Suit Can Be Rejected Without Trial Where Pleadings Disclose Proceedings Are Time Barred: Delhi High Court

The Delhi High Court has observed that where the pleadings of the plaintiff disclose that a suit is barred by time, there is no fetter on the trial Court rejecting the suit on that ground, without subjecting it to trial.

Justice C Hari Shankar rejected the contention of the Appellant (original plaintiff) that limitation being a mixed question of fact and law, ought to have been decided only consequent to trial. 

The Bench was dealing with a matter concerning the dispute relating to a passage way which, according to the appellant, was the only mode for ingress and egress to the property owned by him as well as to other adjoining plots.

By reason of construction of a brick wall, the passage way, according to the appellant, was blocked, as a result of which there is no access to his entry gate.

The appellant had relied on an order dated 31st July, 2012, passed by the Consolidation Officer allowing the appellant to use the said passage. The appellant had then sued the respondents and sought directions to provide a pucca passage to enable access to the appellant to his property as well as to remove the wall which was blocking the passage way.

The Civil Judge had the dismissed the suit under Order VII, Rule 11(d) of the CPC, 1908 as time barred.

Before the Additional District Judge, in appeal, the appellant contended that the learned Civil Judge erred in relying on the written statement filed by DDA while rejecting his suit as time barred and also erred in observing that the appellant had admitted construction of the wall by DDA in 2006. The ADJ, in the order under appeal, held in favour of the appellant on both the grounds.

Nonetheless, the ADJ proceeded to uphold the decision of the learned Civil Judge to dismiss the suit as time barred. For this purpose, reliance was placed by the ADJ on the following passage from the order dated 31st July, 2012 of the Consolidation Officer.

"In the present second appeal, under Section 100, the appellant has sought to contend that limitation being a mixed question of fact and law, ought to have been decided only consequent to trial. This contention cannot be accepted. Where the pleadings of the plaintiff disclose that a suit is barred by time, there is no fetter on the trial Court rejecting the suit on that ground, without subjecting it to trial," the Court observed.

Accordingly, the Court framed the following two substantial questions of law:

(i) Whether the suit filed by the appellant before the learned Civil Judge could be said to be based on a continuing cause of action?

(ii) Whether, therefore, the Courts below were not in error in dismissing the appellant's suit under Order VII Rule 11(d) of the CPC, 1908, as barred by time?

The matter is now posted for disposal on 24th May, 2022.

Case Title: GIAN CHAND BANSIWAL v. DELHI DEVELOPMENT AUTHORITY AND ORS

Citation: 2022 LiveLaw (Del) 282

Click Here To Read Order