Madhya Pradesh High Court
Omkar Prasad Chourasiya vs Ashish Kumar on 13 May, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 13 th OF MAY, 2024
MISC. APPEAL No. 603 of 2024
BETWEEN:-
OMKAR PRASAD CHOURASIYA S/O SHRI DEVI PRASAD
CHOURASIYA, AGED ABOUT 35 YEARS, BARHA BADA
TEHSIL GADARWARA DISTRICT NARSINGHPUR
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI ADITYA NARAYAN - ADVOCATE)
AND
1. ASHISH KUMAR S/O JAGDISH PRASAD
BUDHOLIYA, AGED ABOUT 40 YEARS, BARHA
BADA TEHSIL GADARWARA DISTRICT
NARSINGHPUR (MADHYA PRADESH)
2. JAGDISH PRASAD S/O LATE DAYASHANKAR
BUDHOLIYA, AGED ABOUT 68 YEARS, R/O BARHA
BADA TEHSIL GADARWARA DISTRICT
NARSINGHPUR (MADHYA PRADESH)
3. NAVNEET BUDHOLIYA S/O JAGDISH PRASAD,
AGED ABOUT 35 YEARS, R/O BARHA BADA
TEHSIL GADARWARA DISTRICT NARSINGPUR
(MADHYA PRADESH)
4. AARTI BUDHOLIYA D/O JAGDISH PRASAD, AGED
ABOUT 32 YEARS, R/O BARHA BADA TEHSIL
GADARWARA DISTRICT NARSINGPUR (MADHYA
PRADESH)
5. JYOTI BUDHOLIYA D/O JAGDISH PRASAD, AGED
ABOUT 30 YEARS, R/O BARHA BADA TEHSIL
GADARWARA DISTRICT NARSINGPUR (MADHYA
PRADESH)
6. SMT RAM DEVI BUDHOLIYA W/O JAGDISH
PRASAD, AGED ABOUT 59 YEARS, R/O BARHA
BADA TEHSIL GADARWARA DISTRICT
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 5/14/2024
11:09:42 AM
2
NARSINGPUR (MADHYA PRADESH)
7. STATE OF MADHYA PRADESH THROUGH
C O L L E C T O R , NARSINGHPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SOURABH SINGH THAKUR - ADVOCATE FOR RESPONDENT 1
AND NONE FOR THE RESPONDENTS 2-6 THOUGH SERVED AND
PRADEEP DWIVEDI - PANEL LAWYER FOR THE STATE/RESPONDENT 7 )
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This misc. appeal has been preferred by appellant/defendant 1 Omkar
Prasad Chourasiya challenging judgment dated 11.10.2023 passed by 2nd
District Judge, Gadarwara, District Narsinghpur, in RCA no.54/23 reversing the
final order dated 01.08.2022 passed by 1st Addl. Civil Judge Senior Division,
Gadarwara, District Narsinghpur, in RCS no.17A/2016 whereby trial Court
dismissed respondent 1/plaintiff's civil suit for declaration of title and permanent
injunction, on the ground of limitation, while allowing the application under
Order 7 Rule 11 CPC filed by appellant/defendant 1-Omkar Prasad Chourasiya,
and in civil appeal, first appellate Court has set aside the final order passed by
trial Court and remanded the matter to trial Court for deciding civil suit afresh
after recording evidence of the parties.
2. Learned counsel for the appellant submits that a civil suit for specific
performance of agreement of sale was filed by appellant /defendant 1 Omkar
Prasad Chourasiya against the defendants 2-3 Jagdish Prasad and Navneet
Budholiya, which was decreed on 15.02.2013 against which, first appeal
no.218/13 filed by Jagdish Prasad and Navneet Budholiya is pending before this
Court and just with a view to defeat the judgment and decree of specific
performance passed in favour of appellant-Omkar Prasad Chourasiya, instant
civil suit has been filed by respondent 1-Ashish Kumar S/o Jagdish Prasad
Budholiya without having any right claiming the suit property beloning to joint
Hindu family. He submits that from perusal of plaint averments and cause of
action shown in the plaint, the suit is clearly barred by limitation and upon filing
of application under Order 7 Rule 11(d) CPC and upon due consideration of
the plaint averments, trial Court vide final order dated 01.08.2022 rightly
dismissed the suit under Order 7 Rule 11(d) CPC holding it to be barred by
limitation and first appellate Court has committed illegality in setting aside the
order passed by trial Court and remanding the matter for decision of civil suit
afresh. With these submissions, he prays for admission/allowing the misc.
appeal.
3. Learned counsel appearing for the respondent 1 supports the
impugned judgment of remand and prays for dismissal of misc. appeal.
4. Heard learned counsel for the parties and perused the record.
5. Perusal of final order dated 01.08.2022 passed by trial Court shows
that the suit for declaration of title and permanent injunction filed by respondent
1-Ashish Kumar has been dismissed holding it to be barred by limitation. It is
mentioned in the order that as per Article 58 of the Limitation Act, limitation for
filing the suit is three years but the plaintiff has filed the suit on 24.02.2016
alleging accrual of cause of action on 15.02.2013 and by way of amendment
application dated 08.07.2019, the judgment and decree passed in previous
specific performance suit has been challenged.
6. In support of his submissions, learned counsel for the
appellant/defendant 1 has placed reliance on the decision of Hon'ble Supreme
Court in the case of Dahiben vs Arvindbhai Kalyanji Bhanusali (Gajra), AIR
2020 SC 3310 and Khatri Hotels Private Limited & Another vs. Union of India
and others AIR 2011 SC 3590, but both these judgments are distinguishable
on facts.
7. It is well settled that question of limitation is a mixed question of law
and fact and in the instant civil suit question of limitation cannot be decided
merely by taking into consideration the date of accrual of cause of action and
averments of plaint. Taking into consideration this aspect of the matter first
appellate Court has held that in the instant case question of limitation being a
mixed question of law and fact cannot be decided without recording evidence
and has remanded the matter to trial Court.
8. Upon perusal of judgment of remand and final order passed by Courts
below, this Court does not find any illegality in the judgment of remand passed
by first appellate Court.
9. Resultantly, declining interference in the judgment of remand passed
by first appellate Court, this misc. appeal fails and is hereby dismissed.
10. Misc. application(s), pending if any, shall stand disposed off.
(DWARKA DHISH BANSAL)
JUDGE
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