Amitabha Sen vs M/S Ambience Ltd. And Ors
2023 Latest Caselaw 1214 P&H

RAJ KUMAR
2023.01.20 10:42

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

118
CR No.372 of 2023
DATE OF DECISION : 19 JANUARY, 2023

Dr. Amitabha Sen
.... Petitioner

Versus

M/s. Ambience Limited, New Delhi & others

.... Respondents
CORAM : HON'BLE MR. JUSTICE RAJBIR SEHRAWAT

3K OK OK 2

Present: | Mr. Shoumendu Mukherji, Advocate for
Mr. Shobit Phutela, Advocate for the petitioner.

3K OK OK 2

RAJBIR SEHRAWAT, J. (Oral)

The petitioner has filed this civil revision under Article 227 of the Constitution of India, for setting aside the impugned order dated 15.07.2022 (Annexure P-7) passed by the Civil Judge Jr. Division, Gurgaon in case No. 338 of 2014 vide which the application under Order VII Rule 11(d) read with Section 151 of the Code of Civil Procedure, seeking rejection of plaint being barred by limitation, was dismissed.

The pleadings in the petition, as well as the submissions made by the counsel clearly show that issue involved is the bar of the suit on account of expiry of limitation. The trial Court has rejected the application filed under Order VII Rule 11 (d) read with Section 151 of the Code of Civil Procedure, on the ground that the question of limitation

is a mixed question of facts and law.

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CR No.372 of 2023

Since, ex facie, from the pleadings of the plaint the limitation cannot be inferred to have expired unless certain documents are proved before the court or certain facts are brought on record in the present case, therefore, this court does not find anything wrong with the conclusion arrived at by the trial court to the effect that the issue of limitation is a mixed question of facts and law. Therefore, this court does not find any illegality in the order passed by the court below; as such.

However, the counsel for the petitioner has referred to the issues framed by the trial court. Even the issue has not been framed on the limitation; as such. Once the trial court has observed that limitation is a mixed question of law and fact and the defendant is claiming certain facts which if accepted, can bar the suit on limitation, then, at least, an issue should have been framed on limitation. It is not understood as to how the trial court would decide the facts mentioned in its order to determine the limitation; if an issue itself is not framed and the burden of proof is not disclosed to the parties.

Accordingly, while upholding the order passed by the court below qua the dismissal of the application under Order VII Rule 11; the direction is issued to frame an issue on maintainability of suit on the ground of limitation; and to provide opportunity to the parties to lead the evidence thereon.

The petition stands disposed of in the above said terms.

19 JANUARY, 2023 (RAJBIR SEHRAWAT) 'raj' JUDGE Whether speaking/reasoned: Yes No

Whether Reportable: Yes No

RAJ KUMAR

2023.01.20 10:42

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