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2017 DIGILAW 1291 (BOM)

Gopal Keshav Pathak v. Gunwant Shankar Chaudhary

2017-07-06

SHALINI PHANSALKAR JOSHI

body2017
JUDGMENT : 1. By this revision, the petitioner, who is original defendant no.1, has challenged the order dated 8.7.2016 passed by Civil Judge, Junior Division, Jalgaon-Jamod in Regular Civil Suit No. 13/2016, thereby dismissing the application filed by the petitioner under Order-VII Rule-11 of the Code of Civil Procedure for rejection of the plaint. 2. The rejection of plaint was sought on three grounds; the first that, the suit was apparently barred by limitation, as the respondent was seeking specific performance of the agreement of sale dated 17.4.1974. The second ground was that the suit was barred under the provisions of Sections 3 and 4 of the Benami Transaction (Prevention) Act, 1988 and, the third ground that the suit was not valued properly. 3. However, it is fairly conceded by the learned counsel for appellant that he is not pressing at this stage the ground of the suit being barred by Sections 3 and 4 of the Benami Transaction (Prevention) Act. 4. Even as regards the valuation of the suit, learned counsel for the respondent has submitted at bar that respondent has corrected the valuation of the suit claim. Hence, that point also no more remains to be agitated. 5. The only issue which remains, is whether the suit is barred by limitation considering that the agreement of sale was executed on 17.4.1974 and the suit was filed in the year 2016. Considering that on the face of it also, the suit appears to be barred by limitation, the request made by learned counsel for the petitioner that trial Court should be directed to frame the issue of limitation and decide the same as preliminary issue under Order-XIX Rule-2 of the Code of Civil Procedure., appears to be fair and reasonable. 6. To this limited extent only, direction needs to be given to trial Court. Otherwise the impugned order of the trial Court does not call for any interference. Hence, Revision stands dismissed. 7. The learned trial Court is however directed to frame the issue as to whether suit is barred by limitation and to decide the same as as preliminary issue under Order-XIV Rule-2 of the Code of Civil Procedure as expeditiously as possible.