remanding case back to trial without reversing limitation?


We were defendant in a civil suit for declaration of title of immovable property. Trial court gave decision in our favor and one of the findings of trial court was that the suit filed by plaintiff therein was barred by limitation both on facts and law.

Thereafter plaintiff reached first appellate court (Court of District Judge) against the decree of trial court upon which appellate court allowed his appeal and remitted the case back to trial court for taking additional evidence. Surprisingly, first appellate court has not reversed the finding of limitation of trial court in its order.

The reason of delay mentioned by plaintiff in original suit is that he was insane for the questioned span of time. He did not produce any evidence in support of his contentions of being insane and in contrary we (defendant) produced documentary evidence which proves that he was facing some defamation suit in that period of time wherein he registered his presence as well in the court. Thus trial court agreed to our evidence and recorded the finding of limitation in its judgement.

Now my question is even if limitation is cosidered to be a question of both facts and law, How can the case be remitted back to trial court without reversing the finding of limitation? Can we say appellate court fell in error by remitting the case which is clearly barred by limitation both on facts and law?

 
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LEGAL

the appealte court has directed to take addditional evidance in the   matter and there is no error as such,it is advisable to let the addtional evidance be recorded and refute that as you state  they failed to explain the delay, There ground in the appeal appears paryer for allowing of  additional evidance in the matter; 

 
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Retired employee.

Once the appellate court decided, you can only defend in the lower court and once again counter the additional evidence.  Limitation period is an issue of fact and law and only after the proper trial the court after taking additional evidence into consideration has to decide the issue

Ex: A might have filed some forged documents and succeeded in obtaining the property.  Later the plaintiff might have obtained concrete evidence that it was a fraud and the case was vitiated with fake and fraudulent documents.  The limitation period commences from the time when the party discovered such a material document/fact of fraud.  A person may discover the fact/document basing on which some rights were acquired after 100 years, still, if he can establish that the transaction was vitiated by fraud it can be challenged in any court either in original or appellate proceedings and even in collateral.  The limitation period commences from the date of discovery of such a document in case of fraud.


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Advocate

The matter could be taken up in second appeal in the High Court if the decision of the Appellate court is errroneous and involves substantial question of Law.


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ha21@rediffmail.com Mumbai : 9820174108

1. Court/s are vested with absolute discretion to condone /set aside ANY delay on ANY ground.

2. Mere recording plea /reasons /findings is not an speaking order and has no implications on the case. Delay condonation has to be accepted or rejected, before proceedings the matter.

Keep Smiling .... Hemant Agarwal
VISIT: www.chshelpforum.com

 
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Absolutely, it needs to be rejected or accepted before proceeding. But here in our case first appellate court has remanded the matter without reversing the findings of limitation. To be precise first appellate court in its order has nor even touched the issue of limitation. How can court skip this crucial issue? First appellate court must disagree with the finding of trial court before remitting the matter, isn't it?

 
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Originally posted by : Hemant Agarwal
1. Court/s are vested with absolute discretion to condone /set aside ANY delay on ANY ground.

2. Mere recording plea /reasons /findings is not an speaking order and has no implications on the case. Delay condonation has to be accepted or rejected, before proceedings the matter.

Keep Smiling .... Hemant Agarwal
VISIT: www.chshelpforum.com

Absolutely, it needs to be rejected or accepted before proceeding. But here in our case first appellate court has remanded the matter without reversing the findings of limitation. To be precise first appellate court in its order has nor even touched the issue of limitation. How can court skip this crucial issue? First appellate court must disagree with the finding of trial court before remitting the matter, isn't it?

 
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Originally posted by : G.L.N. Prasad
Once the appellate court decided, you can only defend in the lower court and once again counter the additional evidence.  Limitation period is an issue of fact and law and only after the proper trial the court after taking additional evidence into consideration has to decide the issue

Ex: A might have filed some forged documents and succeeded in obtaining the property.  Later the plaintiff might have obtained concrete evidence that it was a fraud and the case was vitiated with fake and fraudulent documents.  The limitation period commences from the time when the party discovered such a material document/fact of fraud.  A person may discover the fact/document basing on which some rights were acquired after 100 years, still, if he can establish that the transaction was vitiated by fraud it can be challenged in any court either in original or appellate proceedings and even in collateral.  The limitation period commences from the date of discovery of such a document in case of fraud.

Okay, so lets assume plaintiff says that some specific contract was executed between plaintiff and defendant which he never excercised. Can he institute suit after 20 years praying relief of specific performance?
And lets assume that the suit was instituted and trial commenced but later in the judgement of trial it is recorded that the reason for the aforesaid delay in filing suit was a false and was deliberately done by the plaintiff to bring his suit under limitation. Can this thing be ignored?

 
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Retired employee.

Guidance can not be given on assumptions.  The simple query is on the limitation period.  It was replied that the limitation period depends on facts and law, and if it is fraud, within 3 years from discovering the fraudulent document or knowledge of the fraud.  This issue can only be decided by Court after due trial.  No experts can further guide on a decided case without studying the facts and when there is appeal pending with documentary evidence, as the advocate that is handling case is well versed.

 
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Originally posted by : G.L.N. Prasad
Guidance can not be given on assumptions.  The simple query is on the limitation period.  It was replied that the limitation period depends on facts and law, and if it is fraud, within 3 years from discovering the fraudulent document or knowledge of the fraud.  This issue can only be decided by Court after due trial.  No experts can further guide on a decided case without studying the facts and when there is appeal pending with documentary evidence, as the advocate that is handling case is well versed.

Can I send you private msg explaining detailed facts and law points of the case am talking about? May be you can suggest us some remedy.

 
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