JAGSHI K SHAH Vs. SHAAN BUILDERS PVT LTD

JUDGEMENT

(1.) What is challenged in these appeals is the order dated 28 February 2012 of the learned trial Judge of this Court, raising the following preliminary issue under Section 9A of the Code of Civil Procedure, 1908 as applicable in the State of Maharashtra:-

(2.) The learned counsel for the appellants-plaintiffs submits that the question of limitation cannot be raised as a preliminary issue and that under Section 9A of C.P.C., only an issue as to jurisdiction of the Court can be raised as a preliminary issue. It is further submitted that the question of limitation may be raised as a preliminary issue only under Order 14 Rule 2 of C.P.C., but that can be done only after the defendants file written statement and not at the stage of Section 9A of C.P.C. In support of the above contention the learned counsel for the appellants-plaintiffs has relied upon the decisions of the Supreme Court in Gunwantbhai Mulchand Shah & Ors. vs. Anton Elis Farel & Ors., 2006 3 SCC 634and Ramesh B. Desai & Ors. vs. Bipin Vadilal Mehta & Ors., 2006 5 SCC 638.

(3.) On the other hand the learned counsel for the respondent Nos. 2 and 3 (original defendant Nos. 2 and 3 in the suit) has opposed the appeals and submitted that the appeals are not maintainable as the learned trial Judge has not decided any controversy between the parties, but has merely raised the issue of limitation as a preliminary issue under Section 9A of C.P.C. On merits it is submitted that in the case of Foreshore Co-operative Housing Society Limited vs. Praveen D. Desai & Ors., 2009 1 BCR 757, a Division Bench of this Court has already examined this controversy at length and has held that if the suit is barred by limitation the Court has no jurisdiction to entertain it and the Court is duty bound to dismiss the same and that if the suit is barred by limitation the Court is precluded from proceeding with the contentions and bound to dismiss the suit. For reaching the above conclusion, the Division Bench of this Court relied on the decision of the Supreme Court in Pandurang vs. Maruti, 1966 AIR(SC) 153of the Constitution Bench of the Supreme Court wherein the Supreme Court had held as under:-