Gopal Keshav Pathak And Others vs Gunwant Shankar Chaudhary And ...
2017 Latest Caselaw 4151 Bom

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

              CIVIL REVISION APPLICATION NO.: 90 OF 2016

 1]        Gopal Keshav Pathak 
           Aged about 52 years
           R/o At Post Shankar Nagar
           Near School No.5, Khamgaon
           Tq. Khamgaon, Distt. Buldhana

 2]        Govind Keshav Pathak
           Aged about 58 years,

 3]        Sau. Mangala Harihar Shivankar
           Aged about 53 years,

           No.2 & 3 R/o Wakilpura Ward No.10
           Murtizapur, Tq. Murtizapur
           District-Akola

 4]        Smt. Kalpana Bhaskar Chaube
           Aged about 60 years, 
           R/o Malkapur, Tq. Malkapur
           District-Buldhana

 5]        Sau. Manisha Ashish Ganorkar
           Aged about 43 years,
           R/o Prabhag No.23, Near Gorakshan, 
           Amravati
           Tq. And District-Amravati.

 6]        Ganesh Madhukar Pathak
           Aged about 33 years,
           R/o Near Jalamb Naka
           Khamgaon, Tq. Khamgaon
           District-Buldhana.                                       ....... PETITIONERS.
                                                                             (Ori.Defendants)
                 ...V E R S U S...

 1]        Gunwant Shankar Chaudhary
           Aged bout 75 years, Occ.: Agriculturist 




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 2]          Trimbak Shankar Chaudhary
             Aged about 72 years,
             Occ. Agriculturist

          Both R/o Asalgaon, Tq. Jalgaon
          Jamod, District-Buldhana.                          .......RESPONDENTS.
                                                                   (Ori.Plaintiffs)
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          Shri  J. B. Gandhi, Advocate for Petitioners(Applicants).
          Shri S. R. Tiwari, Advocate for Respondent nos. 1 & 2.  
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             CORAM:  DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.

th DATE : 6 JULY, 2017.

ORAL JUDGMENT

By this revision, the petitioner, who is original

defendant no.1, has challenged the order dated 8.7.2016 passed

by Civil Judge, Junior Division, Jalgaon-Jamod in Regular Civil

Suit No. 13/2016, thereby dismissing the application filed by the

petitioner under Order-VII Rule-11 of the Code of Civil Procedure

for rejection of the plaint.

2] The rejection of plaint was sought on three grounds;

the first that, the suit was apparently barred by limitation, as the

respondent was seeking specific performance of the agreement of

sale dated 17.4.1974. The second ground was that the suit was

barred under the provisions of Sections 3 and 4 of the Benami

Transaction (Prevention) Act, 1988 and, the third ground that the

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suit was not valued properly.

3] However, it is fairly conceded by the learned counsel

for appellant that he is not pressing at this stage the ground of the

suit being barred by Sections 3 and 4 of the Benami Transaction

(Prevention) Act.

4] Even as regards the valuation of the suit, learned

counsel for the respondent has submitted at bar that respondent

has corrected the valuation of the suit claim. Hence, that point

also no more remains to be agitated.

5] The only issue which remains, is whether the suit is

barred by limitation considering that the agreement of sale was

executed on 17.4.1974 and the suit was filed in the year 2016.

Considering that on the face of it also, the suit appears to be

barred by limitation, the request made by learned counsel for the

petitioner that trial Court should be directed to frame the issue of

limitation and decide the same as preliminary issue under Order-

XIX Rule-2 of the Code of Civil Procedure., appears to be fair and

reasonable.

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6] To this limited extent only, direction needs to be

given to trial Court. Otherwise the impugned order of the trial

Court does not call for any interference. Hence, Revision stands

dismissed.

7] The learned trial Court is however directed to frame

the issue as to whether suit is barred by limitation and to decide

the same as as preliminary issue under Order-XIV Rule-2 of the

Code of Civil Procedure as expeditiously as possible.

JUDGE

RGIngole