Raj Kumari & Ors vs Savitri Devi
2024 Latest Caselaw 2146 j&K

Jammu & Kashmir High Court

Raj Kumari & Ors vs Savitri Devi on 16 October, 2024

                                                  Serial No. 02


 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                 AT JAMMU
 OWP No. 1237/2011
 IA No. 1717/2011

Raj Kumari & Ors.                                  .....Petitioner(s)


                    Through: Mr. Surinder Singh, Advocate.

               Vs

Savitri Devi
                                                ..... Respondent(s)

                    Through: None.

CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE

                              ORDER

(16.10.2024)

01. Petitioners through the medium of this petition seek

quashment of order dated 09.08.2011 passed by the Court

of learned Munsiff Katra (hereinafter referred to as the,

"trial Court"), whereby the application filed by Gian Singh

(hereinafter called, "plaintiff") for deciding the issue of

limitation alongwith other issues, was dismissed.

02. It has been pleaded that the plaintiff had come to know

about the Will Deed executed by Wazir Baij Nath on

2.04.1993 in his favour, which was registered by the

Sub-Registrar concerned, after the demise of said Wazir

Baij Nath on 12.07.2000, as such, the plaintiff had

inherited all the properties left by the deceased-Wazir Baij

Nath.

03. Notice was sent to the respondent for service, however,

despite deemed service, she did not appear and was

proceeded ex-parte vide order 10.03.2023. As such, the

respondent has not contested this application.

04. Learned counsel for the petitioners submits that the trial

Court has casually decided the application moved by the

plaintiff with the submission that the issue of limitation be

not decided as a legal issue, as the same is an issue having

mixed question of law and facts. However, the trial Court

without application of mind decided his application, holding

that the issue of limitation is to be decided as a legal issue

and treated the same as a preliminary issue, rejecting the

application of the plaintiff. He has relied upon the judgment

passed by this Court in a case titled, "Ali Dar & Anr. Vs.

Rajab Dar & Anr., reported as 2013 (1) SriLJ 161",

wherein it has been held that the issue of limitation being

mixed question of law would require to be decided

alongwith other issues and also relied upon the judgment of

the Hon'ble Apex Court passed in case titled, "Chhotanben

Vs. Kiritbhai Jalkrushnabhai Thakkar, reported as

2018 AIR (SC) 2447", wherein the Hon'ble Apex Court has

held that the issue with regard to limitation is a triable

issue, having regard to the disputed questions.

05. In view of the judgments cited and relied upon by the

learned counsel for the petitioners and also keeping in view

the facts and circumstances of the case, this Court is of the

considered view that the trial Court has passed the

impugned order in a casual manner without application of

mind and is not sustainable. The question of limitation has

to be decided, from the date of knowledge of a fact, which

can be decided only, after consideration of the evidence in

this behalf. The trial Court instead of treating the issue of

limitation as preliminary issue, being legal, should have

treated the same as main issue to be decided, being mixed

question of facts and law. The impugned order is, thus, set

aside, with a direction to the trial Court to proceed in the

matter, by treating the issue of limitation not as

preliminary issue.

06. Petition is, accordingly, disposed of, alongwith connected

application.

(M A CHOWDHARY) JUDGE JAMMU 16.10.2024 Ram Krishan

Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No