CHEEPULLA SEETHARAM Vs. TAPAN KUMAR CHOWDHURY

JUDGEMENT

(1.) The order dtd. 1/2/2019 in I.A.No.272 of 2017 in O.S.No.448 of 2013 of learned II Additional District Judge, Visakhapatnam is challenged in this revision filed under Article 227 of the Constitution of India.

(2.) The petitioner herein is the defendant in the suit. The Respondent herein is the plaintiff in the suit. The controversy is with reference to a decision about a preliminary issue. The property in dispute as described in the plaint schedule is 130 square yards of site in which there is a structure with a ground floor and first floor and all that situated in Door No.30-10-3 in Pidaparthivari Veedhi, Dabagardens, Visakhapatnam. The plaint seeks for an adjudication of a sale deed dtd. 10/3/2010 in document No.1330/2010 as voidable and void and to cancel the same and for costs and such other reliefs. The said sale deed was executed by plaintiff and others in favour of the defendant. However, it was sought to be cancelled by alleging various facts which include fraud and misrepresentation attributed to the defendant. The case set out in the plaint indicates that the plaintiff and his sister intended to sell ground floor and defendant agreed to purchase ground floor but finally the documents that were got prepared by the defendant were not permitted to be scrutinized by the plaintiff and there fraud and misrepresentation were committed and while the plaintiff was thinking that it was a sale only for ground floor, the documents were obtained for the ground floor as well as first floor. It is with these and some other allegations the suit was laid. The defendant filed a very elaborate written statement and questioned the truthfulness of the case set out in the case and various questions were raised stating that there was no cause of action and the suit was bad for non-joinder of necessary parties and the suit was bad in law. It seems that after hearing both sides, the learned trial Court settled the issues for trial. 6th issue therein is "whether the suit is barred by limitation?" The trial Court was to take up the trial on all issues but it was at that time the defendant in the suit moved an application under Order XIV Rule 2(1) and 2(a) C.P.C. The prayer in that petition is extracted here:

(3.) A brief affidavit was filed in support of the said petition stating that it is essential in the interest of justice to try that issue as a preliminary issue. A very brief counter was filed by the plaintiff stating that Order XIV Rule 2 C.P.C. cannot be pressed into service and there are no merits in this petition and such a petition is not maintainable on facts and law in the context of the relief prayed in the suit and sought for dismissal of the petition.