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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 378/2016
Ashok Gosai Sontakke
Aged about 57 years, Occ. Cultivation,
R/o Warora, Tahsil-Warora,
District-Chandrapur. .. Appellant
v.
1] Smt. Parvatibai Shrihari Sontakke,
Aged about 74 years, Occ. Nil
c/o Sheewantabai N. Aaglave
R/o Khangiward, Warora,
Tahsil-Warora, District-Chandrapur
2] Smt. Lahanubai Shrihari Sontakke,
Aged about 70 years, Occ.-Nil
R/o Jalka, Post Waghakh,
Tah. Warora, District-Chandrapur,
3] Smt. Shewantabai Nanaji Aaglave,
Aged about 54 years, Occ. Nil
R/o Khangiward, Warora,
Tahsil-Warora, District-Chandrapur
4] Sau. Sangita Bharat Dhanorkar,
Aged about 47 years, Occ.Household,
R/o Manish Nagar Z.P.Colony,
Wani, Tah. Wani, District-Yavatmal
5] Shankar Sontakke,
Aged about 51 years, Occ. Cultivation
R/o Jalka, Post-Waghnakh,
Tah. Warora, District-Chandrapur,
6] Smt. Nita Janardhan Sontakke
Aged about 39 years, Occ.Household,
R/o Jalka, Post-Waghnakh,
Tahsil-Warora, District-Chandrapur.
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7] Sau. Lalita Dashrath Sadave,
Aged about 48 years, Occ-Household,
R/o Nimsada, Tahsil-Warora,
District-Chandrapur.
8] Sau. Bulabai Baban Dataram,
Aged about 43 years, Occ.Household,
R/o Madhel, Tahsil-Warora
District-Chandrapur
9] Sau. Indira Vijay Kale,
Aged about 44 years, Occ-Household,
R/o Dindoda(Spet),
Tahsil-Warora, District-Chandrapur
10] Pramod Shrihari Sontakke,
Aged about 39 years,
R/o Jalka, Post-Waghnakh,
Tahsil-Warora, District-Chandrapur
11] Sau. Pratibha Vijay Kale,
Aged about 39 years, Occ. Household,
R/o Plot No. 272, Jai Durga Lay out
No.2 Manish Nagar, Nagpur,
Tahsil and District-Nagpur .. Respondents
Shri Rohit Joshi the learned counsel for the appellant
Shri R.V.Kidambi, the learned counsel for the respondents
CORAM : V.M. DESHPANDE, J.
DATED : OCTOBER 30, 2017
JUDGMENT
1] Heard Shri Rohit Joshi the learned counsel for the appellant and Shri R.V.Kidambi the learned counsel for the respondent.
2] Vide order dated 27/9/2017 this Court formulated following substantial question of law for consideration, ::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 00:32:23 ::: 3 I. Whether the finding recorded that the usit for specific performance was barred by limitation is arrived at only after considering the plaint averments as required by provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908?
II. Even if relief of specific relief was barred by limitation whether the suit in its entirety was liable to be dismissed in the light of a specific prayer made in the plaint for grant of perpetual injunction and the cuase of action for claiming that relief was stated to have occurred on 22/05/2011?
3] The appeal is admitted on the aforesaid substantial question of law after hearing both the learned counsels. With the consent of both learned counsels the appeal is taken out for final hearing for today itself.
4] The present second appeal is filed by original plaintiff. He filed a suit in Civil Court at Warora. The suit is for specific performance of contract and for in alternative for refund of earnest money and also for perpetual injunction for not to disturb the peaceful possession of the plaintiff. On being summoned the present respondents appeared and they filed an application for rejection of plaint under Order VII Rule 11 of Code of Civil Procedure. The said application is at Exh. 51. It is to be noted that the defendants also filed their written statement and also raised counter claim and claimed that in fact they are in ::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 00:32:23 ::: 4 possession of the suit property, and also claimed injunction against the plaintiff.
5] The learned trial Court passed order below Exh. 51 and thereby allowed the application and rejected the plaint under Order VII Rule 11 of the Code of Civil Procedure by holding that the suit is barred by Limitation.
6] A Miscellaneous Civil Appeal bearing No. 7/2014 is also dismissed by the Appellate Court.
7] It is submitted that though the plaint is rejected by the learned trial Court by invoking provisions under Order VII Rule 11 of the Code of Civil Procedure, the counter claim filed on behalf of the present respondent/original defendant is still pending in which they are claiming the possession.
8] At the time of hearing the learned counsel for the respondent Shri R.V.Kidambi submits that the respondent/original defendant have no objection for remitting the matter back to the trial Court. He submits that it is necessary, in view of the pendency of his counter claim.
9] In view of the concession given by the learned counsel for the respondent, the present second appeal is allowed. The impugned order rejecting the plaint on the ground of limitation which is confirmed by the learned Appellate Court is hereby set aside. The suit filed on behalf ::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 00:32:23 ::: 5 of the present appellant bearing Regular Civil Suit No. 30/2011 is restored to the file.
10] However, at the same time, the issue of limitation is kept open and the trial Court will be competent to decide the said issue at the final disposal of the suit, as question of limitation is always mixed question of fact and law. The trial Court is also directed to decide the question who is in possession of the suit property after recording the evidence, that will be adduced by both the parties. The learned trial Court is also directed to decide the question as to whether the plaintiff is entitled to claim for decree of specific performance of contract after recording the evidence adduced before it by both the parties.
11] With above observation, the appeal is allowed and the Regular Civil Suit No. 30/2011 is restored to file and trial Court is directed to decide it as observed in the preceding paragraph. The trial Court is directed to decide the suit within period of one and half year from the appearance of the parties before it. With this, appeal is allowed. No order as to costs.
JUDGE RSG ::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 00:32:23 :::