1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.553 OF 2008 with CIVIL REVISION APPLICATION NO.565 OF 2008 with CIVIL REVISION APPLICATION NO.566 OF 2008 with CIVIL REVISION APPLICATION NO.567 OF 2008 with CIVIL REVISION APPLICATION NO.568 OF 2008 with CIVIL REVISION APPLICATION NO.569 OF 2008 with CIVIL REVISION APPLICATION NO.570 OF 2008 with CIVIL REVISION APPLICATION NO.571 OF 2008 with CIVIL REVISION APPLICATION NO.572 OF 2008 with CIVIL REVISION APPLICATION NO.573 OF 2008 with CIVIL REVISION APPLICATION NO.574 OF 2008 with CIVIL REVISION APPLICATION NO.575 OF 2008 with CIVIL REVISION APPLICATION NO.576 OF 2008 with CIVIL REVISION APPLICATION NO.577 OF 2008 with CIVIL REVISION APPLICATION NO.578 OF 2008 with CIVIL REVISION APPLICATION NO.579 OF 2008 with CIVIL REVISION APPLICATION NO.580 OF 2008 with CIVIL REVISION APPLICATION NO.581 OF 2008 with CIVIL REVISION APPLICATION NO.582 OF 2008 Rohan Projects ....Applicant Versus Baban Maruti Khese & Ors. ....Respondents 2 Mr. Girish Godbole for the Applicant. Mr. Dhakephalkar, Sr.Counsel with Mr. R. V. Govilkar and Ms. Usha Rahi i/b. M/s. Mayur Narendra & Co. for Respondent Nos. 1 to 6. CORAM : R. V. MORE, J. DATE : 16th JUNE, 2009. P.C. : Heard, Mr. Godbole, learned Counsel appearing for the Applicant and Mr. Dhakephalkar, learned Senior Counsel appearing for Respondent Nos. 1 to 6. 2. Rule in all the above Civil Revision Applications. By consent, Rule is made returnable forthwith and heard finally. 3. The issues involved in the above Civil Revision Applications are similar and therefore, they are being disposed of by this common order. The facts involved in the Civil Revision Application No.553 of 2008 are being referred for this common order. 4. The Revision takes exception to the order dated 8th September, 2008 passed by the 9th Joint C.J.J.D., Pune below applications at Exhibit 14, 17 and 32 in Regular Civil Suit No. 888 of 2008 whereby all the said applications came to be rejected. The brief facts giving rise to the present Revision are as under : 3 1. The Applicant is the Original Defendant No.2, Respondent No.7 is the Original Defendant No.1 and Respondent Nos. 1 to 6 are the Original Plaintiffs. The Respondent Nos. 1 to 6 filed Regular Civil Suit No.888 of 2008 against the Applicant and Respondent No.7 for declaration that the Sale Deed allegedly executed on 22nd September, 1987 and the Deed of Confirmation allegedly executed on 31st March, 1988 by Respondent No. 1 to 6 in favour of Respondent No.7 are false, fabricated and null and void ab-initio. 2. It is the specific case of Respondent Nos.1 to 6 that they are owners and in possession of the suit property. It is further case of Respondent Nos. 1 to 6 that except M/s. Karia Developers, Mr. Shivaji Mankar and Mr. Kushagra Kadam, nobody has interest in the suit property. It was further stated that they received undated notice from Talathi, Mauje Lohegaon, Taluka Haveli, District Pune for mutating the name of Respondent No.7 in Revenue Record of the suit property on the strength of alleged Sale Deed. Thereafter, they inquired with the Talathi and the Talathi showed to them a copy of the Sale Deed allegedly executed by late Mr. Ramchandra Maruti Khese for himself and as Power of Attorney holder of 8 other members of the Khese family. It was specifically contended that Respondent Nos. 1 to 6 have never executed the alleged Sale Deed in favour of Respondent No 7 nor have they received any consideration amount from Respondent No.7 for allegedly executing the aforesaid 4 document. The Respondent Nos.1 to 6 further averred that the cause of action for filing the suit for the first time arose in the year 2005 and thereafter on 2nd January, 2006 when their complaint was decided by Resident Naiyab Tahsildar, Tal Haveli (Pune) and lastly on 28th November, 2005 when notice under section 164 of the Maharashtra Co-op. Societies Act, was served on Respondent No.7. 3. The Applicant filed Applications at Exhibit 14, 17 and 32 in the aforesaid suit inter-alia under the provisions of Order 7 Rule 11 and Order 12 Rule 6 of the Code of Civil Procedure, 1908. The main contention was raised by the Applicant to the effect that in paragraph nos. 4 & 5 of the plaint, Respondent Nos. 1 to 6 admitted execution of document in favour of M/s. Karia Developers on 17th April, 2004. The Applicant produced this documents wherein there is reference of Sale Deed executed by the Respondent Nos.1 to 6 in favour of Respondent No.7. Thus it was contended that atleast on 17th April, 2004, the Respondent Nos. 1 to 6 had knowledge about the Sale Deed executed by them in favour of Respondent No.7 and therefore, the suit which was filed in the year 2008 is barred by the limitation and therefore, the plaint is liable to be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908. So far as the application under Order 12 Rule 6 is concerned, it was the contention of the Applicant that the Respondent Nos. 1 to 6 admitted execution of Sale Deed in favour of Respondent No.7 and therefore their suit is required to be dismissed. The Applicant also claimed rejection of the 5 plaint for want of notice to Respondent No.7 under the provisions of Section 164 of the Maharashtra Co-operative Societies Act. 4. The Respondent Nos. 1 to 6 opposed all the applications on the ground that the limitation is always a mixed question of fact and law and the same cannot be decided without giving opportunity to adduce evidence on record. The Respondent Nos. 1 to 6 also denied knowledge of the contents of the document between themselves and M/s. Karia Developers. Regarding the allegation of admission under Order 12 Rule 16, it was submitted that there is not clear cut admission about execution of the Sale Deed in favour of Respondent No.7 by Respondent Nos. 1 to 6. So far as objection regarding mandatory notice under section 164 of the Maharashtra State Co-operative Society Act is concerned, it was submitted that the said notice was given to Respondent No.7 and therefore objection of the Applicant in this regard is misconceived. 5. The learned 9th Joint C.J.J.D., Pune, heard and rejected all the applications by a common order and hence the present Civil Revision Application is filed by the Applicant. 5. Mr. Godbole, learned Counsel appearing for the Applicant, invited my attention to the averments made in paragraph nos.4 and 5 by the Respondent Nos. 1 to 6 in Regular Civil Suit No.888 of 2008 and submitted that the Respondent Nos. 1 to 6 have admitted execution of agreement in favour of M/s. 6 Karia Developers. He submitted that the Applicant has produced copy of the said agreement executed by Respondent Nos. 1 to 6 in favour of M/s. Karia Developers on 17th April, 2004 which makes reference about execution of documents in favour of Respondent No.7, thus the Respondent Nos. 1 to 6 have knowledge about execution of documents with Respondent No.7 atleast on 17th April, 2004 and therefore, the suit which is filed in the year 2008 is barred by law of limitation. Mr. Godbole, learned Counsel appearing for the Applicant, does not agitate the issue of rejection of the plaint on the ground of alleged admission of Respondent Nos. 1 to 6 under Order 12 Rule 6. 6. Mr. Dhakephalkar, learned Senior Counsel appearing for Respondent Nos. 1 to 6, per contra supported the impugned order. He submitted that the question of limitation is a mixed question of law and fact which cannot be decided without giving an opportunity to lead evidence to the parties. He further submitted that the learned Judge has approached the matter from correct point of view and therefore, no interference is required under section 115 of the Code of Civil Procedure, 1908. 7. Having heard, the learned Counsel and Senior Counsel appearing for the respective parties and having gone through the Revision Application alongwith compilation and the impugned order, I do not find any merit in the Revision. In paragraph no. 5 of the plaint, the Respondent Nos. 1 to 6, have averred that they are semi-literate and not well conversant in English. In paragraph no.6 of the plaint, the said Respondents, have averred that after receipt of the undated 7 notice from Talathi, Maje Lohegaon, Taluka Haveli, District Pune, they asked for necessary information and when they inquired, they came to know about the execution of the alleged Sale Deed. In paragraph no.17, the Respondent Nos. 1 to 6, denied execution of the alleged Sale Deed and Confirmation Deed and contended that no right accrued in favour of Respondent No.7. In paragraph no.18, it is averred that Respondent Nos. 1 to 6 have not received any consideration amount from Respondent No.7 and the Applicant for allegedly executing the aforesaid documents. Paragraph No.32 is about cause of action, it is specifically averred that the cause of action for the first time arose in the year 2005 and therefore, Respondent Nos.1 to 6 lodged complaint with the Talathi before causing mutation in the Revenue Record which was decided on 2nd January, 2006 by Resident Naiyab Tahsildar, Tal Haveli (Pune). It was also averred that the alleged Sale Deed have been obtained by practicing fraud. 8. If the averments made by Respondent Nos. 1 to 6 in the plaint are considered in totality, then it discloses that the Respondent Nos. 1 to 6 for the first time came to know about the Sale Deed in question in the year-2005 after receipt of the notice from Talathi and thereafter Suit is filed in the year 2008. So far as the averments in paragaph nos. 4 and 5 of the Plaint is concerned, it is true that Respondent Nos. 1 to 6, have stated that the agreement for sale dated 17th April, 2004 in respect of 85 Guntas out of the suit land is executed by them in favour of M/s. Karia Developers. It is also a fact that this agreement makes a reference of the Sale Deed in favour of Respondent No.7. However, Respondent Nos. 1 to 6 contended that the above document with M/s. Karia 8 Developers was drafted by the Advocates of the said Karia Developers and the Respondent Nos. 1 to 6 signed the same without minutely going through contents of the same. It is also specifically contended that if any statement has inadvertently crept into the said Development Agreement, then it is not with the knowledge of the Respondent Nos.1 to 6. Lastly, it is stated that the Respondent Nos. 1 to 6’s ’ family is not well versed in English and before execution of an agreement dated 17th April, 2004, the Respondent Nos. 1 to 6 only checked the schedule of the property and payment and other details were not seen by the Respondent Nos. 1 to 6/Original Plaintiffs. The Respondent Nos. 1 to 6 also contended that they were pursuing various legal remedies before the Revenue Authorities, Police Authorities etc and the time spent in pursuing those remedies is liable to be excluded in calculating the period of limitation under section 14 of the Limitation Act. 9. The jurisdiction of the Court is to be decided on the basis of averments made in the plaint. The Application under Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908 is also required to be decided on the basis of the averments in the plaint. The Respondent Nos. 1 to 6, though admitted execution of agreement dated 17th April, 2004 in favour of M/s. Karia Developers, specifically denied knowlege of contents thereof except schedule of property and payment. The Respondent Nos. 1 to 6 also claimed exclusion of period which was spent in prosecuting bonafide litigations under section 14 of the Limitation Act. The question of limitation is always a mixed question of law and facts. In the light of contentions raised by Respondent Nos.1 to 6, I am of 9 the view that the question of limitation cannot be decided without giving an opportunity to Respondent Nos. 1 to 6 to adduce evidence on record. The learned Trial Judge has taken a similar view. The learned Counsel for the Applicant, has not brought to my notice any error of jurisdiction or error apparent on the face of record in the impugned order, which would enable me to interfere in my jurisdiction under section 115 of the Code of Civil Procedure. In the facts and circumstances mentioned above, I find the Revision, devoid of any substance. Rule, is accordingly discharged. 10. Since, the issues involved in all the aforesaid Revisions are also similar, Rule is accordingly, discharged in all the other Revisions. 11. The interim order granted earlier, to continue for the period of eight weeks from today. sd/- (R. V. MORE, J.)