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A-46
% 14.10.2011
Present: Mr.Hemant Malhotra and Mr.Sachin Gupta, Advocate for the petitioner.
+CM(M) No.1195/2011
*
The order impugned before this Court is the order dated 13.7.2011 vide which the apphcation filed by the defendant no.2 under Order 14
Rule 1 and 5 of the Code of Civil Procedure had been disposed of and the preliminary issues sought to be framed by the defendant no.2 had been framed but the grievance of the petitioner does not end there. The grievance of the petitioner on the first point is that the onus of the issue of limitation has been placed upon the defendant no.2 which is not correct; his contention is that the court below has ignored the fact that the petitioner had filed a suit for permanent injunction in the year 1988 and the plaintiff in his written statement in that suit had admitted that the defendant has committed an illegal trespass in 300 sq. yards which includes the disputed two rooms. In these circumstances the suit of the plaintiff was prima facie time barred; the court below placing the burden of discharging the issue of limitation upon defendant no.2 has thus committed an illegality. The averments made in the plaint have been perused. The plaintiff in para 13 of the plaint has detailed the cause of action; in the corresponding para of the written statement there has been no dispute about this fact; simplicitor a plea of the suit being barred by limitation has been pleaded. It was in these circumstances that the court had rightly noted that the onus to discharge the issue of limitation which has been raised by the defendant should be discharged by defendant no.2
2011:DHC:7581 c
%• himself as a prima facie reading of the plaint discloses that the plaint was well within limitation. This finding calls for no interference.
The second grievance of the petitioner is that the onus to discharge the issue of jurisdiction and valuation although placed upon defendant no.2, should have been taken up as a preliminary issue and for this proposition he has placed rehance upon a
A-46
% 14.10.2011
Present: Mr.Hemant Malhotra and Mr.Sachin Gupta, Advocate for the petitioner.
+CM(M) No.1195/2011
*
The order impugned before this Court is the order dated 13.7.2011 vide which the apphcation filed by the defendant no.2 under Order 14
Rule 1 and 5 of the Code of Civil Procedure had been disposed of and the preliminary issues sought to be framed by the defendant no.2 had been framed but the grievance of the petitioner does not end there. The grievance of the petitioner on the first point is that the onus of the issue of limitation has been placed upon the defendant no.2 which is not correct; his contention is that the court below has ignored the fact that the petitioner had filed a suit for permanent injunction in the year 1988 and the plaintiff in his written statement in that suit had admitted that the defendant has committed an illegal trespass in 300 sq. yards which includes the disputed two rooms. In these circumstances the suit of the plaintiff was prima facie time barred; the court below placing the burden of discharging the issue of limitation upon defendant no.2 has thus committed an illegality. The averments made in the plaint have been perused. The plaintiff in para 13 of the plaint has detailed the cause of action; in the corresponding para of the written statement there has been no dispute about this fact; simplicitor a plea of the suit being barred by limitation has been pleaded. It was in these circumstances that the court had rightly noted that the onus to discharge the issue of limitation which has been raised by the defendant should be discharged by defendant no.2
2011:DHC:7581 c
%• himself as a prima facie reading of the plaint discloses that the plaint was well within limitation. This finding calls for no interference.
The second grievance of the petitioner is that the onus to discharge the issue of jurisdiction and valuation although placed upon defendant no.2, should have been taken up as a preliminary issue and for this proposition he has placed rehance upon a
JUDGMENT
of a Bench of this Court reported in AIR 1976 Delhi 47 Jagdish Rai & Ors. Vs. Smt.Sant
Kaur . The court below had noted that the question of valuation and jurisdiction is a mixed question of law and fact for which evidence is required to be led and rightly so. In these circumstances this question could not be taken up as a preliminary issue. It had also noted that circle rates of the property were not available with the defendant no.2. The judgment relied upon by the petitioner has no application; this was on the question of court fee payable and the court in that case was deahng with an application under Order 7 Rule 11 of the Code.
Impugned order calls for no interference. Dismissed.
INDERMEET KAUR, J.
OCTOBER 14, 2011 nandan
2011:DHC:7581
Kaur . The court below had noted that the question of valuation and jurisdiction is a mixed question of law and fact for which evidence is required to be led and rightly so. In these circumstances this question could not be taken up as a preliminary issue. It had also noted that circle rates of the property were not available with the defendant no.2. The judgment relied upon by the petitioner has no application; this was on the question of court fee payable and the court in that case was deahng with an application under Order 7 Rule 11 of the Code.
Impugned order calls for no interference. Dismissed.
INDERMEET KAUR, J.
OCTOBER 14, 2011 nandan
2011:DHC:7581