gst 1 CRA161.11.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. CIVIL REVISION APPLICATION NO. 161 OF 2011 M/s.Mahavir Relators .. .... ..... ..Petitioner. V/s M/s.Rajshree Shelters Pvt. Ltd. & Ors. ..... ..Respondents. Mr.N.V.Walawalkar, Sr.Adv. i/by Mr.S.M.Sabrad, Adv. For the petitioner. Mr.G.S.Godbole, Adv. For the respondents. CORAM: B.R. GAVAI, J. 1st April, 2011 PC: By way of present revision application the applicant challenges the order dated 4.12.2010 vide which the application filed by the present applicant for rejection of plaint came to be rejected. 2. The respondent No.1-plaintiff has filed a suit for specific performance of contract, declaration and permanent perpetual injunction on the basis of development agreement and consent decree between the plaintiff and defendants 1 to 7. The case of the plaintiff is that defendant Nos. 1 to 7 have entered into a development agreement with him. It appears that there were some arbitration proceedings pending between the plaintiff and defendants 1 to 7. Averring that during the course of arbitration proceedings the plaintiff came to know that one of the suit property is sold in favour of defendant No.8 the aforesaid suit came to be filed. It appears that on earlier point of time the defendants 1 to 7 had also filed an application under Order 7 Rule 11 for rejection of plaint. Same was rejected. Subsequently the present application is filed at the instance of defendant No.8. Same also came to be rejected. Being aggrieved thereby the present revision application has been filed. 3. Mr.Walawalkar, learned senior counsel appearing on behalf of the gst 2 CRA161.11.sxw applicant submits that the suit is liable to be dismissed on three grounds viz; (i) that the arbitration proceeding is pending between the plaintiff and defendants 1 to 7. Unless these arbitration proceedings are finalized the plaintiff will have no cause of action against the present applicant; (ii) that since the applicant is not a party to the development agreement the relief as claimed against him in the suit cannot be granted and (iii) that the suit is barred by limitation. 4. Mr.Godbole, learned counsel appearing on behalf of respondent on the contrary submits that the arbitration proceedings are no more existing and the application filed by respondent No.1 under section 11 of the Arbitration Act has been rejected by this Court. He further submits that even on merits no error could be found in the order impugned. 5. In so far as the first ground raised by the applicant is concerned even assuming without going into the question as to whether arbitration proceedings subsist or not, it can be seen that arbitration is or was between the plaintiff and defendants 1 to 7. For the very same ground an application filed at the behest of the defendants 1 to 7 was also rejected. In that view of the matter, no merit could be found with regard to that submission. 6. In so far as the second ground is concerned, merely because the present applicant is not party to the development agreement cannot be a ground sufficient only for rejection of the plaint in its entirety. 7. In so far as third ground relating to limitation is concerned, it is settled law that while determining the question regarding tenability of a suit the Court would be required to look at the averments made in the plaint. The plaintiff has specifically averred that the cause of action is within the limitation. In that view of the matter issue of limitation in such case would be a mixed question of law and fact and which could be adjudicated only after parties are permitted to lead their evidence in respect of their respective claims. 8. Apart from that the Apex Court in the SLP arising out of arbitral proceedings in the same suit has directed the learned trial Court to dispose of gst 3 CRA161.11.sxw the suit as expeditiously as possible and latest by end of September, 2011. 9. In the totality of the circumstances it cannot be said that jurisdiction which has been exercised by the learned trial Court is exercised with material irregularity so as to warrant interference of this Court under section 115 of the Code of Civil Procedure. Hence civil revision application stands rejected. 10. C.C. Expedited.