IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 633 OF 2007 CHAIRMAN, WOMEN'S CO-OPERATIVE BANK LTD AND ANR., ... Petitioners Versus PREMA KHANDEKAR AND 2 ORS., ... Respondents Mr. J. J. Mulgaonkar, Advocate for the Petitioners. Mr. D.P. Bhise, Advocate for the Respondent no.1 Coram:- S.C. DHARMADHIKARI, J. Date:- 21st July, 2008 P.C. 1. The present petition is by the Chairman, Woman's Co-operative Bank Ltd. who is aggrieved by an interlocutory order passed by the District Judge, Panaji answering preliminary issues no.3 and 4 in the negative. The operative part of the order reads thus: "ORDER The oral objections of the defendants to reject the plaint under order VII rule 11 of CPC stand rejected. Preliminary issue no.3 and 4 answered in the negative. Trial to proceed with. (P.V. Kamat) District Judge, Panaji." 2. Civil Suit no.66/2005 is filed by the original plaintiff who is the respondent no.1 before me, seeking a declaration that the promotion of the original defendant no.2 to the post of Assistant Branch Manager and the Branch Manager, vide order dated 31.12.1998 is bad in law. Further declarations are also claimed so also consequential reliefs in pursuance thereof. 3. The suit is filed on 11.10.2005. The present petitioner is the original defendant no.1. The present petitioner filed its written statement and in para 1(a) contended that the suit claim is barred by law of limitation. In the light of the rival cases, Issues were framed by the Trial Court and issues as framed are found in para 2 of the Order. Issue no.3 reads thus: " 3. Whether the defendant proves that suit is barred by limitation under Article 58 of the Indian Limitation Act?" 4. It is the contention of Learned Advocate for the petitioners before me that issue no.4 was never raised as a preliminary issue and there was no request made by the Bank to try it as such. The only request made by the Bank was to try issue no.3 on the point of limitation as a preliminary issue. 5. The argument before me is that when the issue no.3 was being considered the request was to decide the same on the plaint averments. The plaint averments read as a whole, would disclose that claim of Respondent no.1 is time barred and, therefore, the suit deserves to be dismissed on that ground alone. The Learned Judge, after considering the original plaintiff's objections on this count, has not only refused to entertain and try the issue of limitation as a preliminary issue, but also concluded that the plaint averments could disclose that the claim is not time barred. 6. In my view the course adopted by the Learned Judge is not in accordance with law. He was required to decide issue no.3 alone as a preliminary issue and the Bank does not press that the issue for want of notice, must be decided as a preliminary issue. On the other hand, the bank urges before me that even if the plaintiff steps into the witness box, still, as far as the issue of limitation is concerned it desires to argue the same on the basis of plaint averments and would demonstrate that read as a whole they would disclose that the claim is time barred. Further, when the Learned Judge considered the request of trying issue of limitation as a preliminary issue, there was no necessity to go into the plaint averments and conclude that para 6 would disclose that the cause of action, as set out, permits the original plaintiff to maintain the suit. This course of action is difficult to be sustained. The Learned Judge has clearly overlooked the provisions of the Limitation Act while refusing to decide Issue no.3 as a preliminary issue. In the instant case, relying upon the provisions of the Limitation Act, 1963 that the Bank desires to satisfy the Court that the plaint averments tested on the touch stone of the articles would prove that the claim of the present plaintiff is time barred. Equally, it is open for the plaintiff to point out that it is not so. The Learned Judge instead of deciding as to whether the issue can be decided on the plaint averments alone or not, has taken into consideration extraneous matters and rejected the application. The application has been rejected in a manner by which the issue of limitation is answered against the original defendants. To my mind, therefore, the impugned order cannot be sustained in law. The Learned Judge has clearly exceeded the Jurisdiction vested in him in law. The order, therefore cannot be upheld and must be quashed and set aside. 7. Accordingly, the order passed by the District Judge, Panaji is quashed and set aside. It is accordingly directed that issue no.3, as re-produced above, shall be decided by the District Judge as a preliminary issue and the same shall be considered and answered before other issues are taken up for determination and consideration. The issues must be answered only by looking into plaint averments and on the basis of the same are not admitted by the defendants. The contentions of both sides in that behalf are kept open. The Learned Judge to decide the matter without being influenced by his earlier observations. Further, it is clarified that no opinion is expressed on the objections raised by the original defendants and needless to further state that merely because the impugned order is set aside does not mean that the preliminary issue is answered against the original plaintiff. Petition allowed in the above terms. However, there shall be no order as to costs. S.C. DHARMADHIKARI, J. cg