jpc wp4230.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.4230 OF 2010 Smt. Chhaya Ravindra Shinde and others ... Petitioners Versus Khalil Chandumal Maner and others ... Respondents Mr. Abhijit M. Adagule for the petitioners None for the respondents CORAM: R. M. SAVANT, J. DATED : 24th November, 2011 P.C. : 1. By an order dated 14th July, 2010 passed in the above petition, notice came to be issued to the respondents, returnable after 12 weeks. The respondents were put to notice that the above writ petition may be disposed of finally at the admission stage itself. In spite of notice, no appearance is put up on behalf of the respondents. Considering the limited issue involved in the above petition, the petition is taken up for final hearing at the admission stage. Hence, Rule, made returnable forthwith and heard. 2. The above petition takes exception to the order dated 3rd jpc wp4230.sxw 2 February 2010, passed by the learned Civil Judge, Junior Division, Kolhapur by which order the application Exh.54 for recasting of issue no.1 came to be rejected. 3. A few facts, necessary for adjudication of the above petition can be stated thus: The petitioners are the original plaintiffs who have filed Regular Civil Suit No. 326 of 2003 for possession against the respondents before the learned Civil Judge Junior Division, Kolhapur on 3rd March, 2003. It is their case in the said suit that they were carrying on business in the suit property but the respondents have illegally dispossessed them on 3rd February, 2002. In the said suit, the defendants filed their written statement and contested the case of the plaintiffs by contending that they were never in possession of the suit property and hence there was no question of their dispossession. The defendant no.1, thereafter, filed an application at Exh.11 for framing of a preliminary issue. The said framing of preliminary issue was sought on the ground that the said suit was not filed within the prescribed period of six months from the date of dispossession. The said application was allowed and the preliminary issue as regards whether the suit was filed within limitation jpc wp4230.sxw 3 was framed. The said issue was answered by the trial Court by its judgment and order dated 24th October, 2005. The trial Court held that Section 5 of the Specific Relief Act does not bar a tenant to file suit, if he is dispossessed from the tenanted premises and for the said suit limitation that is prescribed in Section 64 6 of the Limitation Act is 12 years for a suit based on previous possession. The findings of the trial court on the said issue of limitation finds place in paragraph 10 of the said judgment, which is reproduced herein: 10. Learned Advocate Shri B. S. Patil for defendant that as per Section 6 of the Specific Relief Act, suit is barred by limitation and he put his reliance upon ruling in case of TIRUMALA TIRUPATI DEVASTHANAMS v. K.M. KRISHNAIAH reported in AIR 1998 S. C. 1132. Wherein Their Lordship of Apex Court observed and held that- "plaintiff dispossessed from property. suit for possession filed by him beyond six months of dispossession. Not maintainable, moreover when title of defendant was subsisting and not extinguished. I have gone through the said ruling it reveals that in jpc wp4230.sxw 4 this case plaintiff was dispossessed during the pendancy of the suit and he amended the suit after expiry of the period of six months. facts of this case are totally different than the facts in case in hand. IN ruling cited supra itself Their Lordship has observed that - "Under the Specific Relief Act, 1877 Section 9 permitted a dispossessed plaintiff to sue for possession within one year and if he so sued, question of title of the defendant was immaterial. Now under section 6 if the new Specific Relief Act, 1963 the said period of one year has been reduced to six months. Question arose whether the suit by the dispossessed plaintiff, after expiry of the 1 year period was maintainable. It was further held by the Supreme Court that - Even if the time for filing a summary suit under section 9 of the Specific Relief Act 1877 expired, the dispossessed person could still file a suit for possession on the basis of prior possession. such a suit is described as one based on 'possessory title'. The said judgment and order dated 24th November, 2005, has jpc wp4230.sxw 5 become final as the defendants did not carry the matter further by challenging the said order in the Higher courts. 4. The plaintiffs moved the instant application for recasting of the issues. Considering the averments made in the plaint as also considering the judgment and order dated 24th November, 2005, recasting of the issue was sought to the following effect. "Do the plaintiffs prove that they were in possession of the suit property within six months next before filing of the suit ?" Recasted issue: "Do the plaintiffs prove that they were in possession of the suit property before dispossession ?' 5. The learned trial Court rejected the said application for recasting of the issues on the ground that such recasting of issue would not arise in view of the fact that the suit is one filed under section 6 of the Specific Relief Act Act. It appears that the said finding was recorded by the trial court oblivious of the order dated 24th November, 2005 where in it has been specifically held that the suit was within limitation as in terms of Section 64, the suit based on possessory title could be filed within 12 months. The trial Court has therefore in terms recorded a finding that the suit is not under Section 6 of the Specific Relief Act. In jpc wp4230.sxw 6 the light of the said order dated 24th October, 2005, the impugned order rejecting the application for recasting of the issue on the ground that it is a suit under Section 6 of the Specific Relief Act is unsustainable, as the finding that the suit is within limitation for the the reasons mentioned in the order dated 24th November, 2005 has already become final and binding. In that view of the matter, the impugned order would have to be quashed and set aside and is accordingly quashed and set aside. Resultantly, the application for recasting of the issue is required to be allowed and is accordingly allowed. 6. Issue No.1 would therefore stand recast in terms of the application, and would read thus : "1. Do the plaintiffs prove that they were in possession of the suit property before dispossession. 7. Rule is accordingly made absolute in the aforesaid terms with no order as to costs. (R. M. SAVANT, J.)