KAUTIK RAGHO MARATHE Vs. JAVERCHAND SURTINGAJI

JUDGEMENT

(1.) Heard learned counsel Mr. Sangit, instructed by learned Senior Counsel Mr. V. J. Dixit, who appears for the appellant. None for the respondent. This second appeal is filed by the original defendant in Special civil Suit No. 51 of 1975. Parties hereinafter are referred to their status in Special civil Suit No. 51 of 1975, as plaintiff and defendant.

(2.) The plaintiff filed Special Civil Suit No. 51 of 1975 for recovery of the goods sold, against the defendant. An amount of Rs. 16,974. 31 Ps. was sought to be recovered, along with interest. Agreement Exhibit-36 is referred in the suit. The defendant, after entering appearance, filed written statement in the suit and resisted the claim. The trial Court framed as many as fifteen issues. Out of these fifteen issues, issue No. 11 is in respect of bar of limitation, plea set up by the defendant, in the written statement. The trial Court referred the oral evidence of plaintiff. Defendant, admittedly, did not enter the witness box, neither any witness is examined on behalf of the defendant. The agreement between the parties is filed by the plaintiff at Exhibit-36. Trial Court recorded a finding that the suit is not within limitation. The trial Court was of the opinion that the suit filed by the plaintiff is premature, and, therefore, rejected the suit under Order 7, rule 11 (a) of the Code of Civil Procedure (Code) and dismissed the suit by the judgment and decree dated 27th February, 1981.

(3.) It was plaintiff's Regular Civil Appeal (RCA) No. 341 of 1982 in the court of learned District Judge, at Dhule under section 96 of the Code. The appeal is allowed by the learned District Judge, Dhule by the judgment and decree passed on 19th October, 1985. The judgment and decree passed by the trial Court is set aside and the suit filed by the plaintiff for recovery of rs. 16,974. 31 Ps. is decreed with interest at the rate of 6% p. a. However, this interest is permitted on the amount of Rs. 11,309. 31 Ps. It is this judgment and decree, passed by the learned District Judge, Dhule, in RCA No. 341 of 1982, is the subject-matter of this second appeal.