Gorakh Jyotiba Bhalekar vs Rajendra Babu Dhotre Rajendra ...
2017 Latest Caselaw 9563 Bom

                                                                 WP/1685/2016
                                        1

           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                      WRIT PETITION NO. 1685 OF 2016

 Gorakh Jyotiba Bhalekar
 Age 67 years, Occ. Agriculture,
 R/o Sawargaon, Taluka
 Tujlapur Dist. Osmanabad.                             ..Petitioner

 Versus

 1. Rajendra Babu Dhotre
 @ Rajendra Gorakh Bhalekar
 Age 34 yeas, Occ. Agriculture
 R/o Sawargaon, Taluka
 Tujlapur Dist. Osmanabad.

 2. Sugalabai Babu Dhotre
 Age 63 years, Occ. Household,
 R/o Sawargaon, Taluka
 Tujlapur Dist. Osmanabad.                             ..Respondents

                                  ...
          Advocate for Petitioner : Shri Kulkarni Krishna K. 
  Advocate for Respondent 1 : Shri Patil S.Y. h/f Shri Deshmukh V. B.
                                  ...

                       CORAM : RAVINDRA V. GHUGE, J.

Dated: December 13, 2017 ...

ORAL JUDGMENT :-

1. Heard learned Advocates for the respective parties.

2. Rule.

3. By consent, Rule is made returnable forthwith and the

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petition is taken up for final disposal.

4. The petitioner / plaintiff is aggrieved by the framing of an

issue on 26.2.2015, suo moto, by the trial Court and prays that the

said issue be struck down.

5. Shri Kulkarni, learned Advocate for the petitioner has

strenuously criticized the order dated 26.2.2015, by which, the trial

Court has held as under:-

" After going through the record, it appears that an issue

in respect of the limitation ought to have been framed. After

going through the issues framed at Exh.16, it can be seen that

issue in respect of limitation has not been framed at all. To

determine the real controversy between the parties once and

for all, the framing of issue in respect of limitation is at most

much essential. The court may frame such additional issue at

any stage of proceeding. Hence, such issue as follows is

hereby framed:-

Issue No.3-A :- Whether the suit is within limitation?"

6. Grievance is that the effect of Order VIII Rule 2 of the CPC in

the backdrop of the defendant having not raised the issue of

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limitation, read with Order XIV Rule 1(6) of the CPC would give no

liberty to the trial Court to suo moto frame an issue of limitation.

Contention is that, in the absence of any pleadings by the

defendants and the challenge to the maintainability of the suit on

the ground of limitation, the trial Court has no jurisdiction to frame

the issue of limitation.

7. Learned counsel appearing for respondents, who are son and

mother, has defended the impugned order.

8. I have considered Order VIII Rule 2 and Order XIV Rule 1(6)

of the CPC in the light of the submissions of the petitioner.

9. It is trite law that when a litigant prefers a suit, a formal

declaration that the suit is filed within limitation has to be made so

as to enable the plaintiff to support his contention, that the suit is

filed within limitation, through oral and documentary evidence. The

absence of making such a statement in the plaint would have it's

own effect. Learned counsel for the plaintiff submits that the

plaintiff has made a statement in paragraph Nos.11 and 13 that

considering the cause of action, the Court has the jurisdiction to

entertain the suit. The plaintiff has made a statement that the suit is

within limitation, considering the cause of action dated 7.11.2006.

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10. It is conceded that the defendants did not specifically raise a

ground in the written statement that the suit has been filed beyond

limitation and hence it is untenable.

11. The plaintiff has relied upon the judgment of the Honourable

Apex Court in the matter of National Textile Corporation Ltd. Vs.

Nareshkumar Badrikumar Jagad and others [AIR 2012 SC 264]. I

do not find that the view expressed by the Honourable Apex Court in

paragraph No.29, with reference to Order VIII Rule 2 of the CPC

would support the contention of the petitioner. The case put up in

National Textile (supra) was that no averment was made by the

defendant that the suit was bad for non-joinder of parties. A vague

plea was putforth and the Honourable Apex Court has concluded

that such a vague plea did not meet the requirement of Order VIII

Rule 2 of the CPC.

12. In my view, when the trial Court, after recording of the oral

evidence was over, was going through the record of the case, it felt

that the issue of limitation should have been framed. The plaintiff

has contended that the suit is within limitation. If the issue, whether

the suit was within limitation is left out and if it is finally concluded

while delivering the judgment that the suit was beyond limitation,

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the trial Court could very well refuse to exercise it's jurisdiction. In

this probable situation the trial Court has pragmatically framed the

issue of limitation Such pragmatism shown by the trial Court cannot

be branded as being perverse or erroneous.

13. This petition being devoid of merit is, therefore, dismissed.

Rule is discharged.

14. Needless to state, since, it appears that the issue of limitation

is a mixed question of facts and law, the litigating sides would be at

liberty to lead evidence, if so advised, and it is expected that none of

the litigating sides would resort to seeking unnecessary

adjournments.

( RAVINDRA V. GHUGE, J. ) ...

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