Dismissed

Dinesh Kumar Jaiswal (Died )Thru. His Legal Heirs 1/1-AMIT Jaiswal and 2 Others v. Dr. Chandra Kumar Jaiswal

Allahabad HC25 Sept 2024/4565/2024

Case brief

AI extract

What is this about?

In this writ petition under Article 227, the petitioner challenged the dismissal of his application under Order 7 Rule 11 CPC seeking rejection of a plaint on limitation grounds. The High Court held that since preliminary issues on limitation were framed requiring evidence and not yet decided, the trial court exercised no jurisdictional error warranting interference.

What did the court decide?

Petitioner's writ petition under Article 227 challenging the impugned order dated 09.11.2022 was dismissed.

Dinesh Kumar Jaiswal (Died )Thru. His Legal Heirs… — Property and Title | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:66545

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Court No. - 8

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Case :- MATTERS UNDER ARTICLE 227 No. - 4565 of 2024

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Petitioner :- Dinesh Kumar Jaiswal (Died )Thru. His Legal Heirs 1/1-Amit Jaiswal And 2 Others Respondent :- Dr. Chandra Kumar Jaiswal Counsel for Petitioner :- Abdullah Ramzi Khan,Umair Ahmad Khan

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Counsel for Respondent :- Shyam Mohan Pradhan,Rajiv Kumar Srivastava

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Hon'ble Jaspreet Singh,J.

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Heard Sri Abdullah Ramzi Khan learned counsel for the petitioners and Sri Shyam Mohan Pradhan learned counsel for the private respondent on caveat.

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By means of the instant petition, the petitioners who are defendants in the suit instituted by the private respondent had moved an application under Order 7 Rule 11 CPC seeking rejection of the plaint on the ground of being barred by limitation. It is submitted by the learned counsel for the petitioners that trial court by passing the impugned order has incorrectly passed the order and refused to reject the plaint in terms of Order 7 Rule 11 C.P.C. The order passed by the trial court dated 09.11.2022 was assailed by the petitioners by filing a revision and the revisional court also dismissed the revision by means of the order dated 22.08.2024.

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Submission of learned counsel for the petitioners is that the private respondent had instituted a suit and the cause of action was based on relief for seeking declaration of the registered Will dated 26.05.1986 executed by the grandfather of the petitioners as null and void.

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It is urged that the suit came to be filed in the year, 2013 whereas the Will is of the year, 1986 and it was per se barred by limitation and this aspect has not been appropriately considered by the two Courts.

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It is also urged that multiple cause of action has been pleaded in the plaint which was not permissible and in light of the decision of the Apex Court even in case of multiple cause of action, the period of limitation is to be reckoned from the date when the cause of action accrued for the first time. In this context, it is urged that there was specific pleadings by the plaintiff that the

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cause of action occurred in the year, 1986 when the said Will was executed and thereafter, again on 09.04.2012 and in such circumstances the suit was per se barred by limitation.

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Learned counsel for the caveator, on the other hand, submits that apparently, this is not the manner in which the proceedings have been taken forward. He has submitted that though the petitioners had filed an application under Order 7 Rule 11 CPC raising the ground of limitation but the fact remains that this was made the subject matter of issues which was framed by the trial court on 16.03.2018. It is further submitted that two issues were framed to be tried as preliminary issue:

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(i) as to whether the suit was barred by Order 7 Rule 11 CPC.

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(ii) that the suit was barred by limitation.

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Once the aforesaid two preliminary issues were framed, thereafter, by means of the order dated 09.11.2022, the trial court only decided Issue no.1 and held that since it was an issue relating to mixed question of law and fact which can only be decided after taking evidence hence, the said issue was disposed of, accordingly, the revisional court also taking note of the aforesaid facts and circumstances upheld the order passed by the trial court.

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It is thus, urged that the application under Order 7 Rule 11 merely permitted the defendant petitioners to take up the matter and once the issue has been decided, this in itself will not give any cause of action to assail the said order by filing a petition in as much as, no issue has been finally decided rather the matter has been deferred, subject to leading of evidence by the parties on the issue concerned. It is also submitted that since, there were two issues which were interlinked with each other and one could not have been decided without taking note of the other. In these circumstances, merely assailing the order while one issue has been deposed will not permit the petitioners to maintain the petition. For the aforesaid reasons, the petition deserves to be dismissed.

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The Court has heard learned counsel for the parties and certain facts which are undisputed are being noticed first.

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It is not disputed that the private respondent instituted a suit seeking declaration regarding the Will dated 26.05.1986.

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From the perusal of the plaint on record, a copy of which is annexed as Annexure-4, it would indicate that in paragraphs-14 to 18 the plaintiff respondent has detailed the manner in which

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the cause of action arose. Merely, because different dates have been mentioned, it will not give any impetus to the fact that this may amount to multiple cause of action. There is a difference in the term used 'multiple cause of action' and a 'continuing cause of action'. From a perusal of the plaint prima facie, it appears that it is a case of continuing cause of action and not multiple cause of action.

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Even otherwise, once the suit has been filed and the pleadings have been exchanged and further the issues have been framed and it is also not disputed that two issues as to whether the suit was barred by Order 7 Rule 11 and the other issue whether the suit was barred by limitation were interconnected rather it was the two species of the same genus and one could not have been decided without considering the other.

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The trial court after hearing parties had already recorded its satisfaction that the issues are such which can be decided only once the parties lead evidence. Hence, it cannot be said that the jurisdiction and the manner in which it has been exercised by the trial court suffers from such a palpable error of law which may persuade this Court to entertain the petition, at this stage. Since, the issues have yet not been decided and primarily the contention of the petitioners is based on the ground of limitation which is a mixed question of fact and law. While considering an application for Order 7 Rule 11 CPC, it is only the plaint averments and documents filed by the plaintiff can be considered and no point of the defense is to be considered. In the instant case, the issues were framed which can be decided after leading of evidence and, thus, the issues are yet to be finally decided. Hence, leaving it open for the parties to lead evidence in regard to the said issues which needless to say shall be decided by the trial court as per law.

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In the aforesaid circumstances, this Court does not find that the petition needs to be entertained, at this stage, hence, with the aforesaid observations, the petition is dismissed.

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Order Date :- 25.9.2024 Harshita

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Digitally signed by :- HARSHITA High Court of Judicature at Allahabad, Lucknow Bench

Dinesh Kumar Jaiswal (Died )Thru. His Legal Heirs 1/1-AMIT Jaiswal and 2 Others v. Dr. Chandra Kumar Jaiswal

Case brief

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Dinesh Kumar Jaiswal (Died )Thru. His Legal Heirs 1/1-AMIT Jaiswal and 2 Others v. Dr. Chandra Kumar Jaiswal

Case brief

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