PRAKASH Vs. VARSHA SHARAD PARWEKAR

JUDGEMENT

(1.) Rule returnable forthwith. Heard finally with the consent of learned Counsel for the respective parties.

(2.) It is the case of the revision applicants (original defendants) in pending Special Civil Suit No.563 of 2012 on the file of Civil Judge (Sr. Dn.), Nagpur that an application was moved under Order 7, Rule 11 of the Code of Civil Procedure for rejection of plaint or in the alternative, to frame preliminary issue as to maintainability of the suit on the ground of bar of limitation. Detailed application was made with a prayer to reject the plaint for not disclosing cause of action or as barred by limitation and also on the ground that the plaint was deliberately not valued for the suit claim so as to pay Court fees. The trial Court was requested to frame preliminary issue as to maintainability of suit as also as to the bar of limitation; thus jurisdiction of the Court to entertain the suit itself was questioned. It is further grievance of the revision applicants that without hearing the applicants in support of the application for rejection of plaint for framing preliminary issue as to maintainability of the suit, the learned trial Judge went on to pass an order without hearing the Counsel for the defendants. When the order was passed, it is contended that even the plaintiffs were absent. Without going into merits of these submissions, prima facie when such an application is moved as to maintainability of the suit itself on the questions in relation to jurisdiction of the Court to entertain the suit, it was obligatory for the learned trial Judge to frame preliminary issue as to whether the suit is maintainable, particularly when the question of bar of limitation is raised, it is a mixed question of facts and law to be decided and the parties may be called upon to adduce evidence as they may choose if such preliminary issue is raised and framed by the learned trial Judge. However, if it is preliminary stage of rejection of plaint, it is for the learned trial Judge to peruse averments in the plaint even without requiring any assistance from the defendant to take decision as to whether the plaint is liable to be rejected under Order 7, Rule 11 of the Code of Civil Procedure, by considering the various grounds stated in the clauses under Order 7, Rule 11 of the Code of Civil Procedure.

(3.) In the present case, it appears that composite application for rejection of plaint or in the alternative, to frame preliminary issue as to maintainability of the suit was made and the learned trial Judge, therefore, if the plaint is not rejected, the trial Judge could have framed preliminary issue as to maintainability of the suit and ought to have called upon the parties to adduce evidence, if any, to decide such issue as to maintainability of the suit. U/s.9A of the Code of Civil Procedure, when such an issue is raised as to the jurisdiction of the Court to entertain and try the suit by either of the parties, it is obligatory for the trial Judge to hear such application raising objections as to jurisdiction of the Court to entertain the suit. The Court shall frame such issue as to maintainability of the suit or as to jurisdiction of the Court to entertain and try the suit and shall hear and dispose of such preliminary issue as expeditiously as possible in view of Section 9A of the Code of Civil Procedure as applicable to the State of Maharashtra.