SANTOSH DEVI Vs. NATHURAM GURJAR

JUDGEMENT

(1.) This Civil Miscellaneous Appeal has been filed by the appellant-plaintiff (for short 'the plaintiff') against the order dtd. 1/3/2024 passed by Additional District Judge No.3, Jaipur District, Jaipur in Civil Suit No.19/2017 'titled as Santosh Devi Vs. Nathuram and Ors., whereby the review petition filed by the respondent-defendant No.1 (for short 'the defendant') has been allowed and the order dtd. 18/7/2018 dismissing the defendant's application under Order 7 Rule 11 CPC has been reviewed and resultantly plaintiff's suit for declaration, cancellation of Will and permanent injunction has been dismissed.

(2.) Learned counsel for the plaintiff submits that the plaintiff had filed a suit for declaration, cancellation of Will and permanent injunction against the defendant in which plaintiff sought a relief to declare Will dtd. 27/10/1983 and 26/8/1993 as null and void and also to declare that the defendant No.1 is not adopted son of the father and mother of the plaintiff and also to restrain the defendant Nos.2 to 5 to give compensation in lieu of acquisition of land.

(3.) Learned counsel for the plaintiff also submits that the defendant No.1 had filed an application under Order 7 Rule 11 CPC. The said application was dismissed by the trial court vide order dtd. 18/7/2018 in which it was clearly held that the plaintiff did not have knowledge of so-called Will dtd. 27/10/1983 and 26/8/1993 till 2016. On that count, application filed by the defendant No.1 was dismissed. Although, the trial court observed that sisters of the plaintiff as well as mother had knowledge about these Will. Learned counsel for the plaintiff also submits that instead of filing the revision petition against the said order, the defendant No.1 filed a review petition to review the order dtd. 18/7/2018. Learned counsel for the plaintiff also submits that review had very limited scope. When an error is apparent on the face on record, then review is permissible. The trial court vide order dtd. 1/3/2024 had not considered the arguments advanced by the plaintiff. Learned counsel for the plaintiff also submits that in the garb of review, court cannot sit on his own order as an appellate court. Learned counsel for the plaintiff also submits that review petition filed by the defendant No.1 was wrongly allowed vide order dtd. 1/3/2024. Question of limitation is a mixed question of law and fact. So, it cannot be decided without taking the evidence of the parties. After dismissal of the application under Order 7 Rule 11 CPC, defendant No.1 has filed written statement. So, trial court had to frame preliminary issue regarding limitation and ought to have decided the same after evidence of the parties.