1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.4965 OF 2011 WITH WRIT PETITION NO.4966 OF 2011. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 12.07.2011. 1. Heard. 2. The petitioner is a defendant No.1. The Respondent NO.1 has filed suit for partition and separate possession and also challenged the sale deed. The present petitioner filed an application U/o VII Rule 11(d) of the C.P.C. seeking rejection of the plaint on the ground that the suit is barred by limitation and the same is hit by principles of res-judicata. The said application is rejected by the trial Court. Aggrieved thereby, the present Writ Petition is filed. 2 3. Mr.Natu, learned counsel for the petitioner submits that ex-facie the suit is barred by limitation. The provisions of Article 109 of the Limitation Act, would govern the suit and on the face of it, the suit would be barred by limitation. Earlier also the suits were filed, wherein finding has been given by the Court of competent jurisdiction regarding validity of the sale deed and that the sale of the property was for legal necessity. The finding would operate as resjudicata in the present suit. As such the same can not be said to be disputed questions of facts. It was erroneous on the part of the trial Court to observe that the cause of action has to be culled out on the basis of pleadings in the plaint only. 4. The issues about limitation and resjudicata are always mixed questions of law and facts. They will have to be decided after the parties adduce their evidence. The same can not be considered while dealing with an application U/o VII Rule 11(d) of the C.P.C. I do not see any error committed by the trial Court while passing the impugned order. Moreover, as far as possible 3 the suit is to be decided on all issues. The grounds agitated can be considered while deciding all the issues in the suit. If the petitioner files any other application invoking the provisions of Order VII Rule 11 of the C.P.C., the Court would consider the same on its own merits. 5. The Writ Petition is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.12.07.2011. asp/office/wp4965.11 4