1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD 8. CIV.REVISION APPLICATION NO.32/2009 (DIGAMBAR TATYABA GAIKWAD DIED THROU LRS RAJABHAU V/S PARASRAM CHANDRABHAN GAIKWAD DIED THROU LRS) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr.Ashok V.Ghuge, Adv., for the petitioner. Mr. B.S.Shinde & Mr.V.P.Latange, Adv., for R.1,2,4 and 5. ... CORAM: K.U.CHANDIWAL, J. DATE:18/11/2010 1. Heard extensively. 2. An agreement of sale is purportedly executed by the petitioner dt.23rd Jan.,1969, in favour of Parasram. The suit, being RCS No.304/1989, is moved by the present petitioner in which said Parasram, based on agreement of sale dt.23rd Jan.,1969, raised a counter claim, seeking specific performance. By judgment and decree the said suit is dismissed, including counter claim. The petitioner preferred appeal challenging the said judgment 2 being RCA No.129/2008 which is pending before the learned District Judge. 3. Thereafter, the respondent has filed suit seeking specific performance of the contract based on the agreement of sale dt.23rd Jan.,1969, being RCS No.11/1996. 4. In the light of above facts, it is more than vivid that, in the year 1989 when the present respondent raised a counter claim, he was conscious of denial to perform contract in terms of Isar Pavati dt.23rd Jan.,1969. Any action which the respondent desired should have been within reasonable time of three years from the date of said cause of action. Second aspect is that, since respondent already lost in a counter claim for specific performance, identical exercise is not permitted in law. The observation of the learned Judge in not entertaining application under Order 7 Rule 11 of Code of 3 Civil Procedure was uncalled for. The subsequent filing of the suit being not maintainable, the suit is dismissed. Civil Revision Application is allowed. No costs. (K.U.CHANDIWAL) JUDGE ... AGP/32-09cra