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disregarded, the plaint/suit filed on 23-2-2005 would be
within limitation in terms of Article 113."
(iv) The Supreme Court noted that the trial Court and
the High Court had failed to advert and analyze the averments
in the plaint. But selectively took notice of the assertions in the
plaint in question and then proceeded to reject the plaint being
barred by law of limitation. It was therefore held that rejection
of the plaint under Order VII Rule 11(b) of CPC could not be
sustained.
23(i). In the case of Mohinder Kumar Mehra v. Roop
Rani Mehra16 before the Supreme Court, the facts were that the
appellant's father, late Sri O.P. Mehra, along with his wife
(respondent No.1) and three minor sons came to Delhi from
Lahore after partition. Sri O.P.Mehra died in 1951. Respondent
No.1 and her sons were held entitled to compensation under
the order of the Settlement Commissioner, New Delhi dated
14.08.1956. Respondent No.1 was declared as highest bidder in
a public auction for a house in Lajpat Nagar, area measuring
300 square yards, which amount was adjusted from the claim
to which respondent No.1 and her sons were held entitled.
Another property was also allotted in the name of respondent
(2018) 2 SCC 132
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No.1 of area measuring 200 square yards at Nizamuddin, New
Delhi. The property at Nizamuddin was sold by respondent No.1
in the year 2000. On 04.11.2009 the appellant filed suit
No.2082/2009 against the respondents seeking partition of the
suit property, described in Appendix A. In Appendix A, only
property mentioned was that of Lajpat Nagar, New Delhi. The
written statement was filed by the respondent and issues were
framed by the Court. 10.08.2010 was fixed for recording the
evidence of the plaintiff. However the plaintiff prayed for time
for producing evidence. On 17.01.2011, the plaintiff filed an
application under Order VI Rule 17 of CPC praying for
amendment of the plaint. By the application, the plaintiff
sought to add certain pleadings and prayer claiming share in
the sale proceeds received by defendant No.1 from sale of the
property of Nizamuddin.
(ii) The application filed by the plaintiff was objected to
by the defendants stating that several opportunities was given
to the plaintiff to lead evidence and last opportunity was given
on 08.12.2010 to file his evidence by 28.01.2011. It was
further pleaded that in the sale document of Nizamuddin
property, the plaintiff himself was a witness. It was also stated
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that the relief sought to be amended is barred by time and is
altogether a separate cause of action.
(iii) The plaintiff filed a rejoinder stating that he came to
know that the plaintiff had undivided share in the property at
Nizamuddin only in November 2010. On 14.02.2014, an order
was passed directing that amendment application shall be
considered at the time of final hearing of the suit. However,
pursuant to an order passed by the Division Bench of the High
Court, the learned Single Judge was directed to decide the
amendment application. In the meantime on account of
pecuniary jurisdiction of the case, the suit was transferred to
the Court of Additional District Judge, Saket. The Additional
District Judge took up the amendment application and vide
order dated 24.10.2016 rejected the amendment application.
The trial Court took the view that the suit for recovery of
money of his share could have been filed by the plaintiff within
three years from the date of sale. The trial Court held that the
amendment sought was barred by time, hence the application
was rejected.
(iv) A writ petition under Article 227 was filed by the
plaintiff against that order which was dismissed by the High
Court against which the appeal was filed before the Supreme
- 25 -
Court. Before the Supreme Court, learned Counsel for appellant
relied on Article 110 of the Limitation Act, 1963 to submit that
the limitation for enforcing a right to share in a joint family
property is twelve years, hence the claim was not barred by
time. The Supreme Court noted that the amendment
application was filed before the evidence in the trial was led by
the plaintiff. It was held that looking to the object and purpose
by which limitation was put on permitting amendment of the
pleadings, in substance, in that case, no prejudice could be said
to have been caused to the defendant since the evidence in the
trial was led subsequent to the filing of the amendment
application. It was observed that it cannot be held that
amendment application filed by the plaintiff could not be
considered due to bar of the proviso to Order VI Rule 17 of
CPC. Thereafter, the Supreme Court considered one of the main
reasons given by the trial Court in rejecting the amendment
application that the claim was barred by limitation. The
provision of Article 110 of the Limitation Act, 1963, which is
pari materia Article 127 of the Limitation Act, 1908, was
considered. It was noted that the case before the Supreme
Court was not simply a case of recovery of money. The
plaintiff's claim was to enforce a right to share in the
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Nizamuddin property which was sold in the year 2000 and
according to the plaintiff the limitation was twelve years as per
Article 110 of the Limitation Act, 1963. The Supreme Court
observed as follows:
"27. In the facts of the present case, final determination
as to whether the claim could be held to be barred by time could
have been decided only after considering the evidence led by the
parties. Whether the plaintiff had any share in the property,
which was sold in the year 2000 and what was the nature of his
share and whether he can claim recovery of his share within
twelve years, were all the questions on which final adjudication
could have been made after considering the evidence and at the
stage of considering the amendment in the facts of the present
case, it was too early to come to a conclusion that limitation was
only three years and not twelve years as claimed by the plaintiff.
The High Court on the one hand refrained from expressing any
opinion and on the other hand, has expressed his agreement with
the view taken by the Additional District Judge rejecting the
application as barred by time."
(Emphasis supplied)
24. From perusal of the aforesaid judgments of the
Supreme Court, it is clear that the question of limitation is a
mixed question of fact and law.
25. The question involved in Shakti Bhog Food
Industries Ltd. was whether under Order VII Rule 11 (d) of
CPC, could the plaint be rejected on the ground of suit being
barred by limitation. However in the instant case, a separate
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issue was framed after exchange of pleadings between the
parties as to whether the suit is barred by limitation. This issue
was decided as a preliminary issue after remand by the High
Court and before evidence was led. However, we note that the
learned Judge of the trial Court, in the impugned order, has
relied only upon the admitted and undisputed case between the
parties as has been noted above. The trial Court has referred to
the Will dated 03.03.1956 set up by defendant Nos.1 and 2 in
the previous suit bearing O.S.No.990/2000, whereby the suit
property was stated to have been bequeathed in favour of the
grandson of Sri B.C.Ramalingam to one Sri Gopinath. Late
Sri Gopinath was the husband and father of defendant Nos.1
and 2 respectively. Thus, it was held that the right to sue of the
plaintiffs would accrue on the date when the written statement
of the defendants was filed. Admittedly, the suit has been filed
beyond the limitation of three years provided in Article 113 of
the Limitation Act, 1963.
26. The plaintiffs claim to be the coparceners of the
defendants. They base their claim on the fact that way back in
the year 1940, a partition took place between the aforesaid
Sri Ramalingam and others on the basis of which a partition
deed, which was duly registered. The fact that the suit schedule
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property came to the share of Sri Ramalingam under the
registered partition deed of 1940 is not denied by the
defendants. Therefore the aspect whether Article 110 of the
Limitation Act, 1963 would apply in the facts and circumstances
of the present case, which provision provides the period of
limitation of twelve years, would require adjudication by the
trial Court while deciding issue No.11, as it is a mixed question
of law and fact, and which would require evidence to be led.
The issue No.11 could not have been decided by the trial Court
prior to the evidence having been led in the trial. The point for
determination is accordingly answered. We find support from
the judgment of the Supreme Court in case of Mohinder Kumar
Mehra.
27. For the reasons aforesaid, we allow the appeal, set
aside the impugned order of the trial Court dated 07.11.2012 in
O.S.No.6732/2006 and remand the matter to the trial Court.
The parties shall appear before the jurisdictional trial Court on
04.06.2026. If the Court is not available on that day, they shall
appear on the next working day. The issues have been framed,
so the trial Court is required to fix a date to proceed with
recording of evidence of the parties. Thereafter, the trial Court,
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after due consideration would proceed to decide the aforesaid
issue No.11 pertaining to limitation along with the other issues.
Pending IAs, if any stand disposed of, accordingly.
Sd/-
(JAYANT BANERJI)
JUDGE
Sd/-
(K. V. ARAVIND)
JUDGE
KSR
