1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.11 OF 2009 Mr.Yusuf E Nalwala and ors. : Petitioners. Versus Shri Mohan Hingu Gagade : Respondent. ALONG WITH CIVIL REVISION APPLICATION NO.12 OF 2009 Mr.Yusuf E Nalwala and ors. : Petitioners. Versus Balu vithoba Rakhpasare and ors. : Respondents. ALONG WITH CIVIL REVISION APPLICATION NO.13 OF 2009 Mr.Yusuf E Nalwala and ors. : Petitioners. Versus Smt.Laxmi Amar Singh Gagade & ors. : Respondents. Shri V.P.Sawant with Mr.Subhash Jadhav with Prachiti Darda i/by M/s.ALMT Legal for the Petitioners. CORAM : R.M.SAVANT, J. DATED : JANUARY 28, 2009 P.C. 2 1. By the above Civil Revision Applications, the Petitioners, who are the original Plaintiffs, take exception to the order dated 14th November 2008 passed by the learned Civil Judge, Senior Division, Pune by which order the Applications Exhibits 30, 29 and 31 in the matter of framing preliminary issue filed by the Defendant/Defendants came to be allowed. The impugned order passed by the trial Court is to the following effect :- 1] Preliminary issue : Whether suit is barred by limitation ? Is framed. 2] Both the parties are directed to adduce evidence if any. 2. For the sake of convenience the facts in C.R.A No.11 of 2009 are being referred to. 3. The Petitioners, as mentioned earlier, are the original Plaintiffs who had filed a suit for specific performance. Though the 3 date of agreement for sale has not been mentioned, it is averred by the Plaintiffs in paras 3 and 6 as follows :- “Para 3 :- The Plaintiffs submit that the Defendant has received an amount of Rs.1,20,000/- from the Plaintiffs in the following manner :- (a) Rs.50,000/- (Rupees Fifty Thousand only) at the time of Agreement for Sale (Sathe Khat) dated 8- 10-1997. (b) Rs.25,000/- (Rupees Twenty Five Thousand only) Paid in cash on 24/11/1997. (c) Rs.45,000/- (Rupees Forty Five Thousand only) On 24-12-1997 paid in cash and a receipt has been given by the defendant. Para 6 : The Plaintiffs submit that an agreement of sale (Sathe Kath) was entered into and it was specifically agreed and assured by defendant as “Karta of H.U.F.” orally for following obligations/compliance to be complied by him. It is submitted that the defendant had orally agreed and promised the following obligations :- a. The defendant had agreed to sell the said land for a consideration of Rs.5,00,000/- per 4 acre. b. The Defendant/Vendors were to fulfill the following obligations : c. To get the land demarcated from the DILR d. To furnish all necessary documents regarding ownership. e. Clear objections if any regarding title after the public notice. f. Remove the endorsement regarding new tenure and convert the land into old tenure and obtain necessary permission for sale in favour of the Plaintiffs.” In the said suit, the Plaintiffs filed applications for temporary injunction being Exhibit 5 and Exhibit 20. The Defendant/Defendants filed their written statement and contended that what the Plaintiffs in fact were seeking was the specific performance of the agreement for sale dated 8th October 1997, and therefore contended that the said suit is barred by law of limitation since the Plaintiffs are seeking specific performance of the agreement for sale dated 8th October 1997. The Defendant/Defendants vide Exhibit 30 therefore prayed for 5 framing of a preliminary Issue under Section 9A of the Code of Civil Procedure on the point of jurisdiction of the Court in the context of the suit being barred by limitation. The Plaintiffs resisted the said Application by contending that the issue of limitation could not be an issue that can be framed under Section 9A of the CPC as the said issue of limitation is not touching the jurisdiction of the court. It was further contended by the Plaintiffs that the issue of limitation is a mixed question of law and fact and same could not be decided at the preliminary stage. 4. The trial Court, considering the said Application Exhibit-30 filed by the Defendant in the instant case and relying upon the Judgment of this Court reported in 2001 (1) MLJ 324 in the matter of Sudesh w/o Sushilkumar Handa vs. Abdul Ajiz s/o Umarbhai and anr and part 10 thereof as also the judgment of this Court reported in 2000 (1) ALL MR 5 in the matter of Manubhai Vadilal Shah vs. Hiralal Karsondas Bhakta & ors., allowed the said Application Exhibit-30 and framed the preliminary issue which has been 6 reproduced earlier in this order. 5. The learned counsel for the Petitioners Shri V P Sawant draws my attention to the judgment of the Division Bench of this Court in Appeal No.75 of 2006 in Notice of Motion No.1222 of 2004 in Suit No.2939 of 1999 in the matter of Foreshore Co-operative Housing Society Limited v/s. Shri Praveen D Desai & ors., decided on 17.10.2008. The learned counsel for the Petitioners fairly concedes that in view of the said judgment of the Division bench, the issue as to whether the issue of limitation could be a preliminary issue has been concluded. The relevant Paragraphs of the said Division Bench judgment are Paragraphs 17 to 22, which are reproduced as under :- “Para 17 : Event otherwise, the observations of the Hon'ble Supreme Court in Ittyavira Mathai's case was in the context when a Court fails to perform its duty under Section 3 of the Limitation Act, it would be commission of an error and not lack of jurisdiction. Whereas in the instant case, a specific plea was taken up that the suit claim was barred by limitation. In the above Pandurang's case, five 7 Judges of the Hon'ble Supreme Court have in no uncertain terms have held that plea of limitation is a plea of law, which concerns jurisdiction. The above decision clearly binds us especially in the light of the above Supreme Court judgment in State of U.P. v. Ramchandra. Para 18 : The moment, the issue of jurisdiction is raised under Section 9A of the Code of Civil Procedure, the said issue should be decided at first, and not to be adjourned to a later date. The main reason is that if the Court comes to finding that it does not have jurisdiction vested in it in law, then no further enquiry is needed and saves a lot of valuable judicial time. In fact, Section 9A itself mandates that when an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties, the Court will have to decide the issue expeditiously and in no case to be adjourned to the hearing of the suit. Para 19 : A Division Bench Judgment of our High Court in Smit Kline Beecham Cons v. Hindustan lever MANU/MH/1921/2002 has categorically held, that it is not sufficient that the Court has territorial or 8 pecuniary jurisdiction or jurisdiction in relation to the subject matter of the suit but if the suit is barred by any statute, the Court will have no authority to hear and decide the same. The said judgment clearly holds that the use of the word “jurisdiction” is used in a wider sense under Section 9A, which would include the bar to maintainability of the suit, i.e to say any statutory bar to the maintainability of the suit. Section 3 of the Limitation Act clearly mandates the Court to dismiss the suit if the same is barred by Limitation. Para 20 : To put it in other words, if the suit is barred by Limitation, the Court has no jurisdiction to entertain and the Court is duty bound to dismiss the same, and the parties cannot confer jurisdiction by consent. Para 21 : It is explicitly clear that a plea of limitation is a plea which goes to the jurisdiction of the Court and it is a plea on law, and it is a settled position in law that when a suit is barred by limitation, the Court is precluded from proceeding on the merits of the contentions and in fact obliged to dismiss the suit. 9 Para 22 : In the above, as rightly observed by the learned Single Judge, from the pleadings themselves it is clear that the suit claim is clearly barred by limitation and there is no necessity of leading any evidence in that behalf.” The Division Bench in the said judgment, relying upon the judgment of the Apex Court in the case of Pandurang vs. Maruti, held that plea of limitation is a plea of law, which concerns jurisdiction. The Division Bench further held that the plea of limitation goes to the root of the jurisdiction of the Court and when a suit is barred by limitation, the Court is precluded from proceeding on merits of the contentions and in fact obliged to dismiss the suit. 6. In the light of the judgment of the Division Bench (Supra), in my view, no fault can be found with the impugned order passed by the trial Court. 7. It is also sought to be contended on behalf of the Petitioners that though the application invoking Section 9A of the CPC 10 was filed by the Defendants, the trial Court ought to have considered the Applications for temporary injunction, as mandated by Section 9A (2), which in the instant case are Exhibits 5 and 20. The impugned order does not disclose as to why the said Applications are kept pending. It would, therefore, be open to the trial Court to consider the said Applications Exhibits 5 and 20 and the applications for injunction in the companion C.R.As. and in the event it does not deem it fit to consider the said applications, pending consideration of the preliminary issue, pass appropriate orders thereon. 8. As mentioned herein above, in the light of the Judgment of the Division Bench of this Court, no interference is called for with the impugned order. 9. All the above Civil Revision Applications are accordingly dismissed. [R.M.SAVANT, J]