1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. Appeal No.261 of 2009 IN Notice of Motion No.502 of 2006 In Suit No.473 of 2006 Shashibala N. Malik and anr. Appellants Vs. M/s.Sing Auto Services & ors. Respondents Mr.B.B.Parekh for appellants. Mr.G.S.Bhat for resp.nos.1, 2 and 4. CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR,JJ. July 10, 2009. P.C. 1. Heard Mr.Parekh, the learned counsel for the appellants and Mr.Bhat, the learned counsel for the respondents. 2. Admit. 3. Respondents waive service. 4. With the consent of the parties the appeal is taken up for 2 hearing forthwith. 5. Suit No.473 of 2006 has been filed by the appellants for declaration and permanent injunction. In the said Suit, Notice of Motion No.502 of 2006 came to be filed praying for a restraintment order from dispossessing the plaintiffs from the suit plot i.e. land totally admeasuring 2000 sq.yards equal to 1672.25 square meters of Survey No.54 (Part), CTS No.764. On 6th February 2009 the learned Single Judge after considering the Written Statement framed the preliminary issue of limitation and Notice of Motion was deferred until 20/3/2009. At the same time the parties were directed to move appropriate Court for further directions in the suit for appointment of commissioner etc. in relation to the said preliminary issue. By the impugned order dated 8th April 2009 the learned Single Judge heard the Notice of Motion and recorded a finding that the notice of termination was sent on 17th June 2002 and the suit was filed in 2006 and, therefore, the suit was barred by limitation. The preliminary issue was accordingly answered and the suit came to be dismissed. 6. Admittedly the Notice of Motion was for the relief of 3 protection of the plaintiffs’ possession in the suit plot and for injunction against creating third party rights thereon. Obviously when the Notice of Motion was heard and prima facie if it was noticed that the suit was beyond limitation, on that ground alone the dismissal of the Notice of Motion would be justified. However, the suit could not have been dismissed unless the preliminary issue was answered against the plaintiffs after taking into consideration the evidence recorded through the Commissioner and the order dated 6th February 2009 clearly directed the parties to move the Court for further directions in the suit for appointment of commissioner etc. in relation to the preliminary issue framed i.e. the issue of limitation. In our considered opinion, though the order dismissing the Notice of Motion does not call for any interference, the suit itself could not have been dismissed on the ground of limitation unless evidence through the commissioner was recorded for deciding the said preliminary issue of limitation. 7. In the circumstances, we allow the appeal partly. We confirm the order of dismissal of Notice of Motion No.502 of 2006 on the ground that, prima facie, the suit was barred by 4 limitation. However, we make it clear that the issue of limitation as framed on 6/2/2009 will be considered after recording the evidence. Consequently Suit No.473 of 2006 stands restored to the file. 8. Parties to appear before the learned Single Judge taking the suit and file the affidavit of evidence and move for appointment of Commissioner etc. (S.J.VAZIFDAR,J.) (B.H.MARLAPALLE,J.)