HARJIBHAI CHHANABHAI RANK Vs. RAVJIBHAI KHIMABHAI SAVALIA

JUDGEMENT

(1.) The petitioner is the original plaintiff who has filed Special Civil Suit No. 129/87 against respondent-defendant in the Court of Civil Judge (SD), Amreli for specific performance of the suit agreement. The suit of the plaintiff was resisted by the defendant by filing written statement. In such written statement plea of limitation was specifically raised. However, the Trial Court did not raise any issue of limitation nor did the defendant insist for raising issue of limitation.

(2.) It appears that thereafter an application was given at Exh. 73 by the defendant during the course of arguments, meaning thereby after closure of evidence Application was given to the effect that the suit of the plaintiff was barred by limitation and that through oversight such issue was omitted to be raised. It is also stated that defendant has already raised the dispute of limitation in para 15 of the written statement. It was also stated that the plaintiff has in his evidence also deposed some thing and therefore about bar of limitation the plaintiff was aware. On such application an endorsement was made by the advocate for defendant to the effect that if such an issue is to be raised plaintiffs be permitted to lead evidence to establish as to how the suit was within time. The Civil Judge (SD) at Amreli by order dated 21.11.1995 raised the issue of limitation which was the duty of the Court to raise. However, he observed that if the defendant wanted to lead the evidence, he should be permitted to lead the evidence, but no permission was granted to the plaintiff to lead evidence to show as to how the suit was within time. Under Order 14 of CPC if parties are at variance on any issue of fact, and when the dispute is raised as regards any fact material to the decision of the suit, issue is required to be framed. In the present case despite contention raised in the written statement by the defendant issue of limitation was not raised and therefore the plaintiff was under no obligation to lead any evidence to prove that the suit was within time. The defendant should have been vigilant enough at the time of framing issues to bring to the notice of the Court the fact that the court has omitted to raise issue of limitation because a specific dispute was raised about the suit being barred by limitation. When the defendant is not vigilant enough and the Court also omitted to frame issue of limitation despite pleadings in that behalf and when the Court allows the application for raising additional issue of limitation at the fag end of trial after the arguments are practically over, in my opinion, to permit the defendant only to lead evidence as to prove how the suit was not within limitation and not to permit the plaintiff to establish as to how the suit was within prescribed period of limitation would amount to denying an opportunity to plaintiff to establish his case that the suit was within prescribed period of limitation. In the absence of any issue plaintiff was not required to lead any evidence because the defendant was not vigilant enough to pray the court for raising the issue of limitation which he has already raised, and it is submitted that the plaintiff can very well presume that the defendant has given up such contention because he has not sought any specific issue. In the present case unfortunately the Court permitted the defendant to lead evidence by its order, dated 29.11.1995 but did not permit the plaintiff to lead evidence as to how the suit was within time. It is undoubtedly true that by order, dated 19.12.1995 the plaintiff was permitted to produce documentary evidence to show that the suit was within time, but that would not cure the error committed by the learned Judge. The issue of limitation having been raised for the first time at the fag end of trial and when the same was dependent upon establishment of certain facts the Trial Court was not justified in not permitting the plaintiff to lead evidence on the question of limitation.

(3.) In the aforesaid circumstances, the judgment and order passed by the Civil Judge (SD), Amreli in Special Civil Suit No. 129/87 below Exh. 79 dated 19.2.1995 is required to be quashed and set aside and same is hereby quashed and set aside and the Trial Court being the Court of Jt. Civil Judge (SD) Amreli is directed to permit the plaintiff to lead evidence as well as to produce documentary evidence on the question of limitation only and permit the defendant thereafter to cross-examine the plaintiff or his witnesses to lead further evidence so as to prove that the suit of the plaintiff was not within limitation. This exercise may be undertaken by the Trial Court by 30.9.1997 and the court is directed to decide the suit finally on or before 31.10.1997. No time should be granted to any of the parties under any circumstances and no adjournment shall be granted and the Trial Court shall see that the directions issued hereinabove are complied with. In the result CRA succeeds. Rule is made absolute accordingly to the aforesaid extent. No costs.