Whether court is bound to frame issue of limitation if defendant fails to plead necessary facts to show that suit is barred by limitation?

Learned Counsel for the Review Petitioners submits that it is the duty of every court to frame an issue of limitation whether or not the defendant raises it. That is not quite correct. Section 3 of Limitation Act requires the court to dismiss every suit instituted after the prescribed period of limitation, whether or not limitation has been set up as a defence. What this means is that wherever the pleadings of the plaintiff or evidence before the court show that the suit is barred by limitation, it is the duty of the court to dismiss the suit; the defendant need not raise any express plea of limitation. That, however, does not imply that whenever the question of limitation raises issues of facts, the defendant can, without joining issue with the facts stated in the plaint, require the court to frame and decide the issue of limitation. The question of limitation is ordinarily a mixed question of law and facts. When the question is purely of law, capable of determination on the facts admitted or proved before the court, the court is bound to raise the question suo motu and decide it. But where it raises issues of facts not arising from the plaint alone, the defendant must raise such question in his written statement by pleading the requisite facts. Even for an issue of facts or mixed issue of law and facts to arise on the plaint, there must be a denial in the written statement. That is the mandate of Order 8 Rule 2 and Order 14 Rule 1 of the Code of Civil Procedure. The defendant must raise by his pleading all matters which show the suit not to be maintainable including all grounds of defence, which, if not raised, would be likely to take the opponent by surprise, or would raise issues of fact not arising out of plaint. These would, in terms, include matters of limitation. As for the plaintiffs case he must admit or deny the same. The plaintiffs case, in our matter, was that the defendants had denied or refused performance of the contract (which is the starting point of limitation) only in February 2001. If it was the defendants' case that denial of performance came at any earlier point of time, it was for them to make a necessary pleading in that behalf. Only in that case the question of limitation would arise for consideration. Without such pleading, that is to say, without their having joined issues with the plaintiff, in the face of the plaintiffs expressly pleaded time of denial of performance, the courts below had no duty to frame an issue of limitation and consider it. None of the courts below has, accordingly, erred in not having framed or decided the issue of limitation.

IN THE HIGH COURT OF BOMBAY

Review Petition No. 4 of 2019 in Second Appeal No. 665 of 2016 

Decided On: 18.03.2019

 Chandrabhaga Ananda Kudle  Vs.  Proposed Sanjay Sahakari Grah Nirman Sanstha Maryadit, Sangli and Ors.

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: 2019(6) MHLJ 182

Print Page

Whether court can decide jurisdiction of court on basis of reliefs claimed dehors factual averments made in plaint?

 On this background, if we turn to the contents of the plaint itself, then it is apparent that under the guise of getting established his civil rights given under the settlement deed, the plaintiff has also surreptitiously added certain aspects which indeed touch the business and working of the trust itself. For example, in paragraph 16 of the plaint, he has stated that the defendants are obstructing him from supervising the construction work of the new temple. In fact, this act of so called supervision over the construction of new temple is not at all the right given to the plaintiff under the settlement deed and the new construction is the sole matter within the discretion of the trustees under the registered trust and if any relief is sought for that purpose, then it will definitely require interference from this Court. It is well settled law as laid down by the Apex Court in the case of Church of North India v. Lavajibhai Ratanjibhai and Ors. wherein, it is laid down that a plea of bar to jurisdiction of a civil court must be considered having regard to the contentions raised in the plaint. For the said purpose, the averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety. The court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed dehors the factual averments made in the plaint. The court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If we follow this ratio vis-a-vis the contents and letter & spirit of the plaint itself, there is no doubt whatsoever that the plaintiff has very cleverly blended his private rights in the affairs of the trust which cannot be allowed in law. 

Bombay High Court

Datta Devasthan Trust, Through ... vs Milind Govind Kshirsagar And Ors. on 28 February, 2007

Equivalent citations: 2007 (5) BomCR 460, 2007 (3) MhLj 148

Bench: P Kakade

Print Page