POONAMBHAI SHANABHAI VALAND DECD. Vs. HASMUKHBHAI BACHUBHAI PARSANA

JUDGEMENT

(1.) The present second appeal is filed by the appellants-original plaintiffs challenging the impugned judgment and order by the Addl. District Judge, Ahmedabad (Rural) at Mirzapur in Regular Civil Appeal No. 17/2014 dated 22.4.2016 confirming the judgment and order below Exh. 17 in Special Civil Suit No. 514/2010 by the Sr. Civil Judge, Ahmedabd (Rural) dated 28.12.2014 under O. 7 R. 11 of the Code of Civil Procedure, 1908 for rejection of the plaint on the ground of limitation posing the following substantial questions of law : - (i) Whether the plaintiffs have proved their case independently by showing that the plaint of the plaintiffs discloses the cause of action? (ii) Whether the plaint of the plaintiffs is time barred and whether it falls within the period of limitation? (iii) Whether is it possible for the trial Court to decide the issue of concoction of power-of-attorney without adjudicating the same?

(2.) Heard learned Counsel Shri Vijay Patel appearing for the appellants and learned Advocate Ms. Trusha Patel for respondent No. 1.

(3.) Learned Counsel Shri Patel referred to the background of facts and submitted that both the Courts below have committed an error in passing the order under O. 7 R. 11 rejecting the plaint on the ground of limitation. He emphasised that the issue of limitation is a mixed question of law and facts and therefore it would depend upon the evidence and the appellants original plaintiffs should have been allowed an opportunity to lead the evidence and therefore O.7 R. 11 of CPC would not be attracted. He has referred to the background of facts as well as the judgments by both the Courts below and submitted that as could be seen from the judgment and order of the first appellate Court, the appellants original plaintiffs had no knowledge and therefore as explained in the plaint while referring to the cause of action the cause of action arose when the power-of-attorney was misused by creating the documents which came to the notice of the appellants original plaintiffs at a later stage in the year 2007.