WPMS/827/2023
2023 Latest Caselaw 753 UK

      IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

        THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI

               WRIT PETITION (M/S) NO. 827 OF 2023

                              22ND MARCH, 2023

Between:

1.   Kuldeep (since deceased)
1/1. Sudeep
1/2. Sandeep alais Monu
1/3. Smt. Usha                             ......          Petitioners

and

1.   Mahendra Singh (since deceased)
1/1. Sunil Kumar
1/2. Lokesh Kumar
1/3. Hukum Dev
2.   Sandeep
3.   Babu Ram
4.   Sadhu Ram                     ......                  Respondents




Counsel for the petitioners       :   Mr. Siddhartha   Singh,   learned
                                      counsel

Counsel for the respondent        :   --


The Court made the following:

JUDGMENT:

The present petition, under Article 227 of the

Constitution of India, is directed against the order dated

01.02.2023, in Civil Revision No. 82 of 2015, passed by

the court of the II Additional District Judge, Roorkee,

District Haridwar, allowing the said revision and setting

aside the order dated 04.08.2015, passed by the trial

court, dismissing the application under Section 17 of the

Limitation Act, filed by the respondents / plaintiffs.

2) The petitioner / plaintiff has instituted a civil suit

which has not been numbered yet. The plaintiff moved an

application under Section 17 of the Limitation Act to claim

that the suit was filed within limitation upon application

under Section 17 of the Limitation Act. The trial court

dismissed the said application on 04.08.2015, against

which the aforesaid revision was preferred. As aforesaid,

the said revision has been allowed by the learned

Additional District Judge.

3) The issue, whether the suit is barred by

limitation, or not, is a mixed question of fact and law,

which has to be determined upon the reading of the

pleadings, and upon appreciation of evidence, that may be

led by the parties on the issue of limitation, if framed.

4) The trial court, it appears, dealt with the

misconceived application under Section 17, rather than

registering the suit. The trial court ought to have

registered the suit, and, upon receiving the defence in the

suit / written statement of the defendant(s) - if such an

issue were to arise, frame the issue on limitation; hold the

trial on the said issue, and; thereafter determine the issue

of limitation. That was not done and the misconceived

application under Section 17 of the Limitation Act was

decided without calling for the written statement and

without conducting a trial.

5) The revisional court has, while disposing of the

revision petition, observed as follows:

"The aforesaid all the facts on being looked in the light of the contentions raised by the revisionists/applicants in the application under Section 17 of the Limitation Act, this court is of the view that with regard to the contention raised in the application under Section 17 of the Limitation Act by the revisionists/applicants the conclusion and appropriation investigation can be arrived on the basis of the evidence provided by the respective parties even otherwise also it is the well established principle of law the question of limitation is mixed question of law and facts in which the conclusion can only be given on the basis of the evidence.

On the basis of the above discussion and analysis, this court is of the view that the application submitted by the revisionists/applicants under Section 17 of the Limitation At is hereby allowed. Accordingly the civil revision instituted by the revisionists/applicants deserves to be allowed.

Order

The Civil Revision No. 82/2015 Mahendra Singh (deceased) and others Vs Kuldeep (deceased) and others, instituted by the revisionists is hereby allowed.

The application under Section 17 of the Limitation Act filed by the revisionists/applicants is allowed and the order dated 04.08.2015 passed by the court below is hereby set aside.

The learned court below is directed to ensure the disposal of the original suit filed by the revisionists/applicants as earliest.

The parties are directed that they will ensure to appear before the learned court on 15.02.2023.

The record of the learned court below along with this decision may be sent immediately."

6) The submission of learned counsel for the

petitioners is that, by allowing the revision, the learned

Additional District Judge has, in effect, decided the issue of

limitation in favour of the respondent / plaintiff.

7) I do not agree with this submission. From the

aforesaid extract of the impugned order, it is clear that the

learned Additional District Judge has taken the view that

the issue of limitation is a mixed question of fact and law,

and the said issue can be determined only upon the

conclusion of trial, on the basis of the evidence led by the

parties. In fact, the trial court was not justified in

concluding that the suit was barred by limitation, without

framing such an issue in the suit, if raised, or arising, and

recording evidence on the said issue. The purport of the

impugned order is merely to relegate the parties before

the trial court, with a clear massage to the trial court, to

decide the issue of limitation on the basis of evidence. I,

therefore, make it clear that the issue of limitation has not

been determined, one way or another, by the revisional

court, and the said issue would have to be framed and

decided by the trial court on the basis of the pleadings and

evidence led by the parties.

8) Learned counsel has further submitted that the

direction issued by the revisional court to expeditiously

dispose of the original suit tantamounts to deciding the

issue of limitation in favour of the respondent / plaintiff.

As aforesaid, this submission is not correct, as there is no

determination of the issue on limitation by the revisional

court.

9) The present petition is disposed of in the

aforesaid light. Considering the fact that the suit is

pending since the year 2006, the trial court is directed to

proceed in the matter expeditiously. Neither party shall

seek, nor be granted any undue adjournments.

________________ VIPIN SANGHI, C.J.

Dt: 22nd MARCH, 2023 Negi