Bombay High Court
Bhaskar S/O Gulabrao Titarmare vs Gangadhar S/O Shankar Tarwatkar on 25 January, 2018
Bench: A.S. Chandurkar
10-sa-156-17 judgment 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 156 OF 2017
APPELLANT :- Bhaskar S/o Gulabrao Titarmare
Aged about 40 yrs, Occ. Agriculturist,
R/o Tas, Tah.Bhiwapur,
Distt.Nagpur.
...VERSUS...
RESPONDENT :- Gangadhar S/o Shankar Tarwarkar
Aged about 40 yrs, Occ. Agriculturist,
R/o Tas, Tah.Bhiwapur,
Dist.Nagpur
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Shri Dewanand S.Raut Advocate for the appellant.
Shri.P.A.Markandeywar, Advocate for the respondent
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CORAM : A. S. CHANDURKAR
, J.
DATED : 25.01.2018
O R A L J U D G M E N T
1. Admit on the following substantial question of law:
''The defendant having not raised the plea
of bar of limitation and no issue in that regard
having been framed by the trial Court, whether
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the first appellate Court in absence of such
ground being raised in the memorandum of
appeal could have considered the question of
limitation without appropriate notice to the
plaintiff?''
2. The appellant is the original plaintiff who had filed suit
seeking mandatory injunction for removing of encroachment
alleged to have been committed by the respondent herein. It is the
case of the appellant that he is the owner of field No.266 and 267.
There was a dhura in between both the fields that was being used
by the plaintiff. The defendant however, caused obstruction and
hence the aforesaid suit came to be filed. The defendant filed his
written statement and denied the case as pleaded. The Trial Court
after considering the evidence on record held in favour of the
plaintiff and decreed the suit. The First Appellate Court however,
considered the question of limitation and held that as the suit was
filed beyond the period of limitation, no relief could be granted to
the plaintiff. It therefore allowed the appeal and dismissed the
suit.
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3. Shri. D.S. Raut, learned Counsel for the appellant submitted
that in written statement no plea was raised that the suit was
barred by limitation. The Trial Court did not frame any issue in
that regard. In the memorandum of appeal filed by the defendant
this ground was not raised. However, for the first time the
Appellate Court considered that question and without due
opportunity to the appellant, decided the same. It is submitted
that such adjudication has caused prejudice to the case of the
appellant.
4. Shri. P.A. Markandeywar, learned Counsel for the
respondent supported the impugned judgment. According to him
in view of provisions of Section 3 of the Limitation Act, 1963 it
was the duty of the trial Court as well as the Appellate Court to
consider the question of limitation. Even if that plea was not taken
in the written statement,the Court was required to consider the
same. He submitted that the Appellate Court rightly allowed the
appeal as the suit was barred by limitation.
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5. I have heard the learned Counsel for the parties at length. It
is not in dispute that the defendant did not raise any plea that the
suit was barred by limitation. The trial Court did not frame any
issue in that regard. The defendant in his memorandum of appeal
also did not raise this ground. It appears that the first Appellate
Court considered that aspect of the matter for the first time and
held against the plaintiff.
6. Though under section 3 of the Limitation Act, 1963 it is the
duty of the Court to examine the question of limitation, at the
same time, if the question of limitation is a mixed question of law
and fact then such bar has to be appropriately pleaded so that the
other party would have notice of the same. In the present case,
the dispute is with regard to use of right of way. The question of
limitation is therefore, a mixed question of law and fact. In
absence of appropriate pleadings and consequently necessary
evidence, the Appellate Court could not have entertained that
question for the first time in appeal. This question regarding bar
of limitation has been considered without notice to the plaintiff. I
have find that in the facts of the present case and in absence of
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necessary pleadings the first appellate Court was not justified in
entertaining the question of limitation. The substantial question of
law is answered accordingly in favour of the appellant.
7. In view of aforesaid, the following order is passed:-
ORDER
i) Judgment of the Appellate Court in Regular Civil Appeal
No.221 of 2015 dated 11.11.2016 is set aside. The proceedings
are remanded to the first appellate Court for reconsideration in
accordance with law.
ii) It would be open for the parties to take the appropriate
steps for raising the question of limitation, if so advised.
iii) The appellate Court shall decide the appeal expeditiously on
its own merits and in accordance with law.
iv) The Second Appeal is allowed in aforesaid terms with no
order as to costs.
JUDGE
KAVITA
