1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1684 OF 2010. Padmakar Narhar Chandurkar -: VERSUS :- Mrs. Durgeshwari Dilip Mudliar and others. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : NOVEMBER 25, 2010. Heard Shri A.M. Gordey, learned Senior Counsel with Shri A.S. Chandurkar, learned Counsel for petitioner and Shri Anil Mardikar, learned Counsel for respondent nos. 1 to 5, Smt. S. Mudliar, learned Counsel for Respondent no.6 and Shri S. Manohar, learned Counsel for intervenor. Rule, made returnable forthwith and petition is heard finally by consent of parties. Learned Senior Counsel contends that having found the valuation of suit not proper and thereafter issuing directions to correct it, the Court of 7th Joint Civil Judge, Junior Division, Nagpur lost jurisdiction and hence, 2 it could not have embarked upon the inquiry into the first issue framed by it as preliminary issue. In the alternative, the learned Senior Counsel further states that as the issue nos. 1 and 2 were framed as preliminary issue and were to be decided finally, parties were given opportunity to lead evidence. That opportunity was exhausted by both the sides and hence the trial Court ought to have recorded a finding either way on that issue and should not have postponed the consideration of issue no.1 to final adjudication of the suit. Shri Mardikar, learned Counsel appearing for respondent nos. 1 to 5 has supported the impugned order. He states that the trial Court has found that objection as to limitation raises a mixed question of law and facts, and as there was no evidence the same called for adjudication at final hearing of the suit along with other issues, after the evidence came on record. According to the learned Counsel there is no jurisdictional error at all. Mrs. Mudliar, learned Counsel appearing on behalf of respondent no.6 has also supported the impugned order. She contends that the petitioners filed a joint application raising objection under Section 9A of the Civil Procedure Code, as also under Order VII Rule 11 3 together and on that strength also permitted trial Court to frame preliminary issues. The trial Court thereafter fixed the matter for recording evidence on those issues and petitioners gave Pursis and offered no evidence. In this situation, according to the learned Counsel with period of more than 6 years has elapsed after the impugned order, there is no point in asking the trial Court to decide the issue no.1 again as preliminary issue. The learned Counsel has urged that the alleged admission in written statement in said suit is not relevant at this stage and the impugned order of trial Court does not require any interference. Shri Manohar, learned counsel appearing for intervenors in Civil Application [W] No. 2040/2010 has supported the petitioners. Mrs. Mudliar, learned counsel has pointed out that after the impugned order the matter was transferred to Court of Senior Division, and there the present petitioners have participated in further proceedings. They have appeared and argued the matter in so far as the temporary injunction application Exh.5 is concerned. She further states that grant of temporary injunction was also challenged by them in Appeal Against Order and thereafter 4 in Civil Revision, and after withdrawal of the Civil Revision, present Writ Petition has been filed. Shri Gordey, learned Senior Counsel is disputing this position. According to him Civil Revision was against interlocutory other order and it was found to be not maintainable. It is not necessary for this Court to record any finding about the further participation of the petitioners in the court of Civil Judge, Senior Division. The parties submitted to the preliminary issues as framed in the matter by the Court of Civil Judge, Junior Division and argued the application at Exh.9 before that Court. The impugned order dated 07.08.2004 has been passed on those preliminary issues after giving parties opportunity to lead evidence and after hearing them. Adjudication of preliminary issues as framed therefore, was, inevitable. If the parties did not lead any evidence on disputed question of facts, the Court could not have avoided to decide the issues as framed. Applying the provisions of Indian Evidence Act and the material available on record, in accordance with law, the issue no.1 ought to have been decided finally and question whether the suit as filed is within limitation ought to have been 5 answered. Postponing consideration of that issue because parties did not lead evidence is nothing but refusal to exercise jurisdiction. The impugned order dated 07.04.2004 to that extent is misconceived. Now as the matter is already transferred to a competent Court i.e. the Civil Judge, Senior Division, contention of Shri Gordey, learned Senior Counsel that Court of junior division could not have recorded any finding on the issue of limitation as it found that the suit was not properly valued is, therefore, not relevant. The Court of Civil Judge, Senior Division has to decide the issue no.1 about limitation, in accordance with the law. At this stage, Shri Mardikar, learned Counsel for respondent nos. 1 to 4 and Mrs. Mudiliar, learned Counsel for respondent no.6 state that in that event opportunity of leading evidence should be given to respondents. Shri Gordey, learned Senior Counsel also states that if the present respondents are leading evidence, such opportunity should also be kept open for petitioners. In the circumstances, the order dated 07.08.2004 passed by the 7th Joint Civil Judge, Junior Division, Nagpur on preliminary issue no.1 about limitation is only quashed and set aside. The Court to 6 which the suit is now transferred shall permit the parties opportunity to lead evidence on that issue and after hearing the arguments, pass appropriate orders on that issue in accordance with the law. The suit is of the year 2004 and hence, the learned Trial Court shall pass appropriate orders on issue no.1 as early as possible and in any case within a period of three months from the date of receipt of this order to it. The parties are directed to appear before that Court on 13.12.2010 and to abide by its further instructions in the matter. Writ Petition is partly allowed. Rule is made absolute in the aforesaid terms, with no order as to costs. JUDGE Rgd.