Case Note & Summary
The petitioner, Latif Karim Sahab Shaikh, filed a writ petition challenging the order dated 09.06.2022 passed by the Adhoc District Judge-2, Bhoom, rejecting his application at Exh.23 in R.C.A. No. 63 of 2019. The application was filed under Order 41 Rule 25 of the Code of Civil Procedure, 1908 (CPC) seeking framing of an issue relating to limitation. The background of the case is a partition suit instituted by the respondents for partition of a house property. The petitioner, as defendant, filed a written statement raising various defences, including that the suit was barred by limitation. Despite this plea, the trial court did not frame an issue on limitation and proceeded to decree the suit by judgment and order dated 25.09.2019. The petitioner appealed against the decree in RCA No.63 of 2019. During the appeal, the petitioner filed an application under Order 41 Rule 25 CPC requesting the appellate court to frame an issue on limitation and remit it to the trial court for trial. The appellate court rejected the application, observing that the issue of limitation was not pressed before the trial court. The petitioner then approached the High Court. The High Court held that the appellate court's reasoning was erroneous. It noted that the plea of limitation was specifically raised in the written statement, and the trial court's failure to frame an issue on limitation was a material irregularity. The appellate court, under Order 41 Rule 25 CPC, has the power to frame additional issues and remit them for trial. The High Court set aside the impugned order and directed the appellate court to frame an issue on limitation and remit it to the trial court for decision. The appeal (RCA No.63 of 2019) was to be kept pending and decided after the trial court's findings on the limitation issue.
Headnote
A) Civil Procedure - Order 41 Rule 25 CPC - Framing of Additional Issue by Appellate Court - Limitation - Where the trial court fails to frame an issue on limitation despite the defendant raising the plea in the written statement, the appellate court is duty-bound to frame such issue and remit the same for trial. The appellate court's rejection of the application under Order 41 Rule 25 CPC on the ground that the issue was not pressed before the trial court is erroneous. (Paras 4-6) B) Limitation Act, 1963 - Plea of Limitation - Duty of Court - The plea of limitation is a jurisdictional issue and must be decided by the trial court. Failure to frame an issue on limitation results in a material irregularity, and the appellate court must rectify the same by framing the issue and remanding the matter for decision on that issue. (Paras 4-6)
Issue of Consideration
Whether the appellate court was justified in rejecting the application under Order 41 Rule 25 CPC for framing an issue on limitation when the trial court had failed to frame such issue despite the plea being raised in the written statement.
Final Decision
The High Court allowed the writ petition, set aside the order dated 09.06.2022 passed by the Adhoc District Judge-2, Bhoom, and directed the appellate court to frame an issue on limitation and remit it to the trial court for decision. The appeal (RCA No.63 of 2019) shall be kept pending and decided after the trial court's findings on the limitation issue.
Law Points
- Order 41 Rule 25 CPC
- Limitation Act
- 1963
- framing of additional issue by appellate court
- remand for fresh decision
