Dismissed

Smt. Sheela Devi v. Bhanwar Lal

Rajasthan HC3 Sept 2024CW/12475/2024

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a trial court's decision to reject an application for deciding limitation as a preliminary issue. The court held that limitation was a mixed question of fact and law requiring evidence evaluation, thus unfit for preliminary adjudication.

What did the court decide?

Writ petition dismissed. Pending applications and stay petition disposed of.

Smt. Sheela Devi Vs Bhanwar Lal — Specific Performance | Rajasthan HC (2024)

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[2024:RJ-JD:36473]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 12475/2024

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Smt. Sheela Devi W/o Late Shankarlal Ji Pokharna, Aged About 76 Years, R/o Devgarh, District Rajsamand.

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Manoj S/o Late Shankarlal Ji Pokharna, Aged About 55 Years, R/o Devgarh, Currently Residing At Chandeliars India Pvt. Ltd. Shop No. 1 And 2, Pital Wala Apartment Tilak Road, Shantacruz West, Mumbai.

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----Petitioners

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Versus

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Bhanwar Lal S/o Late Nenchand Ji, R/o Jhalo Ki Madar, Tehsil Nathdwara, District Rajsamand.

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State Of Rajasthan, Through Tehsildar, Tehsil Nathdwara, District Rajsamand.

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----Respondents

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For Petitioner(s) : Mr. Deelip Kawadia Mr. Siddharth Mandawat

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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03/09/2024

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The present writ petition has been preferred against the order dated 13.05.2024 passed by the Additional District Judge, Nathdwara, District Rajsamand in Civil Original Suit No.36/2013 whereby an application as preferred on behalf of the petitionersdefendants with a prayer for deciding issue No.3 pertaining to limitation, as a preliminary issue, was rejected.

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Learned counsel for the petitioners submits that the complete suit was based on a document pertaining to the year 1972 and hence, all the reliefs as prayed for in the suit being based on the said document, were clearly, time barred.

[2024:RJ-JD:36473]

[CW-12475/2024]

(2 of 3)

Therefore, issue No.3 ought to have been decided as a preliminary issue.

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Learned counsel, in support of his submission, relied upon the judgment passed by the Division Bench of Delhi High Court in the case of Renu Khhullar vs. Aaron; 2018 (170) DRJ 268 (decided on 21.05.2018).

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Heard learned counsel for the petitioners and perused the material available on record as well as the order impugned. 5. A bare perusal of the reliefs as prayed for in the suit makes it clear that all the said reliefs pertain to declaration and no prayer for cancellation of the document of the year 1972 has been made. Further, the ground of the property been purchased in the name of his deceased brother as benamidar , has also been raised by the plaintiff.

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In view of the above facts, it is clear that the issue of limitation, in the present case, is a mixed question of fact and law. As observed rightly by the learned Trial Court, an issue based on mixed question of fact and law cannot be decided as a preliminary issue.

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The reliance of learned Trial Court on the Hon’ble Apex Court judgment in the case of M/s. Mongia Realty and Buildwell Pvt. Ltd. vs. Manik Sethi; 2022 DNJ (SC) 275 and Co-ordinate Bench judgment in the case of Dinesh Kumar Srivastava & Anr. vs. Pradeep Kumar Srivastava & Ors.; 2017 (4) DNJ (Raj.) 1809 cannot be said to be misplaced.

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So far as the ratio laid down in the case of Renu Khhullar (supra) is concerned, there is no dispute regarding the proposition that the period of limitation to challenge an instrument

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[2024:RJ-JD:36473]

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[CW-12475/2024]

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once started running, cannot stop. But then, why the said limitation should be reckoned from the alleged cause of action and not from the date of execution of the instrument, can only be decided after evaluation of the facts and the evidence led on the same. The learned Trial Court rightly held that the issue of limitation could not have been decided as a preliminary issue in the present matter.

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No case for interference is made out. The writ petition is hence, dismissed .

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Stay petition and all pending applications, if any, stand disposed of .

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(REKHA BORANA),J

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3-SPhophaliya/T.Singh/-

Smt. Sheela Devi v. Bhanwar Lal

Case brief

What is this about?

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Smt. Sheela Devi v. Bhanwar Lal

Case brief

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