# Bhagwan Singh Defendant/ v. Sri Nahar Singh & Ors

- **Citation:** (2014) 1 ILRA 329
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-31
- **Case number:** Civil Misc. Writ Petition No. 2870 of 2014
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwan-singh-defendant-v-sri-nahar-singh-ors-42798
- **Pages:** 2

## Text

1 All] Bhagwan Singh Vs. Sri Nahar Singh & Ors.
329
Judges for communicating to members of
DLSAs, CJMs and other concerned judicial
officers, District legal aid counsel, ADG
(Prisons), U.P. for communication to all Jail
superintendents, Law Secretary and LR,
Home Secretary, U.P., Director General
(Medical
and
Health),
U.P.,
learned
Government Advocate, learned AGA Sri
Vimlendu Tripathi, Special counsel for High
Court, Sri Sudhir Mehrotra, learned Amicus
Curiae, Sri Patanjali Mishra, and also to place
the same before the R.G. High Court for
compliance and submission of feedback on
next listing. We hope that the said authorities
or at least the high level representatives on
their behalf who are capable of taking
decisions in 13 the matters and answering the
queries that may be raised by the Court, shall
attend the hearing on the next listing.

20. List on 21.4.2014
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2014

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 2870 of 2014

Bhagwan Singh.... Defendant/Petitioner
Versus
Sri Nahar Singh & Ors.
..... Plaintiffs/Respondents

Counsel for the Petitioner:
Sri S.C. Pandey

Counsel for the Respondents:
Sri M.K. Srivastava
C.P.C.- Order VII Rule-11- Application to
reject
plaint-on
ground
of
limitationrejected by Trail Court-as after exchange of
pleading-after framing issues-this question
can be decided more appropriately-no
interference called for-petition dismissed.
Held: Para-10 & 11
10. The non rejection of the plaint under
Order 7 Rule 11 CPC would only entail
participation and contest of the suit by the
defendant who thereupon can always raise
an issue of the suit being barred by
limitation. On such a plea being raised an
issue regarding suit being barred by time
can be framed by the court and decided
more appropriately on the basis of the
evidence
adduced
by
the
parties
irrespective of rejection of the plaint under
Order 7 Rule 11 CPC.

11. Thus, the order impugned does not in
any manner results in miscarriage of justice
causing irreparable loss and injury to the
petitioner which may warrant interference
by this Court in exercise of extra-ordinary
writ jurisdiction.

Case Law discussed:
(2006) 5 SCC 658; (2005) 7 SCC 510; (2005) 5
SCC 548.

(Delivered by Hon'ble Pankaj Mithal, J.)

1. The plaintiff respondents no. 1
and 2 on 29.5.2008 have filed a suit for
specific performance of an agreement to
sell dated 15.6.1983.

2. Petitioner filed an application under
Order 7 Rule 11 CPC alleging that the suit is
patently barred by law of limitation.. The
application has been rejected by the courts
below.

3. The submission of the learned
counsel for the petitioner is that the question
of limitation is dependent upon the legal
proposition and no factual aspects are
involved therein and therefore the courts
below are not justified in rejecting the
application.

4. Learned counsel for respondents
no. 1 and 2 relies upon a decision of the
Supreme Court in (2006) 5 SCC 658
330 INDIAN LAW REPORTS ALLAHABAD SERIES
Balasaria Construction (P) Limited Vs.
Hanuman Seva Trust and others and
contends that a plaint is not liable to be
rejected under Order 7 Rule 11 CPC on
the ground of being barred by law of
limitation.

5. In the above-referred case the
provisions of Order 7 Rule 11(d) CPC were
not held applicable as the court was of the
opinion that the aforesaid question can not be
decided without proper pleadings framing an
issue of limitation and taking of evidence.

6. This was preciously laid down by
the Supreme Court in Popat and Kutecha
Property Vs. State Bank of India Staff
Association (2005)7 SCC 510 that where a
question of limitation has to be decided on
the basis of the fact, the plaint is not liable to
be rejected under Order 7 Rule 11(d) CPC.

7. The settled position otherwise is that
the plaint of a suit could be rejected, if the suit
on the face of the pleadings in the plaint itself
appears to be barred by law of limitation.

8. In this regard, a reference may be had
to the judgment of the Supreme Court in the
case of N.V. Srinivasa Murthy and others Vs.
Mariyamma and others (2005) 5 SCC 548.

9. Thus, in sum and substance where
the question of suit being barred by
limitation is a mixed question of fact and
law and is dependent upon the evidence to
be adduced by the parties, it is not proper
to resort to Order 7 Rule 11 CPC so as to
reject the plaint summarily.

10. The non rejection of the plaint under
Order 7 Rule 11 CPC would only entail
participation and contest of the suit by the
defendant who thereupon can always raise an
issue of the suit being barred by limitation. On
such a plea being raised an issue regarding suit
being barred by time can be framed by the
court and decided more appropriately on the
basis of the evidence adduced by the parties
irrespective of rejection of the plaint under
Order 7 Rule 11 CPC.

11. Thus, the order impugned does
not in any manner results in miscarriage
of justice causing irreparable loss and
injury to the petitioner which may warrant
interference by this Court in exercise of
extra-ordinary writ jurisdiction.

12. In view of the aforesaid facts and
circumstances, the petition is disposed of
with the direction to the court below to
formulate an issue regarding the suit being
barred by limitation and to decide the same
after allowing the parties to adduce evidence
on the said issue.

13. The writ petition is disposed of.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2014

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 3041 of 2013

Arvind Kumar-II Petitioner
Versus
High Court of Judicature at Allahabad &
Anr. ...... Respondents

Counsel for the Petitioner:
Sri Shashi Nandan, Sri Udayan Nandan,
Sri Rupak Chaubey
Counsel for the Respondents:
C.S.C., Sri Manish Goyal

Constitution of India, Art.-227-Expunging
adverse
remark-petitioner
while
discharging judicial duty-passed certain
order on release application-Distt. Judge