Shaligram Ananda Patil And Others vs Dilip Harakchand Jain
2018 Latest Caselaw 1102 Bom

                                         (1)                   3-CRA 7 of 2018



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

            3 CIVIL REVISION APPLICATION NO. 7 OF 2018

1)    Shaligram Ananda Patil
      Age: 70 years, Occu.: Agril.

2)    Bharat Ananda Patil
      (since deceased through his Lrs.)

2A) Yogesh Bharat Patil
    Age: 38 years, Occu.: Agril.

2B) Jayesh Bharat Patil,
    Age: 35 years, Occu.: Agril.

2C) Sunandabai Bharat Patil
    Age: 55 years, Occu.: Agril,

      All through G.P.A.holder

3)    Shivaji Ananda Patil
      Age: 65 years, Occu.: Retired,
      All R/o.Pailad, At/Post/Tal.Amalner,
      Dist.Jalgaon.                           ..Applicants

                                VERSUS

.     Dilip Harakchand Jain
      Age: 50 years, Occu.: Business,
      R/o.Dhule Road, At/Post/Tal.Amalner,
      Dist.Jalgaon.                           ..Respondent
                             ...
         Advocate for Applicants : Mr.Pawar Pawan B.
       Advocate for Respondent : Mr.R.R.Sancheti h/f.
                                 Mr.R.R.Mantri
                             ...



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                                     (2)                     3-CRA 7 of 2018



                                     

                                    CORAM :  M.S.SONAK, J.

DATE : 29.1.2018

ORAL JUDGMENT:-

1) This civil revision application challenges order

dated 28.11.2017 by which the learned Trial Court has

dismissed the applicants' application under Order 7 Rule

11(d) of the Code of Civil Procedure.

2) The learned counsel for the applicants submits

that from reading of the plaint, it is clear that suit

for specific performance was barred by law of limitation.

He points out that the agreement in this case is dated

29.12.2010. The agreement itself indicates that time or

essence of the sale formality has to be completed within

nine months i.e. 29.9.2011. He submits that the Suit

which is instituted on 21.10.2015 is ex-facie and barred

by law of limitation. He relied on Shri Veershaiv Co-

operative Bank Ltd. Vs. Arvind Daulu Patil [2005 (4)

MAH.L.J., 268] and Hardesh Ores P.Ltd. Vs. Hede and

(3) 3-CRA 7 of 2018

Company [2007 (5) MAH.L.J. (SC) 577].

3) In the present case, from the perusal of the plaint,

it cannot be said that from the statement of the plaint,

it is crystal clear that the Suit stands barred by

limitation. The agreement of which specific performance

is applied for, no doubt, makes reference to nine months

within which the sale formalities are to be completed.

However, there appears no dispute that sell require prior

permission from certain authorities before the same could

be effected. The permission was rejected some time in

2014. The issue as to whether the time or essence of the

contract itself is arguable issue. In any case, at the

stage of application under Order 7 Rule 11(d) of the Code

of Civil Procedure what is relevant is averments in the

plaint and not the defence. As long as the averments in

the plaint do not attract clear bar of limitation, there

is no question of exercising of powers under Order 7 Rule

11 (d) of the Code of Civil Procedure. The issue of

(4) 3-CRA 7 of 2018

limitation in the present case at the highest is a mixed

question of law ans facts. Therefore, there is no case

made out to interfere in the impugned order made by which

the Trial Court has declined to invoke the provisions of

Order 7 Rule 11(d) of the Code of Civil Procedure and

rejected the plaint.

4) The decision in Shri Veershaiv Co-operative Bank

Ltd. (supra), is related to framing of preliminary issue.

A preliminary issue is usually framed on the basis of the

defence raised in the written statement. Parties were

also permitted to lead evidence in support of preliminary

issue. The position as regards exercise of powers under

Order 7 Rule 11(d) of the Civil Procedure Code is quite

different. In such a case, the defence is quite

irrelevant.

5) In Hardesh Ores Pvt.Ltd. (supra) is the only

authority for the proposition that law of limitation is

(5) 3-CRA 7 of 2018

also law for purposes of Order 7 Rule 11(d) of the Code

of Civil Procedure. This Judgment otherwise holds that

for exercise of power under Order 7 Rule 11(d), averments

made in the plaint in their entirety must be held to be

correct. The test is whether the averments made in the

plaint if taken to be correct in their entirety, a decree

would be passed. It is not permissible to cull out a

sentence or a passage and to read it out of the context

in isolation. Although it is the substance and not

merely the form that has to be looked into, the pleading

has to be construed as it stands without addition or

subtraction of words or change of its apparent

grammatical sense. The authority infact assists the

respondent rather than the applicants.

6) For the aforesaid reasons, this civil revision

application is dismissed.

7)    There shall be no order as to costs.  





                                      (6)                     3-CRA 7 of 2018




8)      It is clarified that observations now made in this

order are limited for the purpose of deciding applicant's

application under order 7 Rule 11(d) of the Code of Civil

Procedure. Therefore, the Trial Court need not be

influenced by such observations while deciding Suit

including issue of limitation on its own merits and in

accordance with law.

[M.S.SONAK, J.] SPT/3-CRA 7 of 2018