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Rajasthan High Court · body

2016 DIGILAW 694 (RAJ)

Shyam Sunder v. Naseeb Kaur

2016-05-17

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against the order dated 29.3.2016 passed by the Trial Court, whereby the application filed by the petitioner under Order 14, Rule 2 C.P.C. has been rejected. 2. The respondents-plaintiffs filed a suit for cancellation of sale deed dated 17.1.2001 executed by father/husband of the plaintiffs, in which they have put their thumb impression as witnesses. It was inter-alia claimed in the suit that the document was got executed fraudulently by the Counsel, who was representing the plaintiffs before the Revenue Courts. 3. Initially, the petitioner filed an application under Order 7, Rule 11 C.P.C. seeking dismissal of the suit as barred by limitation, which application was rejected by the Trial Court, against which a revision petition was filed, which was also dismissed. 4. The written statement was filed by the petitioner inter-alia placing reliance on large number of documents showing the conduct of the plaintiffs relying on the sale deed and the fact of sale having already taken place, the Trial Court framed issues. Issue No. 3 pertained to the limitation. 5. After the issues were framed on 5.8.2014, the present application was filed by the petitioner under Order 14, Rule 2 C.P.C. seeking decision on the issue pertaining to the limitation as a preliminary issue. 6. The application was opposed by the plaintiffs and the Trial Court, after hearing the parties, came to the conclusion that the issue can be decided as preliminary issue only where the same does not require leading of any evidence and as the issue pertaining to limitation in the present case required evidence of the parties as to whether the sale deed was got executed fraudulently, the same cannot be decided as a preliminary issue and consequently, dismissed the application. 7. It is submitted by learned Counsel for the petitioner with reference to the large number of documents, which have been filed along with the writ petition that the suit is on face of it barred by limitation and therefore, the Trial Court was not justified in dismissing the application filed by the petitioner under Order 14, Rule 2 C.P.C. 8. I have considered the submissions made by learned Counsel for the petitioner and have perused the material available on record. 9. I have considered the submissions made by learned Counsel for the petitioner and have perused the material available on record. 9. The entire contention of the plaintiffs has been that the document in question was got executed fraudulently by the Counsel, who was representing them before the Revenue Courts and the petitioner-defendant based on several documents is seeking to contend that the plea raised by the petitioner is baseless and their conduct shows otherwise. 10. The issue of limitation in the present case, which is sought to be projected by the petitioner, is essentially based on large number of documents and till such time the documents are properly proved/exhibited, the same cannot form the basis for decision on the issue which pertains to the limitation and therefore, to said extent, the Trial Court was justified in coming to the conclusion that the issue could not be decided without parties leading evidence. 11. However, looking to the nature of the present case, wherein the petitioner is seeking to rely on large number of documents, which are documents pertaining to the various litigation's and are statements, which have been recorded before various forums, the Trial Court on an appropriate application to be made by the petitioner, can examine the possibility of deciding the issue pertaining to limitation after taking evidence qua the said issue only as the determination of the Trial Court by the order impugned that the preliminary issue can only be decided, if the same does not require leading of any evidence appears to be contrary to the settled law. 12. In view thereof, leaving the petitioner free to move appropriate application before the Trial Court for decision on the issue pertaining to limitation as preliminary issue after recording limited evidence, the writ petition filed by the petitioner is disposed of.