Dismissed

David Tyagaraj v. Daphne Dilip James

Madras HC6 Mar 2020OSA/179/2019

Case brief

AI extract

What is this about?

The High Court of Madras dismissed an original side appeal filed by the defendant against the Single Judge's order rejecting an application to reject the plaint for limitation. The Court ruled that limitation in partition suits depends on framing of issues as it is a mixed question of law and facts.

What did the court decide?

Original Side Appeal dismissed. Connected miscellaneous petition also dismissed. No costs awarded.

David Tyagaraj Vs Daphne Dilip James — Partition | Madras HC (2020)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 06.03.2020

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CORAM

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THE HON'BLE DR.JUSTICE VINEET KOTHARI AND THE HON'BLE MR.JUSTICE R.SURESH KUMAR

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O.S.A.Nos.179 of 2019 and C.M.P.No.15790 of 2019

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David Tyagaraj ... Appellant

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-Vs-

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1.Dr.Daphne Dilip James 2.Dr.Karthik Selvakumaran 3.Dr.Sangeetha Selvakumaran

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... Respondents

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Prayer : Appeals under Clause 15 of the Letters Patent against the order of this Court dated 26.02.2019 passed in A.No.6428 of 2018 in C.S.No.968 of 2017.

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Prayer in A. 6428 of 2018 : Application praying to reject the plaint under order VII Rule ii(a) and (d) of the C.P.C.

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Prayer in C.S. 968 of 2017: Plaint filed under Order IV Rule 1 of O.S.Rules Read with order VII, Rule 1 of the C.P.C to grant a preliminary decree for partition of 1/3rd share to the 1st plaintiff and 1/3rd share jointly to the plaintiffs 2 and 3 and thereafter pass a final decree by appointing an Advocate Commissioner to divide the plaint schedule property into 3 equal shares and allot one such share to the 1st plaintiff and 1 such share jointly to the plaintiffs 2 and 3 by demarcating the same by metes and bounds, directing the defendant to pay costs of the suit; and grant such other relief or reliefs of the Honourable Court may deem fit.

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For Appellant : Mr.Venkatesh V.S. For Respondents: Mr.C.Jagadish

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C O M M O N J U D G M E N T (Judgment of the Court was delivered by DR.VINEET KOTHARI, J.)

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This Original Side Appeal has been filed by the defendant David Tyagaraj S/o Muthusamy Masilamani Tyagaraj, aggrieved by the order dated 26.02.2019, whereby the learned Single Judge dismissed the application under Order 7 Rule 11 of C.P.C., filed by the defendant seeking rejection of the plaint. The

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https://hcservices.ecourts.gov.in/hcservices/

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reasons assigned by the learned Single Judge in the impugned order in paragraph 6 are quoted below for ready reference.

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"6. In view of the above said categorical pronouncements, it is seen that the plaint cannot be rejected as barred by limitation unless it appears from the avements with the plaint that it is barred by limitation. A reading of the plaint in the case on case on hand does not lead to the conclusion that the same is barred by limitation. The contents of the reply notice cannot be looked into while dealing with an application under Order VII Rule 11. In view of the same, the application stands dismissed."

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Learned counsel for the appellant submitted that there was a Will in favour of the defendant executed long ago and after service of the notice dated 16.10.2017, which was replied by him on 31.10.2017 saying that the dispute had arisen five years ago about the said property and therefore, the suit was barred by limitation and the learned Single Judge has erred in rejecting the application under Order 7 Rule 11 of C.P.C.

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Per contra, learned counsel for the plaintiff supported the impugned order and submitted that the present appeal deserves to be dismissed.

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Having heard the learned counsel for the parties, we are of the clear opinion that there is no error in the order of the learned Single Judge as the question of limitation is always a mixed question of law and facts, which requires to be decided upon issue being framed. Merely giving a notice and reply thereof does not render the suit for partition barred by limitation ex-facie and therefore, the learned Single Judge was right in holding that it is a mixed question of law and facts and it has to be decided by way of framing of issues.

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The appeal is devoid of any merits and deserves to be dismissed and the same is accordingly dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.

Sd/-

Assistant Registrar

//True Copy//

Sub Assistant Registrar

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KST

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https://hcservices.ecourts.gov.in/hcservices/

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The Sub Assistant Registrar (O.S), High Court, Madras.

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+1cc to Mr.V.S.Venkatesh Advocate, S.R.No. 20735

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O.S.A.No.179 of 2019

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SSV(CO) GN(01/07/2020)

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https://hcservices.ecourts.gov.in/hcservices/

David Tyagaraj v. Daphne Dilip James

Case brief

What is this about?

What did the court decide?

David Tyagaraj v. Daphne Dilip James

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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