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Judgment
Heard the learned counsel for the appellant. Perused the records.
The plaintiff has filed this appeal against the order dated 15.04.2014 in O.S. No.25883/2013 passed by the 28th Additional City Civil Judge, Mayo Hall, Bangalore, wherein the trial Court has dismissed the suit of the plaintiff under Order VII Rule 11(a) & (d) of CPC as barred by limitation.
It is submitted by the learned counsel for the appellant that the trial Court has not given any finding as to whether the point of limitation raised in the case is a mixed question of law or it is purely a question of law so that suit can be disposed of without recording any evidence. It appears, the trial Court while dealing with the application under Order VII Rule 11(a) & (d) of CPC, in fact entered into the factual aspects of this case and on considering the factual aspects of the case, the Court has come to the conclusion that the suit is barred by limitation. When the Court forms an opinion upon the facts of the case, then the same is required to be established on evidence without any such procedure whether the question of limitation which is a mixed question of law and facts, the Court can dispose of the suit itself under Order VII Rule 11(a) & (d) of CPC. However, if it is a pure question of law, where the Court does not require any evidence on it, in such an eventuality, the Court can venture upon to dispose of the suit on the point of limitation. In the above circumstances, the order passed by the trial Court is not proper and correct.
In fact, between the same parties ie., the appellant and the respondent No.1, similar question arose for consideration before this Court in RFA No.1076/2014. This Court vide order dated 24.10.2016, has taken the same view and set aside the order and remitted the matter to the trial Court for disposal in accordance with law. Therefore, in my opinion also the order passed by the trial Court is not sustainable in law, hence, the same is liable to be set aside. Accordingly, the order dated 15.04.2014 passed in the said O.S. No.25883/2013 is set aside and the matter is remitted to the trial Court for fresh consideration, in accordance with law.
Registry is directed to refund the Court fee, if it is permissible under law.
In view of disposal of this appeal, IA No.2/2014 filed for Temporary Injunction does not survive for consideration. Consequently, the application-IA No.2/2014 stands disposed of.