The Second Appeal dismissed a challenge to the Single Judge's order upholding the plaint in an ownership dispute. The Single Judge correctly held that mixed questions of fact and law regarding limitation and fraud, which require evidence, cannot be resolved in a bar to maintainability application under Order VII Rule 11 CPC.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
$~
Date of decision : 2nd February, 2016 RAJESH KUMAR ARORA & ANR. ..... Appellant Through: Mr. Vivek Singh, Adv.
versus
KUNDAN LAL GERA & ORS ..... Respondent Through: Mr. Rahul Gupta, Mr. Shekhar Gupta and Mr. Umang Gupta, Advs. for R-1 Mr. Nitin Gupta, Adv. for R-2 to 5
CORAM: HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE I.S.MEHTA
JUDGMENT (ORAL)
Gita Mittal, J
CM No.5333/2014
Heard.
For the reasons stated, delay in filing the appeal is condoned.
This application is allowed in the above terms.
FAO(OS) No.152/2014
FAO (OS) 152/2014 Page 1 of 4
grounds of limitation. The appellant also assails the order dated 21st April, 2014 passed in Review Petition No. 508/2013 rejecting the appellant’s petition of review of the order dated 19th August, 2013. 2. So far as rejection of the application is concerned, it has been urged by Mr. Vivek Singh that the appellant had clearly admitted that the suit property had fallen to the share of Sh. Kanshi Ram Gera under a family settlement executed in 1960 which family settlement stood acted upon. It is urged that as per the suit, the oral settlement of 1960 was sought to be reduced to writing in the year 1978 which was not done and gave rise to the cause of action for filing the suit. The submission is that as such, the suit challenging the alienation made by him with regard to the Krishna Market, Kalkaji property filed 19 years after the partition of 1960 is not maintainable. As per Mr. Singh, therefore, the suit filed in 2006 was hopelessly barred by limitation on the face of the pliant. Therefore, I.A.No.6706/2009 which was filed by the appellant/plaintiff under Order VII Rule 11 of CPC seeking rejection of the plaint on the ground that the suit was barred by the law of limitation, deserved to be accepted. 3. It is pointed out by Mr. Rahul Gupta appearing for respondent no.1 that it was the case of his client who is the plaintiff in the suit that his father Sh. Raj Kumar Gera, from him he derived rights in the suit property, expired only on 29th July, 2005 whereupon his rights were activated. It is, further, submitted that in the plaint, the plaintiff has pleaded that only in the year 2002, he learnt about the fraud committed by his uncle Shri Kanshi Ram Gera in filing a suit and obtaining a fraudulent decree dated 1st May, 1978 about the suit
FAO (OS) 152/2014 Page 2 of 4
property and as such, the suit filed in 2006 was within the period of limitation. The appellant disputes these assertions of the respondent/plaintiff and his plea of the limitation bar is premised on this contest.
FAO (OS) 152/2014 Page 3 of 4
learned Single Judge has framed an issue on the question of limitation and the parties have been given an opportunity to prove their rival contentions in accordance with law.
For all these reasons, we find no merit in this appeal which is hereby dismissed.
CM Nos.5332/2014 and 5334/2014
GITA MITTAL, J
I.S.MEHTA, J
FEBRUARY 02, 2016
FAO (OS) 152/2014 Page 4 of 4
2 issues framed by the court
Whether Order VII Rule 11 CPC permits rejection of a plaint on limitation grounds when the limitation plea depends on facts not ascertainable from the plaint alone.
Whether an assertion of fraud and date of knowledge in a plaint, uncontradicted by evidence, precludes rejection on limitation grounds at the plaint stage.
1 provisions across 1 enactments
Rajesh Kumar Arora
Kundan Lal Gera
Gita Mittal
I.S. Mehta
As recorded by the court registry
An appeal to a Division Bench against an order made by a single judge on the original side of the High Court.
Judgements on the same questions, provisions and authorities, from every court
