Bombay High Court
Nathu Waman Choudhari Died Lrs ... vs Taluka Supervising Union Through ... on 27 February, 2017
Bench: S.P. Deshmukh
SA 668/16
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.668/2016
Nathu Waman Choudhari,
since deceased, through L.Rs.
1] Sunil Nathu Choudhari,
age 48 yrs., occu.agri.,
2] Anil Nathu Choudhari,
age 45 yrs., occu.agri.,
3] Pramod Nathu Choudhari,
age 34 yrs., occu.agri.,
4] Manoj Nathu Choudhari,
age 31 yrs., occu.agri.,
5] Ashabai Nathu Choudhari,
age 54 yrs., occu.household,
6] Saroj Nathu Choudhari,
age 38 yrs., occu.household,
All r/o Shindkheda Tq.Shindkheda
Dist.Dhule.
...Appellants..
(Org.plaintiffs)
Versus
1] Taluka Supervising Union,
Through Chairman, Taluka Dekhrekh
Sangh, Shindkheda Dist.Dhule.
2] Chairman, Dhule District Drekhrekh
Sangh, Tq.Shindkheda Dist.Dhule.
And Nandurbar, Head Office,
Garud Bagh Branch, Dhule.
3] District Deputy Registrar,
Cooperative Society, Dhule,
Old Collector, Office, Dhule.
...Respondents...
(Org.defendants)
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SA 668/16
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.....
Shri B.R. Waramaa, Advocate for appellants.
.....
CORAM: SUNIL P. DESHMUKH, J.
DATE: 27.02.2017
ORAL JUDGMENT :
1] Heard learned counsel for the appellants. He
contends that since the plaintiffs could address the
Court only on one issue, which has been framed
purportedly pursuant to Section 9-A of the Code of Civil
Procedure (Maharashtra Amendment), an opportunity has
been lost on the basic contention and the reason
underlying institution of the suit about consideration
having not been passed, the sale deed is rendered null
and void.
2] The learned counsel further contends that as a
matter of fact, there was no interim relief, which has
been sought in the suit and as such Section 9-A hardly
had any application.
3] All the issues in fact had been framed. As such, the
issue about limitation could not have been considered as
a preliminary issue. Yet, only the issue of limitation
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has been taken out and decided.
4] It is submitted, in the circumstances, that has
caused prejudice to the appellants - plaintiffs. The
trial Court has decided the issue of limitation against
the plaintiffs holding the suit to be barred by law of
limitation. The appellate Court has changed the ensemble
adorned while addressing the matter holding that the
Court had ample powers under the Code of Civil Procedure
under Order XIV to pick up an issue as a preliminary
issue. May be ostensibly, Section 9-A has been
purportedly referred to and yet it is not a case wherein
the Court had no power to address a particular issue as a
preliminary issue.
5] The learned counsel submits that the appellate Court
as well has dismissed the appeal confirming the order of
dismissal of the suit passed by the trial Court on the
ground of limitation. The learned counsel reiterates
that had an opportunity been given to the plaintiffs to
address all the issues, perhaps the issue of limitation
could have been addressed properly and evidence could
have emerged, that the suit is not outside the period of
limitation.
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6] Although it is being so addressed, certain
undisputed facts would indicate that the considerations
which have weighed with the Courts hitherto can hardly
be flawed. The sale deed executed by the plaintiffs'
father Nathu Waman Choudhari and their grand mother
Mandodarabai Waman Choudhari is dated 16.3.1965. It is a
registered sale deed and that the consideration for the
sale of land had been paid through cheques dated
12.12.1964 and 16.3.1965. However, it is contended that
the cheques were not realized and as such the sale deed
has been without any consideration and hence the suit has
been instituted seeking the declaration as prayed for.
7] In the circumstances, it appears that since
registered sale deed has not been denied and that the
reason for the suit is non-passing of consideration, it
would not be a case that the suit filed, as sought could
have been maintained, the remedy perhaps would have been
for recovery of the amount under the sale deed.
8] Apart from the aforesaid aspect, even going by the
chronology of events, the registered sale deed is dated
16.3.1965. Nathu Waman Choudhari died on 31.1.1998.
Grandmother Mandodarabai had pre-deceased Nathu Waman
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Choudhari. The plaintiff no.1 was born on 15.5.1969.
This sequence of events and taking into account the
relevant provisions of the Limitation Act, as have been
appreciated by the Courts below, do not appear to be
erroneous. In the circumstances, even in the remotest
case of giving some latitude to the appellants, yet it
would appear that it would be only of academic interest.
9] In the circumstances, the second appeal stands
dismissed. No costs.
(SUNIL P. DESHMUKH, J.)
ndk/c272173.odt
