In a revision petition regarding rejection of application to dismiss a suit in limine on limitation grounds, the court dismissed the petition, allowing the petitioner to raise limitation contentions before the trial court.
The revision petition is dismissed with no order as to costs.
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THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR
C.R.P. NO. 5766 of 2006
Date of order: 26.8.2010
Between:
G. Rama Konda Reddy
…Petitioner
and
Patla Narayana
..Respondent
THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR
C.R.P. NO. 5766 of 2006
ORDER:
Learned counsel for the petitioner has filed a postal acknowledgement and stated that notice has been served on the respondent. Nobody appeared for the respondent. Heard learned counsel for the petitioner.
This revision petition is directed against the order of court below dated 21.8.2006 rejecting the petitioner’s application under Section 151 of the Code of Civil Procedure seeking dismissal of the suit in limini. It was alleged in the said application that the suit is based upon a pro note dated 15.5.2002 and the last day of limitation
for filing the suit would be 15.5.2005. The petitioner/defendant claims that the suit was filed with a nominal court fee of Rs.1-00 on 4.6.2005 i.e., the day of reopening of courts after summer vacation. It was also alleged that the office of the court below returned the suit as the court fee was insufficient and the respondent/plaintiff was required to make good the deficiency by or before 9.6.2005. However, the respondent/plaintiff could not comply with the said order and re-presented the suit only on 13.7.2005 with a delay of 28 days. Again the suit was twice returned on 18.7.2005 and 8.8.2005. Ultimately the suit was registered as OS No. 150 of 2005. The Court below has rejected the said application under the impugned order.
The learned counsel for the petitioner/defendant submits that even before the time for payment of deficit court fee was extended by the court below under Section 149 of the Code of Civil Procedure, notice ought to have been given to the petitioner/defendant to enable him to raise objections with regard to maintainability of the suit on ground of limitation. The learned counsel for the petitioner has also placed reliance upon a decision of this Court reported in Sivishi Associates Vs. Jagadeeshwari Agencies[1] in support of his contention.
I am, however, not inclined to go into the said
aspects on merits at this stage in view of the fact that the question of limitation is a mixed question of law and fact. In any case, the petitioner/defendant is said to have filed a written statement and is contesting the suit. The present contention of the petitioner/defendant that the suit is barred by limitation can be raised by him before the trial court, if not already raised, by way of additional written statement. The petitioner/defendant shall be at liberty to raise the said contention when the trial Court frames issues including on the plea of limitation and request the trial Court to decide the issue on limitation as a preliminary issue, so that both the parties shall have adequate opportunity to urge their respective contentions. In that view of the matter, the petitioner/defendant’s interest can adequately be safeguarded with respect to the contention now raised in this revision.
With the above observations, the revision petition is dismissed, however, there shall be no order as to costs.
_________________________ VILAS V. AFZULPURKAR, J
Dt. 26.8.2010 KR
[1] 2006 (2) ALT 704
2 issues framed by the court
Whether the revision petition against rejection of application under Section 151 CPC seeking dismissal of suit in limine should be allowed.
Whether the contention of bar by limitation can be raised by the petitioner before the trial court.
Colour shows how this judgement treated each authority
Sivishi Associates Vs. Jagadeeshwari AgenciesReferred¶16
2006 (2) ALT 704
2 provisions across 1 enactments
G. Rama Konda Reddy
Patla Narayana
Vilas V. Afzulpurkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
