Case Note & Summary
The petitioner company challenged termination of contract dated 26.04.2012 through writ proceedings which were dismissed -- The respondents filed suit O.S.No.95/2016 on 09.11.2016 seeking recovery of damages and cost of balance work -- The petitioner filed application under Order VII Rule 11(d) CPC seeking rejection of plaint on ground of limitation contending cause of action arose on 26.04.2012 -- The Trial Court rejected application holding limitation issue to be mixed question of law and fact -- The High Court in Civil Revision Petition upheld Trial Court order finding that determination of limitation required examination of facts regarding when cause of action actually accrued and whether it was continuing -- The Court held that plaint could not be rejected at threshold under Order VII Rule 11(d) CPC
Headnote
The petitioner filed Civil Revision Petition under Section 115 of Code of Civil Procedure, 1908 (CPC) challenging order dated 26.10.2021 passed by Senior Civil Judge and JMFC, Hungund rejecting I.A. No.V filed under Order VII Rule 11(d) read with Section 151 of CPC seeking rejection of plaint in O.S.No.95/2016 on ground of limitation -- The petitioner contended that cause of action arose on 26.04.2012 when contract was terminated and suit filed on 09.11.2016 was barred by limitation under Article 55 of Limitation Act, 1963 -- The respondents contended that plaint disclosed continuing cause of action as damages could be determined only after measurement of executed work, estimation of balance work, approval from competent authority and execution of balance work at risk and cost of contractor -- The High Court held that issue of limitation was mixed question of law and fact requiring evidence and could not be decided at threshold under Order VII Rule 11(d) of CPC -- The Court dismissed Civil Revision Petition confirming Trial Court order
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Issue of Consideration: Whether the Trial Court erred in rejecting the application under Order VII Rule 11(d) read with Section 151 of CPC seeking rejection of plaint on ground of limitation
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Final Decision
The High Court dismissed Civil Revision Petition and confirmed order dated 26.10.2021 passed by Senior Civil Judge and JMFC, Hungund rejecting I.A. No.V filed under Order VII Rule 11(d) read with Section 151 of CPC
