Wednesday 26 June 2013

Issue of limitation should be decided as preliminary issue under S.9A of civil procedure code

The Trial Court is
directed to frame the issue as to whether the suit is barred by limitation as a
preliminary issue under Section 9A of the Code of Civil Procedure. The Trial
Court would offer an opportunity to the parties to lead both oral as well as
documentary evidence in respect of the said issue.  The Trial Court to decide
the  said issue  of limitation within  a  period  of  three months  of  the  parties
appearing before it.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10366 OF 2012
Smt.Sunita Sudam Ranaware : Petitioner.
Versus
Sou Rama Vijay Oberoi 


CORAM : R. M. SAVANT, J.
DATE   : 13th  March 2013
Citation; 2013 (3) MH L J 81

1 At   the   outset   the   learned   Senior   Counsel   appearing   for   the
Petitioners seeks deletion of all the Respondents except the Respondent No.1 in
the   above   Petitions.   Leave   granted.   Amendment   to   be   carried   out   by
15/3/2013.
2 Rule, with the consent of the learned counsel for the parties made
returnable forthwith and heard.
3 The Writ Jurisdiction of this Court is invoked against the common
order  dated 11/9/2012 passed by  the learned Civil Judge, Senior Division,
Panvel by which order the Applications Exhibits 160, 178 and 182 filed by the
Defendants in Regular Civil Suit No.766 of 2012 came to be rejected.
4 It is not necessary to burden this order with unnecessary details.
Suffice it to say that in the suit in question the Plaintiff has challenged the Sale
Deed  dated  30/05/1996 executed in  favour  of  the Defendant  No.4  by  the
Defendant No.1.  The Defendants therefore questioned the maintainability of
the suit on the ground of it being barred by limitation, and therefore filed an
application invoking Section 9A of  the Code of Civil Procedure seeking  the
framing of a preliminary issue whether the suit is barred by limitation.

5 In so far as the Defendant No.3 is concerned, who is the Petitioner
in Writ Petition No.10368 of 2012, in addition to invoking Section 9A, the said
Defendant   No.3   also   invoked   Order   VII   Rule   11(d)   of   the   Code   of   Civil
Procedure on the ground that the suit was barred by law.
6 The said Applications Exhibits 160, 178 and 182 were replied to
by the Plaintiff by filing a reply. It was sought to be averred by the Plaintiff in
her reply that it is from the date of acquiring knowledge of the said documents
that the period of limitation would have to be computed and therefore the suit
as filed in the year 2012 after the Plaintiff had acquired knowledge could not
be said  to be barred by limitation.    It was  further averred  that  the issue of
limitation being a mixed question of law and fact, the said issue could not be
framed under Section 9A of the Code of Civil Procedure.
7 The Trial Court considered the said Applications Exhibits 160, 178
and  182  and  as indicated  above  by  the  impugned  order  rejected  the  said
Applications.  In so  far as the issue under Section 9A is concerned, the Trial
Court has observed that since the issue of limitation is a mixed question of law
and fact, the same could not be framed by having recourse to Section 9A of the
Civil Procedure Code.  The Trial Court relied upon the judgment of a learned
Single Judge of this court reported in 2012(2) ALL MR 866 in the matter of

United   India   Insurance   Company   Ltd.  v/s.   Vulcan   Association  and   ors,
wherein a learned Single Judge has held that the issue has to be determined on
the   basis   of   the   averments   made   in   the   plaint   and   for   the   purposes   of
determining  the issue of jurisdiction  the  court will have  to proceed on  the
footing  that  the  averments made in  the  plaint were  true.   The Trial Court
thereafter has rejected the application  filed by  the Defendant No.3 invoking
Order VII Rule 11(d) of the Code of Civil Procedure.
8 On   behalf   of   the   Petitioners   the   learned   Senior   Counsel   Shri
Walawalkar drew my attention to the judgments of two Division Benches of
this Court, the first of which is reported in 2009 (2) Bom CR 622 in the matter
of Royal Palms (India) Pvt. Ltd. and ors v/s. Bharat Shantilal Shah & ors.,
and the second being the judgment reported in  2009 (2) Mh.L.J. 28  in the
matter of Foreshore Co­operative Housing Society Ltd. Bombay v/s. Praveen
D Desai and ors.   Both the Division Benches in the judgments (supra) have
held that the issue of jurisdiction if raised under Section 9A of the Code of Civil
Procedure should be decided first and should not be postponed to a later date.
The Division Benches of this Court in both the Judgments held that the issue of
limitation can be an issue under Section 9A of the Code of Civil Procedure. The
need for deciding the issue, which is raised under Section 9A as a preliminary
issue is laid down by the Apex Court in the case of Meher Singh v/s. Deepak
Sawhny and anr.  reported in  1999(1) Bom. C.R. 107. The Apex Court has

held that if the issue relates to the jurisdiction of the Court or to the bar of the
suit, the said issue has to be decided  as a preliminary issue under Section 9A
as the rights of  the parties would then get crystallized in so  far as  the said
preliminary issue is concerned.
9 Per contra, the learned counsel appearing for the Respondent No.1
Shri Godbole sought to justify the impugned order. The learned counsel would
contend  that  the  Trial Court  was  right in  rejecting  the  applications in  the
context of the fact that the issue of limitation is a mixed question of law and
fact. However, the submission of the learned counsel for the Respondent No.1,
in the face of the judgments of the two Division Benches of this Court was not
made with any degree of conviction.  
10 Having heard the learned counsel for the parties, in my view, in
the light of the judgments of the two Division Benches of this Court in Royal
Palms (India) Pvt. Ltd.    and  Foreshore Co­operative Housing Society Ltd.
Bombay (supra) the impugned order in so far as it rejects the application for
framing of a preliminary issue of the bar of limitation under Section 9A of the
Code  of Civil  Procedure would  have  to  be  quashed  and  set  aside  and  the
Application Exhibit 160 would have to be allowed to the said extent. However,
in so far as invocation of Order VII Rule 11(d) of the Code of Civil Procedure in
Writ Petition No.1068 of 2012 is concerned, since the learned Senior Counsel

appearing  for  the original Defendant No.3 submits  that  the Defendant No.3
would not press framing of issue under Order VII Rule 11(d) of the Code of
Civil Procedure, it is not necessary to consider the said Application in the said
context.
11 In the light of the aforesaid facts, the above Petitions succeed to
the extent that the impugned order is quashed and set aside, the Application
Exhibits 160, 178 and 182 would resultantly stand allowed. The Trial Court is
directed to frame the issue as to whether the suit is barred by limitation as a
preliminary issue under Section 9A of the Code of Civil Procedure. The Trial
Court would offer an opportunity to the parties to lead both oral as well as
documentary evidence in respect of the said issue.  The Trial Court to decide
the  said issue  of limitation within  a  period  of  three months  of  the  parties
appearing before it. The parties to appear before the Trial Court on 25/3/2013.
Rule is accordingly made absolute in the aforesaid terms with parties to bear
their respective costs of the present Petitions.
[R.M.SAVANT, J]

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