Grasping the Nettle: Supreme Court’s New Roadmap for Summary Judgments under Order XIII‑A CPC in Commercial Suits

 1. Background: From Jarndyce v. Jarndyce to Jasola Plot

The Supreme Court’s April 2026 judgment Reliance Eminent Trading and Commercial Private Limited Vs. Delhi Development Authority, Citation: 2026 INSC 436,Decided On: 29.04.2026, arises from a commercial suit where an auction purchaser sought refund of about ₹165 crores from DDA after the underlying land acquisition had lapsed under section 24(2) of the 2013 Land Acquisition Act.

The High Court had refused summary judgment under Order XIII‑A, holding that the issues of possession and limitation were “triable” and required oral evidence. The Supreme Court reverses this, using the case as a vehicle to (a) restate the philosophy of commercial adjudication and (b) lay down a practical, judge‑friendly checklist on when to “grasp the nettle” and decide summarily.

For a district judge dealing with commercial disputes, this judgment is as much a jurisprudential essay on proportionality and case‑management as it is a fact‑specific decision.

2. Order XIII‑A: Purpose and Structure

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Can a Court Allow a Time-Barred Amendment of Pleadings? Scope of Trial Court and First Appellate Court Powers Under Order VI Rule 17 CPC

Order VI Rule 17 CPC confers a wide discretionary power on civil courts to permit amendment of pleadings at any stage if the amendment is necessary for determining the real question in controversy between the parties. But this power is not unstructured: the court must weigh necessity, prejudice, limitation, due diligence, and the effect of the proposed amendment on the nature of the case.

A frequent question is whether a court can permit an amendment when the plea or relief sought to be introduced appears to be barred by limitation. The correct answer is: yes, in some cases; no, in others. There is no absolute prohibition against allowing a time-barred amendment, but a court should ordinarily decline such amendment when it introduces a fresh cause of action or a fresh relief that had already become barred on the date of the amendment application, because that would deprive the opposite party of a valuable accrued defence.

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Not a Formality: How a First Appellate Court Must Decide Facts, Law, and Mixed Issues under the CPC

 A first appeal under Section 96 of the Code of Civil Procedure, 1908, is a full rehearing on facts as well as law, and not a mere endorsement of the trial court’s judgment. The first appellate court is therefore expected to independently examine the record, frame proper points for determination, and render a reasoned judgment in conformity with Order XLI Rule 31 CPC.

The place of first appeal in civil justice

The right of first appeal is a valuable statutory right, and the whole case is ordinarily open for reconsideration on both facts and law. This is why the first appellate court is often described as the final court on facts, unlike the High Court in second appeal, which is generally confined to substantial questions of law under Section 100 CPC.

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Punjab & Haryana HC: Jurisdiction of district court under S 9 of guardian and wards Act is mixed question of law and fact

 It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the 'ordinary residence' of the minor. The expression used is "Where the minor ordinarily resides". Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted, it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy. The factual aspects relevant to the question of jurisdiction are not admitted in the instant case. There are serious disputes on those aspects to which we shall presently refer. {Para 14}

 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR No. 3925 of 2024 (O&M)

Decided On: 07.01.2025

Sulbhi and Ors. Vs. Bhavnesh Kumar

Hon'ble Judges/Coram:

Deepak Gupta, J.

Citation:  MANU/PH/0001/2025,2025PHHC000299.

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When court can decide issue of res judicata as preliminary issue?

 E.1 Res Judicata as a Preliminary issue

19. Before we undertake an analysis on the applicability of the principles of res judicata vis-à-vis the three suits that were initiated with regard to the suit property it is necessary to discuss the submission of counsel for the appellant that res judicata, being a mixed question of law and facts ought not to have been decided as a preliminary issue by the trial court. It was contended that any determination of the application of the principle of res judicata can only be made after evidence is adduced pursuant to a full-fledged trial. 

21. Order 14 Rule 2 CPC states that if questions of fact and law arise in the same suit, the court can dispose the case on the question of law alone if it relates to the following:

“(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may […]”

(emphasis supplied)

22.Justice K. Ramaswamy writing for a three judge bench of this court in Sushil Kumar Mehta v. Gobind Ram Bohra(1990) 1 SCC 193 held that the principle of res judicata cannot be fit into the pigeon hole of ‘mixed question of law and facts’ in every case. Rather, the plea of res judicata would be a question of law or fact or a mixed question of both depending on the issue that is claimed to have been previously decided. The court while determining the applicability of the plea of res judicata would determine if there has been any material alteration in the facts and law applicable:

“26. The doctrine of res judicata under Section 11 CPC is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus, the decision of a competent court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. The reason is obvious; a pure question of law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction.”

23. In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B Jeejeebhoy (1970) 1 SCC 613, the application of the plaintiff in the Court of the Civil Judge for the determination of Standard Rent under Section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 was dismissed on the ground that the statute did not apply to a case of open land let for the construction of buildings. This decision was affirmed in appeal. However, in view of another decision of the Bombay High Court which held that the statute would be applicable to leased land, the plaintiff filed a fresh proceeding in the Court of Small Causes. The Trial Court and the High Court held that the subsequent suit was barred by res judicata. However, Justice J C Shah writing for a 3-judge bench held that the subsequent suit was not barred by res judicata:

“5. But the doctrine of res judicata belongs to the domain of procedure: it cannot be exalted to the status of a legislative

direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the “matter in issue” may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent Court is finally determined between the parties and cannot be re-opened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata.

11. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression “the matter in issue” in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.

(emphasis supplied)

The court while undertaking an analysis of the applicability of the plea of res judicata determines first, if the requirements of section 11 CPC are fulfilled; and if this is answered in the affirmative, it will have to be determined if there has been any material alteration in law or facts since the first suit was decreed as a result of which the principle of res judicata would be inapplicable. We are unable to accept the submission of the appellants that res judicata can never be decided as a preliminary issue. In certain cases, particularly when a mixed question of law or fact is raised, the issue should await a full-fledged trial after evidence is adduced. In the present case, a determination of the components of res judicata turns on the pleadings and judgments in the earlier suits which have been brought on the record. The issue has been argued on that basis before the Trial court and the first appellate court; followed by two rounds of proceedings before the High Court (the second following upon an order of remand by this court on the ground that all parties were not heard). All the documentary material necessary to decide the issue is before the court and arguments have been addressed by the contesting sides fully on that basis.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 10946 of 2014

The Jamia Masjid Vs  Sri K V Rudrappa

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Whether court can reject the plaint if issue of limitation is a mixed question of law and fact?

  Insofar as the rejection of plaint on the ground of limitation is concerned, it is needless to emphasis that limitation is a mixed question of fact and law. It is the case of the appellants/plaintiffs that only after making inspection of the records in connection with the suit land available in the office of defendant No.3 (Court Receiver) that they came across the correspondence and documents relating to the transactions and that the proceedings before the ALT were collusive, fraudulent and null and void. The appellants/plaintiffs have even questioned the authority of the Court Receiver to represent them in the tenancy proceedings.

{Para 10}

11. The above averments may or may not be true. But if the plaintiffs succeed in establishing the above averments, the issue of limitation cannot be put against the plaintiffs. Generally a party, who never had any notice of a particular proceeding before a quasi-judicial authority, is entitled to approach the Court upon gaining knowledge of the proceedings. Limitation cannot be put against such a party.

12. We are not dealing here with a case where notices were ordered to be issued, but were not or could not, be served on necessary and proper parties. We are dealing with a case where the plaintiffs assert in no uncertain terms that notices were never ordered to them nor served on them. Therefore, the answer to the issue regarding limitation, will depend upon the evidence with regard to the issuance and service of notice and the knowledge of the plaintiffs. Hence, the Trial Court as well as the High Court were not right in rejecting the plaint on the ground of limitation, especially in the facts and circumstances of this case.

13. As observed by this Court in P.V. Guru Raj Reddy vs. P.

Neeradha Reddy And Others (2015) 8 SCC 331, the rejection of plaint under Order VII Rule 11 is a drastic power conferred on the Court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order VII Rule 11.

14. Again as pointed out by a three member bench of this Court in Chhotanben vs. Kiritbhai Jalkrushnabhai Thakkar (2018)6 SCC 422, the plea regarding the date on which the plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5641 OF 2021

SALIM D. AGBOATWALA AND ORS. Vs  SHAMALJI ODDHAVJI THAKKAR AND ORS

Author: V. Ramasubramanian, J.

Dated: SEPTEMBER 17, 2021

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Whether the court should reject plaint if the issue of limitation is a mixed question of law and fact?

 It is clear from a perusal of the aforesaid judgment that the policy of the section 14 of the Limitation Act is to afford protection to a litigant when he institutes a proceeding in a wrong court provided this act was done in good faith and bona fide. The section has to be interpreted liberally in a manner to advance the cause of justice rather than to abort the proceedings. The plaintiff has to establish the fact that the prior proceedings have been instituted/prosecuted in good faith and due diligence. This is obviously a question of fact which the plaintiff has to prove.

 I may note that usually the issue of limitation is a mixed question of law and fact. What defendant No. 1 seeks is an adjudication of the issue of limitation at the initial stage itself before even an opportunity has been given to the plaintiff to show that it was prosecuting the litigation before the Bombay High Court with due diligence and in good faith.{Para 22}

24. While considering an application under Order 7 Rule 11 CPC only averments made in the plaint are to be looked at and the accompanying documents. Reference in this context may be had to the judgment of this court in the case of Tilak Raj Bhagat vs. Ranjit Kaur wherein this court held as follows:-

"6. It may be worthwhile to mention here that while considering an application under Order 7 Rule 11 CPC, the Court has to look at the averments made in the plaint by taking the same as correct on its face value as also the documents filed in support thereof. Neither defence of the defendant nor averments made in the application have to be given any weightage. Plaint has to be read as a whole together with the documents filed by the plaintiff."

28. Hence, for the purpose of considering an application under Order 7 Rule 11 CPC only the averments made in the plaint have to be taken presuming them to be correct on the face of it along with the documents filed in support of the plaint. It is only in cases where the averments in the plaint itself indicate the cause of action to be barred by limitation that the plaint can be rejected at the initial stage. This must be on a mere ex facie reading of the plaint.

 As noted above, every act of the plaintiff in filing a suit in a court other than the court which as per the Agreement has exclusive jurisdiction, does not necessarily imply that the act was done without due diligence or in good faith. It would be for the plaintiff to lead evidence on this aspect. What the defendant want is that the defence of the defendant be taken into account and the plaint be dismissed without giving an opportunity to the plaintiff to lead evidence to show that the reason for pursuing the matter before the Bombay High Court was bona fide and with due diligence. This plea is clearly not permissible. On a ex-facie reading of the plaint it cannot be said that it is barred by limitation.

IN THE HIGH COURT OF DELHI

CS (OS) 105/2018

Decided On: 15.06.2020

Modtech Furniture Private Ltd.  Vs.  NCUBE Planning Design Private Limited and Ors.

Hon'ble Judges/Coram:

Jayant Nath, J.

Citation: MANU/DE/1236/2020

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Whether issue of res judicata can be decided as preliminary issue?

 Order 14 Rule 1 is in regard to the framing of issues. There are two kinds of issue. First, issue of fact; and second, issue of law. Under sub-rule (2) of Order 14, Rule 2, C.P.C., there is third kind of issue, which is mixed issue of law and of fact. In the present case, plea of res judicata has been taken by the defendant whereupon issue was framed by the trial court and it has been decided in favour of the plaintiffs. An issue of law can be decided as a preliminary issue whereas the mixed issue of fact and law cannot be decided as a preliminary issue. It is well settled that an issue of res judicata is a mixed issue of law and fact and it has to be decided on proper pleadings and evidence of parties. Thus, this Court is of the view that the trial court has committed illegality in deciding the issue of res judicata as the preliminary issue. However, suit need not to be dismissed at this stage under the provisions contained in Order 7 Rule 11 C.P.C and is apparently not barred by any law.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 964 of 2015

Decided On: 05.04.2019

Cooper Pharma  Vs.  Shamshad Ahmad

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Whether court can travel beyond statements in plaint while deciding application for rejection of plaint?

I have already held that while exercising jurisdiction under the provision of Order VII Rule 11(d) of the Civil Procedure Code, Court cannot travel beyond the statements in the plaint and has to decide the question pertaining to rejection of the plaint only within the four corners of the plaint. It cannot step out of the plaint and can certainly not enter into the merits of the case. However, it is seen from the order dated 26.11.1982 passed below Exhibit-1 by the learned 2nd Joint Civil Judge, Junior Division, Nagpur that he has decided the question of the suit being barred by law or otherwise on merits of the case. Learned Civil Judge has observed that the plaintiff herself is an educated English knowing lady who is the widow of Bahmanshaw Byramji and being possessed of sufficient means to have best and independent legal advice in the situation, could not have been defrauded in the proceedings under Section 17 and the decree that followed the proceedings. These observations clearly indicate that the learned Civil Judge did not restrict himself to only what was stated in the plaint, but went beyond that and considered something that was not the part of the plaint. Accordingly, he held that the decree passed in Regular Civil Suit No. 230 of 1975 could not be said to be the result of fraud played on plaintiff and, therefore, it operated as a res judicata. This was in excess of the power available under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 and thus not permissible under the law. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 207 of 1994

Decided On: 08.01.2014

 Sushilabai Vs. Kamlarukh and Ors.

Hon'ble Judges/Coram:

S.B. Shukre, J.

Citation: 2014(2) ALLMR 629

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Burden of proof is on whom to prove issue of comparative hardship in eviction suit?

 In Mst. Bega Begum and Others v. Abdul Ahad Khan (dead) by Lrs. and others, MANU/SC/0313/1978 : (1979) 1 SCC 273 pari materia provision contained in J & K Rent Act came up for the consideration of this Court. It was observed that it is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed but such an event would happen whenever a decree for eviction is passed and merely because the tenant will be ousted from the premises where he was running his activity cannot, by itself, be considered to be a hardship and be a valid ground for refusing the landlord a decree for eviction. In deciding the extent of the hardship, each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on plaintiffs to prove that lesser disadvantages will be suffered by the defendants and that they were remediable. The owner of the property cannot be denied eviction and compelled to live poorly merely to enable the tenants to carry on their flourishing business activity at the cost of the landlord. The fact that there is no other means for the landlord to augment his income except by getting the tenancy premises vacated compared against the conduct of the tenant who having obtained the premises for a fixed number of years has overstayed and enjoyed the premises for a long period of time are relevant factors not to deprive the landlord from the possession over the tenancy premises and recording a finding of no equity in favour of the tenants continuing in possession any further. If the tenants prove that they will not be able to get any accommodation anywhere in the city that may be a relevant consideration. However, the tenant cannot insist on getting an alternative accommodation of a similar nature in the same locality because that will be asking for the impossible. What are to be weighed as relevant factors are the comparative inconvenience, loss, trouble and prejudice.

35. A perusal of these paragraphs would go to show that nowhere the Supreme Court held that there is no requirement to raise pleadings. What the Supreme Court held in paragraph 10 is that it is expected of the parties to raise necessary pleadings and the Court to frame necessary issues based on the pleadings so as to enable the parties to adduce evidence and bring on record such relevant material as would enable the Court forming an opinion on the issue of comparative hardship and consistently with such finding whether a partial eviction would meet the ends of justice. Even if no issue has been framed, the Court may discharge its duty by taking into consideration such material as may be available on record.

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 257 of 2007

Decided On: 22.02.2013

Chetan Anand Shetty  Vs.  Indrajeet Chandrasen Shirole and Ors.

Hon'ble Judges/Coram:

S.C. Dharmadhikari, J.

Citation: 2013(3) MHLJ 310,2013(3) ALLMR 33,2013(4) AIR BOM R 530.

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Under which circumstances plaint can be rejected on ground that suit is barred by limitation?

 In Guru Raj Reddy (supra), it was held at para 5 that rejection of the plaint under Order VII rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of the power under Order VII rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.

On a consideration of the judgments and that the period of limitation for maintaining a suit for declaration is three years in a case like the present in terms of Article 59 of the Limitation Act 1963, it cannot be at all heard on behalf of the applicants that the suit as filed was barred by the law of limitation. Even assuming it is so, it would be a mixed question of law and fact which the learned Trial Court will have to decide on a full dress trial and it is not as if such a ground is available to the applicants in the factual matrix to seek the rejection of the plaint on the bar of limitation.

IN THE HIGH COURT OF BOMBAY AT GOA

Civil Revision Application No. 16 of 2018

Decided On: 21.09.2018

Wilson Pereira Carvalho Vs.  Nicolau Fernandes and Ors.

Hon'ble Judges/Coram:

Nutan D. Sardessai, J.

Citation:2019(2) MHLJ 438

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Whether suit of landlord on ground of bonafide need is to be dismissed if his other suit on ground of bonafide need is dismissed?

A decision in the other suit even if against the plaintiff on the question of bona fide requirement, would not necessarily result in the dismissal of this suit. The two matters in this case do not involve identical questions as was the case in the judgment of the Supreme Court. It is only when a decision in one matter is bound to affect the decision in another that the judgment would apply. This is not the case here.

11. In the present suit, the bona fide requirement involves questions of fact and, in any event, mixed questions of law and fact. It is possible that a Court may decide the question of bona fide requirement against the landlord in one case but not in another. This would depend on the facts and circumstances of each case. This would be so even if the properties are located in the same building. Therefore, significantly, in the present case, neither party sought to tender the evidence in the other suit as evidence in this suit. The evidence in that matter was not read as evidence in this matter.

IN THE HIGH COURT OF BOMBAY

Civil Rev. Appln. No. 251 of 2008

Decided On: 11.04.2008

Bhagwan Vithal Deokar Vs.  Narendra Padmakar Yavalekar and Ors.

Hon'ble Judges/Coram:

S.J. Vazifdar, J.

Citation: 2008(5) MHLJ 863

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Whether plaint can be rejected if it is barred by limitation?

A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order VII Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two Judge Bench of this Court to which one of us was a member (Ashok Bhan J.) in Civil Appeal No. 4539 of 2003 (Balasaria Construction Pvt. Ltd. v. Hanuman Seva Trust and Ors.) decided on 8.11.2005 and it was held: -

After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the paint it cannot be held that the suit is barred by time.

This principle would be equally applicable to a Company Petition. Therefore, unless it becomes apparent from the reading of the Company Petition that the same is barred by limitation the petition cannot be rejected under Order VII Rule 11(d) CPC.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4766 of 2001

Decided On: 11.07.2006

Ramesh B. Desai Vs.   Bipin Vadilal Mehta and Ors.

Hon'ble Judges/Coram:

Ashok Bhan and G.P. Mathur, JJ.

Citation: (2006) 5 SCC 638

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When issue of limitation will not be mixed question of law and fact?

In this context, the learned counsel for the appellant is justified in relying upon a recent judgment of this Court passed in the case of Naginchand vs. Vinod (supra) wherein it has been held that when a specific date was fixed for performance of contract, the limitation period under Article 54 of the Limitation Act, 1963, would begin to run from the date fixed for performance of the contract. This Court held in the said case that on the face of the plaint pleading, it was possible to hold that it was not a case which involved a mixed question of law and fact requiring the parties to adduce evidence to prove the fact that the suit was not within limitation. A perusal of the plaint in the present case also shows that a date was fixed for performance of contract and that the period of limitation stood triggered on the said date.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Appeal Against Order No. 30/2017

Decided On: 21.02.2018

 Gaurav  Vs.  Tukaram Pandurang Dhagekar and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(4) MHLJ 709

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When suit for eviction of tenant on ground of non user of premises will not be barred by limitation?

In view of the aforesaid pleadings and the wording of section 16(1)(n) of the Act the Courts below have observed that the suit is within limitation. Provision of section 16(1)(n) runs as under :-

"16. When landlord may recover possession (1) Notwithstanding anything contained in this Act but subject to the provisions of section 25, a landlord shall be entitled to recover possession of any premises if the court is satisfied --

(n) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit. "

17. The aforesaid provision shows that the landlord can file suit only if he is sure that the tenant has not used the premises for the period of six months immediately preceding the date of suit. The question of limitation is mixed question of law and fact and further the knowledge of the landlord in that regard needs to be considered. Thus in a case like the present one it cannot be said with certainty that on a particular day the tenant practically stopped using the premises for the purpose for which it was given and on particular day the landlord came to know about such non user. Though it is true that initial burden is on the plaintiff to show that the suit is within limitation and for deciding the point of limitation, pleading is required to be first considered, at the time of decision, evidence is also to be considered. As there is no specific case as required by the provision of Limitation Act on the point involved, this Court holds that it is not possible to infer that the suit came to be filed after the period prescribed by Article 66 of the Limitation Act, from the date of cause of action. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 199 of 2013

Decided On: 04.08.2015

Shankarlal Ramsay Sharma  Vs.  Sushilabai Govindlal Wani

Hon'ble Judges/Coram:

T.V. Nalawade, J.

Citation: 2015(5) ALLMR 346

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How to ascertain whether a transaction is sale transaction or mortgage transaction?

The recitals "your amount shall carry no interest and my fields will not carry any rent" indicate that the consideration received by the transferor was to be treated as a debt. The interest was payable in the shape of appropriation by the transferee of the rent which he would otherwise be liable to pay to the transferor. That there has been an express mention of interest militates against any assumption that the transaction was intended to operate as an absolute sale. The stipulation that the transferee was to pay land revenue appears to be of no significance beyond the fact that the person who was to enjoy the profits was to bear the burden. Then the recital "I cease to have any right, etc., for five years" followed by the expression "I shall pay and shall redeem my fields" clearly goes to prove the existence of the relation of debtor and creditor between the parties. The vernacular words equivalent to the word "redeem" are "sodun ghein"  which mean 'release or redeem.' These are significant inasmuch as if there had been an intention to purchase back the fields, the words used would have been 'vikat ghein' .

10. In the premises, the impugned judgment and order of the lower Appellate Court does not disclose any error of law in the matter of construction of the document. The construction of a document is a mixed question of law and fact. As I have noted above, it is essentially to be decided by considering the words employed by the parties, though it is permissible to take into account surrounding circumstances in case the words used are not sufficiently clear to designate their effect. The words used in the present case are sufficiently clear and their effect is to create a mortgage by conditional sale with a right of redemption preserved unto the debtor. The relationship conveyed by the document is of debtor and creditor and not of vendor and buyer.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 369 of 2013 and Civil Application No. 1011 of 2013 in Second Appeal No. 369 of 2013

Decided On: 07.03.2017

Mangal Popatrao Sodmise Vs.  Abdagiri Vishvanath Narale

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: 2017(6) MHLJ 152

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When defendants are entitled to get benefit of doctrine of part performance?

In the case at hand, the appellants have sought for
protection under Section 53A of the Transfer of Property Act and,
accordingly, substantial question of law to this effect has also
been framed. Protection contained under Section 53A of the
Transfer of Property Act deals with mixed question of facts as well
as law. So far 'fact' part is concerned, the appellants have clearly
pleaded that they have been enjoying peaceful possession over the
suit property after they acquired the same from the year 1975 i.e.
the date of execution of Sale Deed by Firangi Mahto in favour of
Chandrakant Singh (father of defendant no. 1). If possession of
the appellants is not considered from the year 1975, the admitted
facts available on record is that possession of defendants have
well been recognized since the year 1979 by Sitaram Agarwall and
Bajrang Agarwalla, the two brothers (both sons of Ram Kumar
Das Agarwalla). Acknowledging possession of defendants,
Agreement for Sale dated 13.02.1979 was executed by aforesaid
two brothers - Sitaram Agarwalla and Bajrang Agarwalla in
favour of defendant no. 1, it was contended by counsel for the
plaintiffs that aforesaid Agreement dated 13.02.1979 lost its legal
value when no suit for specific performance of contract was filed
within the period of limitation.
15. I have gone through the findings of Courts below and both
the Courts have considered the issue in favour of plaintiffs. It is
true that no suit for specific performance of contract to implement
Agreement dated 13.02.1979 was filed by the defendant but then
the document is the proof that they acquired possession by way of
part performance of the contract. In this context, Judgment in the
case of Shrimant Shamrao Suryavanshi V. Pralhad Bhairoba
Suryavanshi reported in (2002) 3 SCC 676 which has been
followed by the Apex Court in the Judgment in the case of
Mahadeva and others Vs. Tanabai reported in (2004) 5 SCC 88
is relevant and it is relevant to quote Para-8 of the Judgment in
the case of Mahadeva (Supra).
“8. The Judgment of the High Court is based on a
question framed during the course of writing of the
judgment which is in departure from the two questions
of law on which the appeal was admitted for hearing.
The whole emphasis shifted from the core issues. Then,
the High Court has not discussed any law and has also
not assigned any reason, much less a satisfactory one,
for taking a view different from the one concurrently
taken by the two courts below. The singular reason
assigned by the High Court for denying the benefit of
Section 53-A of the TP Act is not a sound reason by itself
in view of the decision of this Court in Shrimant
Shamrao Suryavanshi v. Pralhad Bhairoba
Suryavanshi. This Court has held that merely because
the suit for specific performance at the instance of the
vendee has become barred by limitation that by itself is
not enough to deny the benefit of the plea of partperformance
of agreement of sale to the person in
possession.”
The possession of the appellants over the suit property thus
stood admitted from the date of first agreement dated 13.02.1979.
The Courts below have disbelieved Exhibits – F and G only
because the same were issued and sworn prior to the date of
Agreement to Sale dated 03.11.1983. But it is clear that Sitaram
Agarwalla and his brothers had issued money receipt, sworn
affidavit acknowledging payment and sale on 12.09.1983 and
then executed General Power of Attorney in favour of defendant
no. 2 empowering him to do all acts regarding schedule property.
Thereafter, on the basis of Exhibit-H, the defendant no. 2 had
executed an Agreement for Sale in favour of defendant no. 1 with
respect to suit property on 03.11.1983 and further referred earlier
agreement dated 13.02.1979. Reference of earlier agreement in
the subsequent Agreement for Sale executed by the Attorney does
not mean that earlier agreement was renewed. Even assuming it
to be correct, the fresh Agreement was executed in favour of
defendant no. 1 on 03.11.1983. It is not an incriminating
circumstance to disbelieve Exhibits-H, F and G if the same were
issued and sworn on the date on which the four brothers –
Sitaram Agarwalla and defendant nos. 5 to 7 had executed Power
of Attorney with respect to suit property in favour of defendant no.
2.
16. In view of the discussions made above, on the one hand
possession of appellants/ defendants over the suit property stood
confirmed whereas Gajanand Agarwalla and subsequent
purchasers i.e. Gurmukh Singh and plaintiffs have never come in
possession over the suit property and that is also apparent from
the evidence of P.W.-4. Under such circumstances, the appellants
are entitled for the protection contained under Section 53A of the
Transfer of Property Act and they cannot be evicted therefrom. JHARKHAND HIGH COURT
SECOND APPEAL NO. 61 of 2004

Smt. Gita Devi
V 
Mrs. Sobha Agarwalla,

PRESENT
 MR. JUSTICE D.N. UPADHYAY
 PRONOUNCED ON 05/08/2016.
Citation: AIR 2017 Jharkhand 24

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When appellate court can consider new case on facts or mixed question of fact and law?

 The respondent No.1 raised the plea of non-receipt of the letter of allotment first time before the High Court. Even if it is assumed that it is correct, the question does arise as to whether such a new plea on facts could be agitated before the Writ Court. It is settled legal proposition that pure question of law can be raised at any time of the proceedings but a question of fact which requires investigation and inquiry, and for which no factual foundation has been laid by a party before the Court or Tribunal below, cannot be allowed to be agitated in the Writ Petition. If the Writ court for some compelling circumstances desires to entertain a new factual plea the court must give due opportunity to the opposite party to controvert the same and adduce the evidence to substantiate its pleadings. Thus, it is not permissible for the High Court to consider a new case on facts or mixed question of fact and law which was not the case of the parties before the Court or Tribunal below.

Supreme Court of India

Greater Mohali Area Dev. ... vs Manju Jain & Ors on 19 August, 2010

Author: . B Chauhan

Bench: P. Sathasivam, B.S. Chauhan

Citation;(2010) 9 SCC 157

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Good legal article on drafting of appeal

Appeal is a legal proceeding brought in superior court for the purpose of review of the decision of lower court. Appeal is a creature of statute and is governed by the same. The statute generally provides the right of appeal on questions of law or questions of fact. In case there is no statutory right to appeal, recourse is taken to the Constitutional Provisions of Art 226 by way of filing Writ Petition. In case of decision of High Court, recourse is taken through the Special Leave Petition under Art 136 to file appeal in the Supreme Court.

1. In all appeal the decision of the lower court (decree or judgment) is challenged on certain grounds. In this write-up, an attempt is made to bring forth one aspect of the practice i.e. the pleas which are allowed in case of appeal in superior courts like High Court or Supreme Court.

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When court should not decide issue of limitation as preliminary issue?

 Be it stated, the aforesaid pronouncement was made
before the amendment of the Code of Civil Procedure in 1976.
18. In Ramesh D. Desai and others v. Bipin Vadilal
Mehta and others3
, while dealing with the issue of limitation,
the Court opined that a plea of limitation cannot be decided as
an abstract principle of law divorced from facts as in every
case the starting point of limitation has to be ascertained
which is entirely a question of fact. The Court further
proceeded to state that a plea of limitation is a mixed question
of fact and law. On a plain consideration of the language
employed in sub-rule (2) of Order 14 it can be stated with
3 (2006) 5 SCC 638
certitude that when an issue requires an inquiry into facts it
cannot be tried as a preliminary issue. In the said judgment
the Court opined as follows: -
“13. Sub-rule (2) of Order 14 Rule 2 CPC lays down
that where issues both of law and of fact arise in the
same suit, and the court is of the opinion that the
case or any part thereof may be disposed of on an
issue of law only, it may try that issue first if that
issue relates to (a) the jurisdiction of the court, or (b)
a bar to the suit created by any law for the time
being in force. The provisions of this Rule came up
for consideration before this Court in Major S.S.
Khanna v. Brig. F.J. Dillon and it was held as under:
(SCR p. 421)
“Under Order 14 Rule 2, Code of Civil Procedure
where issues both of law and of fact arise in the
same suit, and the court is of opinion that the
case or any part thereof may be disposed of on
the issues of law only, it shall try those issues
first, and for that purpose may, if it thinks fit,
postpone the settlement of the issues of fact
until after the issues of law have been
determined. The jurisdiction to try issues of law
apart from the issues of fact may be exercised
only where in the opinion of the court the whole
suit may be disposed of on the issues of law
alone, but the Code confers no jurisdiction upon
the court to try a suit on mixed issues of law
and fact as preliminary issues. Normally all the
issues in a suit should be tried by the court; not
to do so, especially when the decision on issues
even of law depend upon the decision of issues
of fact, would result in a lopsided trial of the
suit.”
Though there has been a slight amendment in the
language of Order 14 Rule 2 CPC by the amending
Act, 1976 but the principle enunciated in the
abovequoted decision still holds good and there can
be no departure from the principle that the Code
confers no jurisdiction upon the court to try a suit on
mixed issues of law and fact as a preliminary issue
and where the decision on issue of law depends
upon decision of fact, it cannot be tried as a
preliminary issue.”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 5954 2014
(Arising out of S.L.P. (Civil) No. 33200 of 2014)

Satti Paradesi Samadhi & Philliar Temple  V M. Sankuntala (D) Tr. Lrs.

Citation;(2015) 5 SCC674
Dipak Misra

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