Rehman And Ors vs Nisar Ahmad Hajam And Ors
2021 Latest Caselaw 453 j&K/2

                                                          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