SA 668/16
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.668/2016
Nathu Waman Choudhari,
since deceased, through L.Rs.
1] Sunil Nathu Choudhari,
age 48 yrs., occu.agri.,
2] Anil Nathu Choudhari,
age 45 yrs., occu.agri.,
3] Pramod Nathu Choudhari,
age 34 yrs., occu.agri.,
4] Manoj Nathu Choudhari,
age 31 yrs., occu.agri.,
5] Ashabai Nathu Choudhari,
age 54 yrs., occu.household,
6] Saroj Nathu Choudhari,
age 38 yrs., occu.household,
All r/o Shindkheda Tq.Shindkheda
Dist.Dhule.
...Appellants..
(Org.plaintiffs)
Versus
1] Taluka Supervising Union,
Through Chairman, Taluka Dekhrekh
Sangh, Shindkheda Dist.Dhule.
2] Chairman, Dhule District Drekhrekh
Sangh, Tq.Shindkheda Dist.Dhule.
And Nandurbar, Head Office,
Garud Bagh Branch, Dhule.
3] District Deputy Registrar,
Cooperative Society, Dhule,
Old Collector, Office, Dhule.
...Respondents...
(Org.defendants)
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SA 668/16
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.....
Shri B.R. Waramaa, Advocate for appellants.
.....
CORAM: SUNIL P. DESHMUKH, J.
DATE: 27.02.2017 ORAL JUDGMENT :
1] Heard learned counsel for the appellants. He contends that since the plaintiffs could address the Court only on one issue, which has been framed purportedly pursuant to Section 9-A of the Code of Civil Procedure (Maharashtra Amendment), an opportunity has been lost on the basic contention and the reason underlying institution of the suit about consideration having not been passed, the sale deed is rendered null and void.
2] The learned counsel further contends that as a matter of fact, there was no interim relief, which has been sought in the suit and as such Section 9-A hardly had any application.
3] All the issues in fact had been framed. As such, the issue about limitation could not have been considered as a preliminary issue. Yet, only the issue of limitation ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:21:55 ::: SA 668/16
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has been taken out and decided.
4] It is submitted, in the circumstances, that has caused prejudice to the appellants - plaintiffs. The trial Court has decided the issue of limitation against the plaintiffs holding the suit to be barred by law of limitation. The appellate Court has changed the ensemble adorned while addressing the matter holding that the Court had ample powers under the Code of Civil Procedure under Order XIV to pick up an issue as a preliminary issue. May be ostensibly, Section 9-A has been purportedly referred to and yet it is not a case wherein the Court had no power to address a particular issue as a preliminary issue.
5] The learned counsel submits that the appellate Court as well has dismissed the appeal confirming the order of dismissal of the suit passed by the trial Court on the ground of limitation. The learned counsel reiterates that had an opportunity been given to the plaintiffs to address all the issues, perhaps the issue of limitation could have been addressed properly and evidence could have emerged, that the suit is not outside the period of limitation.
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6] Although it is being so addressed, certain undisputed facts would indicate that the considerations which have weighed with the Courts hitherto can hardly be flawed. The sale deed executed by the plaintiffs' father Nathu Waman Choudhari and their grand mother Mandodarabai Waman Choudhari is dated 16.3.1965. It is a registered sale deed and that the consideration for the sale of land had been paid through cheques dated 12.12.1964 and 16.3.1965. However, it is contended that the cheques were not realized and as such the sale deed has been without any consideration and hence the suit has been instituted seeking the declaration as prayed for. 7] In the circumstances, it appears that since registered sale deed has not been denied and that the reason for the suit is non-passing of consideration, it would not be a case that the suit filed, as sought could have been maintained, the remedy perhaps would have been for recovery of the amount under the sale deed. 8] Apart from the aforesaid aspect, even going by the chronology of events, the registered sale deed is dated 16.3.1965. Nathu Waman Choudhari died on 31.1.1998. Grandmother Mandodarabai had pre-deceased Nathu Waman ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:21:55 ::: SA 668/16
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Choudhari. The plaintiff no.1 was born on 15.5.1969. This sequence of events and taking into account the relevant provisions of the Limitation Act, as have been appreciated by the Courts below, do not appear to be erroneous. In the circumstances, even in the remotest case of giving some latitude to the appellants, yet it would appear that it would be only of academic interest. 9] In the circumstances, the second appeal stands dismissed. No costs.
(SUNIL P. DESHMUKH, J.) ndk/c272173.odt ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:21:55 :::