LexSURJIT KAUR GILL & ANR. versus ADARSH KAUR GILL & ANR.
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[2014] 2 S.C.R. 167 SURJIT KAUR GILL & ANR. v. ADARSH KAUR GILL & ANR. (Civil Appeal No. 8221 of 2011) JANUARY 30, 2014 [H.L. GOKHALE AND KURIAN JOSEPH, JJ.] CODE OF CIVIL PROCEDURE, 1908: A 8 0. 7, r. 11 - Suit for partition and rendition of account on c the basis of a will - Application for rejection of plaint - Held: For deciding an application under 0. 7, r. 11, one has to look at the plaint and decide whether it deserved to be rejected for the ground raised - The issue of limitation is always a mixed question of facts and law and, therefore, it could not be held 0 that no case was made out for proceeding for a trial -- The application made under 0. 7, r. 11 will stand rejected. A suit was filed before the High Court, inter alia, for partition of property, rendition of accounts etc. on the basis of a will. The plaintiff filed the suit in the capacity E of the administrator of the will of his deceased sister. After the issues had been framed and the plaintiff had tendered his affidavit in lieu of the examination-in-chief, an application was made under 0 7, r. 11 of the Code of Civil Procedure, 1908, contending that the suit was F barred by law and, therefore, it ought to be rejected under 0. 7, r. 11 (d). The single Judge of the High Court dismissed the application holding that all the prayers were inter-connected, and they were related essentially to the principal prayer (a) for partition of the property of G the deceased. However, the Division Bench of the High Court allowed the appeal in part and allowed the application moved by respondent No.1 under 0. 7, r. 11 to the extent of prayer clauses (b) to (f) holding the same 167 H 168 SUPREME COURT REPORTS [2014] 2 S.C.R. A as time barred. Allowing the appeal, the Court HELD: 1.1 The issue of limitation is always a mixed question of facts and law and, therefore, it could not be B held that no case was made out for proceeding for a trial. c The submission that respondent No.1 disputed the writing dated 12.2.1991 and it had to be forensically tested, all the more justifies that the trial had to proceed. [para 9] [17 4-D-E] 1.2 For deciding an application under 0.7, r. 11, one has to look at the plaint and decide whether it deserved to be rejected for the ground raised. The view taken by the Division Bench of the High Court being clearly D erroneous, its judgment and order impugned is set aside. The application made under 0. 7, r. 11 moved by respondent No.1 will stand rejected. [para 9] [174-F-G] Popat and Kotecha Property vs. State Bank of India Staff Association, 2005 (2) Suppl. SCR 1030 = (2005) 7 SCC 510 E -referred to. Case Law Reference: 2005 (2) Suppl. SCR 1030 referred to para 4 F CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8221 of 2011. From the Judgment and Order dated 27.01.2009 of the High Court of Delhi at New Delhi in FAQ (OS) No. 290 of 2008. G Shyam Diwan, Gaurav Choudhary, Nirman Sharma, Gaurav Kejriwal for the Appellants. C.A. Sundaram, Rohini Musa, Zafar lnayak, Govin Singh for the Respondents. H The Judgment of the Court was delivered by SURJIT KAUR GILL & ANR. v. ADARSH KAUR GILL & 169 ANR. H.L. GOKHALE, J. 1. This appeal seeks to challenge the A judgment and order dated 27 .1 .2009 rendered by a Division Bench of the High Court of Delhi in FAQ (OS) No.290 of 2008 whereby the Division Bench has set aside in part the decision rendered by a learned Single Judge who had dismissed the application moved by the respondent No.1 (defendant No.1) s· under Order Vil Rule 11 of the Code of Civil Procedure,1908 by his judgment and order dated 7th April, 2008. 2. Heard Mr. Shyam Diwan learned senior counsel appearing on behalf of the appellants and Mr. C.A. Sundaram C learned senior counsel appearing on behalf of the respondents. 3. The brief facts leading to this appeal are that one Ajit Singh filed a Suit bearing No.2167of1993, on the Original Side of Delhi High Court for partition of property against his sister Ms. Adarsh Kaur Gill and some others. He filed the suit in his D capacity as the Administrator of the Will of his deceased sister Smt. Abnash Kaur. The prayers in the suit were as follows: (a) pass a preliminary decree of partition of the property bearing No.3, South end Road, New Delhi, more E particularly shown on the plan, and thereafter, pass a final decree partitioning the said property by metes and bounds and put each of the parties to
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