Smt. Radhabai Kashinath Sutar And ORS v. M/S Laddam Homes Ltd. Through Its Director Shri. B.B. Agrawal And ORS

1 WP 4748-15.doc-PB-8

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4748 OF 2015 Smt. Radhabai Kashinath Sutar and Ors.

] ... Petitioners

Versus

M/s. Laddam Homes Ltd., Through its ] Director Shri B. B. Agrawal and Ors.

] ... Respondents Mr. Ramakant Ahir i/b Mr. Siddharth Gadve for Petitioners. None for Respondent.

CORAM :- M. S. SONAK, J.

DATE :- MAY 08, 2015 P. C. :- 1.

This petition questions order dated 15/12/2014 by which the learned Civil Judge has framed a preliminary issue of limitation. 2.

This petition was probably filed on the basis of the decision of the Hon'ble Apex Court in the case of Kamalakar Eknath Salunkhe Versus Baburav Vishnu Javalkar and Ors.1 which has taken a view that an issue of limitation cannot be framed as a preliminary issue under Section 9A of the CPC. The Hon'ble Supreme Court further, in its later Judgment in the case of Foreshore Cooperative Housing Society Limited Vs. Pravin D. Desai (Dead) Thr. 2015 (2) Mh.L.J.

URS

2 WP 4748-15.doc-PB-8 Lrs. and others2, has taken a view that the issue of limitation is a proper issue to be framed under Section 9A of the CPC. In fact, the Judgment in the case of Kamalakar Salunkhe (supra) has been held to be per incuriam.

3.

In view of the aforesaid, there is no reason to interfere with the impugned order. However, at the stage of framing of a preliminary issue, there was no justification in making observation or remark to the effect that the Plaintiff was aware of the execution of agreement dated 21/04/1998. Such observation, at this stage, is obviously premature.

4.

Accordingly, although the impugned order is not being interfered with, it is directed that the learned Civil Judge shall proceed to decide upon the preliminary issue so framed, without in any manner being influenced by the observations made in the impugned order dated 15/12/2014. The learned Civil Judge is directed to dispose of the preliminary issue expeditiously, an in any case within a period of three months from today, after affording both the parties opportunity of leading evidence, in case they so desire. 5.

With this observation, this petition is disposed of. (M. S. SONAK, J.) Civil Appeal No.7732 of 2011 - 2015 SCC OnLine SC 302 URS