RAMVILAS Vs. SHANTABAI

JUDGEMENT

(1.) This appeal is directed against the order and decree dated 22.2.2008 passed in Civil Suit No.12A of 2007 by which the suit filed by the appellant has been dismissed holding it to be barred by limitation.

(2.) It is contended that when a specific plea was raised with respect to the cause of action, on the basis of which the suit was filed, and when a contrary statement was made in the written statement by the respondents/defendants, it was necessary for the trial court to record the evidence in respect of filing of the suit and a finding should have been given only after recording the evidence of the parties. Such an issue should not have been tried as a preliminary issue only on the basis of affidavit and the pleadings of the parties. It is contended that in view of the law well settled, the order and decree passed by the court below is bad in law.

(3.) Learned counsel for the respondents vehemently contended that such a finding could have been recorded by the trial court on the basis of pleadings of the parties. Since the appellant himself has admitted in the pleadings that in the agreement the last date fixed for execution of the sale deed was 15.5.2000, the limitation would start from the said date and accordingly the suit filed by the appellant was barred by limitation. If such a finding is recorded by the court below, no irregularity is committed by it in dismissing the suit of the plaintiff/appellant on the ground of limitation.