Gujarat High Court
Pratapsinh Ranubha Chudasma vs Baluben Amarshibhai Parmar on 29 June, 2015
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/2399/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2399 of 2013
================================================================
PRATAPSINH RANUBHA CHUDASMA ....Petitioner
Versus
BALUBEN AMARSHIBHAI PARMAR
AND ANR. ...Respondents
================================================================
Appearance:
MR HRIDAY BUCH, ADVOCATE for the Petitioner
MR VINOD M GAMARA, ADVOCATE for the Respondents
================================================================
CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 29/06/2015
ORAL ORDER
1. Challenge in this petition is made by the original plaintiff to the order passed by the Principal Civil Judge, Dhandhuka dated 07.02.2013 below Exh.17 in Regular Civil Suit No.34 of 2009. The Trial Court has, by the impugned order, dismissed the suit as barred by limitation, without framing an issue in that regard. It is also noted that, the said application was not invoking provisions of Order VII, Rule 11 of the Code of Civil Procedure, 1908.
2. Learned advocate for the petitioner has submitted that, the petitioner - plaintiff had filed Civil Suit for specific performance and injunction, in which the defendant gave an application (Exh.17) under Order 14 Rule 2 of the Code of Civil Procedure, 1908 raising preliminary objection that the suit was Page 1 of 4 C/SCA/2399/2013 ORDER barred by limitation and an issue in that regard be framed and adjudicated. It is submitted that, without framing that issue and adjudicating the same, the application is allowed. Thus, the same had the effect like allowing an application under Order VII Rule 11 of the Code of the Civil Procedure, without there being any application to that effect and further that, in the facts before the Court below, the suit was not barred by limitation. The copy of the agreement to sell which is the subject matter of the suit is also placed on record. It is submitted that impugned order be interfered with.
3. On the other hand, learned advocate for the respondent has raised preliminary issue about the maintainability of this petition and has contended that this petition be dismissed. Reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of Radhey Shyam vs. Chhabi Nath (with Jagdish Prasad vs. Iqbal Kaur) reported in 2015 AIR SCW 1849.
4. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under.
4.1 The preliminary objection raised by learned advocate for the respondent - original defendant that this petition is not maintainable, is rejected. Reliance placed on the above referred decision of the Apex Court would not support the respondent in the present case. Going by the ratio of the said judgment itself this petition which is under Article 227 of the Constitution of India, can not be held to be not maintainable.
4.2 So far the legality of the impugned order is concerned, Page 2 of 4 C/SCA/2399/2013 ORDER learned advocate for the petitioner is right in his contention that the defendant had raised objection about the suit being barred by limitation and defendant had requested that, issue be framed in that regard and without such an issue having been framed and adjudicated, the said application could not have been allowed. It is further submitted that, the agreement to sell, which is the subject matter of the suit, did not contain any stipulation that within what period, the same was to be done. Further the reading of the said agreement to sell makes it clear that plaintiff was already put in possession of the suit property by the said document itself. Under these circumstances, this Court finds that the Court below was in error in rejecting the suit without there framing any issue as to whether the suit was barred by limitation. The impugned order therefore needs to be interfered with.
5. For the reasons recorded above, the following order is passed.
5.1 This petition is allowed.
5.2 The impugned order passed by the Principal Civil Judge, Dhandhuka dated 07.02.2013 below Exh.17 in Regular Civil Suit No.34 of 2009 is quashed and set aside.
5.3 The said application Exh.17 is rejected.
5.4 The Regular Civil Suit No.34 of 2009 is restored to the file in the Court of the Principal Civil Judge, Dhandhuka. It is directed that the said suit shall be adjudicated on merits.
5.5 It is clarified that this order is not to mean that the delay Page 3 of 4 C/SCA/2399/2013 ORDER aspect need not be examined by the Trial Court. It would be open to the defendants to so contend and also for the Trial Court to frame an issue as to whether the suit is barred by limitation.
(PARESH UPADHYAY, J.) Amit/53 Page 4 of 4