Allahabad High Court

SMT.VIJAI LAXMI DEVIversusGANGA DEVI AND 3 OTHERS

Decided: 17 September 2026
Bench: ROHIT RANJAN AGARWAL

Holding

The High Court held that the lower courts correctly treated the limitation issue as a mixed question of law and fact and therefore dismissed the writ petition.

Summary

The petitioner, Vijay Laxmi Devi, entered into an agreement to sell property with the late Jamuna Prasad in 1995 and paid part of the consideration. Jamuna Prasad filed a suit for cancellation of the agreement, which was dismissed under Order IX Rule 5 CPC, and his subsequent restoration application was also rejected, prompting the petitioner to file a specific performance suit in 1998. After Jamuna Prasad's death, his legal heirs were substituted as defendants and filed a counter‑claim in 2013, which the petitioner sought to dismiss as time‑barred. The trial court and a civil revision court held that the limitation question is a mixed question of law and fact to be decided when the counter‑claim is finally adjudicated, and they refused to dismiss the claim. The High Court affirmed that approach, noting the petitioner may raise maintainability under Section 11 CPC later, and dismissed the writ petition.

Issues considered

Whether the counter‑claim filed by the legal heirs is maintainable under Section 11 CPC given the original suit was dismissed under Order IX Rule 5 CPC and restoration was denied.
Whether the counter‑claim is barred by limitation and/or res judicata.
Whether the lower courts erred in treating the limitation issue as a mixed question of law and fact.

Legislation cited

Code of Civil Procedure, 1908 — s. Order IX Rule 5, Order VIII Rule 6-A, Section 11

Subjects

agreement to sale
specific performance
limitation
counter claim
res judicata
Section 11 CPC
Order IX Rule 5 CPC
Order VIII Rule 6-A CPC
writ petition
High Court of Allahabad

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
MATTERS UNDER ARTICLE 227 No. - 6675 of 2021

Smt.Vijai Laxmi Devi
.....Petitioner(s)
Versus

Ganga Devi And 3 Others
.....Respondent(s)

Counsel for Petitioner(s) : Triloki Nath
Counsel for Respondent(s) :

Court No. - 9
HON'BLE ROHIT RANJAN AGARWAL, J.

1. This is plaintiff's petition. An agreement to sale was entered on
07.04.1995 between plaintiff Vijay Laxmi Devi and one Late Jamuna
Prasad in respect of suit property for consideration of Rs.1,84,000/-. Out
of the said agreed amount, Rs.1,10,000/- was paid to Jamuna Prasad. A
suit for cancellation of agreement to sale dated 07.04.1995 was filed by
Jamuna Prasad which was registered as Suit No. 135 of 1995. The said
suit was dismissed under Order IX Rule 5 CPC. A restoration application
was moved by Jamuna Prasad for restoring the said suit and restoration
application was allowed against which the plaintiff-petitioner had filed a
civil revision which was partly allowed and the matter was remanded
back to trial court for deciding afresh. During pendency of the restoration
application, plaintiff-petitioner filed Original Suit No. 365 of 1998
seeking relief of specific performance against Jamuna Prasad for
executing the sale-deed in respect of the property in question. The trial
court on 27.09.2016 dismissed the application 4-C filed by Jamuna Prasad
which was registered as Misc. Case No. 34 of 1999 on the ground that
restoration application is not maintainable in case suit is dismissed under
Order IX Rule 5 CPC and plaintiff therein to bring a new suit. During the
pendency of Suit No. 365 of 1998, Jamuna Prasad died. Substitution
application was moved for substituting his legal heirs who are present
defendants-respondents. After the substitution application was allowed
and present respondents were added as defendants they filed their written
statement along with counter claim in the year 2013 under Order VIII
Rule 6-A CPC. The plaintiff-petitioner, thereafter, moved an application
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195-C on 02.12.2013 stating that said counter claim be dismissed as it
was time barred. The trial court proceeded with the said application and
rejected the same by order dated 15.04.2017 on the ground that issue of
limitation is a mixed question of law and fact and would be considered
while deciding the said issue. Against the said order, a Civil Revision No.
86 of 2017 was filed which has been dismissed by order impugned dated
07.10.2021. Hence, the present writ petition.

2. Sri T.N. Tiwari, learned counsel for petitioner submits that the counter
claim is not maintainable in view of Section 11 CPC as the suit filed by
Jamuna Prasad was dismissed and restoration application filed therein
was also dismissed. According to him, counter claim was not
maintainable as it is a subsequent suit by legal heirs of Jamuna Prasad.

3. I have learned counsel for petitioner and perused the material on
record.

4. It is undisputed fact that Jamuna Prasad and Vijay Laxmi Devi had
entered into an agreement to sale in the year 1995. Jamuna Prasad had
instituted a suit for cancellation of agreement to sale dated 07.04.1995
which was dismissed under Order IX Rule 5 CPC as fresh steps were not
taken. The restoration application moved therein was dismissed on the
ground that same cannot be allowed in suit dismissed under Order IX
Rule 5 CPC and plaintiff could only bring a fresh suit. In the meantime,
present plaintiff-petitioner had filed a suit for specific performance in the
year 1998 for execution of the agreement to sale of the year 1995. During
pendency of the said suit, Jamuna Prasad had unfortunately died and his
legal heirs were substituted who, in the year 2013, had filed written
statement along with counter claim under Order VIII Rule 6-A CPC. The
application moved by plaintiff-petitioner for dismissing the counter claim
on the ground that it is time barred has been rejected by both the courts
below on the ground that it is a mixed question of law and fact as the
question of limitation can only be looked into and decided at the time
deciding the issues framed in the suit.

5. After hearing learned counsel for the petitioner, I find that as the
question of limitation has been raised in application 195-C by plaintiff for
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dismissing the counter claim, both courts below had rightly drawn their
finding that said fact can be decided only at the time of deciding the issue
as to whether the counter claim was time barred or not as being the mixed
question of law and fact.

6. Both orders need no interference of this Court. However, it is open to
the plaintiff to raise the issue as to maintainability of the suit when the
issue is framed in the said suit under Section 11 CPC as the counter claim
being barred by res judicata.

7. In view of said fact, no case for interference is made out in the orders
impugned.

8. The writ petition stands dismissed.

(Rohit Ranjan Agarwal,J.)
September 18, 2026
(V. S. SINGH)

Digitally signed by :-
VIDYA SAGAR SINGH
High Court of Judicature at Allahabad

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