Pradeep Kumar vs Kirti (Now Dead) Through Her Lrs ...
2022 Latest Caselaw 2040 P&H

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      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH
                           -.-
                                 CR-1034-2022 (O&M)
                                 Date of Decision : 24.03.2022

Pradeep Kumar                                                    ...Petitioner

                                  versus

Kiri (now deceased) through her LRs and Others                ...Respondents


CORAM :        HON'BLE MRS. JUSTICE ALKA SARIN

Present :      Mr. Amit Kumar Jain, Advocate for the petitioner.

ALKA SARIN, J. (Oral)

Taken up in physical mode.

The challenge in the present revision petition under Article 227 of

Constitution of India is to the order dated 10.11.2021, modified vide order

dated 03.12.2021, further modified vide order dated 05.01.2022 (Annexure

P-5), passed by the Additional Civil Judge, Sr. Division, Sardulgarh whereby

the application filed by the defendant-petitioner under Order 7 Rule 11 of the

Code of Civil Procedure, 1908 ('CPC' for short) has been partly allowed.

Learned counsel for the petitioner would contend that the

challenge in the present petition is only to the extent whereby the application

filed by the defendant-petitioner under Order 7 Rule 11 CPC on the ground of

the suit being barred by limitation, has been rejected.

Learned counsel would contend that the defendant-petitioner in

the application filed under Order 7 Rule 11 CPC had also challenged the suit to

be not maintainable on the ground that the same was barred by limitation

inasmuch as the plaintiff has challenged the judgment and decree dated

05.05.1972 by way of the present suit. The Trial Court vide the impugned

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CR-1034-2022 (O&M) -2-

order has dismissed the application qua the ground of limitation, the same

being a mixed question of law and facts, which cannot be gone into in an

application under Order 7 Rule 11 CPC. Learned counsel would further

contend that since a decree dated 05.05.1972 is being challenged by way of

present suit, hence the suit ought to have been rejected under Order 7 Rule 11

CPC.

Heard.

The Trial Court vide the impugned order has rightly dismissed the

application under Order 7 Rule 11 CPC qua the ground of limitation inasmuch

as the same is a mixed question of law and fact and cannot be adjudicated

upon in an application under Order 7 Rule 11 CPC. It is trite that at the time

of deciding of an application under Order 7 Rule 11 CPC, only the contents of

the plaint are to be seen and not the contents of the written statement or other

pleadings.

Further, it has been laid down by the Supreme Court in

Chhotanben & Anr. Vs. Kiritbhai Jalkrushnabhai Thakkar & Ors. [2018

AIR (SC) 2447] that the question of limitation cannot be adjudicated on an

application filed under Order 7 Rule 11 CPC. Relevant portion of the said

judgment reads as under :

"16. In the present case, we find that the appellants

(plaintiffs) have asserted that the suit was filed

immediately after getting knowledge about the fraudulent

sale deed executed by original defendant Nos.1 & 2 by

keeping them in the dark about such execution and within

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CR-1034-2022 (O&M) -3-

two days from the refusal by the original defendant Nos.1

& 2 to refrain from obstructing the peaceful enjoyment of

use and possession of the ancestral property of the

appellants. We affirm the view taken by the Trial Court

that the issue regarding the suit being barred by limitation

in the facts of the present case, is a triable issue and for

which reason the plaint cannot be rejected at the threshold

in exercise of the power under Order VII Rule 11(d)."

The plaintiff-respondent in the suit has claimed that she gained

knowledge of the decree dated 05.05.1972 in the year 2019 when the

defendant-petitioner forcibly possessed the land in question. Considering the

averments made in the plaint, it would be a triable issue whether the suit is

barred by limitation.

Keeping in view the law laid down by the Supreme Court in

Chhotanben's case (supra), the present petition is devoid of any merit and is

dismissed. Pending miscellaneous applications, if any, also stand disposed off.

March 24, 2022                                        (ALKA SARIN)
tripti                                                   JUDGE

NOTE : Whether speaking/non-speaking : Speaking Whether reportable : YES/NO

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