Allowed

Arun Kumar Pilania v. Deoki Yadav

Jharkhand HC5 Dec 2022C.M.P./206/2022

Case brief

AI extract

What is this about?

In a civil misc. petition under Article 227, the High Court declared notices validly served. The Court set aside the Trial Court's order treating issues on maintainability and limitation as preliminary, directing the Trial Court to dispose of the suit expeditiously within nine months.

What did the court decide?

Impugned order set aside; the Trial Court directed to dispose of the suit expeditiously within a period of nine months.

Arun Kumar Pilania Vs Deoki Yadav — Property and Title | Jharkhand HC (2022)

¶1

IN THE HIGH COURT OF JHARKHAND AT RANCHI

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C. M. P. No. 206 of 2022

Arun Kumar Pilania

… …. Petitioner

Versus

Deoki Yadav

¶8

Jamuna Devi

¶9

Suresh Yadav

¶10

Binod Yadav

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Sangeeta Devi

¶12

… …. Opp. Parties

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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----For the Petitioner : M/s Prashant Pallav & Shivani Jaluka, Advocates For the Opp. Parties :

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Oral Order

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05 / Dated : 05.12.2022

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The notice issued on opposite party nos. 2 to 4 by registered post has not been returned and, therefore, they are deemed to be served in terms of proviso of Order V Rule 9 of C.P.C.

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The acknowledgment of the notice issued on opposite party nos. 1 and 5 has been received.

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Under the circumstance, the notices are declared to be validly served on the respondents.

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The instant civil misc. petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 22.02.2022 passed by the Civil Judge (Sr. Division)-I, Koderma in M.C.A. Case No. 55 of 2021 arising out of Title Suit No. 50 of 2010 whereby and whereunder, the court below have framed following three issues :

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I. Whether the suit is maintainable in its present form?

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II. Whether the suit is barred by law of Limitation, waiver, estoppel and acquiescence?

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III. Whether the suit suffers from non-joinder and mis-joinder of the parties? 4. Learned counsel for the petitioner submits that the suit has not been filed only for permanent injunction, as observed by the learned Court below, rather it has been filed for declaration of right, title, interest and recovery of possession as well. It is further submitted that the limitation is always the mixed question of fact and law, as the period of limitation commences from the date when the cause of action arose. The plaintiff has made specific pleading in paragraph-22 of the plaint that cause of action arose on 09.06.2008 and

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14.12.2009 which was within the period of limitation. Under Order XX Rule 5 of C.P.C. in suits in which issues have been framed, the Court shall state its finding or decision, with the reason therefor, upon each separate issue, unless the finding upon anyone or more of the issues is sufficient for the decision of the suit.

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Unless there is a determination of facts, a suit cannot be dismissed on the ground of limitation. Order XIV Rule 2 does not authorise the court to treat such mixed question of facts and law as preliminary issue. Order XIV Rule 2 provides that where issues both of law and fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first. It is the mandate of Order XX Rule 5 that the court shall state its findings or decision with vision thereof upon each separate issue and all the distinct issues have to be answered by the findings supported by reasons.

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The Trial Court has completely misdirected itself to hold that these issues were preliminary issues and could be decided before other issues.

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Under the aforesaid facts and circumstance, the impugned order is set aside. The Trial Court is directed to dispose of the suit expeditiously, preferably within a period of nine months from today.

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This civil misc. petition is allowed.

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AKT

Arun Kumar Pilania v. Deoki Yadav

Case brief

What is this about?

What did the court decide?

Arun Kumar Pilania v. Deoki Yadav

Case brief

What is this about?

What did the court decide?

What the court decided

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