S N REKHI Vs. PAMILA MANMOHAN SINGH

JUDGEMENT

(1.) WE have heard the learned counsel for the parties on this appeal, which is filed against the judgment and order dated 17. 05. 2002 passed by the learned single Judge in the suit, whereby the learned Single Judge has answered two issues on the basis of an application filed under Order VII Rule 11 of the Code of Civil Procedure.

(2.) THE respondent herein, namely, Smt. Pamila Manmohan Singh instituted a suit for declaration of right, title and interest in respect of the suit property and for for a decree for possession and mesne profit. In paragraph-22 of the plaint, it was stated by her that as per Section 14 of the Limitation act, the period between 1981, that is the year when the suit was instituted and 24. 08. 1993, that the date when the suit was dismissed in default and for non-prosecution, that is, 12 years has to be excluded in computing the period of limitation for filing the suit regarding the suit filed in respect of authenticity of a gift deed. A bare reading of the paragraph indicates that it was assumed by the respondent herein that while filing the appeal that the suit was otherwise barred by limitation, but the period of limitation is protected in view of the statement made in paragraph-22 of the plaint. The said statement made in paragraph-22 was refuted by the appellant in his written statement, contending as follows:

(3.) IN the light of the aforesaid pleadings of the parties, it appears to us that the said issue with regard to as to whether the suit was barred by limitation could have been decided only after the parties are allowed to lead their respective evidence on this aspect. The said issue involves not only the question of fact, but also of law. In our considered view, it was not proper for the learned Single Judge to consider the said issue only as an issue of law and deciding the same on the basis of an application under Order VII Rule 11 of the code of Civil Procedure and not giving the parties to lead any evidence.