2013(3) ALL MR 670
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. SAVANT, J.
Smt. Sunita Sudam Ranaware Vs. Sou Rama Vijay Oberoi & Ors.
Writ Petition No.10366-10368 of 2012
13th March, 2013
Petitioner Counsel: Mr. N.V. Walawalkar,Mr. S M Kamble
Respondent Counsel: Mr. G.S. Godbole,Mr. Joseph Fernandes
Civil P.C. (1908), S.9A - Preliminary issue - Framing of - Issue as to bar of limitation - Has to be decided as preliminary issue under S.9A - Denial of framing preliminary issue on ground that limitation is a mixed question of law and fact - Improper.
2009(2) Bom.C.R. 622, 2008(6) ALL MR 600, 1998(4) ALL MR 536 Rel. on. [Para 10]
United India Insurance Company Ltd. Vs. Vulcan Association and ors, 2012(2) ALL MR 866 [Para 7]
Royal Palms (India) Pvt. Ltd. and ors Vs. Bharat Shantilal Shah & ors., 2009 (2) Bom CR 622 [Para 8,10]
Foreshore Co-operative Housing Society Ltd. Bombay Vs. Praveen D Desai and ors, 2008(6) ALL MR 600=2009 (2) Mh.L.J. 28 [Para 8,10]
Meher Singh Vs. Deepak Sawhny and anr., 1998(4) ALL MR 536=1999(1) Bom. C.R. 107 [Para 8]
JUDGMENT :- 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.
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 : [2008(6) ALL MR 600] in the matter of Foreshore Co-operative 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 : [1998(4) ALL MR 536]. 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 Co-operative Housing Society Ltd. Bombay, [2008(6) ALL MR 600] (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.