m ;CHHARH!SGARHATi Hon'bte Mr. T.P.Sharma & Mr- R.N- Charsdr2llr2r. JJ First Appea! 1) No.59/2007 ApQe'iarst : Arun Kumar Deshmukh, aaed about 3S years, son of Lste Kaiyan Singh Gautani, R/o Viii. Bhatgaon, Tahsii and District Ou'a fCG) v'srsus 1. Jhsmit Bai. dauahter of Hukum Dsshmukh. v^lfs of Shri Arun Kumsr Desrirnukh Gautam. resident of villaae Kharra, Post Gunderdehi. Tahsii-Gunderdeh!. District dura 2. Domeshvvar Prasad. son of Not known. moth.er Smt. Jhamtl bai, aged about 10 yeacs (Minor) throu.gh - Naiu'al Guardian - Mother Smt. Jhamit Bal. reside.nt f District Dury (CQ) First Aooeal under Sect'on 1S ofthe Fa!'oilv Courts Act, 1984 '-'rese'-r ynn N.y. unurananar, counsel tor rne appeiian;. Shri A.K. Prasad. counsel for the respondents. Orai Order fDac.sesrl np •!7th nf Santpmhor 9nr~Q' Psf Hon5bl^s Shfi T.P, Sh^r^^. J This SQossf undsf Ssc'tion < S of ths ;3p^lv Oourts Act. 'l SS'4 Is dlrectsd 3oq;nst ths ordgr dstsd 01 .Q5.20Q7 ossssd bv. th;rd Ad.e^^sns' Prlncioa! Judps. Fsmllv Court, Duro in civ!i case No.23-A/2Q06. wherebv 'earnsd Add:;ion3i Princ'Da! JudQe. Far'iiiv Court has dism'ssed the su't fi'ed bv the "DDelisnt afier framina the additiona! issues. cy, ' Th's or93snt QOpssi hss bssn ors^rrsd w;th dslsy of 43 dsvs, Th5 aooei'ant has f'ied aDpiications for condonetion of delav in filina She aooea' as !.A, Nos.1 S 2. We are satisfied as the aDoellant has satisfactorilv exc'la'ned the delav i" flHno the aDDeaL A.ccordinaiv. i.A. Nos.1 & 2 are ^jlo^g^^ Dsisv in :li!no ths 30D$s! 13 COFidOHSCt. • • ' fS' Lssrnsd counse1! for th©spD&lisnt subn^ittsd thst ths sDD£Hant'h3s initieliv fi'ed a civi! suit for dec'srstion snci Dermsnent iniunction Dravina that ^ the resDcndent No.2 herein is not the son of the apDeliant/DlalntifF and osrmsnent iniunction be sranted saainst Shem. Durinc; the course oftrial, on an spolicstion of the ressondents/defendants. one preiiminarv obiection relating to n-sintainabnrtv of the suit on the grounc! ot iimftat'on was framed and aRer sffordina ODDQrtunitv of hearina to ths Darties. learned Acditiona' Pripcioai Judge, Family Court hss dis'r'issed the suit. ('"; Lesrr'ed counse! for the aDDellant aroued that the auestion of iim'tation shal! be ccnsidersbly decided on the basis cfthe aileaation. made in the Dla'nt and auestion of !im'tation cannot be decided as preiiminan/ issue. /5) Learned oounsel for the aDDeliant furiher araued that the aDDeilant h%$ Q!g@rjg(^ \r\ ^gfss 3 ^ 4 of ths Dislnt thst on 29,09.1993, ths rssoc'ndsnt No.1 has SDecificaily admitted that the respondent No.2 is not the son ofthe s,pDel!ant but. on 12.10.1993 in caste meetina, she denied the same anc! stated for the first time that the respondent No.2 is the son of the aDDellant. The sppei!ant reauested for D.N.A. test of resDondent No.2 before the communlty Panchayat snd submitted an application before caste meeting on 1.7.2003, the apDei'ant requested for a'ecision on his app'ication regarding D.N.A test of the respondent No,2, but the members of the caste meeting did not decic'e anc! finsllv arter filing the application on 1.7.2003, he filed the suit cn 21.08.2003 wh'ch is weil within She 'imitation, but the Familv Court has dism'ssed the suit holdina that the same is barred by limitation. !'R) 0" the other hand, learned counsel for the resDondent vehementiv ooposeci the arqument while submittina that the order passed by the iearned Court be!ow is a wsll reasonsd order and the suit has riahtlv been disraissed on the g'ound o* Limitation, it Is arciued that the cause of action firstlv arose on 12.1Q.1993 therefore. the 'imitat'on for deciaration under Ariicie 58 of Limitation A.ct. 1963 vi'oulc; be three vears and the suit has been filed in the year 2UQ3. after tsn yesrs of bv iirpitstion. /7) Learned counsei for the aDDe!!ant Diacea' re'iance in the matter of Ramesh 8. Desa' & Ore va Bio'n Vad'ia! Mehta & 0,-s. (200S) S SCC 838 in whlch the aoex Court has held that in the facts and clrcumstances of case. the question of iimitation is a mixed question of !aw and fact. which cannot be decided as an abstract principle of la'w divorced from facts as in every >- ^ C3S&. ths stsrtlnQ Dolnt of !:fTilt3t;on hss to be: sscsrtslnsd. yyhlch Is sntirsiv a aues;icn or ract. fS' Parg 3 & 4 ofthe o'aint revea's that on 12.10.1993. resoondent Mo.1 has' rr'ade soec'fic claim to the aDpeiiant before the caste meetina that resoondent No.2 is the son of the aDDeilant. The appellant contested that ^ng rssocndsnt Nio.2 Is not hls son snd ths rssoondsnt NQ.I stst6'd for the first tims before the caste meetina that resDondent No.2 is the son of the spDelisnt a'thouph the casfe meetina was not decidina forL his name came on rscord on 12.10,1993. It also appears that in pe.ra 4 ofthe plaint ihgt fcr the first t'me sause or action srose on 12.10.1993. AccordinC) to the appe'iant aca'n. the cause ofaction arose on 5.11.1995 when he deposited Rs. 501,'- to ?he caste meeting for conducting D.N.A. Test. The appellant fi'ed an appiicatbn on 1.7.2003 before the csste meetinQ and aaain reaussted for D.N.A. test. but the same was not decided. therefore. he fiied the suit on 21.08.2003, which is within 3 years as orovided under Articie 58 ofthe Limitation Act. 1963. The cause of act'on arose on 12.10.1993, but the aDpeliant has not fiied the suit within three vears from 12.10.1993. In the case of Ramesh B. Desai & Ors vs. Bloin Vadilal IVIehta & Ors (supra). it '"'as he!d that auestion of iim'tation is a mixed question of iaw an.d facts. In para 1° of the aforesaid decis'on. rt hss been held that uniess it becomes aDDarent rrom tne reaciing ot ffie ccrnpany petition that the same is barreci bv Hmitation, the Detition cannot be rsiscted under Order 7 Rule 11 (d) of (3) In the Dresent case. 1t aopears from the D'aint itself that the flrst causs of action arose in the vear 1993 and the suit was riied in the vear 2003 i.e. aiter a iapse of 10 vears, which is hoaeiessly b%rred-bv.).irniSti9n. Considerina the facts and circumstanoes of the case, we are of the ODinlon thai ths apDeal is devoid of merit and the suit is barred bv limitation. which is accordinalv dismissed with costs. No oitier as to costs. Ad''/nf;?^f?:::s 'sss ^s n?lr R^hsriuii '? ^^1--/^, 1,^ : ^/'^^l^? ^ 1^5 ^^lk^ 1 <^^/i .tt^\^i ^-fl ! ^r, Sd/- T.P. Sharma Judge Sd7- , Rangnath Chandrakar Judge