1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Civil Revision Application No.78 of 2010 (Harishchandra s/o Shankarrao Parate v. Jairam s/o Vithoba Parate and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri A.V. Bhide, Advocate for Applicant. Coram : R.K. Deshpande, J. Dated : 21 st September, 2010 1. This revision application is preferred by the defendant, who had filed an application Exhibit 12 under Order 7, Rule 11 of the Civil Procedure Code for rejection of the plaint on two counts, viz. that the suit is barred by the principles of res judicata, and that it is not within a period of limitation. This application has been rejected by the Trial Court. 2. The Trial Court has held that the questions of res judicata and limitation are mixed questions of law and fact and unless the parties are given an opportunity to lead evidence, the plaint cannot be rejected on those counts. The Trial Court has referred to the averments made in para 16 of the plaint and held that both these issues can be framed as preliminary issues under Order 14, Rule 2(2) of the Code of Civil Procedure. With these 2 findings, the application under Order 7, Rule 11 of the Civil Procedure Code has been rejected. 3. Shri Bhide, the learned counsel appearing for the applicant/defendant, has urged that in para 16 of the plaint, the plaintiffs have stated that the cause of action arose on 25-1-2008, 30-1-2008 and 25-2-2008, when the plaintiffs obtained and acknowledged all the certified copies of the sale-deeds of the house properties and then they have stated in the plaint that defendant Nos.1 to 3 have obtained the judgment and decree dated 29-8-1991 by fraud and suppressing material facts from the Court. Shri Bhide submits that a declaration is claimed in the suit that the judgment and decree dated 29-8-1991 passed in Regular Civil Suit No.183 of 1987, which was obtained by fraud and misleading the Court, is null and void, and, therefore, the suit, which is filed in 2008, is barred by limitation. He further submits that in fact the sale-deeds, which are referred to in the plaint, have been considered in the earlier judgment and order passed in Regular Civil Suit No.183 of 1987, to which the plaintiffs were parties. The decision rendered in the said suit is binding upon the plaintiffs and, therefore, the present suit is liable to be dismissed as barred by the principles of res judicata. 4. A bare perusal of the averments made in para 16 of the plaint shows the cause of action for filing the suit has been stated to have arose on 24-3-2008. The suit has been filed on 9-4-2008. The correctness of the averments made in para 16 cannot be gone into at this stage. Similarly, the issue of res judicata also cannot be decided at this stage, as it involves questions of law and fact. The view taken by the Trial Court, therefore, cannot be faulted. 3 5. There is no substance in the revision application and the same is, therefore, dismissed. Judge pdl