Smt. Archana D/O Bhimrao Randaye vs Dr. Sau Kavita W/O Dilip Changole
2015 Latest Caselaw 473 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR




                                                                                     
                                                             
                     CIVIL REVISION APPLICATION No. 77 OF 2015


                Smt. Archana Dhimrao Randaye,




                                                            
                aged about 38 years, Occ. Household,
                R/o. K/5, Manjula Building, Laxmi Nagar,
                Nagpur                                                         APPLICANT
                                                                               Org.Deft




                                              
                                     ...VERSUS...
                             
                Dr. Sau. Kavita Dilip Changole,
                Aged about 45 years, Occ. Doctor,
                R/o. Nilayam Apartment, Aath Rasta 
                            
                Chow, Laxmi Nagar, Nagpur.......                          NON-APPLICANT
                                                                           Org.Pltff.

     -------------------------------------------------------------------------------------------
      

     Shri S.Y.Deopujari , counsel for applicant.
     Shri S.A.Kalbande, counsel for Non-applicant
   



     -------------------------------------------------------------------------------------------
                              CORAM: R. K. DESHPANDE, J.

th DATE : 26 OCTOBER, 2014 .

     ORAL JUDGMENT


                1]             Rule made returnable forthwith.

Heard finally by consent of the learned counsels

appearing for the parties.

2] In Regular Civil Suit No. 1041 of 2014, the trial

Court has passed an order on 13.07.2015 below Exh. 24,

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deciding the preliminary issue by holding that the Court has

jurisdiction to entertain, try and decide the suit in question

and that the suit is within the period of limitation.

3] After going through the order impugned, I do not

find that the Court has dealt with the rival submissions of the

parties. On the question of court fees, the Court has to

record the finding as to whether the provision of Section 6(vii)

of the Bombay Court Fees Act is attracted or the provision of

Section 6(iv)(j) therein. The Court has also to record the

finding on the question of limitation.

4] Undisputedly, two applications were filed, one

was under Order VII, Rule 11 of CPC and another was under

Section 9A of C.P.C. Undisputeldy, the application under

Order 39, Rules 1 and 2 of C.P.C. has not yet been decided

and it is pending. In these circumstances, there was no

occasion for the trial Court to entertain and decide the

application under Order VII, Rule 11 of C.P.C., as the

question of jurisdiction involving the valuation of suit and the

question of limitation are the mixed questions of law and fact

and unless the parties are permitted to lead evidence after

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framing an issue, the application under Section 9A could not

have been decided. The order impugned will have to be set

aside with specific direction.

5] In the result, civil revision application is partly

allowed. The order dismissing the application under Order

VII, Rule 11 of C.P.C. is maintained. The trial Court to frame

appropriate issue under Section 9A of C.P.C on the aspect of

valuation of suit and the limitation which shall be decided in

accordance with law after giving the parties an opportunity to

lead evidence. The application under Order VII, Rule 11

stands rejected. Pending the decision on the preliminary

issue, the learned counsels appearing for the parties submit

that they shall maintain the status as on date. No order as to

cost.

JUDGE

Rvjalit