Issue of limitation cannot be decided without recording of evidence, once it becomes a mixed question of law and fact: Delhi High Court upholds Trial Court’s dismissal of Order 7 Rule 11

Delhi High Court

Delhi High Court: A petition was filed by the petitioner (defendant) assailing the impugned order dated 13-09-2023 passed by Trial Court whereby her application under Order VII Rule 11 of Civil Procedure Code (CPC) was dismissed. Dharmesh Sharma, J., upholds the impugned order on finding no illegality, perversity or incorrect approach adopted by the Trial Court in dismissing the application under Order VII Rule 11 CPC vide order dated 13-09-2023.

The Court stated that “At this stage of the case, on a meaningful perusal of the pleadings/averments in the plaint filed by the respondent/plaintiff, it is difficult to discern that the suit is barred by limitation, as claimed by the petitioner. In the peculiar facts and circumstances of the case, the issue of limitation becomes a mixed question of law and fact, which cannot be decided without recording of evidence.”

The case revolves around a dispute regarding the ownership and possession of a property located near Kamal Hotel, Nai Basti, Anand Parvat, Delhi. In the instant case, the respondent submitted that he purchased the property in his own name in 2002 and the petitioner had sought his help in her divorce case against her husband. The respondent claims ownership of the first, second, and third floors of the property, alleging that it was purchased by him through various sale documents dated 29-04-2002. The petitioner on the other hand, asserts her right to reside on the second floor of the property, claiming that she had contributed towards the purchase of the property and had been allowed to reside there by the respondent without payment of rent.

The respondent filed a suit against the petitioner seeking mandatory injunction, recovery of possession, damages, and mesne profit. The petitioner, in response, filed an application under Order VII Rule 11 of the Code of Civil Procedure, contending that the suit lacked a cause of action and was barred by limitation arguing that the respondent was not the rightful owner of the property and that she had acquired ownership through adverse possession which was thereby dismissed.

Counsel for petitioner argued that the suit was barred by limitation as per Article 65 Schedule I of the Limitation Act, 1963, which prescribes a limitation period of 12 years for filing a suit for possession of immovable property. Additionally, the petitioner claimed adverse possession under Section 27 of the Limitation Act. However, the Trial Court rejected the petitioner’s application, emphasizing that the decision to reject a plaint should be based solely on the allegations made therein, without considering the defendant’s defenses.

Upon examining the pleadings and averments in the plaint, the Court found it challenging to ascertain whether the suit was indeed barred by limitation. The issue of limitation, in this case, was deemed a mixed question of law and fact, necessitating evidence to be recorded. Furthermore, the Court noted that determining the petitioner’s claim of adverse possession and property ownership would require delving into her defense, which was not appropriate at the preliminary stage of the case.

The Court emphasized that while considering an application under Order VII Rule 11 CPC, the focus should be solely on the averments in the plaint, without considering the defendant’s pleas in the written statement. Rejecting the petitioner’s application, the Court asserted that the petitioner would have ample opportunity to contest the suit on its merits during the trial.

Thus, the Court found no illegality, perversity, or incorrect approach in the Trial Court’s decision to dismiss the petitioner’s application under Order VII Rule 11 CPC. Consequently, the civil revision petition was dismissed, and the pending application was disposed of without prejudice to the rights and contentions of the parties. It was clarified that the order did not express any opinion on the merits of the case, leaving it open for further adjudication during the trial proceedings.

[Parveen Bala v. Bhimsen Mehta, 2024 SCC OnLine Del 1898, decided on 11-03-2024]

Advocates who appeared in this case:

Mr. Gurmukh Singh Arora and Mr. Vansh Bajaj, Advocate for petitioner

Mr. Harsh Tikoo Advocate for respondent

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