: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.899 OF 2009 Rajan Tarachand Shah ... Appellant V/s. Fulabai Yellappa Chougule & Ors. ... Respondents Mr.R.M. Nakhawa for Appellant Mr.Avinash Bhuskute for Respondent Nos.1,2, 5 & 6 CORAM: SMT.NISHITA MHATRE, J. DATED: FEBRUARY 8, 2010 P.C.: 1. The appellant takes exception to the order passed by the appellate Court allowing the appeal filed by the respondents and restoring RCS No.1228 of 2001. While passing this order, the appellate Court has reversed the findings of the trial Court. 2. According to the appellant, the application for rejecting the plaint under Order 7 Rule 11 of the Civil Procedure Code as well as for framing of a preliminary point regarding the limitation has been allowed by the trial Court against which the appellate Court has passed the impugned order. 3. In my opinion, the order of the appellate Court rejecting the application of the appellant filed under Order 7 Rule 11(d) cannot be faulted since the trial Court has rightly held that the pleadings in the plaint do not indicate that it should be rejected under Order 7 Rule 11(d). However, the appellate Court has erred in making : 2 : observations regarding the issue of limitation without the preliminary issue being framed in that regard. It is apparent that neither the trial Court nor the appellate Court have framed this issue with respect to the limitation. Without such an issue being framed and decided by the trial Court, the appellate Court ought not to have passed any observations with respect to this issue. Therefore, in my opinion, the observations of the appellate Court alluding to the issue of limitation must be set aside. The trial Court shall frame an issue regarding the limitation which shall be decided as a preliminary point. The learned advocate for the respondents submits that instead of deciding the issue as a preliminary point it could be decided together with all the other issues which have been framed since the suit has been filed din 2001. 4. The learned advocate for the appellants submits that in view of the judgment of the division bench of this Court in the case Foreshore Co-op. Housing Society Ltd. v/s. Praveen D. Desai & Ors., 2009(2) Mh.L.J. 28, the issue of limitation must be framed as a preliminary issue since the Court is duty-bound to dismiss the suit if the suit is barred by limitation. 5. In these circumstances, the appeal is allowed. The order of the appellate Court in which observations with respect to the issue of limitation more specifically in paragraphs 16, 17 and 18 are set aside. The trial Court shall frame an issue as to whether the suit is barred by limitation. That issue shall be decided as a preliminary issue. 6. Appeal is disposed of accordingly.