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2019 DIGILAW 1335 (RAJ)

Kedar Infracon Private Ltd v. Daulat Ram Nagda

2019-05-02

DINESH MEHTA

body2019
JUDGMENT Dinesh Mehta, J. - The revision petition at hands emanates from the impugned order dated 26.7.2018, passed by learned Additional District Judge No.5, Udaipur (hereinafter referred to as the 'trial Court'), vide which the petitioners' application dated 08.01.2018, filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 has been rejected. 2. Succinctly stated the facts apropos the present case are that the plaintiff-respondent herein has instituted a suit for recovery of arrears of his salary and other emoluments on 16.08.2016, interalia indicating that the cause of action has accrued to him on 14.07.2017. 3. The defendants-petitioners herein filed above referred application dated 08.01.2018 interalia contending that the suit filed by the plaintiff was barred by limitation and thus the plaint was liable to be returned. 4. Learned trial Court, however, rejected the petitioners' aforesaid application, vide its order impugned interalia observing that the questions raised in the application under Order VII Rule 11 of the Code are the defence of the defendants and the same can be examined at an appropriate stage, and not at the threshold or upon an application under Order VII Rule 11 of the Code. 5. Mr. Tribhuvan Gupta, learned counsel for the petitioners assailing the order oppugned, submitted that the trial Court has committed an error of law in rejecting petitioners' application under Order VII Rule 11 of the Code. He argued that the petitioners had raised a question of law hitting at the maintainability of suit purely on the ground of limitation. He contended that a mere look at the averments in plaint itself reveals that the suit filed by the plaintiff was barred by limitation, having been filed after three years of the cause of action shown in the plaintiff. He invited attention of the Court towards the notings made by the Registry of the Court, wherein the suit was reported to be barred by limitation. 6. Mr. Salil Trivedi, learned counsel for the respondent-plaintiff submitted that question of limitation is always a mixed question of facts and law and to decide such questions that the entire plaint has to be seen. He contended that the petitioners have simply picked up some of the averments in the plaint so as to argue that the suit was time barred, whereas the complete reading of the plaint filed by the plaintiff reveals that the suit was filed within the limitation. He contended that the petitioners have simply picked up some of the averments in the plaint so as to argue that the suit was time barred, whereas the complete reading of the plaint filed by the plaintiff reveals that the suit was filed within the limitation. According to the learned counsel for the respondent, the petitioners-defendants have already filed their written statement taking this defence and the trial Court would frame an issue in this regard and decide the suit in accordance with law after permitting the parties to lead their evidence. 7. I have heard learned counsel for the parties and perused the material available on record. 8. It is settled proposition of law that while deciding the application under Order VII Rule 11 of the Civil Procedure Code, the trial Court is required to look at the averments made in the plaint itself. It is also true that the question of limitation is generally a mixed question of facts and law, but this principle is also not absolute and there are certain exceptions to this rule. 9. Upon perusal of the plaint, this Court finds that the petitioners-defendants have raised a valid question of limitation, which goes to the root of the matter, particularly in light of averments made by the plaintiff in para No.5 of the plaint, which is reproduced hereunder : 10. Notwithstanding the above averments made in the plaint, the question of limitation involved in the present case is not as simple as it appears to be on the first blush. One cannot ignore the plaintiff's averment made in para No.2 of the plaint wherein he has stated that a sum of Rs.1,20,000/- has been deposited by the defendants in plaintiff's bank account. It is true that no date of such deposit and/or particulars thereof have been indicated in the plaint, but such fact can have a relevant bearing on the question of limitation involved in the present case and evidence may be required to be filed. 11. In this view of the matter, the trial Court is directed to frame an issue of limitation as a preliminary issue and decide the same in accordance with law, of course, after recording evidence of both the parties, confined to this issue. 12. With these observations, the present revision petition is disposed of. 11. In this view of the matter, the trial Court is directed to frame an issue of limitation as a preliminary issue and decide the same in accordance with law, of course, after recording evidence of both the parties, confined to this issue. 12. With these observations, the present revision petition is disposed of. Needless to observe that the trial Court shall decide the preliminary issue before proceeding further in the matter without being influenced or effected by any of the observations made hereinabove.