RASHMIKANT GIRDHARLAL DAVE Vs. PRAFULLABEN HARESHBHAI PANDYA

JUDGEMENT

(1.) PRESENT Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the petitioner hereinoriginal defendant no.1 to quash and set aside the impugned order dated 1.8.2009 passed by the learned Principal Senior Civil Judge, Amreli in Special Civil Suit No.47 of 2001 below Exh.57, by which, the learned trial Court has dismissed the said application submitted by the petitioner herein original defendant no.1 raising preliminary issue with respect to the limitation and holding that considering Section 14 of the Limitation Act, the suit is not barred by limitation.

(2.) RESPONDENT no.2 hereinoriginal plaintiff instituted Special Civil Suit No.47 of 2001 in the Court of learned Principal Senior Civil Judge, Amreli for specific performance of the agreement to sell dated 6.5.1995. According to defendant no.1 the suit was barred by law of limitation, the petitioner hereinoriginal defendant no.1 submitted the application Exh.57 requesting the learned trial Court to raise preliminary issue with respect to the limitation and as such the learned trial Court directed to treat the issue no.5 framed at Exh.23 as preliminary issue which reads as under:

(3.) SHRI Amrsih Pandya, learned advocate for the petitioner has vehemently submitted that as such the learned trial Court has materially erred in holding that the suit is not barred by limitation. It is submitted that learned trial Court has materially erred in granting benefit of Section 14 of the Limitation Act. It is submitted that the learned trial Court ought to have appreciated that the earlier suit being No. Special Civil Suit No.68 of 1995, which came to be disposed of on 13.2.2001 was only for declaration and permanent injunction and by which the plaintiff was not prevented from instituting suit for specific performance of the agreement to sell and therefore, the learned trial Court has materially erred in granting the benefit of Section 14 of the Limitation Act by excluding period of 28.6.1995 to 13.2.2001. It is submitted that if th said period is considered, in that case the suit is barred by limitation. Therefore, it is requested to allow the present Civil Revision Application.