        Mr. Suvodeep Chakraborty,Adv.
                                                        ...for def. no. 3.
                                         2



      The Court: - GA No. 14 of 2023 is filed by the defendant no. 3, company

praying for deciding the question of limitation as a preliminary issue and

decide the said issue before proceeding with other issues in this suit.

      The sum and substance of the argument made by Mr. Mitra, the Learned

Senior Counsel appearing for the defendant is that a prima facie reading of the

plaint indicates that cause of action arose on February 19, 1992 whereas the

plaint was filed in the year 1996 after a period of three years from the date of

knowledge of execution of the deed in question. Ex facie, therefore, the suit is

barred by limitation. According to the learned Senior Counsel, Mr. Mitra, the

question of limitation and its answer stares so manifestly at the face that

without any evidence it can be decided that the suit is barred by law of

limitation. This is a pure question of law for which no factual enquiry need be

done. According to the learned Counsel, without examination of witnesses

further or any more, this point can be decided which may put an end to a

decade old litigation.

      Mr. Chatterjee led by Mr. Bachawat submitted that point of limitation

was repeatedly taken up by this Court or even the Appellate Courts. In terms of

the Judgment dated 25.9.2008 passed in APO No. 106 of 1999, according to

him, the Division Bench held that point of limitation is kept open and if on

receipt of the evidence the proposed claim made here is found to be barred, the

same has to be decided as the preliminary issue before the Court decides the

matter on merit. Mr. Chatterjee further invited my attention to the Order dated
                                         3



25.1.2012

passed by a Co-ordinate Bench wherein it was observed that

consideration of limitation demands adducing of evidence. Therefore, according

to the learned Counsel for the plaintiff, it has repeatedly been decided that

question of limitation should be considered after taking evidence. There is no

escape from the findings in this regard. Therefore, according to him, after

completion of evidence, question of limitation can be taken up as a preliminary

point since it is a mixed question of law and fact and cannot be decided

without aid of any evidence.

The learned Senior Counsel, Mr. Mitra in reply submitted that this Court

as well as the Division Bench held earlier that limitation shall be considered as

a preliminary point. Order of the Division Bench dated 29.7.2008 was passed

in the context of considering the issue of amendment of plaint and observation

on the issue of limitation was made in that context. The Hon'ble Supreme

Court of India confirmed this order in Special Leave Petition preferred

observing that High Court's order relating to the question of limitation being

kept open would mean that question of limitation has to be considered from

the date of making the application for amendment. According to Mr. Mitra, the

learned Senior Counsel, the argument made on behalf of the plaintiff is

fallacius and should not be accepted.

I have heard rival submissions.

It is settled law that question of limitation is a mixed question of law and

fact. According to the plaint, execution of the deed of conveyance came to the

knowledge in the month of February, 1992. The suit was filed in the month of

May, 1996. But a suit was filed in the Court of the 1 st Assistant Judge, Alipore.

It is also averred in the plaint the plaintiff filed a suit in the Court of 1 st

Assistant District Judge at Alipore on the self-same cause of action being TS

No. 77 of 1992 on December 16, 1992. By an order dated 16.4.1996, the

learned 1st Assistant District Judge at Alipore returned the plaint. Periods

spent in litigation in the lower court may be considered to decide on the

question of limitation. It is not so simple that since the knowledge of execution

of the alleged deed of conveyance in the month of February, 1992 till institution

of the instant suit in May, 1996, no step was taken. These are question of fact

subject to proof and evidence. I do not agree with the submission made by the

learned Senior Counsel, Mr. Mitra that prima facie that the suit is barred by

limitation, in view of other averments made in the plaint regarding institution

of suit on the self-same cause of action in the Court of the 1 st Assistant District

Judge, Alipore.

Question of limitation in this suit cannot be compartmentalized.

Although considered in the context amendment of plaint, Division Bench

clearly expressed in terms of the Order dated 29.7.2008 that point of limitation

is kept open if on receipt of evidence the proposed claim is found to be barred.

That matter is to be decided then as a preliminary issue. This is echoed in the

Order of Justice I.P.Mukerji dated 25.1.2012 wherein His Lordship observed

that evidence is needed to consider the question of limitation. The Hon'ble

Supreme Court did not point out that question of limitation shall be decided

prior to taking of evidence. Obviously, in the instant case, the limitation

involves mixed question of law and fact which cannot be decided without any

aid of evidence. It can definitely be considered as a preliminary issue after

taking evidence and on the basis of evidence so adduced. Accordingly, GA No.

14 of 2023 is not tenable and stands dismissed with cost of Rs. 25,000/-

payable to the High Court Legal Services Committee within 15 days.

Let the matter be fixed on 12th October, 2023 under the heading "For

Witness Action".

(SUGATO MAJUMDAR, J.) s.chandra