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Issue of limitation cannot be
decided without recording of
evidence, once it becomes a
mixed question of law and fact:
Delhi High Court upholds Trial
Court’s dismissal of Order 7 Rule
11
Delhi High Court held that the dismissal of the petitioner’s
application under Order VII Rule 11 CPC was warranted,
emphasizing the need to focus solely on the allegations in
the plaint at the preliminary stage because the issues
regarding limitation and adverse possession required
further evidence and examination, which could not be
resolved without a full trial.
Published on March 18, 2024 - By Arunima
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A petition was �led by the petitioner (defendant) assailing the
impugned order dated 13-09-2023 passed by Trial Court whereby her application under
Order VII Rule 11 of Civil Procedure Code (CPC) was dismissed. Dharmesh Sharma, J.,
upholds the impugned order on �nding no illegality, perversity or incorrect approach
adopted by the Trial Court in dismissing the application under Order VII Rule 11 CPC vide
order dated 13-09-2023.
The Court stated that “At this stage of the case, on a meaningful perusal of the pleadings/
averments in the plaint �led by the respondent/plainti�, it is di�cult to discern that the suit is
barred by limitation, as claimed by the petitioner. In the peculiar facts and circumstances of
the case, the issue of limitation becomes a mixed question of law and fact, which cannot be
decided without recording of evidence.”
The case revolves around a dispute regarding the ownership and possession of a
property located near Kamal Hotel, Nai Basti, Anand Parvat, Delhi. In the instant case, the
respondent submitted that he purchased the property in his own name in 2002 and the
petitioner had sought his help in her divorce case against her husband. The respondent
claims ownership of the �rst, second, and third �oors of the property, alleging that it was
purchased by him through various sale documents dated 29-04-2002. The petitioner on
the other hand, asserts her right to reside on the second �oor of the property, claiming
that she had contributed towards the purchase of the property and had been allowed to
reside there by the respondent without payment of rent.
The respondent �led a suit against the petitioner seeking mandatory injunction, recovery
of possession, damages, and mesne pro�t. The petitioner, in response, �led an
application under Order VII Rule 11 of the Code of Civil Procedure, contending that the
suit lacked a cause of action and was barred by limitation arguing that the respondent
was not the rightful owner of the property and that she had acquired ownership through
adverse possession which was thereby dismissed.
Counsel for petitioner argued that the suit was barred by limitation as per Article 65
Schedule I of the Limitation Act, 1963, which prescribes a limitation period of 12 years for
�ling a suit for possession of immovable property. Additionally, the petitioner claimed
adverse possession under Section 27 of the Limitation Act. However, the Trial Court
rejected the petitioner’s application, emphasizing that the decision to reject a plaint
should be based solely on the allegations made therein, without considering the
defendant’s defenses.
Upon examining the pleadings and averments in the plaint, the Court found it challenging
to ascertain whether the suit was indeed barred by limitation. The issue of limitation, in
this case, was deemed a mixed question of law and fact, necessitating evidence to be
recorded. Furthermore, the Court noted that determining the petitioner’s claim of
adverse possession and property ownership would require delving into her defense,
which was not appropriate at the preliminary stage of the case.
The Court emphasized that while considering an application under Order VII Rule 11 CPC,
the focus should be solely on the averments in the plaint, without considering the
defendant’s pleas in the written statement. Rejecting the petitioner’s application, the
Court asserted that the petitioner would have ample opportunity to contest the suit on its
merits during the trial.
Thus, the Court found no illegality, perversity, or incorrect approach in the Trial Court’s
decision to dismiss the petitioner’s application under Order VII Rule 11 CPC.
Consequently, the civil revision petition was dismissed, and the pending application was
disposed of without prejudice to the rights and contentions of the parties. It was clari�ed
that the order did not express any opinion on the merits of the case, leaving it open for
further adjudication during the trial proceedings.
[ ]
Advocates who appeared in this case:
Mr. Gurmukh Singh Arora and Mr. Vansh Bajaj, Advocate for petitioner
Mr. Harsh Tikoo Advocate for respondent
Tags : adverse possession | barred by limitation | Cause of action | civil procedure code |
CPC | Delhi High Court | Order VII Rule 11 | Ownership |
Protection of Women from Domestic Violence Act 2005 | Sale documents
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