SHANTISHUKLA Vs. SHANTI BAI

JUDGEMENT

(1.) THE petitioner has challenged the order dated 24 -11 -2004 passed by Second Additional District Judge, Sagar in Civil Original Suit No. 11 -A/2003, by which the Court has directed that the issues Nos. 8 and 9 in respect of non -joinder of necessary party and of limitation be decided after recording of the evidence. The trial Court recorded that both the issues relate to counter claim filed by the defendants and the defendants want to adduce evidence on both the issues. As the defendants want to adduce evidence on the issues, these issues cannot be decided as preliminary issues and directed as above.

(2.) LEARNED Counsel appearing for petitioner challenged the aforesaid order that in view of the admitted facts in respect of question of limitation it was not necessary for the trial Court to defer the decision on the preliminary issue No. 9. The issue of limitation can be decided only on the pleadings of the parties. The counter -claim filed by the defendants in respect of declaration of sale deed dated 28 -3 -2000 was itself barred by limitation as the said counter -claim was filed on 1 -8 -2003, which was beyond the limitation of three years and it was not necessary for the trial Court to defer the matter for recording evidence. It is submitted that the order passed by the trial Court in respect of issue No. 9 be set aside and the matter be remitted back to the trial Court to decide the issue No. 9 after hearing the parties.

(3.) TO the aforesaid contention Learned Counsel for petitioner submitted that in the counter -claim the defendants have not pleaded the fact that the defendants became aware in respect of the sale deed after filing of the suit. From the perusal of para 13 of the counter -claim it is apparent that the defendants were in the knowledge of the sale deed since the date of execution of sale deed. Apart from this the sale deed was executed by Janakrani in favour of plaintiff, which was in the knowledge of defendants.