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2013 DIGILAW 786 (RAJ)

Rohitashv v. Shrikishan

2013-04-18

BELA M.TRIVEDI

body2013
JUDGMENT : Bela M. Trivedi, J. With the consent of the parties, the revision petition is decided finally at the admission stage. 2. The present revision petition has been filed by the petitioner-defendant challenging the order dated 24.05.2006 passed by the Civil Judge (J.D.) Thanagazi, Alwar (hereinafter referred to as "the trial court"), in Civil Suit No.30/96, whereby the trial court has decided the issue No.4 with regard to the limitation in favour of the respondent No.1-plaintiff. 3. In the instant case, it appears that the respondent No.1-plaintiff has filed the suit against the petitioner as well as the respondent Nos.2 & 3 before the trial court seeking declaration and injunction with regard to the will dated 14.03.1992 allegedly executed by Narsi alias Narsingh. In the said suit, the trial court had framed five issues, and the issue No.4 was as to whether the suit of the plaintiff was within the period of limitation. The respondent No.1-plaintiff thereafter submitted an application under Section 14 of the Limitation Act stating therein interalia that he had filed the suit before the revenue court on 20.06.1992 seeking injunction against the petitioner for restraining him from dispossessing the plaintiff from the suit premises, and therefore there was delay in filing the suit. The said application was resisted by the petitioner by filing the reply. The trial court thereafter allowed the said application holding the issue No.4 in favour of the respondent No.1-plaintiff. Being aggrieved by the same, the present revision petition has been filed under Section 115 of CPC. 4. It has been submitted by the learned counsel Mr. Gajendra Singh Rathore for the petitioner that the trial court has materially erred in allowing the application of the respondent No.1 filed under Section 14 of the Limitation Act and in holding that the suit of the plaintiff was within the period of limitation. According to him, the relief claimed before the revenue court was totally different from the relief claimed in the suit, and therefore Section 14 of the Limitation Act had no application in the facts of the case. The learned counsel Mr. Nishant Sharma for the respondents, however supporting the impugned order passed by the trial court submitted that the respondent No.1-plaintiff was pursuing the bonafide proceedings before the revenue court, therefore the delay had occurred in filing the suit, which has been rightly considered by the trial court. 5. The learned counsel Mr. Nishant Sharma for the respondents, however supporting the impugned order passed by the trial court submitted that the respondent No.1-plaintiff was pursuing the bonafide proceedings before the revenue court, therefore the delay had occurred in filing the suit, which has been rightly considered by the trial court. 5. Having regard to the submissions made by the learned counsels for the parties and to the impugned order passed by the trial court, it appears that the trial court has decided the issue No.4 as preliminary issue by holding that the respondent No.1-plaintiff was entitled to the exclusion of time under Section 14 of the Limitation Act. It is pertinent to note that Section 14 of the Limitation Act would be applicable only when the plaintiff was prosecuting other proceedings against the defendant relating to the same matter in issue before other Court, which did not have the jurisdiction. In the instant case, the learned counsel for the respondents has failed to point out that the relief prayed before the revenue court was the same as claimed in the suit. It appears that no such issue as regards the challenge of the will in question was involved in the revenue court, and therefore as rightly submitted by the learned counsel for the petitioner, Section 14 of the Limitation Act would not be applicable to the facts of the present case. 6. In that view of the matter, it is required to be held that the impugned order passed by the trial court suffer from gross illegality and infirmity, which deserves to be set-aside. The impugned order dated 24.05.2006 passed by the trial court therefore is set-aside and the trial court is directed to decide the issue No.4 afresh along with the other issues after permitting the parties to lead evidence in that regard and in accordance with law. The petition stands allowed accordingly. Petition Allowed.