FEDROLINE ANTHONEY JOSEPH Vs. VINOD VISHANJI DHAROD

JUDGEMENT

(1.) A suit for specific performance of an agreement dated 30th August, 1980 has been filed by the first respondent to which the applicant herein is the first defendant. The suit was instituted in the Court of the learned Civil Judge, Senior Division, Thane on 16th January, 1998 and is pending. In the suit, the applicant has filed a written statement.

(2.) A preliminary objection was sought to be urged on behalf of the applicant to the maintainability of the suit, on the ground that it was barred by limitation and the trial Court was requested to frame a preliminary issue on the question of limitation. A perusal of the application filed before the trial Court would show that a fairly detailed analysis of facts was sought to be presented in the application on the basis of which it was urged that the suit was barred by limitation. In reply thereto, the first respondent contended that the application was filed merely to delay the trial of the suit and that the application which was presumably under Order 14, Rule 2 (2) of the Code of Civil Procedure, 1908, was misconceived. The first respondent submitted that the determination of the question of limitation in this case involves an enquiry into matters of fact which were in dispute, upon which evidence would have to be adduced at the trial of the suit.

(3.) BY the order dated 27th August, 2001, the trial Court is of the view that the suit is ripe for the framing of issues and that the objection of the applicant to the effect that the suit is barred by limitation, will be determined on the basis of the evidence adduced at the trial. The learned trial Judge, therefore, held that there was no necessity to frame a preliminary issue and accordingly, dismissed the application at Exhibit 45. The applicant seeks to impugn the order of the learned trial Judge.