Bombay High Court
Pralhad Narayanrao Kullarwar And ... vs Arun Narayanrao Kullarwar on 11 December, 2017
Bench: A. D. Upadhye
1 J-CRA-46-16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION (CRA) NO.46/2016
1. Pralhad Narayanrao Kullarwar,
Aged about : 64 years,
Occupa - Agriculture,
R/o Jawla, Tq. Arni,
Dist. Yavatmal.
2. Shyamsundar Narayanrao Kullarwar,
Aged about : 65 years,
Occupa-Agriculture,
R/o Rajanna Apartment,
Jajoo Chowk, Yavatmal,
Tq. & Dist. Yavatmal.
3. Purushottam Narayanrao Kullarwar,
Aged about : 68 years,
Occupa - Agriculture,
R/o Awdhootwadi, Datta Chowk,
Yavatmal, Tq. & Dist. Yavatmal.
4. Shridhar Narayanrao Kullarwar,
Aged about : 59 years,
Occupa - Agriculture,
R/o Plot No.108, Khare Chambers,
Gokulpeth, Nagpur. ..... PETITIONERS
(ORI. DEFTS.)
Petitioner No.1 for himself and
on behalf of Petitioner Nos.2 to 4
as per existing, as power of
attorney holder.
...V E R S U S...
Arun Narayanrao Kullarwar,
Aged about : 55 years,
Occup. Agriculturist,
R/o Awdhootwadi, Yavatmal,
Tq. & Dist. Yavatmal. ... RESPONDENT
(ORI.PLFF.)
-------------------------------------------------------------------------------------------
S/Shri S. C. Bhalerao / S.S.Bhalerao, Advocates for the petitioners.
Shri A. V. Bhide / Mrs. A.A. Bhide, Advocates for the respondent-sole.
-------------------------------------------------------------------------------------------
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2 J-CRA-46-16.odt
CORAM:-
ARUN D. UPADHYE, J.
DATED :
11/12/2017.
ORAL JUDGMENT :
1. Being aggrieved by the order dated 20/02/2016 passed
by the 2nd Joint Civil Judge, Senior Division, Yavatmal below Exh.5 in
MJC No.8/2015, the petitioners /original defendants have filed this
revision application.
2. The petitioners have contended that the suit is filed for
specific performance of contract and also filed application Exh.5 for
condonation of delay of 11 months and 15 days in filing the suit, which
is registered as MJC No.8/2015. The learned 2 nd Joint Civil Judge,
Senior Division, Yavatmal has passed the order below Exh.5 and
directed the office to register the suit, as per the rules and issue of
limitation would be decided in the suit.
3. I have heard both the sides at length. Shri Bhalerao,
learned counsel for the petitioners and Shri Bhide, learned counsel for
the respondent.
4. Shri Bhalerao, learned counsel for the petitioners has
submitted that the respondent has filed suit along with MJC No.8/2015
for condonation of delay of 11 months and 15 days for filing the suit.
3 J-CRA-46-16.odt
He submitted that the suit is for specific performance of the contract.
The learned 2nd Joint Civil Judge, Senior Division, Yavatmal could have
considered the provisions of Chapter II Rule 8 (d) (xii) of the Civil
Manual while examining the plaint. The learned Judge should have
considered the provisions of Section 3 of the Limitation Act, 1963 and
suit ought to have been dismissed as the same is not within the
limitation, although limitation has not been set up as defence. He
further submitted that the plaintiff has approached to the District
Consumer Forum, Yavatmal and also filed an appeal before the
Appellate Commission. It shows that he was prosecuting both remedies.
Therefore, the learned trial Judge could not have directed the
registration of the suit in the matter. The impugned order passed by the
learned trial Court, therefore, be rejected by setting aside the impugned
order. The revision application be allowed and the suit be dismissed.
5. Shri Bhide, learned counsel for the respondent,
however, submitted that in para 11 of the plaint, he has disclosed the
cause of action. He further submitted that there was no need of filing
the application below Exh.5 as the averments are made in the plaint.
The learned trial Judge has rightly directed to register the plaint with
the direction that issue of limitation would be decided in the suit itself
and disposed of MJC application. The revision petition filed by the
original defendants, therefore, be dismissed.
4 J-CRA-46-16.odt
6. Considering the submission of respective sides and
having gone through the impugned order dated 20/02/2016 passed by
the 2nd Joint Civil Judge, Senior Division, Yavatmal below Exh.5 in
M.J.C. No.8/2015, I am of the view that no interference of this Court is
called for in the impugned order. It is to be noted that the learned 2 nd
Joint Civil Judge, Senior Division, Yavatmal has observed that whether
the plaintiff has prosecuted the remedy before the Consumer Court
under bona fide intention that the same Court has jurisdiction and
whether entitled for benefit of the provisions of Section 14 of the
Limitation Act would be considered after adducing the evidence in the
matter by giving opportunity to both the sides. In the order, it is also
observed that the provisions relied upon by the defendants whether the
suit is barred by limitation could be considered at the time of deciding
the issue of limitation in the suit itself.
7. Considering the observations made in the order, it
appears that the learned 2nd Joint Civil Judge, Senior Division, Yavatmal
has only directed to register the suit and therefore, the present revision
application filed by the defendants, cannot be considered for setting
aside the said order in MJC No.8/2015 filed by the plaintiff.
8. The learned counsel for the petitioners has relied upon
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the ruling in the case of Lachhman Singh (deceaced) through Legal
Representatives and others Vrs. Hazara Singh (Deceased) through
Legal Representatives and others, reported in (2008) 5 SCC 444.
In the above ruling, it is held that Section 3 of the
Limitation Act puts an embargo on the Court to entertain the suit, if it is
found to be barred by limitation. In this case, the learned trial Court has
directed to register the suit and issue of limitation is kept open and
therefore, the present ruling is of no help to the petitioners.
9. Considering the above facts and legal position, I am of
the view that the present revision application is devoid of any merit and
liable to be rejected and accordingly, rejected. It is needless to mention
that the issue of limitation to be decided, as per law. No order as to
costs.
JUDGE
Choulwar
