gst 1 CRA142.11.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. CIVIL REVISION APPLICATION NO. 142 OF 2011. M/s.M.P.Associates... .... ..... ..... ..Applicant. V/s Sharptech Constructions Co. & Ors. ... .... ..Respondents. Mr.G.S.Godbole i/by Mr.Drupad Patil, Adv. For the applicant. Mr.S.S.Kulkarni, Adv. For the respondents. CORAM: B.R. GAVAI, J. 17th March, 2011 PC: By the present civil revision application the applicant challenges the order dated 7.1.2011 vide which an application filed by the present applicant for rejection of plaint under Order 7 Rule 11(d) of Civil Procedure Code on the ground that the suit was beyond limitation came to be rejected. 2. Special Civil Suit No.17/1995 was filed by the present respondent No.1 for specific performance. In the said suit matters pertaining to interlocutory proceedings had reached upto this Court. An application for amendment was filed by certain defendants contending that suit was not tenable in view of provisions of section 69(2) of the Partnership Act. Said application was rejected. A writ petition being W.P. No.4565/07 was preferred in this Court and this Court vide order dated 21.8.07 allowed the said amendment. However in order to protect the interest of the plaintiff this Court directed that the plaintiff be permitted to lead additional evidence to substantiate the fact that the plaintiff was a registered partnership firm. 3. The plaintiff thereafter filed an application under Order 23 Rule 1 of CPC for permission to withdraw the suit with liberty to file a fresh suit. Said application was rejected. Being aggrieved thereby Writ Petition No.1081/08 gst 2 CRA142.11.sxw was filed before this Court. This Court vide order dated 21.2.08 allowed the said writ petition and permitted the plaintiff to withdraw the said suit with liberty to file afresh suit subject to bar of limitation. In view of order passed in the said Writ Petition earlier suit was withdraw and the present suit is filed. The application as aforesaid for rejection of plaint filed by the present applicant came to be rejected. Hence present civil revision application. 4. Shri Godbole, learned counsel appearing on behalf of the applicant submits that the plaintiff in earlier suit was on more than one occasion put on notice regarding bar of sub-section 69(2) of the Partnership Act. It is submitted that inspite of plaintiff being put on notice, he has not taken immediate steps and as such now the present suit was clearly beyond limitation. Learned counsel further submits that even the plaintiff would not be entitled to the benefit of section 14 of the Limitation Act in as much as there is no pleading in the plaint in so far as good faith and due diligence is concerned. Learned counsel relies upon a judgment of the Apex Court in the case of Madhavrao Narayanrao Patwardhan v. Ram Krishna Govind Bhanu, AIR 1958 SC 767 and Ramji Pandey & Ors. v. Swaran Kali, AIR 2011 SC 489. 5. Shri Kulkarni, learned counsel appearing on behalf of respondent- plaintiff submits that the learned trial Court has rightly held that the issue regarding limitation cannot be decided unless parties were permitted to lead evidence in the matter and therefore no interference is warranted. 6. It can be seen from the record that the respondent-plaintiff was permitted to withdraw the earlier suit with liberty to file afresh suit. However same was subject to bar of limitation. Accordingly the present suit has been filed. By now it is settled position of law that for considering the issue regarding jurisdiction only averments in the plaint will have to be looked into. Perusal of the averments in the plaint and particularly para 45 thereof would reveal that the plaintiff has given history of the earlier round of litigation and the order passed by this Court granting him liberty as aforesaid. The plaintiff has gst 3 CRA142.11.sxw specifically averred that he would be entitled to benefit of section 14 of the Limitation Act. 7. Learned trial Court has found that the plaintiff had made out triable issue and when triable issue has been made out it would not be permissible for it to reject the plaint outrightly. 8. As to whether the applicant would be entitled to benefit of section 14 of the Act or not would be a matter that would be decided after evidence is led on behalf of the parties. Whether the plaintiff has exercised due diligence or not or whether he has acted in good faith or not would also be required to be decided on the basis of evidence. In so far as contention of Shri Godbole that there are no averments to that effect is concerned, I find that it is not necessary for the plaintiff to plead entire evidence in the plaint. Once he has made out foundation the plaintiff would be entitled to lead evidence in support of his case. 9. In so far as the judgment of the Apex Court in the case of Madhavrao Narayanrao Patwardhan (supra) is concerned in the said case their Lordships of the Apex Court found that the High Court erred in holding that it was for the defendant to prove that the plaintiff has not acted in good faith and exercised due diligence. Their Lordships observed that it is for the plaintiff to plead and establish that the plaintiff has exercised due diligence and in good faith was pursuing erroneously other remedy. It can thus clearly be seen that observations of the Apex Court were after the entire evidence was led on behalf of the parties and the matter was decided by the trial Court. In so far as judgment in the case of Ramji Pandey & Ors. (supra) is concerned, in the said case an appeal was preferred erroneously before the learned District Judge and inspite of other side taking objection regarding tenability and pointing out that appeal was tenable only before High Court, the appellants therein continued with the proceedings and obtained an order in their favour and the appellant thereafter subsequently approached the High Court. In that view of the matter, gst 4 CRA142.11.sxw the Apex Court found that the conduct of the appellants was of all throughout lacking due diligence and also negligent and as such they were not entitled to benefit of rule 5 of section 14 of the Limitation Act. 10. In the present case the trial is yet to commence and only after the parties lead their evidence, the trial Court can come to conclusion as to whether the plaintiff has exercised due diligence or was prosecuting the erroneous remedy in good faith or not. In that view of the matter, it cannot be said that the jurisdiction which has been exercised by the learned trial Court has been exercised with material irregularity by coming to the conclusion that issue raised cannot be decided without the parties being permitted to lead evidence on the said issue. 11. In the result, revision application is found to be without merits and the same stand rejected.