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2024 DIGILAW 206 (RAJ)

Islamuddin v. Kunal Palriya

2024-02-02

MAHENDAR KUMAR GOYAL

body2024
JUDGMENT : Mr. Mahendar Kumar Goyal, J. - The matter comes up on an application no.2/2023 filed by the applicant/respondent no.2 for taking documents on record and disposal of the writ petition in the light of settlement arrived at between the parties. 2. Learned counsel for the applicant, inviting attention of this Court towards the compromise deed dated nil executed between the parties, would submit that the dispute has amicably been settled by them. He further submits that taking benefit of this compromise deed, the petitioner got the FIR No.70/2022 registered at Police Station Ramganj, District Ajmer quashed from this Court. He, therefore, prays that the application be allowed and the writ petition be dismissed on the strength of the compromise. 3. Per contra, learned counsel for the petitioner submits that the dispute has not yet been settled between the parties fully and finally. He further submits that the applicant has also filed a similar application before the learned trial Court which is pending consideration. He, therefore, prays for dismissal of the application. 4. Heard. Considered. 5. Conspicuously, the applicant/respondent no.2 has not disclosed in his application that he has also filed an application before the learned trial Court for dismissal of the suit on the strength of compromise entered into between the parties. In view thereof, learned counsel for the applicant could not satisfy this Court as to how this application is maintainable. 6. Even otherwise, the instant writ petition has been filed assailing the legality and validity of the order dated 30.09.2021 passed by the learned Additional District Judge No.1, Ajmer (for brevity, "the learned trial Court") whereby, while deciding an application filed by the respondents/defendants (for brevity, "the defendants") under Order 7, Rule 11 CPC, the question of limitation has been directed to be decided as a preliminary issue. In view thereof, the question of settlement of dispute by way of the compromise deed (Annexure-R/2/2), which is disputed by one of the parties to the compromise deed, cannot be examined by this Court in its writ jurisdiction under Article 227 of Constitution of India and the suit cannot be dismissed herein on this count. In the aforesaid circumstances, the application is found to be wholly misconceived and deserves to be dismissed with cost. 7. Resultantly, the application no.2/2023 is dismissed with cost of Rs. In the aforesaid circumstances, the application is found to be wholly misconceived and deserves to be dismissed with cost. 7. Resultantly, the application no.2/2023 is dismissed with cost of Rs. 2,000/- which shall be deposited by the applicant/respondent no.2 with the Litigants Welfare Fund within a period of four weeks from today. 8. With the consent of the learned counsels for the respective parties, this writ petition has been heard on its merit at this stage. 9. In the writ petition, assailing the impugned order, learned counsel for the petitioner/plaintiff (for brevity, "the plaintiff") submits that in view of the observations made by the learned trial Court itself that the question of limitation is a mixed question of law and fact which could be decided only after recording evidence of the parties, no direction could have been issued to decide it as a preliminary issue. He, therefore, prays that the writ petition be allowed and the order dated 30.09.2021 be quashed and set aside. 10. Although, learned counsel for the defendants opposed the prayer; but, could not dispute that if the question of limitation involves disputed question of facts, it cannot be decided as a preliminary issue. 11. Heard. Considered. 12. Admittedly, the present case involves disputed question of facts qua the limitation as observed by the learned trial Court as well. Therefore, in view of the provisions of Order 14, Rule 2 (2)(b) CPC and the judgement of a three-Judge Bench of Hon'ble Supreme Court of India in the case of Nusli Neville Wadia v. Ivory Properties and Ors.: (2020) 6 SCC 557 , which provides that only if the facts are admitted, the issue of limitation can be decided as a preliminary issue, this Court finds that the order dated 30.09.2021 directing the issue of limitation to be decided as the preliminary issue, cannot be sustained in the eye of law. 13. Resultantly, this civil writ petition is allowed. The order dated 30.09.2021 is quashed and set aside. 14. The pending application no.1/2023 stands disposed of accordingly.