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2012 DIGILAW 1454 (BOM)

Vijaya S. Palekar v. Shri Barnado Charlio Lobo

2012-08-03

F.M.REIS

body2012
Judgment : Heard Shri Sudesh Usgaonkar, learned Counsel appearing for the petitioner and Shri R. Menezes, learned Counsel appearing for the respondents. 2. The above petition challenges an order dated 30/11/2009 passed by the learned Civil Judge Junior Division, Panaji in Regular Civil Suit No.105/2007/D/C whereby the suit filed by the petitioner came to be dismissed in view of an application filed by the respondents to the effect that the Civil Court has no jurisdiction to decide the suit. 3. Shri R. Menezes, learned Counsel appearing for the respondents has raised a preliminary objection to the maintainability of the above petition on the ground that the impugned order is essentially an order passed under Order 7 Rule 11 of the Civil Procedure Code and as such according to him the relief which has been granted is in terms of Order 7 Rule 11. The learned Counsel has pointed out that the suit has been dismissed essentially on the ground that the suit is barred by the provisions of City Corporation of Panaji Act, 2002. The learned Counsel as such submits that the petitioner has an alternate remedy and should be relegated to file an appeal before the learned District Judge due to the pecuniary jurisdiction of the suit. 4. On the other hand, Shri Sudesh Usgaonkar, the learned Counsel appearing for the petitioner has pointed out that in order to prefer an appeal the impugned order has to come within the parameters of a decree as provided under Section 2 of the Civil Procedure Code. The learned Counsel further pointed out that even to exercise jurisdiction under Section 9 of the Civil Procedure Code the learned Judge ought to have framed preliminary issue and decided accordingly. The learned Counsel as such submits that the preliminary objection of the respondents be rejected and in any event in case this Court finds that the petition is not maintainable, the petitioner should be protected with regard to the limitation in preferring such an appeal. 5. I have considered the submissions of the learned Counsel appearing for the respective parties. On plain reading of sub-section (d) of Order 7 Rule 11, Civil Procedure Code. the plaint can be rejected in case the same is barred by any law. 5. I have considered the submissions of the learned Counsel appearing for the respective parties. On plain reading of sub-section (d) of Order 7 Rule 11, Civil Procedure Code. the plaint can be rejected in case the same is barred by any law. Though the application filed by the respondents is under Section 9 of the Civil Procedure Code, nevertheless the said application is to be considered under Order 7 Rule 11 of the Civil Procedure Code for rejection of plaint, taking note of the allegations made in the plaint as well as the relief prayed in the application. As such, the impugned order passed by the learned Judge is deemed to be a decree within the meaning of Section 2(2) of the Civil Procedure Code. Such order is appealable and as such the above petition cannot be entertained as the petitioner has an alternate remedy to challenge the impugned order. Taking note of the contentions of Shri Sudesh Usgaonkar, learned Counsel appearing for the petitioner and on perusal of the petition, I find that the petitioner has preferred the petition within the time prescribed. Apart from that, Section 14 of the Limitation Act clearly provides that the time taken to pursue a remedy before a forum having no jurisdiction is to be deducted for the purpose of computing the period of limitation. Considering that there were bonafide reasons for filing the above petition in view of the nature of the application filed by the respondents, I find that the time taken to file the above Writ Petition will have to be deducted. Hence, in the interest of justice, I find it appropriate that the petitioner should be protected as far as the period of limitation is concerned. 6. In view of the above, the petition stands dismissed, as not maintainable for the aforesaid reason. But however, the petitioner is at liberty to file an appeal challenging the impugned order dated 30/11/2009 before the learned District Judge, North Goa at Panaji in accordance with law. In case such an appeal is preferred within a period two weeks, the delay in filing such appeal shall be condoned. Petition stands disposed of accordingly. Registry is directed to return the certified copy of the impugned order in accordance with the rules.