Bombay High Court
Kalyanrao Tryambakrao Patil And ... vs Bapurao Tryambakrao Patil And ... on 11 January, 2018
Bench: M.S. Sonak
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cra147.17.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 147 OF 2017
Kalyanrao s/o Tryambkrao Patil
& others Applicants
Versus
Bapurao s/o Tryambakrao Patil
& others Respondents
Mr. C.D. Biradar, advocate for applicants.
Mr. R.B. Deshmukh, advocate for respondent no.1.
CORAM : M.S. SONAK, J.
DATE : 10th JANUARY, 2018
ORDER :
1. Heard Mr. Biradar, learned counsel for applicants and,
Mr. Deshmukh, learned counsel for respondent no. 1 (original
plaintiff).
2. Challenge in this revision application is to the order dated
26.07.2017 by which, the learned trial Judge has dismissed
applicants' application under Order VII Rule 11 of the Code of Civil
Procedure for rejection of plaint on the ground that the suit is
barred by law of limitation.
3. Learned counsel Mr. Biradar submits that one of the reliefs
sought for in the plaint pertains to declaration of will no.
2315/2002, which was executed in the year 2002, as being a forged
and fabricated. Mr. Biradar submits that the predecessors-in-title
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of applicants had filed suit in relation to the suit property and
therefore, the plaintiff had full knowledge as regards the claims
and counter claims. He submits that, from this, it is quite clear
that the suit is barred by limitation.
4. Mr. Biradar further submits that in the suit, as originally
instituted in the year 2008, there was no relief as regards the will
of 2002. However, the plaint was amended in the year 2015 and,
this relief has been applied for. Mr. Biradar submits that the relief
in respect of will of the year 2002 was ex facie barred by limitation
in the year 2015.
5. Mr. Biradar further submits that the learned trial Judge has
not considered the application under Order VII Rule 11 of the Code
of Civil Procedure in its proper perspective and has rejected the
same only on the ground that the suit has reached at an advanced
stage where the plaintiff and his witnesses have already adduced
their evidence. Mr. Biradar submits that it is settled position in
law that an application under Order VII Rule 11 of the Code of Civil
Procedure can be taken up at any stage of the proceeding and if,
the parameters of the said legal provision are satisfied, then, the
same cannot be rejected on the ground that it has been allegedly
taken out belatedly. Mr. Biradar submits that this is a clear case
of failure to exercise jurisdiction or in any case, exercise of
jurisdiction with material irregularities. Therefore, Mr. Biradar
submits that revisional jurisdiction may be exercised, the
impugned order may be set aside, application under Order VII Rule
11 of the Code of Civil Procedure may be allowed and, the plaint be
rejected.
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6. Mr. Deshmukh, learned counsel for respondent no. 1 points
out that there are several reliefs other than declaration with regard
to alleged will of the year 2002. He points out that plaintiff's
father, who allegedly executed the will in the year 2002, expired
only in the year 2006. Until demise of plaintiff's father, there was
no question for the will, which was allegedly executed in the year
2002, having any legal efficacy whatsoever. He points out that the
suit was instituted in the year 2008. Plaintiff's mother has expired
in the year 2012. He points out that the relief in regard to the will
was introduced by way of amendment and, the amendment always
relates to the date of institution of the suit. He submits that this is
not a case where, on the basis of any statement in the plaint, it is
clear that the suit is barred by law of limitation. In these
circumstances, he submits that there is no case made out by
applicants for invocation of provisions of Order VII Rule 11 of the
Code of Civil Procedure.
7. On perusal of the plaint, it cannot be said that there is any
statement therein on the basis of which, it can be clearly said that
the suit in its entirety is barred by law of limitation. Apart from
the relief with regard to the will of the year 2002, there are other
reliefs applied for in the plaint. The relief, insofar as challenge to
the will is concerned, does not relate to the year 2002 but, at the
highest may relate to the year 2006 i.e. the date of demise of
plaintiff's father, who is alleged to have made the will. Taking into
consideration all these facts which, at the highest, may be said to
be mixed issues of law and fact, it cannot be said that any case has
been made out for exercise of powers under Order VII Rule 11 of
the Code of Civil Procedure.
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8. Normally, when amendment to the pleadings is permitted,
the same relates to the date of institution of the suit. This is
however, not an invariable rule and, it is open for the parties to
contend and establish otherwise. Therefore, merely because the
plaint was permitted to be amended in the year 2015, so as to
include challenge to the will which was executed in the year 2002
or which became effective in the year 2006, that by itself does not
make it absolutely clear that the suit in its entirety stands barred
by law of limitation. At the highest, this is a debatable issue
involving questions of law and fact. Unless on the basis of
statement in the plaint, there is no doubt that the suit is barred by
law of limitation, there arises no question of rejection of the plaint
by invoking provisions of Order VII Rule 11 of the Code of Civil
Procedure. At the stage of consideration of such application, the
defence raised by defendants is quite irrelevant. The focus has to
be entirely on the plaint and statements in the plaint. Thus,
considering the scope of provisions of Order VII Rule 11 of the
Code of Civil Procedure, it cannot be said that there is any
jurisdictional error in the impugned order.
9. Learned counsel Mr. Biradar is however right in his
submissions that the learned trial Judge could not have rejected
the application under Order VII Rule 11 of the Code of Civil
Procedure merely because, the suit was at an advanced stage and
the evidence of plaintiff and his witnesses had already concluded.
That part of the reasoning is therefore, not approved. However,
upon due consideration of Mr. Biradar's contentions in support of
application under Order VII Rule 11 of the Code of Civil Procedure,
it is seen that this is really not a case where the plaint was
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required to be rejected on the ground that the suit stands barred
by limitation. No doubt, it is open to the applicants to raise the
issue of limitation. Such time is required to be decided alongwith
all other issues which arise in the suit. In case no such issue is
framed, the learned trial Judge is requested to frame the same
because even otherwise, it is the duty of the Court to go into the
issue of limitation whether or not the parties may have raised it. If
the parties choose to lead evidence on this issue, the learned trial
court may permit them to do so.
10. Accordingly, Civil Revision Application is dismissed. It is
however, made clear that the observations in the impugned order
or those made in the present matter are restricted to decide
whether application under Order VII Rule 11 of the Code of Civil
Procedure was required to be allowed or not. Accordingly, such
observations need not influence the learned trial Judge while
deciding the suit on its own merit and in accordance with law.
11. Save and except, the direction for framing additional issue of
limitation and further direction to permit the plaintiff or his
witnesses to adduce evidence on this issue, the impugned order is
not interfered with. Revision application is disposed of in aforesaid
terms. There shall be no order as to costs.
12. All concerned to act on authenticated copy of this order.
( M.S. SONAK, J. )
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