Rajasthan High Court
Vijay Kumar Son Of Shri Babu Lal ... vs Sunita W/O Shri Suresh Chand ... on 6 April, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Revision Petition No. 111/2021
Vijay Kumar Son Of Shri Babu Lal Mahajan, Aged About 42
Years, R/o B-76, Raj Nagar Part-1, Gali No. 5, Palam Colony,
Delhi - 110077
----Petitioner
Versus
Sunita W/o Shri Suresh Chand Sharma, R/o Village Tasing, Tehsil
Behror, District Alwar (Raj.)
----Respondent
For Petitioner(s) : Mr. Dinesh Yadav
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
06/04/2022
Petitioner-defendant has filed this revision petition, invoking
the scope of Section 115 of CPC, assailing the order dated
17.08.2021 passed by Additional District Judge No.1, Behror,
District Alwar in Civil Suit No.73/2013 whereby and whereunder
his application under Order 14 Rule 2 CPC has been decided.
It has been submitted that respondent-plaintiff has filed a
civil suit for recovery of Rs.18,37,500/- on the basis of a cheque.
In the plaint itself, plaintiff has averred that the principal
sum of Rs.15,00,000/- was credited to defendant on 22.07.2010
in presence of witnesses and for re-payment of the same,
defendant issued cheque to plaintiff. Since the cheque has
dishonoured being stale, the instant civil suit for recovery has
been instituted on 22.07.2013.
(2 of 3) [CR-111/2021]
In the plaint, it is also stated that since on the last date of
limitation I.e 21.07.2013 it was the Sunday, hence the suit was
instituted on the next working day i.e. 22.07.2013. The
submission of counsel for petitioner is that by taking note of
pleadings of plaint itself even if it is stated that the amount was
credited on 22.07.2010 and the suit be treated as instituted on
21.07.2013 (though due to Sunday on 21.07.2013 it was
instituted on next working day i.e. 22.07.2013), the civil suit
travels beyond period of limitation of three years. The calculation
of three years may be made on the basis of calendar of relevant
years. Reliance has been placed on the judgment passed by
Hon'ble The Supreme Court, in case of Nusli Neville Wadia vs.
Ivory Properties & Ors. Reported in [(2020) 6 SCC 557]
more particularly on para No.52.
Having heard counsel for appellant and on perusal of
impugned order as also of the plaint, it appears that before filing
of the present application under Order 14 Rule 2 CPC, petitioner-
defendant had filed an application under Order 7 Rule 11 CPC for
rejection of plaint on the ground of limitation. His application
under Order 7 Rule 11 CPC was dismissed by the trial court vide
order dated 03.09.2015. Thereafter, second application to the
same effect was filed which too was dismissed on 02.06.2017. The
petitioner sought liberty to file application under Order 14 Rule 2
CPC and instituted the present application.
The trial court has asked parties to adduce evidence on the
issue of limitation, in order to examine the determination of three
years and the fact whether the suit has been filed within the
prescribed period of limitation of three years or not?
(3 of 3) [CR-111/2021]
With such observations, the application filed by petitioner
has been decided.
In the opinion of this Court, bare perusal of plaint does not
disclose undisputedly and admittedly that the plaint is clearly
barred by limitation. For calculation of the period of three years, if
the trial court has allowed the parties to produce their evidence, it
may not be observed that the trial court acted without jurisdiction
or committed any material irregularity which leads to miscarriage
of justice with the parties. The principle of law as propounded by
the Supreme Court in case of Nusli Neville Wadia (supra) is
squarely not applicable to the facts of present case. The averment
of plaint itself do not give a clear reflection to hold the civil suit for
recovery of money as barred by limitation. The issue can be
considered more better and decided after recording evidence of
parties.
For reasons mentioned hereinabove, this Court is not inclined
to interfere with the impugned order within the scope of Section
100 CPC. If the impugned order is allowed to sustain, the same
would not occasion to a failure of justice. Hence, the civil revision
petition is not liable to be entertained and the same is dismissed.
All pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J
SAURABH/3
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