SHOBHABAI Vs. KUNDLIK

JUDGEMENT

(1.) Rule was issued in this Civil Revision Application on 8.8.2013. Contesting parties are heard finally.

(2.) The present revision application has been filed by original defendant No.1 in Regular Civil Suit No. 1600/2012. The petitioner - defendant No.1 (hereinafter referred to as the defendant) filed application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC for short) for rejection of the plaint on the ground of limitation. The 16th Civil Judge, Junior Division, Aurangabad passed a brief order, which is impugned in this revision application, mentioning that it is settled principle that the plea of limitation is mixed question of law and fact and that the provisions of Section 5 of Limitation Act are not applicable to suit. The Civil Judge passed order that the aspect cannot be decided at preliminary stage without leading any evidence and rejected the application. Thus, the defendant has filed this revision application, pointing out that, if the plaint is read as a whole also, the suit is clearly time barred as time spent in pursuing revenue proceedings cannot be excluded.

(3.) I have heard learned counsel for both sides. Learned counsel for the defendant referred to the contents of plaint in details to show that as per the plaint itself, what was sought to be set aside was the sale deed dated 7.10.1984 and the suit was filed on 1.8.2012. According to the counsel, plaint itself mentions that the plaintiffs came to know about effecting mutation in favour of Pandharinath, the father of defendant Nos.2 and 3 in January 2008 and they pursued remedies on revenue side to get mutation entry set aside and have belatedly filed the civil suit and thus, the same is barred under the Limitation Act, 1963. Article 58 lays down limitation for such declaration of period of three years and the time starts running from the time when right to sue first accrues.