1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CIVIL REVISION APPLICATION NO. 16/2011 (Dr. Bais Surgical and Medical Institute Pvt. Ltd., through its Director vrs. Dr. Varun Chandraprakash Bhargava) ................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................................... Shri B.B.Mehadia counsel for applicant ... CORAM : R. K.DESHPANDE, J. DATED : 23rd FEBRUARY, 2011. This Civil Revision Application is preferred by the defendant challenging the order dated 2.9.2010, passed by the learned Joint Civil Judge, Junior Division, Nagpur, dismissing Application Exh.14 filed under Order 7, Rule 11 of C.P.C. for rejection of the plaint, on the ground that the suit is barred by limitation. 2. It seems to be an undisputed position before the trial Court that the limitation prescribed is of three year. The trial Court has held that prima facie three years have not lapsed since the date of 2 payment to the plaintiff. Hence, the suit is within limitation. It has also recorded the finding that there is no pleading that for each financial year, there was a separate contract between the parties and if that was so, the period of limitation would have been counted from the date of expiry of that financial year. It has further been held that if the averments made in the plaint are read in entirety, it does not disclose that the suit is barred by any law. With these findings, the application has been rejected. 3. Shri Mehadia, the learned counsel for the applicant/defendant has invited my attention to paragraph 4 of the plaint, wherein it has been stated that the plaintiff worked as consulting Cardiologist with the defendant company at its above named hospital till April 2004, when the hospital was handed over on a long term lease to Wockhardt Group of hospitals by the defendant Company. He submits that the period of limitation of three years has to be counted from the month of April, 2004. The same expired on 31.3.2007. The 3 suit was filed on 18.10.2008. Hence, it was barred by limitation. He further submits that the cause of action as shown in para 12 of the plaint is not the actual cause of action and therefore, on the basis of averments made in para 4 of the plaint, the court should have held that it is barred by limitation. 4. The question whether the suit is barred by law of Limitation or not is a mixed question of law and facts. The plaintiff has stated in para 12, the dates of cause of action. If the said dates are taken into consideration, then it cannot be said that the suit was barred by limitation. Unless the parties are permitted to lead the evidence on the question of limitation, no such findings can be recorded. Hence, no fault can be found with the view taken by the trial Court, rejecting the application under Order 7, Rule 11(d) of C.P.C. However, it is made clear that none of the observations made by the trial court or by this Court holding that the suit is not barred by limitation, shall come in the way of the trial Court, either for framing of issue of limitation as 4 preliminary issue or for deciding the same on its own merits, after parties are permitted to lead evidence. 5. In view of above, the application is dismissed. JUDGE Rvjalit