1 cra-1052-10 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.1052 OF 2010 Smt. Sankhubai Nana Jadhav & Ors. .. Applicants Versus Shri Babu Beru Jadhav .. Respondent Mr. Shriram S. Kulkarni for the Applicants Mr. N.V.Bandiwadekar for Respondent CORAM : R.M.SAVANT, J. DATE : 15th NOVEMBER, 2011 P. C : 1 Rule. With the consent of the parties made returnable forthwith and heard. 2 The revisionary jurisdiction of this Court under Section 115 of the Code of Civil Procedure is invoked against the order dated 25-1-2010 passed by the 8th Joint Civil Judge, J.D., Nashik, by which order, objection regarding limitation which was framed as a preliminary issue, came to be decided against the Applicants herein and the suit was held to be within limitation. 3 The Respondent herein is the Plaintiff who has filed Regular Civil Suit No.336 of 2009 for partition and possession in respect of land 2 cra-1052-10 bearing block No.89 admeasuring 6 Hector 87 R land in the said block. The said suit is filed on the basis that it is a joint family property. The Applicants herein who are the Defendants to the said suit, filed their written statement and it is the case of the Defendants that the said property is a self acquired property of Yamunabai Jadhav who has purchased the same in the year 1956 and the Plaintiff, therefore, was not entitled to any share as the said property was not a joint family property. In the said suit, the Defendants have filed an application invoking section 9A of the Civil Procedure Code for a preliminary issue to be framed as regards limitation. It was the case of the Defendants that earlier the Plaintiff had filed Regular Civil Suit No.98 of 1994 for the self same relief and it was averred that the cause of action for filing the said suit was on 18-1-1994 when notice was given by the Plaintiff. The said suit was dismissed on account of non compliance of Order 39 Rule 11 of the CPC. It was, therefore, the case of the Defendants that considering the cause of action having arisen in the year 1994, the instant suit was not maintainable and was barred by limitation. 4 It is required to be noted that at this stage, that the present suit has been filed on the basis that the Plaintiff had issued a notice to the Defendants for his share in the said suit property. However, vide reply dated 27-7-2009 the Defendants denied his share and the said date being the cause of action, the instant suit was filed. In view of the application 3 cra-1052-10 filed by the Defendant No.3 preliminary issue to the following effect was framed: “Whether the suit is barred by limitation”. The said issue was answered in the negative. The gist of the reasoning of the Learned 8th Jt. Civil Judge J.D., Nashik, was that the cause of action for filing the instant suit was the reply dated 27-7-2009, by which reply, the Defendants had denied the share to the Plaintiff and, therefore, the suit filed as on 29-7-2009 was within limitation. The Learned Judge prior to recording the said finding, has observed that for the purposes of deciding the issue of limitation, the averments in the plaint are material and the said issue cannot be determined on the basis of averments made in the written statement. 5 In my view, considering the conspectus of facts as mentioned herein above, the impugned order dated 27-9-2010 would have to be quashed and set aside and the matter would have to be remanded back to the Trial Court for de novo consideration of the said preliminary issue. The said view of mine is fortified by the fact that the averments in the written statement, as regards the filing of the earlier suit and its dismissal and the fact that the cause of action for filing earlier suit was in the year 1994, was totally glossed over by the Trial Court. The Trial Court in answering the said preliminary issue, has accepted the averments in the plaint, it is also in the teeth of the averments in the Written Statement as regards the 4 cra-1052-10 filing of the earlier suit etc., that the said issue ought to have been decided by the Trial Court. The Order also discloses that the evidence in question has also not been considered in its proper perspective by the Trial Court. In that view of the matter, the impugned order dated 27-9-2010 is required to be quashed and set aside and is accordingly quashed and set aside. The matter is relegated back to the Trial Court i.e. 8th Joint Civil Judge, J.D., Nashik, for de novo consideration of the said preliminary issue. On remand, the Trial Court to decide the said issue in terms of the observations made in this order and within a period of two months from the first appearance of the parties. The parties to appear before the Trial Court on 28-11-2011 on which date, the Trial Court may fix the schedule of hearing for the said preliminary issue. The parties would be at liberty to file additional pleadings and/or additional evidence, if so advised. 6 The Revision Application is allowed to the aforesaid extent with parties to bear their respective costs. (R.M.SAVANT, J.)