Bombay High Court
Shatrugna Balbhim Jadhav And ... vs Tatyaba Baburao Bhise, L.Rs. ... on 15 July, 2016
Bench: P.R. Bora
11748-14wp final.doc
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11748 of 2014
1. Shatrugna s/o Balbhim Jadhav
Age - 72 years, Occu. Agriculture,
R/o. Wakadi (Isthal), Tq. Kallamb,
Dist. Osmanabad.
2. Ashok S/o Laxman Shinde,
Age- 71 years, Occu. Agriculture,
R/o Wakadi (Isthal), Tq. Kallamb,
Dist. Osmanabad.
3. Kamalbai W/o Ashok Shinde,
Age - 67 years, Occu. Household
R/o. Wadadi (Isthal), Tq. Kallamb,
Dist. Osmanabad.
4. Pushpawati W/o Shatrugna Jadhav
Age - 67 years, Occu. Household
R/o. Wadadi (Isthal), Tq. Kallamb,
Dist. Osmanabad.
5. Anirudha @ Anurath S/o Sahebrao Jadhav,
Age - 73 years, Occu.: Pensioner,
R/o. Khori Galli, Mitra Nagar, Latur,
Tq. & Dist. Latur. ... Petitioners
(Orig. defendants)
Versus
1. Tatyaba S/o Baburao Bhise
(since deceased through L.Rs.)
1-A. Vishnu S/o Tatyaba Bhise,
Age - 57 years, Occu. Agriculture,
R/o Saundana (Kaij), Tq. Kaij,
Dist. Beed.
1-B. Brahmadeo S/o Tatyaba Bhise,
Age - 52 years, Occu. Agriculture
R/o Saundana (Kaij), Tq. Kaij,
Dist. Beed. ... Respondent
(Ori. Plaintiffs)
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11748-14wp final.doc
2
...
Mr.V.D. Salunke, Advocate for Petitioners;
Mr.P.R. Katneshwarkar, Advocate for Respondent
Nos. 1 and 2.
...
CORAM: P.R.BORA, J.
Date of reserving the judgment : 22nd June, 2016
Date of pronouncing the judgment : 15th July, 2016
ig ...
JUDGMENT :
1) Rule. Rule made returnable forthwith.
Heard finally, with consent of the parties.
2) In the present petition, the petitioner has
challenged the order dated 31.08.2013 passed by the
2nd Jt. Civil Judge, Kallamb, District Osmanabad below
application at Exhibit 53 in Regular Civil Suit No.
310/2007.
3) The aforesaid application at Exhibit 53 was
filed by the present petitioners with a prayer that, the
Court shall frame the preliminary issue as about the
maintainability of the suit filed by the present
respondent and whether the suit so filed was within
11748-14wp final.doc
the limitation and to decide the said issue first. The
application so filed was opposed by the present
respondents. It was the contention of the respondent
that, the Court had already framed the issues on the
basis of the pleadings of the parties and the hearing
of the suit had already begun. The respondents have
denied the other allegations made in the application
filed by the present petitioner. The learned Civil
Judge, after having heard the learned Counsel
appearing for the respective parties, rejected the said
application at Exhibit 53 vide the impugned order.
4) Shri V.D.Salunke, the learned Counsel
appearing for the petitioners submitted that, in view
of the specific objections raised by the present
petitioners who are Defendant Nos. 1 and 2 before
the trial Court, in the written statement filed by them
that, the subject properties were sold by the plaintiffs
i.e. the present respondents to the petitioners by
registered sale deeds executed on 7.8.1972, and as
such the story putforth by the plaintiffs that the
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subject properties were mortgaged to the petitioners
was only with a view to bring the suit within the
limitation since the suit was shown to have been filed
for redemption of mortgage, the lower Court ought to
have allowed the application filed by the petitioners
and must have framed the preliminary issue as to
whether the suit was maintainable and within the
limitation.
5) Referring to and relying upon the Judgment
of the Hon'ble Apex Court in the case of Foreshore
Cooperative Housing Society Ltd. Vs. Pravin D. Desai,
2015 (3) MH.L.J., 315, the learned Counsel submitted
that, an issue relating to a bar to the suit created by
law of limitation can be tried as a preliminary issue
under Section 9-A of the Code of Civil Procedure
(hereinafter referred as to the Code). Learned Counsel
therefore prayed for setting aside the impugned order
and consequently to allow the application at Exhibit
53 filed by the Petitioners before the trial Court.
6) Shri P.R.Katneshwarkar, the learned
11748-14wp final.doc
Counsel appearing for the respondents opposed the
submissions made on behalf of the petitioners.
Learned Counsel submitted that, the respondents
have raised the specific allegation in the suit plaint
that, mutation of the names of the petitioners on 7/12
extract of the subject properties as owners of the said
properties is a fraud played upon them.
ig Learned
Counsel further submitted that, the learned Trial
Court had rightly held that, since the mixed issues of
law and facts are involved, the Code does not confer
jurisdiction on the Court to try such issue as a
preliminary one. Learned Counsel further submitted
that, the law laid down in the case of Foreshore
Cooperative Housing Society Ltd. Vs. Pravin D. Desai
(cited supra), would not apply to the facts of the
present case. Learned Counsel, therefore, prayed for
dismissal of the petition.
7) From the pleadings of the parties, it is
evident that, the respondents are claiming the suit
filed by them to be within the period of limitation
since according to them, it's a suit for redemption of
11748-14wp final.doc
mortgage for which the period of limitation as
provided under article 61(a) of the Limitation Act is
thirty years from the date when the right to redeem
or to recover possession accrues in their favour. As
against it, it is the assertion of the petitioner that, the
respondents have subsequently sold the mortgaged
properties to the petitioners by way of registered sale
deeds executed in the year 1972 and since then the
properties ceased to be the mortgaged properties. In
the premise of the pleadings as aforesaid, it is the
contention of the petitioners that, the suit filed by the
respondents allegedly for redemption of mortgage is
not maintainable and cannot be held to have been
filed within the period of limitation.
8) For a moment, even if the contention of
the petitioners is accepted that, the fate of the suit
depends on the issue of limitation and hence the said
issue requires to be framed as a preliminary issue and
going ahead even if it is further presumed that such
an issue is framed by the Court, unless the story put
forth by the respondents that, the subject properties
11748-14wp final.doc
were mortgaged to the petitioners and that though
the period of mortgage has expired, the petitioners
have illegally kept the properties in their possession,
is falsified by the petitioners and unless it is
established that, the subject properties are no more
in possession of the petitioners by way of mortgage,
but petitioners have become the absolute owners of
the properties on the basis of sale deeds executed by
the respondents in their favour, it may not be possible
for the petitioners to substantiate their contention
that, the suit filed by the respondents is beyond the
period of limitation and that the Civil Court has,
therefore no jurisdiction to entertain the same.
9) It is thus evident that, the issue of
maintainability or limitation may not be possible to be
decided isolatedly and the trial of the suit on all the
issues appears unavoidable. Neither the petitioners,
nor the respondents have placed on record the issues
framed by the Trial Court. From the arguments
advanced on behalf of the petitioners, it appears that,
the Trial Court has not framed the specific issue as
11748-14wp final.doc
regards limitation and the existence of cause of
action. Since the issues framed by the Trial Court are
not placed on record, it is not possible for this Court
to make any comment whether the issues already
framed by the Trial Court cover the issues of
limitation and existence of cause of action. However,
from the material on record, this Court is of the
opinion that, the issues as aforesaid may not be
independently and isolatedly decided and the findings
on all the issues may be required for reaching to the
conclusion even on the point of limitation or existence
of cause of action.
10) In the case of Foreshore Cooperative
Housing Society Ltd. Vs. Pravin D. Desai (cited supra),
the question, which was for consideration before the
Hon'ble Apex Court was as to whether the phrase "an
objection to the jurisdiction of the Court to entertain
such a suit" as used in Section 9-A of the Maharashtra
Amendment would include an objection with regard to
limitation. In other words, whether an issue relating
11748-14wp final.doc
to a bar to the suit created by law of limitation can be
tried as a preliminary issue under Section 9-A of the
Code. There cannot be a dispute as regards the
preposition of law as laid down by the Hon'ble Apex
Court in the aforesaid judgment. However, while
concluding the said judgment, the Hon'ble Apex Court
has clarified that, in the said cases where the suits are
governed by the provisions of Order 14 Rule 2 of the
Code, it is the discretion of the Court to decide the issue
based on law as preliminary issue. In the instant case,
the Trial Court has opined that, since the mixed
questions of facts and law are involved, the suit may not
be disposed of on the issue of law alone. I, therefore, do
not see any reason for causing interference in the
impugned order. Hence, the following order:
ORDER
(1) The Writ Petition is dismissed without any order
as to the costs.
(2) Rule Discharged.
( P.R.Bora )
Judge
SPR
