ARUN KUMAR BRAHMIN Vs. MAANWATI

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution of India takes exception to the order dated 20.11.2017 (Annx.P/1) whereby the application filed by the petitioners/ defendants under Order 14 rule 1 and 2 CPC is dismissed by the court below.

(2.) The admitted facts between the parties are that in the instant civil suit filed for declaration of title and nullifying the sale deeds, the petitioners/ defendants initially filed an application under Order 7 rule 11 CPC for dismissal of the suit on the ground of limitation. The court below by order dated 27.2.2015 rejected the said application and said order of court below, in absence of any further challenge, has attained finality. The petitioners/ defendants after completion of pleadings and framing of issues, filed an application dated 07.09.2017 (Annx.P/5) with a prayer to decide issue No.3 as a preliminary issue.

(3.) Shri Aditya Adhikari, learned Senior counsel contends that issue No.3 is relating to limitation and goes to the root of the matter. The court below should have decided the said issue as a preliminary issue. Reliance is placed on Pandurang Dhondi Chougule Vs. Maruti Hari Jadhav and others , 1966 AIR(SC) 153 to bolster the contention that plea of limitation or a plea of res judicata is a plea of law which is concerned with the jurisdiction of the court which tries the proceedings. The court below has erred in treating the said question as mixed question of fact and law. Learned Senior counsel further submits that the stage of order 7 Rule 11 is over and at appropriate stage application under Order 14 Rule 1 and 2 was filed. He placed heavy reliance on Order 14(2)(2) of the C.P.C. and urged that the court below was under a legal obligation to decide the issue No.3 as a preliminary issue. The court below has erred in not deciding the said issue as a preliminary issue.