Balbeer Singh @APPELLANT@Hash Bhoop Singh

This revision petition is directed against the order dated 13/11/2017 passed by Senior Civil Judge, Bhadra District Hanumangarh, whereby, issue no. 9

framed by the trial court has been decided in favour of plaintiff and against the petitionerdefendant.

The respondent-plaintiff Bhoop Singh filed a suit for specific performance of contract dated 25/5/1987 on 26/2/2010. The petitioner and other

defendants upon service of summons filed their written statement and, thereafter filed an application under Order VII Rule 11 CPC seeking rejection

of the plaint alleging the same being barred by limitation. The trial court rejected the application on 16/9/2016. Feeling aggrieved, the petitioner filed

S.B.Civil Revision Petition No. 205/2016, which came to be decided by order dated 21/12/2016, whereby, the trial court was directed to decide the

issue of limitation as a preliminary issue. Pursuant thereto, by impugned order dated 13/11/2017 the issue of limitation has been decided, whereby, the

trial court has come to the conclusion that the suit has been filed within three years from the date of refusal and, therefore, the same was within

limitation.

It is submitted by learned counsel for the petitioner that the trial court committed grave error in deciding the issue in favour of the plaintiff. It was

submitted that from a bare perusal of the averments made in the plaint as well as the stipulation made in the agreement, it was apparent that besides

falsehood, the cause of action had arisen in the year 1987 itself and not on 28/5/1999 when the mutation was recorded in favour of Ram Singh and

sons of Gurudutt Singh as ‘Gair Khatedars’, however, the trial court ignoring the said aspect, merely on account of unsubstantiated allegations

regarding threatening given to dispossess the plaintiff, has taken the date as date of refusal and held the suit within limitation, which is ex facie

incorrect.

Learned counsel for the respondents supported the finding recorded by the trial Court. It was submitted that despite grant of opportunity to the

petitioner to lead evidence, the petitioner refused to lead any evidence on the said issue and as the petitioner did not lead any evidence, the respondent

plaintiff also did not lead any evidence on the said issue and once no evidence was led by the defendant in respect of the said issue, burden of which

lay on him, no objection can now be raised in the present proceedings and, therefore, the revision petition deserves to be dismissed.

Further submissions were made that the finding recorded by the trial court is just and proper in the circumstances of the case, which does not call for

any interference.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

A perusal of the material available on record indicates that after written statement was filed and issues were framed including the issue of limitation,

an application was filed under Order VII Rule 11 CPC, which came to be rejected by the trial court observing that the issue relating to limitation being

a mixed question of law and fact could only be decided after the parties lead evidence. Feeling aggrieved, the petitioner approached this Court by filing

revision petition and in the revision petition the petitioner made prayer that trial court be directed to decide the issue of limitation as a preliminary issue,

which prayer was granted ex-parte by a coordinate bench of this Court and the trial court was directed to decide the issue of limitation as preliminary

issue.

Surprisingly enough, before the trial court both the parties submitted that they did not want to lead any evidence and the arguments may be heard

based on the available documents, on which the trial court heard the arguments and as noticed hereinbefore decided the preliminary issue.

The trial court while deciding the issue has inter alia referred to several documents as available on record. However, the said procedure adopted by

the trial court based on the submissions made by the parties is wholly incorrect inasmuch as neither admission/denial of the documents was effected

nor any of the document was marked as exhibit and, therefore, none of the documents in question could have been taken into consideration by the trial

court while deciding the issue. Once the trial court had rejected the application under Order VII Rule 11 CPC holding the issue of limitation as a mixed

question of law and fact, while deciding the issue No. 9, again the same was sought to be decided based on the averments of the parties without any

party proving the assertions made in the plaint and/or in the written statement, which procedure is ex facie illegal and could not have been permitted by

the trial court. Either the parties should have been directed to admit/deny the documents and admitted documents should have been marked as exhibits

and, thereafter, the matter could have been decided based on the exhibited documents, however, once even admission/denial did not take place and

none of the documents was marked as exhibit, the trial court could not have taken the said documents into consideration.

When both the learned counsel were confronted with the said aspect of the matter, which was also noticed by this court while issuing notice in the

revision petition, while counsel appearing for the respondent-plaintiff submitted that the finding on the issue may be set aside and matter be remanded

back to the trial court and the trial court may be directed to decide all the issues together, learned counsel for the petitioner insisted on arguing the

matter on merits and made submissions.

As already noticed hereinbefore, there was no admissible evidence either oral or documentary available on record for the trial court to have decided

the issue of limitation on merits and, therefore, the issue, burden of which lay on the petitionerdefendant, for lack of any evidence, was liable to be

decided against the petitioner-defendant.

However, the matter does not stop there, inasmuch as in view of the provisions of Section 3 of the Limitation Act, 1963, the duty is cast on the court

to dismiss every suit instituted after the prescribed period of limitation, although limitation has not been setup as a defence, but the trial court is

required to render proper/legal finding on the said issue, and the finding on the said issue in absence of admissible oral/documentary evidence could not

be rendered by the trial court. In view of the above situation, the matter needs to be remanded back to the trial court.

There is substance in the submission made by learned counsel for the respondents that now the trial court needs to be directed to decide all the issues

together, after the parties lead the evidence inasmuch as the petitioner-defendant has missed the bus because at his request this Court while deciding

the earlier revision petition had directed the trial court to decide the issue of limitation as preliminary issue, however, on account of his own conduct in

not leading the evidence, the trial court has adopted an incorrect procedure and, therefore, the petitioner now cannot insist for getting the issue again

decided as a preliminary issue.

In view of the above discussion, the order dated 13/11/2017 passed by the trial court is set aside, the trial court is directed to decide all the issues

including issue no.9 relating to limitation together after parties lead their evidence on all the issues. It is made clear that any of the observations made

hereinbefore would not affect the finding/final outcome of the suit.

The revision petition stands disposed of with above directions.

Looking to the fact that suit is pending since the year 2010, the trial court is directed to proceed with the suit most expeditiously.