HIGH COURT OF JUDICATURE AT ALLAHABAD MATTERS UNDER ARTICLE 227 No. - 6675 of 2021 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 Versus Counsel for Petitioner(s) : Triloki Nath Counsel for Respondent(s) : Smt.Vijai Laxmi Devi .....Petitioner(s) Ganga Devi And 3 Others .....Respondent(s) 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 A227 No. 6675 of 2021 2 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. September 18, 2026 (V. S. SINGH) A227 No. 6675 of 2021 3 (Rohit Ranjan Agarwal,J.) Digitally signed by :- VIDYA SAGAR SINGH High Court of Judicature at Allahabad