Dismissed

Vandana Verma v. Kamlesh Verma

Allahabad HC2 Aug 2019FAPL/565/2019

Case brief

AI extract

What is this about?

This is an appeal under Section 19 of the Family Courts Act, 1984 against an order requiring a limitation issue to be decided after evidence. The Court held the appeal is not maintainable as the order is interlocutory and limitation is a mixed question of fact and law, not a pure question of law.

What did the court decide?

Appeal dismissed on merit and on ground of non-maintainability. The order dated 17.7.2019 remains in favor of the respondent.

Vandana Verma Vs Kamlesh Verma — Civil Procedure and Limitation | Allahabad HC (2019)

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Court No. - 34

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Case :- FIRST APPEAL No. - 565 of 2019

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Appellant :- Vandana Verma Respondent :- Kamlesh Verma Counsel for Appellant :- Raghubir Singh,Krishnaji Khare Counsel for Respondent :- J.P. Pandey

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.

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Heard Sri Krishan Ji Khare, learned counsel for appellant, Sri J.P.Pandey, learned counsel for opposite party and persued the record.

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This appeal under Section 19 of Family Courts Act, 1984 (hereinafter referred to as "Act, 1984") has come up against order dated 17.7.2019 passed by Principal Judge, Family Court, Agra, rejection application 44-C of appellant whereby appellant prayed that issue no.3, relating to limitation, should be treated as preliminary issue and should be decided first before proceeding to decide the suit on merits.

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Court below has taken a view that issue no.3 shall be decided alongwith other issues and it is not necessary to decide the same as a preliminary issue particularly when attempt of appellant appears is only to delay the proceedings. Earlier also, it appears that an application was filed by appellant raising objection that suit filed by respondents is barred by limitation. The said application was rejected by Family Court vide order dated 04.02.2017 observing that matter of limitation shall be decided after parties have adduced evidence on the above aspect. The said order dated 04.02.2017 was challenged by appellant in First Appeal No.196 of 2017 and this Court dismissed the same observing that order dated 04.02.2017, rejecting objection of appellant, is in the nature of interlocutory order whereagainst

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appeal is not maintainable under Section 19 of Act, 1984.

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In the present case also, we are also of the view that order dated 17.07.2019, challenged in this appeal, is an order at interlocutory stage and against this order appeal is not maintainable. Moreover, question of limitation is mixed question of fact and law and when an issue has been framed on this aspect, the same can be decided after the parties adduce evidence. Order 14 Rule 2 C.P.C. also gives liberty to Trial Court to decide any issue as 'preliminary issue' but there is no mandate that on mere asking by one of the parties, issue shall be decided by Trial Court as preliminary issue.

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Counsel for appellant placed reliance on a Division Bench judgment in The Manager, Bettiah Estate vs. Sri Bhagwati Saran Singh and other AIR 1993 Allahabad 2, wherein Division Bench held that discretion to try a preliminary issue of law relating to jurisdiction or bar to the suit should be exercised only when it is so clear that decision will dispose of the suit finally and once for all without necessity of recording any evidence.

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The matter relating to limitation is not a pure question of law but mixed question of fact and law, therefore, evidence is necessary and hence it cannot be said that it should have been decided as a preliminary issue.

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Appeal, therefore, is dismissed on merit and also as not maintainable.

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Order Date :- 2.8.2019 KA

Vandana Verma v. Kamlesh Verma

Case brief

What is this about?

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Vandana Verma v. Kamlesh Verma

Case brief

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