Allowed

M/S. Commercial Pharma v. M/S. Ganpati Trade Link

Rajasthan HC9 Jul 2019CW/2910/2016

Case brief

AI extract

What is this about?

A writ petition challenging the dismissal of an application to frame an issue on limitation. The High Court quashed the lower court order, holding it was an error of law adjudicating limitation without framing the issue as required under Order XIV Rule 5 CPC, and directed the framing of a new issue.

What did the court decide?

Impugned order dated 18.01.2016 quashed and set aside. Trial Court directed to frame issue No.6 on limitation.

M/S. Commercial Pharma Vs M/S. Ganpati… — Contract and Commercial Disputes | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 2910/2016

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M/s. Commercial Pharma, C/o Sophisticated Pharma, Shop No.10, Gandhi Tower, Jalori Bari, Jodhpur through its Proprietor Sh. V.K. Vyas S/o Late Shri Shiv Kishan, aged about 56 yers, Resident of 144, Laxmi nagar, Paota, Jodhpur.

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----Petitioner

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Versus

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M/s. Ganpati Trade Link through its proprietor Smt. Shashi Purohit W/o Sh. Mahendra Purohit, Resident of Vallabh Manjil, Jalori Bari, Jodhpur.

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----Respondent

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For Petitioner(s) : Mr. Vijay Kumar Vyas For Respondent(s) : Mr. Anirudh Purohit

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JUSTICE DINESH MEHTA

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Order

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09/07/2019

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The present writ petition is directed against the order dated 18.01.2016, passed by the learned Additional District & Sessions Judge, No.4, Jodhpur Metropolitan, Jodhpur (hereinafter referred to as ‘the Trial Court’), vide which petitioner’s application under Order XIV Rule 5 of the Code of Civil Procedure has been dismissed.

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Briefly stated, the facts of the case are that the plaintiff (respondent herein) filed a suit for recovery of sum of Rs.6,66,213/- against the defendant (petitioner herein). In the suit so filed by the plaintiff, the defendant-present petitioner raised an objection regarding limitation alleging the suit to be time barred.

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(2 of 3)

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[CW-2910/2016]

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On the basis of the pleadings of the rival parties, the Trial Court framed as many as five issues, however, issue of limitation was not framed, for which the petitioner moved an application dated 11.01.2016, under Order XIV Rule 5 of the Code of Civil procedure and prayed that the issue of limitation be framed.

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The petitioner’s aforesaid application was rejected by the Trial Court vide its order dated 18.01.2016, while observing as under:-

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“okfnfu us ;g okn izfroknh ds fo:) cdk;k jkf”k dh olwyh dk izLrqr fd;k gSA loZizFke izfroknh ds bl rdZ dk Li’Vhdj.k fd;k tkuk lehphu gksxk fd mlus izfrokni= ds in la-9 esa okn vof/k ckf/kr gksus dk dFku fd;k gSA izfroknh us vius tokc nkos ds in la-9 esa okn dh le;kof/k ds laca/k esa tks vfHkdFku fd, gS] os mHk; i{k ds e/; O;kikfjd ysu nsu 2005&06 esa vkjaHk gksuk crkrs gq, okn vof/k ckf/kr gksuk crk;k gSA ;g fof/k dk lqLFkkfir fl+)kUr gS fd okn esa dky dh x.kuk jkf”k cdk;k gksus ls ekuh tkrh gS] u fd O;kikj dc ls izkjaHk gqvk fd vk/kkj ijA okfnuh ds okni= ds voyksdu ls izdV gksrk gS fd okni= ds lkFk layXu foojf.kdk ifjf”k’V (c) esa tks fooj.k pSd ,oa jkf”k dk fn;k x;k gS ,oa blds laca/k esa tks pSd izLrqr fd, x;s gS] dk voyksdu djus ds i”pkr gh U;k;ky; }kjk fook/kd fojfpr fd, gSA bl Lrj ij bl laca/k esa dksbZ vU; er izdV djuk U;k;ksfpr ugha gS D;ksafd okn lk{; ds Lrj ij gSA ijUrq izfroknh }kjk izkFkZuk i= ,oa tokc nkos esa tks vk/kkj vof/k ckf/kr gksus ds crk, x, gS] os vkSfpR;ghu gSA ,slh fLFkfr esa izfroknh dh vksj ls izLrqr izkFkZuk i= vUrZxr vkns”k 14 fu;e 5 lifBr /kkjk 151 C.P.C. fujLr fd;k tkrk gSA”

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Mr. Vyas, learned counsel for the petitioner, assailing the order dated 18.01.2016, contended that the learned Trial Court has erred in deciding the issue of limitation itself without permitting the parties to lead evidence and that too without framing the issue. He argued that the petitioner had simply moved an application under Order XIV Rule 5 of the Code of Civil Procedure and prayed that appropriate issue in relation to

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(3 of 3)

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[CW-2910/2016]

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limitation be framed, whereas the Trial Court has proceeded to hold the suit to be within limitation.

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Mr. Anirudh Purohit, learned counsel for the respondent, supported the order passed by the learned Trial Court and contended that the suit in question was within limitation.

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Without observing anything on the merits of the finding recorded by the Court below, this Court is of the considered opinion that the Court below has fallen into manifest error of law in recording the finding that the suit in question was within limitation. While deciding an application under Order XIV Rule 5 of the Code of Civil Procedure, the Trial Court is required to decide the merits of the application and not the merit of the question/contention itself. It was incumbent upon the Trial Court to have framed an issue regarding limitation, keeping in view the specific defence taken by the defendant.

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In light of the discussion aforesaid, the impugned order dated 18.01.2016 turns out to be unsustainable, for which it is quashed and set aside.

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The Trial Court is directed to frame the following issue, as issue No.6:-

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“vk;k oknh dk okn e;kn ckgj gS\ &izfroknh”

¶28

The writ petition is allowed as above.

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The Stay Application No.2582/2016 stands disposed of accordingly.

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(DINESH MEHTA),J

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73-skm/-

M/S. Commercial Pharma v. M/S. Ganpati Trade Link

Case brief

What is this about?

What did the court decide?

M/S. Commercial Pharma v. M/S. Ganpati Trade Link

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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