JUDGMENT Following substantial question of law was recorded by my learned brother earlier in this appeal :– “Whether in the facts and circumstances of the present case, the question of limitation could be decided as a preliminary issue when Section 304 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 would make it explicit that the suit is required to be filed within six months from date of accrual of the cause of action and that in the present case the accrual of the cause of action as on effecting auction of the house property or on receiving of knowledge by the plaintiffs as claimed by them and whether without recording of evidence. Such issue could be decided by the trial and the first appellate Court ?” 2. The appellants were plaintiffs. Their case was as under. 3. One Dagdabai was their ancestor. She was owner of the suit house which is situated within the local limits of Municipal Council, Jalgaon, Dagdabai, probably did not pay property tax, and so, in March 1968, the suit house was attached by the Municipal Council. On 4th July, 1968, the Municipal Council offered the suit house to public at large in an auction sale. The house was sold ultimately to respondent No.2. The sale stood confirmed on 12th August, 1968, after following due process of law. The appellants-plaintiffs asserted that the auction was bad because the mandatory notice was not given to Dagdabai. 4. The appellants-plaintiffs drafted the plaint of this suit saying that the cause of action for the suit arose on 12th August, 1968, and the same continued to arise every day thereafter. They also made prayer for possession of the suit house along with declaration that the auction was bad in law and not binding on them. While drafting the plaint, they further mentioned that they would seek possession of the suit house in this suit, but would pay required court fee (on the basis of market value of the suit house) subsequently. But, before the suit was filed in the office of the Court, the prayer clause (B) for possession of the suit house was removed. The question is, what is the effect of such removal of prayer? On the face of it, the appellants-plaintiffs at the eleventh hour decided not to seek possession. They were certain about it when they removed original prayer clause (B). The question is, what is the effect of such removal of prayer? On the face of it, the appellants-plaintiffs at the eleventh hour decided not to seek possession. They were certain about it when they removed original prayer clause (B). If they did not want possession of the suit house, then whatever stated in respect of the possession of the suit house else where in the plaint stood automatically removed though it is not physically removed from the plaint. 5. Despite the removal of the prayer of possession, the suit was registered and summons were issued. The respondents-defendants took inter alia two important objections; first was that the suit was not maintainable without consequential relief of possession; and second was, the suit was hopelessly barred by limitation, as provided in Section 304 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for short 'MMC Act'). 6. The learned judge of the trial Court framed several issues and said that these all issues are preliminary issues and then dismissed the suit without recording evidence of the parties. He held that the suit was not maintainable because there was no prayer of consequential relief of possession etc. Secondly, he held that the suit is barred by limitation as provided in Section 304 of the MMC Act. 7. The learned judge of the trial Court undertook this exercise probably under Order XIV of Code of Civil Procedure. The objection of such disposal of the suit is raised saying that the issue of limitation could not have been decided as preliminary issue because it was a mixed question of law and fact and ought to have been decided only after recording evidence. Technically this objection is maintainable, but probably the facts that are mentioned in the plaint and which is case of the plaintiffs themselves, would prevent them from filing this suit at belated stage in the light of peculiar provisions of Section 304 of the MMC Act. Section 304 of the MMC Act, reads as under :- 304. Technically this objection is maintainable, but probably the facts that are mentioned in the plaint and which is case of the plaintiffs themselves, would prevent them from filing this suit at belated stage in the light of peculiar provisions of Section 304 of the MMC Act. Section 304 of the MMC Act, reads as under :- 304. Limitation of suits against Council, its committees, officers and servants for acts done in pursuance of execution of this Act.- (1) No suit shall lie against a Councilor against any committee constituted under this Act, or against any officer or servant of a Council in respect of any act done in pursuance or executing or intended execution of this Act, or in respect of any alleged neglect or default in the execution of this Act. (a) unless it is commenced within six months next after the accrual of the cause of action; and (b) until the expiration of one month after notice in writing has been, in the case of a Councilor its committee, delivered or left at the municipal office, and, in the case of an officer or servant of a Council, delivered to him or left at his office or place of abode; and all such notices shall state with reasonable particularity the causes of action and the name and place of abode of the intending plaintiff and of the advocate, pleader or agent, if any, for the purpose of the suit. (2) At the trial of any such suit, - (a) the plaintiff shall not be permitted to adduce evidence relating to any cause of action save such as is set forth in the notice delivered or left by him as aforesaid; (b) if the suit be for damages and if tender of sufficient amends shall have been made before the action was brought, the plaintiff shall not recover more than the amount so tendered and shall pay all costs incurred by the defendant after such tender. (3) If the defendant in any such suit is an officer or servant of a Council, payment of any sum or part thereof payable by him in or in consequence of the suit may, with the sanction of the Council, be made from the municipal fund. (4) Nothing in clauses (a) and (b) of subsection (1) shall apply to any suit under section 38 of the Specific Relief Act. (4) Nothing in clauses (a) and (b) of subsection (1) shall apply to any suit under section 38 of the Specific Relief Act. 1963 [XLVII of 1963] or under sub-sections (1) or (2) of Section 96 of this Act. The provision is very stringent and it is drafted with a view to prevent unnecessary litigation. This Section enjoins a litigant who intends to file suit against Council for any act done in pursuance of the provisions of this Act, he must do so within six months next after the accrual of cause of action. He must not do so without giving necessary notice contemplated under clause (b) of sub-section (1). In this case, the cause of action admittedly arose on 12th August, 1968, as pleaded by them, and admittedly, without any notice contemplated under clause (b) of sub-section (1) above, this suit was filed way beyond six months. 8. The appellants-plaintiffs stated in paragraph No.5 of plaint that the cause of action arose on 12th August, 1968, and thereafter arose every day. The question is, whether the cause of action continued to arise after 12th August, 1968 every day? On the face of it, this statement is made only to prevent the plaint getting rejected. This statement has no meaning in the eye of law. The cause of action in this suit certainly arose on 12th August, 1968. The action concluded on that day when the Municipal Council completed the process of auction, therefore, there was no question of accrual of cause of action every day thereafter. Therefore, on the face of it, the plaint filed in this manner ought to have been rejected. If that was not done earlier, it can be done at the next available stage. The next available stage was Order XIV of the Code of Civil Procedure. Indeed, the learned judge rightly raised this as a preliminary issue and made endavour to dispose of the suit without recording evidence as early as possible. At least in this case, issue of limitation was not a question of fact at all, because the appellants-plaintiffs themselves did not plead it. Apparently, the draft-man of the plaint did not look into the provisions of Section 304 of the MMC Act. At least in this case, issue of limitation was not a question of fact at all, because the appellants-plaintiffs themselves did not plead it. Apparently, the draft-man of the plaint did not look into the provisions of Section 304 of the MMC Act. So, since the plaint itself was defective, the defect was sufficient to bring this within the parameters of clause (b) of sub-rule (2) of Order XIV of Code of Civil Procedure. Clause (b) provides that the Court can decide the suit on the basis of preliminary issue if such issue relates to either jurisdiction of the Court or to a bar created by any law. The plaint of this suit was drafted in such a manner that it stood barred by Section 304 of the MMC Act. In view of this, though technically the issue of limitation is generally a question of law and fact, at least in this case could have been decided as preliminary issue. 9. As explained above, the suit did not have a prayer of consequential nature after declaration was sought in respect of legality of the auction sale. Section 34 of the Specific Relief Act apparently prohibits filing of such suit. The learned judge rightly decided this issue at preliminary stage. This objection again goes to the root of the case and would also come within the parameters of clause (b) of Rule 2 of Order XIV of the Code of Civil Procedure. In view of this, at least in this case, the judgment given by the trial Court in this suit without recording evidence does not look illegal. Thus, the appeal stands dismissed. Appeal dismissed.