# Mohd. Usman & Ors v. Khurshid @ Bhoora

- **Citation:** (2024) 4 ILRA 830
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-10
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-usman-ors-v-khurshid-bhoora-51858
- **Pages:** 9

## Headnote

(A) Civil Law - Rejection of Plaint - The
Code of Civil Procedure, 1908 - Order VII
Rule 11 - The Limitation Act, 1963 - Article
59 - Court can reject a plaint under Order
VII Rule 11 if it appears from the
statements made in the plaint that the
suit is barred by any law, including the
law of limitation - Power to reject a plaint
under Order VII Rule 11 is drastic and
should
be
exercised
only
when
the
conditions enumerated in Order VII Rule
11 are strictly adhered to - It is only if the
averments in the plaint ex facie do not
disclose a cause of action or an a reading
thereof the suit appears to be barred
under any law, the plaint can be rejected -
In all other situations the claims will have
to be adjudicated in the course of
trial.(Para -13,29)

(B) The Limitation Act, 1963 - Article 59 of
the Schedule - Limitation for filing suit for
cancellation
or
setting
aside
an
instrument or decree or for rescission of a
contract is three years - it is the date of
the knowledge of the instrument which is
the material date for start of period of
limitation and not the date of instrument.
(Para - 7,17)

Plaintiff-respondent filed Original Suit - seeking
cancellation of sale deed executed in 2008 -
alleging they only became aware of the deed in
2019 through inspection of records - defendant
filed for rejection of plaint under Order VII Rule
11 on grounds of limitation - suit was filed 11
years after the deed - Both the trial and
revisional courts dismissed the application -
Defendant-petitioner
filed
writ
petition
challenging the orders. (Para - 4,18,27)

HELD: - Courts below rightly rejected the
application under Order VII Rule 11, as the
issue of limitations is a mixed question of law
and fact to be decided after considering
evidence and hearing parties. Defendantpetitioners can raise the plea of limitation in
their written statement and get an issue framed
for consideration at trial. Section 3(1) of the
Indian Limitation Act mandates the court to
consider limitation even if not raised by parties.
(Para 27, 30-32)

Petition dismissed. (E-7)

List of Cases cited:

## Text

830 INDIAN LAW REPORTS ALLAHABAD SERIES
case and without granting unnecessary
adjournments to either of the parties
provided that there is no other legal
impediment,
keeping
in
view
the
statutory mandate of Section 21-B of the
Hindu Marriage Act quoted above.
----------
(2024) 4 ILRA 830
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2024

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matters U/A 227 No.11299 of 2023 (Civil)

Mohd. Usman & Ors. ...Petitioners
Versus
Khurshid @ Bhoora ...Respondent

Counsel for the Petitioners:
Sri Chetan Chatterjee

Counsel for the Respondent:

(A) Civil Law - Rejection of Plaint - The
Code of Civil Procedure, 1908 - Order VII
Rule 11 - The Limitation Act, 1963 - Article
59 - Court can reject a plaint under Order
VII Rule 11 if it appears from the
statements made in the plaint that the
suit is barred by any law, including the
law of limitation - Power to reject a plaint
under Order VII Rule 11 is drastic and
should
be
exercised
only
when
the
conditions enumerated in Order VII Rule
11 are strictly adhered to - It is only if the
averments in the plaint ex facie do not
disclose a cause of action or an a reading
thereof the suit appears to be barred
under any law, the plaint can be rejected -
In all other situations the claims will have
to be adjudicated in the course of
trial.(Para -13,29)

(B) The Limitation Act, 1963 - Article 59 of
the Schedule - Limitation for filing suit for
cancellation
or
setting
aside
an
instrument or decree or for rescission of a
contract is three years - it is the date of
the knowledge of the instrument which is
the material date for start of period of
limitation and not the date of instrument.
(Para - 7,17)

Plaintiff-respondent filed Original Suit - seeking
cancellation of sale deed executed in 2008 -
alleging they only became aware of the deed in
2019 through inspection of records - defendant
filed for rejection of plaint under Order VII Rule
11 on grounds of limitation - suit was filed 11
years after the deed - Both the trial and
revisional courts dismissed the application -
Defendant-petitioner
filed
writ
petition
challenging the orders. (Para - 4,18,27)

HELD: - Courts below rightly rejected the
application under Order VII Rule 11, as the
issue of limitations is a mixed question of law
and fact to be decided after considering
evidence and hearing parties. Defendantpetitioners can raise the plea of limitation in
their written statement and get an issue framed
for consideration at trial. Section 3(1) of the
Indian Limitation Act mandates the court to
consider limitation even if not raised by parties.
(Para 27, 30-32)

Petition dismissed. (E-7)

List of Cases cited:

1. Azhar Hussain Vs Rajiv Gandhi, 1986 Supp
SCC 315

2. Madanuri Sri Rama Chandra Murthy Vs Syed
Jalal, (2017) 13 SCC 174: (2017) 5 SCC (Civ)
602

3. P.C. Bhandari Vs New Victoria Mills, A.I.R.
1979 Allahabad Page 1

4. Dahiben Vs Arvindbhai Kalyanji Bhanusali
(Gajra) Dead, (2020) 7 S.C.C. 366

5. P.V. Guru Raj Reddy & anr. Vs P. Neeradha
Reddy & ors, (2015) 8 SCC 331

(Delivered by Hon'ble Manish Kumar
Nigam, J.)
4 All. Mohd. Usman & Ors. Vs. Khurshid @ Bhoora
831

1. Heard learned counsel for the
petitioners and perused the record.

2. The present petition has been filed
for the following reliefs:

"(i) Issue an order or direction
setting aside the order dated 21.10.2021
passed by the Court of Civil Judge (Junior
Division/ Judicial Magistrate Deoband,
Saharanpur in Original Suit No. 232 of
2019 title Khurshid alias Bhoora vs.
Mohammad Usman and others.

ii) Issue an order or direction
setting aside the order dated 06.10.2023
passed in Civil Revision No. 79 of 2021
titled Mohammad Usman and others Vs.
Khurshid alias Bhoora passed by the Court
of Additional District Judge Court No. 1,
Saharanpur.

iii) Issue an order or direction
directing that the plaint of Original Suit
No. 232 of 2019 title Khurshid alias
Bhoora vs. Mohammad Usman and others
pending before the Civil Judge (Junior
Division), Deoband Saharanpur may be
rejected under Order VII Rule 11 C.P.C.

iv) Or, Issue an order or direction
directing that the plea raised in the
application under Order VII Rule 11 of
C.P.C. may be decided as an issue without
prejudice to the findings recorded in the
impugned orders."

3. This writ petition has been filed
challenging the order dated 21.10.2021
passed by Civil Judge (Junior Division)
Deoband,
Saharanpur
rejecting
the
application
filed
by
the
defendantpetitioner under Order VII Rule 11 C.P.C.
in Original Suit No. 232 of 2019 (Khurshid
@ Bhoora Vs. Mohd. Usman and Others)
and the revisional order passed by the
Additional District Judge Court No. 1,
Saharanpur, dismissing the Civil Revision
No. 79 of 2021 filed by defendantpetitioner (Mohd. Usman and others Vs.
Khursid Alias Boora) vide judgment and
order dated 06.10.2023.

4. Brief facts of the case are that
Original Suit No. 232 of 2019 was
instituted by the plaintiff-respondent for
cancellation of sale-deed dated 22.01.2008
executed by the father of the plaintiff in
favour of the defendants. The defendantpetitioners contested the suit by filing the
written statement and taking a specific plea
that the suit was barred by limitation. An
application under Order VII Rule 11 C.P.C.
was filed by the defendant-petitioners for
rejection of plaint as being barred by
limitation. The plaintiff-respondent filed
their objection to the aforesaid application
and the trial court after hearing both the
parties by its order dated 21.10.2021 has
rejected the application filed by the
defendant-petitioners under Order VII Rule
11 on the ground that the question of
limitation being a mixed question of law
and fact and therefore, the same would be
decided after the evidence of the parties. A
revision filed by the petitioner was also
dismissed by the revisional court by its
order dated 06.10.2023, hence the present
writ petition.

5. Contention of learned counsel for
the petitioner is that from the perusal of the
plaint averments as well as documents filed
along with the plaint, it is apparent, that the
suit was barred by limitation and the courts
below had erred in law in rejecting the
application filed by the petitioner under
Order VII Rule 11 C.P.C. Learned counsel
for the petitioner contended that in view of
Article 59 of the Schedule appended with
832 INDIAN LAW REPORTS ALLAHABAD SERIES
the Limitation Act, 1963 the period of
limitation for cancellation or setting aside
an instrument is three years. The sale-deed
executed by father of the plaintiff was of
the year 2008 whereas, the present suit had
been filed in the year 2019 much beyond
the period of limitation. It has been further
contended by learned counsel for the
petitioner
that
from
perusal
of
the
Khatauni, which was filed along with the
plaint by the plaintiff-respondent, it is clear
that the plaintiff-respondent had knowledge
of the sale deed dated 22.01.2008 and the
suit was barred by limitation.

6. It will be useful to examine the
provisions of Order VII Rule 11 C.P.C. as
well as Article 59 of the Schedule appended
along with Limitation Act, 1963 and other
provisions as contained in the C.P.C. Order
VII Rule 11 is quoted as under:

"11. Rejection of plaint - The
plaint shall be rejected in the following
cases:-

(a) where it does not disclose a
cause of action;

(b) where the relief claimed is
undervalued, and the plaintiff, on being
required by the Court to correct the
valuation within a time to be fixed by the
Court, fails to do so;

(c) where the relief claimed is
properly valued but the plaint is written
upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to
supply the requisite stamp-paper within a
time to be fixed by the Court, fails to do so;

(d) where the suit appears from
the statement in the plaint to be barred by
any law;

[(e) where it is not filed in
duplicate];

[(f) where the plaintiff fails to
comply with the provisions of rule 9];

[Provided that the time fixed by
the Court for the correction of the valuation
or supplying of the requisite stamp-papers
shall not be extended unless the Court, for
reasons to be recorded, is satisfied that the
plaintiff was prevented by any cause of an
exceptional nature from correcting the
valuation or supplying the requisite stamppapers, as the case may be, within the time
fixed by the Court and that refusal to
extend such time would cause grave
injustice to the plaintiff.]"

7. Article 59 of Schedule appended to
the Limitation Act, 1963 is contained in
Part 4 of the Schedule 2, provides
limitation for suits relating to cancellation
of decree and instruments. Article 59 of
Schedule appended to the Limitation Act is
quoted as under:-

Part IV- Suits relating to Decrees and
Instruments.
59. To cancel or
set
aside
an
instrument
or
decree or for
the
rescission
of a contract.
Three
years
When the facts entitling
the plaintiff to have the
instrument
or
decree
cancelled or set aside or
the
contract
rescinded
first become known to
him

8. From the reading of Clause 11(d)
of Order VII C.P.C., it is clear where the
suit appears from the statements in the
plaint to be barred by any law, the Court
shall reject the plaint.

9. Indeed, Order VII Rule 11 C.P.C.
gives ample power to the Court to reject the
4 All. Mohd. Usman & Ors. Vs. Khurshid @ Bhoora
833
plaint, if from the averments in the plaint, it
is evident that the suit is barred by any law
including the law of limitation, this position
is no more res integra.

10. The remedy under Order VII Rule
11 is an independent and special remedy,
wherein the court is empowered to
summarily dismiss a suit at the threshold,
without proceeding to record evidence, and
conducting a trial, on the basis of evidence
adduced, if it is satisfied that the action
should be terminated on any of the grounds
contained in this provision.

11. The underlying object of Order
VII Rule 11 is that if in a suit, no cause of
action is disclosed or the suit is barred by
limitation under Rule 11(d), the court
would
not
permit
the
plaintiff
to
unnecessarily protract the proceedings in
the suit. In such case, it would be necessary
to put an end to the sham litigation, so that
further judicial time is not wasted.

12. In Azhar Hussain Vs. Rajiv
Gandhi reported in 1986 Supp SCC
315 this Court held that the whole purpose
of conferment of powers under this
provision is to ensure that a litigation which
is meaningless, and bound to prove
abortive, should not be permitted to waste
judicial time of the court in the following
words:

"12. ...The whole purpose of
conferment of such power is to ensure that
a litigation which is meaningless, and
bound to prove abortive should not be
permitted to occupy the time of the Court,
and exercise the mind of the respondent.
The sword of Damocles need not be kept
hanging over his head unnecessarily
without point or purpose. Even if an
ordinary civil litigation, the Court readily
exercises the power to reject a plaint, if it
does not disclose any cause of action."

13. The power conferred on the court
to terminate a civil action is, however, a
drastic one, and the conditions enumerated
in Order VII Rule 11 are required to be
strictly adhered to.

14. Under Order VII Rule 11, a duty
is cast on the Court to determine whether
the plaint discloses a cause of action by
scrutinizing the averments in the plaint,
read in conjunction with the documents
relied upon, or whether the suit is barred by
any law.

15. Order VII Rule 11(d) CPC
provides that the plaint shall be rejected
"where the suit appears from the statement
made in the plaint to be barred by any law",
hence, in order to decide whether the suit is
barred by law, it is the statement in the
plaint will have to be construed. The Court
while deciding such an application under
Order VII Rule 11 C.P.C. must have due
regard only to the statements made in the
plaint. Whether the suit is barred by any
law
must
be
determined
from
the
statements in the plaint and it is not open to
decide the issue on the basis of any other
material including the written statement in
the case.

16. In case of Madanuri Sri Rama
Chandra Murthy Vs. Syed Jalal; (2017)
13 SCC 174: (2017) 5 SCC (Civ) 602; the
Apex Court has summarized the legal
position as follows :-

"The plaint can be rejected under
Order VII Rule 11 if conditions enumerated
in the said provision are fulfilled. It is
needless to observe that the power under
Order VII Rule 11 CPC be exercised by the
834 INDIAN LAW REPORTS ALLAHABAD SERIES
Court at any stage of the suit. The relevant
facts which need to be looked into for
deciding the application are the averments
of the plaint only. If on an entire and
meaningful reading of the plaint, it is found
that the suit is manifestly vexatious and
meritless in the sense of not disclosing any
right to sue, the court should exercise
power under Order VII Rule 11 CPC. Since
the power conferred on the Court to
terminate civil action at the threshold is
drastic, the conditions enumerated under
Order VII Rule 11 of CPC to the exercise of
power of rejection of plaint have to be
strictly adhered to. The averments of the
plaint have to be read as a whole to find
out whether the averments disclose a cause
of action or whether the suit is barred by
any law. It is needless to observe that the
question as to whether the suit is barred by
any law, would always depend upon the
facts and circumstances of each case. The
averments in the written statement as well
as the contentions of the defendant are
wholly immaterial while considering the
prayer of the defendant for rejection of the
plaint. Even when the allegations made in
the plaint are taken to be correct as a
whole on their face value, if they show that
the suit is barred by any law, or do not
disclose cause of action, the application for
rejection of plaint can be entertained and
the power under Order VII Rule 11 CPC
can be exercised. If clever drafting of the
plaint has created the illusion of a cause of
action, the court will nip it in the bud at the
earliest so that bogus litigation will end at
the earlier stage."

17. Article 59 of the Schedule
appended with Limitation Act, 1963,
provides that limitation for filing suit for
cancellation or setting aside an instrument
or decree or for rescission of a contract is
three years. Time from which the period of
limitation will start has also been provided
in Article 59 and according to which when
the facts entitling the plaintiff to have the
instrument or the decree cancelled or set
aside or the contract rescinded first become
known to the plaintiff. Thus, from the
Article 59 of the Schedule, it is clear that
though the limitation have been provided
for cancellation or setting aside an
instrument is three years, but the limitation
will start running only when the plaintiff
comes to know about the facts entitling the
plaintiff to have the instrument cancelled or
set aside become first known to him. Thus,
it is the date of the knowledge of the
instrument which is the material date for
start of period of limitation and not the date
of instrument.

18. With the help of counsel for the
petitioner, I have perused the plaint of O.S.
No. 232 of 2019 filed by the plaintiffrespondent, which has been filed as
Annexure No. 1 to this petition. In
paragraph nos. 2 and 3 the plaintiffrespondent had made an averment to the
effect that when the plaintiff-respondent
obtained copy of Khatauni on 31.10.2019,
the plaintiff-respondent came to know
about the order dated 26.09.2019 by which
the name of plaintiff-respondent was
deleted from the revenue record. When the
plaintiff-respondent moved an application
for recalling the order dated 26.09.2019
and got the file inspected in the Registry
Office, he came to know about the saledeed dated 22.01.2008.

19. At this juncture, it would be
relevant to refer the provisions of Order
VII Rule 6 of C.P.C., which is quoted as
under:-

"6. Grounds of exemption from
limitation law.
4 All. Mohd. Usman & Ors. Vs. Khurshid @ Bhoora
835

Where the suit is instituted after
the expiration of the period prescribed by
the law of limitation, the plaint shall show
the ground upon which exemption from
such law is claimed:

Provided that the Court may
permit the plaintiff to claim exemption from
the law of limitation on any ground not set
out in the plaint, if such ground is not
inconsistent with the grounds set out in the
plaint."

20. Rule 6 of Order VII provides that
where the suit is barred by limitation, it is
necessary for the plaintiff to show the
ground of exemption in the plaint. The
provisions of Rule 6 are mandatory in
nature,
whenever
the
plaintiff
seeks
exemption from the operation of law of
limitation, he must take grounds on which
such exemption is sought. If no such
ground is shown by the plaintiff, the plaint
is liable to be rejected.

21.

However,
after
the
1976
amendment a proviso was added to Rule 6.
Proviso to the Rule as inserted by
Amendment Act, 1976 enables the court to
permit a plaintiff to rely on a new ground
of exemption, if it is not inconsistent with
the ground mentioned in the plaint. In case
of P.C. Bhandari Vs. New Victoria Mills
reported in A.I.R. 1979 Allahabad Page 1,
it has been held by this Court where in a
suit instituted for recovery of debt, the
plaintiff sought exemption from limitation
law relying on a letter of acknowledgement
written by the defendant after the expiry of
3 years from the date of transaction and
also referred to his two letters making
conditional acknowledgement not pleaded
in his statement of claim as saving
limitation. It has been held that after the
amendment in the Order VII Rule 6 of the
C.P.C., there can be no impediment in
taking into consideration the two letters for
the purpose referred to in the opening part
of the proviso to Rule 6. The Rule 6 has to
be liberally interpreted so as to advance the
cause of justice since the proviso being
procedural in nature.

22. From the averments as made in
paragraph nos. 2 and 3 of the plaint referred
above, it is clear that the plaintiffrespondent has claimed exemption from the
law of limitation and has made necessary
pleadings in this regard as contemplated by
Rule 6 of Order VII and therefore, on the
plain reading of the plaint, it cannot be said
that the present suit is barred by limitation
as contended by learned counsel for the
petitioner.

23. Since at the stage of deciding an
application under Order VII Rule 11,
C.P.C., it is only the plaint averments has to
be seen. In the present case, from the
reading of the plaint as a whole and
proceeding on the basis that the averments
made therein are correct, which is that the
court is required to do so, it cannot be said
that the said pleadings ex-facie disclose
that the suit is barred by limitation.

24. So far as contention raised by
learned counsel for the petitioner that the
suit itself was instituted after lapse of more
than 11 years from the date of execution of
the sale-deed and the plaintiff-respondent
had knowledge of the sale-deed as stated by
the petitioner in his application under Order
VII Rule 11, cannot be looked into at this
stage of considering the application moved
by the petitioner under Order VII Rule
11(d) C.P.C.

25. Learned counsel for the petitioner
further contended that it is not only the
836 INDIAN LAW REPORTS ALLAHABAD SERIES
plaint but also the documents filed by the
petitioner along with the plaint has to be
taken into consideration while deciding an
application under Order VII Rule 11 of
C.P.C. In this regard, the petitioner has
relied upon judgment of the Supreme Court
in case of Dahiben Vs. Arvindbhai
Kalyanji
Bhanusali
(Gajra)
Dead
reported in (2020) 7 S.C.C. 366. In case of
Dahiben (supra), the Apex Court in
paragraph nos. 12.2, 12.3, 12.4, 12.5 and
12.6 had held as under:

"12.2 The power conferred on the
court to terminate a civil action is,
however, a drastic one, and the conditions
enumerated in Order VII Rule 11 are
required to be strictly adhered to.

12.3 Under Order VII Rule 11, a
duty is cast on the Court to determine
whether the plaint discloses a cause of
action by scrutinizing the averments in the
plaint, Liverpool & London S.P. & I Assn.
Ltd. vs. M.V. Sea Success I & Anr., (2004)
9SCC 512, read in conjunction with the
documents relied upon, or whether the suit
is barred by any law.

12.4
Order
VII
Rule
14(1)
provides for production of documents, on
which the plaintiff places reliance in his
suit, which reads as under :

"Order VII Rule 14: Production
of document on which plaintiff sues or
relies.- (1)Where a plaintiff sues upon a
document or relies upon document in his
possession or power in support of his
claim, he shall enter such documents in a
list, and shall produce it in Court when
the plaint is presented by him and shall,
at the same time deliver the document
and a copy thereof, to be filled with the
plaint.

(2)Where any such document is
not in the possession or power of the
plaintiff, he shall, wherever possible, state
in whose possession or power it is.

(3)A document which ought to be
produced in Court by the plaintiff when the
plaint is presented, or to be entered in the
list to be added or annexed to the plaint but
is not produced or entered accordingly,
shall not, without the leave of the Court, be
received in evidence on his behalf at the
hearing of the suit.

(4)Nothing in this rule shall apply
to document produced for the cross
examination of the plaintiff's witnesses, or,
handed over to a witness merely to refresh
his memory." (emphasis supplied)

Having regard to Order VII Rule
14 CPC, the documents filed alongwith the
plaint, are required to be taken into
consideration for deciding the application
under Order VII Rule 11 (a). When a
document referred to in the plaint, forms
the basis of the plaint, it should be treated
as a part of the plaint.

12.5 In exercise of power under
this provision, the Court would determine
if the assertions made in the plaint are
contrary to statutory law, or judicial
dicta, for deciding whether a case for
rejecting the plaint at the threshold is
made out.

12.6 At this stage, the pleas taken
by the defendant in the written statement
and application for rejection of the plaint
on the merits, would be irrelevant, and
cannot be adverted to, or taken into
consideration. Sopan Sukhdeo Sable vs.
Assistant Charity Commissioner, (2004) 3
SCC 137."
4 All. Mohd. Usman & Ors. Vs. Khurshid @ Bhoora
837

26. I have also perused the revenue
records filed by the plaintiff-respondent
along with his plaint and which are
annexed as Annexure no. 2 to the petition
with the help of counsel for the petitioner,
but could not find anything which may lead
to a conclusion that the petitioner had
knowledge of the impugned sale-deed and
therefore, the suit is barred by limitation.
Further stand taken and explained by
counsel for the petitioner in his application
under Order VII Rule 11 cannot be
considered at this stage.

27. The courts below has rejected the
application under Order VII Rule 11 filed
by the petitioner on the ground the issue of
limitation has to be decided after framing
an issue in this regard and deciding the
same after considering the evidence of the
parties and hearing them.

28. Question of limitation is generally
a mixed question of law and fact. In case of
Ramesh B Desai and others vs. Vipin
Vadilal Mehta and others; (2006) 5 SCC
638; the Apex Court while dealing with the
issue of limitation held that a plea of
limitation cannot be decided as an abstract
principle of law divorced from facts, as in
every case, the starting point of limitation
has to be ascertained which is entirely a
question of fact.

29. In case of P.V. Guru Raj Reddy
and Another Vs. P. Neeradha Reddy and
others; (2015) 8 SCC 331, the Apex Court
held that rejection of the plaint under Order
VII Rule 11 of CPC is a drastic power
conferred in the Court to terminate a civil
action at the threshold. The conditions
precedent to the exercise of power under
Order VII Rule 11 CPC, therefore, are
stringent and have been consistently held to
be so by the Court. It is the averments in
the plaint that have to be read as a whole to
find out whether it discloses a cause of
action or whether the suit is barred under
any law. At the stage of exercise of power
under Order VII Rule 11 CPC, the stand of
the defendants in the written statement or in
the application for rejection of the plaint is
wholly immaterial. It is only if the
averments in the plaint ex facie do not
disclose a cause of action or an a reading
thereof the suit appears to be barred
under any law, the plaint can be rejected.
In all other situations the claims will
have to be adjudicated in the course of
trial.

30. The courts below have rightly
held that the issue of limitation being a
mixed question of law and facts and has to
be decided after considering the evidence
of the parties and hearing them after
framing an issue as to the limitation.

31. In my view no illegality has to be
committed by the courts below in rejecting
the application filed by the petitioner under
Order VII Rule 11(d) of C.P.C. Petitioner
will always have an opportunity to raise the
plea of limitation in his written statement
and to get an issue framed in this regard,
which shall be considered and decided by
the courts below at the time of hearing after
considering the evidence of the parties.

32. Even otherwise, in view of
Section 3(1) of the Indian Limitation Act, it
is the duty of the Court or Tribunal to
consider the issue of limitation of its own
even though the issue of limitation has not
been raised by either of the parties. In this
regard, Section 3 of the Indian Limitation
Act is quoted as under :-

"3. Bar of limitation.- (1)
Subject to the provisions contained in
838 INDIAN LAW REPORTS ALLAHABAD SERIES
sections 4 to 24 (inclusive), every suit
instituted,
appeal
preferred,
and
application made after the prescribed
period
shall
be
dismissed,
although
limitation has not been set up as a defence.

(2)......."

33. In my view the petition lacks in
merits and is therefore, dismissed.
----------
(2024) 4 ILRA 838
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.04.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DONADI RAMESH, J.

Crl. Misc. Writ Petition No. 984 of 2024

Mohd. Anees ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sundeep Shukla

Counsel for the Respondents:
G.A.

Criminal Law - U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Sections 2 & 3 - U.P. Gangsters and AntiSocial
Activities
(Prevention)
Rules,
2021 - Rules 5(3)(a), 5(3)(e), 8, 16, 17
& 18 - Constitution of India,1950 -
Article 226 - Petitioner challenged FIR dated
22.05.2023 (Case Crime No. 185 of 2023)
under Sections 2/3 of the Gangsters Act,
alleging
non-compliance
with
procedural
rules. Court held: (1) Filing a second writ
petition challenging the same FIR, previously
dismissed on 13.07.2023 in Crl. Misc. Writ
Petition
No.
10390
of
2023,
was
not
maintainable without specific permission from
the Supreme Court, which only allowed filing
an application, not a fresh petition (Sarguja
Transport Service Vs St. Transport Appellate
Tribunal, AIR 1987 SC 88). (2) New grounds
raised in the second petition, available during
the first petition, indicated an attempt at
bench hunting and abuse of process, as the
Supreme Court's order dated 04.12.2023 in
SLP (Crl.) Diary No. 45613/2023 permitted
only an application, likely a review, not a
fresh challenge. (3) Re-hearing on merits
through
a
review
application
was
impermissible, as it exceeded the scope of
review (Vinod Kumar Vs St. of U.P., 2022 (11)
ADJ 25 (DB)). Second writ petition dismissed
with Rs. 20,000/- cost, to be deposited with
the Registrar General for the Allahabad High
Court Mediation and Conciliation Centre.
(Paras 5-12)

Writ Petition Dismissed.

List of Cases cited:

1. Sarguja Transport Service Vs St. Transport
Appellate Tribunal, AIR 1987 SC 88 (Para 6)

2. Vinod Kumar Vs St. of U.P., 2022 (11) ADJ 25
(DB) (Para 10)

3. Shraddha Gupta Vs The St. of U.P., Criminal
Appeal No. 569-570 of 2022 (Para 3, cited in
earlier petition)

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard Sri Sandeep Shukla, learned
counsel for the petitioner and Sri Ratan
Singh, learned AGA for the State and
perused the record.

2. Present petition has been filed with
the following prayers:

"a. Issue a writ, order or direction
in the nature of certiorari quashing the
impugned First Information Report dated
22.05.2023 bearing Case Crime No. 185 of
2023, under Section 2/3 of the Uttar
Pradesh
Gangsters
and
Anti-Social
Activities (Prevention) Act, 1986, Police
Station Partapur, District Meerut.