THAMBANNA Y. Vs. P. PRAKASH

JUDGEMENT

(1.) Heard the learned counsel for the appellants, the learned counsel for respondent Nos.1 and 2 and the learned counsel for respondent Nos.3 and 4.

(2.) This appeal is filed challenging the order dtd. 14/12/2022 passed by the First Appellate Court in R.A.No.97/2022 allowing the appeal, wherein challenge was made against the allowing of the application filed under Order 7 Rule 11(a) and (d) of CPC, wherein prayer was sought for rejection of the plaint on the ground of want of cause of action and also the suit is barred by law. The Trial Court taken note of the grounds which have been urged both in respect of cause of action as well as the limitation and also discussed with regard to the limitation and Article 58 of the Limitation Act and also Article 109 for filing a suit and also discussion was made with regard to in a case of suit for partition, the suit is barred by limitation. The issue of limitation is a mixed question of fact and law and the same has to be considered after recording the evidence. The other issue is regarding want of jurisdiction is concerned and the Trial Court referred the earlier judgment that is set out in the written statement and considered the contents of the written statement and allowed the application. The same is challenged before the Appellate Court.

(3.) The Appellate Court while considering the grounds, which have been urged in the appeal, formulated the point whether the Trial Court was justified in rejecting the plaint. The Appellate Court in paragraph No.14 of the order, discussed that, the advertence to the decree passed in O.S.No.562/2002 and the consequential F.D.P.No.6/2017 also indicates that the Trial Court has taken into consideration the averments in the written statement. The Trial Court was not supposed to look into such contention of the written statement while exercising the jurisdiction under Order 7 Rule 11 of CPC. It further holds that the original decree and the compromise decree in FDP in said proceedings are remained unchallenged. It also refers to attempt made by the plaintiffs to get themselves impleaded in F.D.P.No.6/2017 and the Hon'ble High Court allowing the plaintiffs to get their rights adjudicated even in respect of properties included in O.S.No.562/2002. Having considered the same, comes to the conclusion that the Trial Court ought not to have considered the written statement while considering the application under Order 7 Rule 11 of CPC and also the Trial Court considered Article 58 of Limitation Act regarding limitation is concerned and also the same is an observation made in paragraph No.15 that the Trial Court ought not to have considered the plea of limitation and while considering the issue of limitation, the matter requires trial regarding question of fact and question of law when the mixed question of fact and law are involved. In paragraph No.16 discussed with regard to the contention of the Will is concerned and an observation is made that there are no disputed questions of fact and law when the Will is propounded and the same also requires to be considered during the trial and also relied upon the judgment of the Apex Court in the case of Bhau Ram v. Janak Singh and others reported in the AIR 2012 SC 3023 that in the said matter, it is very clear that the same has to be considered during the course of trial as well as without conducting the trial, there cannot be any finding on that issue and that too particularly taking the written statement contentions cannot be looked into while considering Order 7 Rule 11 of CPC and hence allowed the appeal and set aside the order passed on I.A.No.5 by the Trial Court and original suit was restored in view of the order.