Appeal Allowed: Trial Court’s Ruling on Limitation Set Aside, Suit Remanded for Fresh Hearing.


24 April 2024 Civil Appeals >> Civil & Consumer Law  

This appeal of Dilip Mahasukhlal Shah & Others v/s Chandrakant Kantilal Shah & Others, filed under Section 96 of the Code of Civil Procedure (CPC), challenges the dismissal of Special Civil Suit No. 78 of 2011 by the trial court, which had ruled the suit to be barred by the law of limitation. The plaintiffs had filed the suit seeking a declaration that certain properties were joint properties and that other defendants had no right to exclude them from dealings. The defendants argued that the suit was barred by limitation, and the trial court framed a preliminary issue on this matter under Section 9A of the CPC. After considering evidence, the trial court ruled the suit as time-barred, leading to its dismissal.

The appellants argued that the issue of limitation was a mixed question of law and fact, and therefore, could not be decided as a preliminary issue. Citing the Supreme Court judgment in Nusli Neville Wadia v. Ivory Properties, the appellants contended that the issue should be decided along with all other issues in the suit, not as a standalone preliminary issue.


 

 

The court agreed, acknowledging that limitation is a mixed question of law and fact that should not be addressed under Section 9A. As a result, the appeal was allowed, and the trial court’s decision was set aside. The suit was remanded to the trial court for fresh adjudication, considering all evidence on record, including the evidence on limitation.

In addition, an interim application seeking permission to intervene in the appeal was dismissed, with the applicants free to raise their concerns in the trial court. An application for interim relief was also disposed of with the same liberty for the parties.


Section 96., Code of Civil Procedure - 1908  

Code of Civil Procedure, 1908