DILIP MAHASUKHLAL SHAH Vs. CHANDRAKANT KANTILAL SHAH

JUDGEMENT

(1.) This appeal filed under Sec. 96 of the Code of Civil Procedure, 1908 (for short, the Code) raises a challenge to the dismissal of Special Civil Suit No.78 of 2011 in view of the affirmative finding on the preliminary issue framed under Sec. 9A of the Code that the suit as filed was barred by the law of limitation.

(2.) The facts relevant for considering the challenge as raised is that the Appellants-original Plaintiffs filed Special Civil Suit No.78 of 2011 for a declaration that the suit properties as described in paragraph 4 of the plaint were the joint properties of the plaintiffs and Respondent Nos.1 to 26- Defendant Nos.1 to 26 and that Defendant Nos.1 to 10, 27 and 28A to 28C had no right to deal with the suit properties in exclusion of the plaintiffs. The plaintiffs prayed that a decree for partition of the suit properties by metes and bounds be also passed. Various other ancillary reliefs were also sought. In the written statement as filed, the claim as made by the plaintiffs was denied. A further plea that the suit was barred by limitation was also raised. The trial Court framed a preliminary issue under Sec. 9A of the Code so as to examine whether the suit was barred by the law of limitation. The parties led evidence and were then heard on the said preliminary issue. The trial Court by its order dtd. 10/12/2013 answered the preliminary issue in the affirmative and held that the suit was barred by limitation. In view of this answer to the preliminary issue, the suit was dismissed on 10/12/2013. It is against this decree that the present first appeal has been filed.

(3.) Mr. Rubin Vakil, learned counsel appearing for Plaintiffs referred to the judgment of the Supreme Court in Nusli Neville Wadia Vs. Ivory Properties and Ors. (2020) 6 SCC 557 to urge that the question as regards bar of limitation was a mixed question of fact and law. The same could not be tried as a preliminary issue and hence such adjudication undertaken by the trial Court under Sec. 9A of the Code was not sustainable. It was submitted that the issue of limitation was liable to be tried alongwith all other issues framed under provisions of Order XIV Rule 2 of the Code and the suit ought to be decided on merits. Since the same was not done by the trial Court, it was submitted that after setting aside the order passed below Exhibit 81 the proceedings be remanded to the trial Court for being decided afresh on merits. The evidence led by the parties on the question of limitation could be taken into consideration alongwith all other evidence. It was thus submitted that the decree passed by the trial Court be set aside and the proceedings be remanded for fresh adjudication.