Mr. Dashrath Bhau Gaikar And ORS. v. Mr. Arjun Janu Gaikar And ORS.

1 WP 1185-15.doc-917

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1185 OF 2015 Mr. Dashrath Bhau Gaikar and Others.

] ... Petitioners/ (Orig. Plaintiffs)

Versus

Mr. Arjun Janu Gaikar and Ors.

] ... Respondents/ (Orig. Defendants) Mr. Madhav Jamdar for Petitioners.

Mr. R. P. Lote for Respondent Nos.1 to 3.

Mr. A. R. Metkari, A.G.P., for Respondent Nos.5 to 7. CORAM :- M. S. SONAK, J.

DATE :- MARCH 31, 2015 P. C. :- 1.

Rule. In view of the Order dated 17/03/2015, Rule is made returnable forthwith.

2.

By the Order dated 18/12/2014 which is made in the present petition, the learned Civil Judge, Senior Division, Kalyan, has framed preliminary issue under Section 9A of the CPC as to whether the suit is within prescribed period of limitation. 3.

Recently, the Hon'ble Apex Court in the case of Kamlakar Eknath Salunkhe Vs. Baburav Vishnu Javalkar & Ors. In Civil URS

2 WP 1185-15.doc-917 Appeal No.1085 of 2015 decided on 12/01/2015 has held that the perusal of Statement of Objections and Reasons of the Amendment Act by which Section 9A came to be introduced would clarify that Section 9A talks of maintainability only on the question of inherent jurisdiction and does not contemplate issues of limitation. Accordingly, in the said case, it was held that the trial Court was not justified in framing the issue of limitation as a preliminary issue by invoking the powers under Section 9A of the Code. 4.

In view of the aforesaid decision of the Hon'ble Apex Court, the impugned order dated 18/12/2014 will have to be set aside. Accordingly, the rule is made absolute in terms of prayer clause (a).

5.

It is clarified that the parties shall be at liberty to raise the issue of limitation and the same shall be considered along with other issues that can be framed in the suit.

6.

All contentions of all parties in this regard are therefore left open.

7.

All parties to act on the basis of authenticated copy of this order.

(M. S. SONAK, J.) URS