Shri. Manilal Babubhai Dhodi vs Dr. Chhittusinh Mohansinh ...
2023 Latest Caselaw 2821 Bom

2023:BHC-AS:8938-DB
                                                      1/3                 10.IA-30172-2022.doc



                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION
                                    INTERIM APPLICATION NO.30172 OF 2022
                                                     IN
                                         FIRST APPEAL NO.641 OF 2020
            Dr. Chittusinh Mohansinh Chauhan                  .....Applicant/Appellant
                      Vs.
            Manilal Babubhai Dhodi and Anr.                   .....Respondents
                                               WITH
                            INTERIM APPLICATION NO.30173 OF 2022
                                                IN
                                  FIRST APPEAL NO.641 OF 2020
                                                ----
            Mr. Ranjit Thorat, Senior Advocate a/w. Ms. Varsha Palav, Ms. Pratibha
            Shelke, Mr. Ajinkya Palav and Mr. Anuj Tiwari i/b. The Laureate for
            applicant/appellant.
            Mr. Anoshak DavEr a/w. Mr. Abhishek Matkar and Mr. Malhar Bageshwar
            i/b. Mr. Abhishek P. Deshmukh for respondent no.1.
                                                ----
                                                 CORAM : K. R. SHRIRAM &
                                                          RAJESH S. PATIL, JJ.

DATED : 23rd MARCH 2023

P.C. :

INTERIM APPLICATION NO.30172 OF 2022

1 This interim application is to allow applicant, who is appellant,

to amend the written statement that was filed before the Trial Court.

2 The appeal is impugning a judgment and decree dated

28th January 2020. The counsel for applicant states that since there was no

specific averment in the plaint that the suit was within limitation, the

written statement did not have a specific denial that the suit was within

limitation and hence, an issue on limitation did not come to be framed. The

counsel for applicant states that it is applicant's case that the suit would be

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barred by limitation and that being a question in law, applicant is entitled to

bring it to the notice of the Court by carrying out necessary amendment to

that effect to the written statement.

3 In the plaint, there is an averment in paragraph 10 that " the

cause of action for filing the present suit against defendants arisen on May

2010 since the discovery and knowledge of fraud by making entry of

defendant no.1 in Revenue record. Cause of action is being continued since

ever from May 2010 till this day as detailed in above paras ". In paragraph 4

of the plaint also there is an averment that " plaintiff states that plaintiff got

knowledge in May 2010 that defendant no.1 have mutated his name in

7/12 extract of suit land without any notice ". In the written statement,

there is no specific denial for paragraph 10 of the plaint. But in paragraph 5

of the written statement, with reference to what is stated in paragraph 4 of

the plaint, defendant has denied that plaintiff got knowledge in May 2010

that defendant had mutated his name in 7/12 extract of the suit land

without any notice.

4 The counsel for applicant states that even assuming for the

sake of argument that there is no specific denial on the date of cause of

action, still the Trial Court in the impugned judgment in paragraph 19 has

noted "Learned counsel for the defendant also raised the issue of limitation"

and the Trial Court should also ensure that the suit filed is within

limitation. The counsel for applicant states, and rightly so, that after

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recording that the counsel for defendant raised the issue of limitation, the

Trial Court has not given a finding as to when the cause of action arose or

whether the suit was within limitation.

5 In our view, therefore, there is no need to amend the written

statement in the Trial Court and this Court can go into the evidence since

this being a First Appeal and consider whether plaintiff has made out a case

that the suit filed was within limitation. This Court can answer the issue in

the First Appeal "Whether the suit filed was within limitation?". This issue

can be considered and decided at the hearing of the First Appeal because

the Trial Court's judgment and decree has been impugned on various other

grounds as well.

6               Interim application accordingly disposed.

7               Appeal be listed for final hearing on 20 th April 2023 alongwith

Interim Application No.30173 of 2022 at 2.30 p.m.

(RAJESH S. PATIL, J.) (K. R. SHRIRAM, J.)

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