1 cra752-11 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 572 OF 2011 Tatwanand Somprakash Nandu and another .. applicants Versus Platinum Properties and another ... Respondents Mr. P. S. Dani i/by Ms. Chandana Salgaonkar for the applicants Mr. R. B. Paranjape a/w Mr. J. D. Khairnar and Shri V.V. Kale for the respondent No. 1. CORAM : R. Y. GANOO, J. DATED : 10rd October, 2011 P.C. 1. Rule. Rule made returnable forthwith. 2. Learned Advocate Mr. Paranjape waives service on behalf of respondent no.1, who is contesting respondent. By consent, the Application is taken up for hearing. 3. An application below Exh.36 was filed by the applicant praying that the Suit filed by the respondent No.1 being Special Civil Suit No. 1118 of 2011 be dismissed on the ground that the same is beyond the period of limitation. That application has been rejected by the learned Civil Judge, Senior Division, Pune, before whom the suit is pending by an order dated 6th July, 2011. This order is challenged in this revision. 2 cra752-11 4. I have perused the order dated 6th July, 2011. The learned Judge has merely discussed some facts and has come to the conclusion that the suit is within limitation. In my view, the course adopted by the learned Civil Judge, Senior Division, Pune is not proper. If at all the point was raised as regards the suit being beyond the period of limitation, it was necessary for the learned Judge to frame issue in this behalf and give necessary chance to the parties to lead evidence and thereafter record his findings. In any case, it was equally open for the applicants to file detailed written statement in the suit and the applicants could have taken plea that the suit is barred by limitation and such plea would have been considered as and by way of preliminary issue, if the issue would have been framed. 5. In my view, now the proper course will be to set aside the order dated 6th July, 2011 and direct the applicants as well as other defendants to file written statements before the learned Civil Judge, Senior Division, Pune on or before 14th November, 2011, so that the said Court can frame the issues after hearing the parties; at which time, the applicants can make submission before the learned Civil Judge and the issue regarding limitation can be framed by the learned Civil Judge. If learned Judge accepts the said submission and frames the issue as regards limitation, surely that issue along with such other issues which will be required to be considered as preliminary issues can be tried as a preliminary issue as per the provisions of Order 14 (2) (2) of the Code of Civil 3 cra752-11 Procedure. Hence, the following order is passed to dispose of this application. i. The impugned order dated 6th July,2011 passed below Exh. 36 by the learned Civil Judge, Senior Division, Pune in Special Civil Suit No. 1118 of 2011 is set aside. ii. The applicants as well as such other defendants who are interested in filing full fledged written statements shall do so on or before 14th November, 2011. If the applicants or any other defendants raise point that the suit is barred by limitation, such party can submit before the Judge that the issue in this behalf be framed. The learned Judge, Civil Judge, Senior Division shall hear the parties or their advocates and frame the issues. iii. If the issue as regards limitation is framed, the said issue shall be tried by the said Court as preliminary issue as per the provisions of Order 14(2) (2) of the Code of Civil Procedure. If any other issues is also required to be tried as preliminary issue, the same shall be done in the like manner. iv. There shall be no order as to costs. (R. Y. GANOO, J.)