HANMANT LAXMAN JAGDALEversusVITTHAL YEDU INGAWALE AND ORS

                                                        24-IA-12340-2024

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIRCUIT BENCH AT KOLHAPUR
                    CIVIL APPELLATE JURISDICTION


       CIVIL REVISION APPLICATION ST NO. 16357 OF 2024
                            WITH
            INTERIM APPLICATION NO. 12340 OF 2024
                            WITH
             INTERIM APPLICATION NO. 3699 OF 2025
Hanmant Laxman Jagdale                                 ...Applicant
    Versus
Vitthal Yedu Ingawale
And Ors                                                       ...Respondents

                               ——————
Mr. Avinash B. Patil, (Through VC), Advocate for the applicant.
Mr. Chintan Yogesh Shah, (Through VC), Advocate for respondent nos.
1A to 1E.
                               ——————

                                  Coram :    MEHROZ K. PATHAN, J.

                                  Date   :   July 02, 2026.

P. C. :

1.        The applicant has approached this Court challenging the order

dated 13th October 2023 passed by the learned Trial Court, whereby the

application preferred by the defendants under Order VII Rule 11 of the

Code of Civil Procedure seeking rejection of the plaint came to be

rejected.

2.        Mr. Patil, learned counsel for the applicant, submits that the




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learned Trial Court has committed a grave error in rejecting the

application under Order VII Rule 11 of the Code of Civil Procedure. He

submits that the learned Trial Court misconstrued the application as

raising only an objection with regard to limitation, whereas the applicant

had also specifically raised an objection regarding the maintainability of

the suit on the ground of res judicata. He submits that the learned Trial

Court failed to consider the said objection while deciding the application.

3.    Mr. Patil, learned counsel for the applicant, further submits that the

application filed under Order VII Rule 11 of the Code of Civil Procedure

specifically raised objections both on the ground of res judicata as well as

limitation. However, the learned Trial Court rejected the application by

considering only the issue of limitation without adverting to the objection

regarding res judicata. He further submits that, since a Second Appeal

arising out of the same cause of action was pending before this Court, the

plaintiff could not have instituted a fresh civil suit in respect of the same

subject matter. He, therefore, submits that the impugned order deserves

to be quashed and set aside and, consequently, the plaint is liable to be

rejected.

4.    On the other hand, Mr. Shah, learned counsel holding for the

respondents, supports the impugned order dated 13th October 2023. He

submits that the application filed by the defendants under Order VII Rule


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11 of the Code of Civil Procedure does not specifically raise any objection

regarding the maintainability of the suit on the ground of res judicata. He

further submits that the suit was instituted after obtaining liberty from

this Court during the pendency of Second Appeal No. 591 of 2011. By

order dated 23rd December 2013, this Court permitted the appellant,

namely, Hirabai Ingvale, to withdraw the Second Appeal and kept the

issue of possession open. He further submits that while passing the said

order, this Court took note of the fact that Regular Civil Suit No. 140 of

2012 had already been instituted and, accordingly, permitted withdrawal

of the Second Appeal. Thus, the institution of the said suit was very much

within the knowledge of this Court while deciding the Second Appeal.

He, therefore, submits that the suit filed by Vitthal, the husband of

Hirabai, was maintainable. Insofar as the issue of limitation is concerned,

he submits that the learned Trial Court has rightly held that the question

of limitation is a mixed question of law and fact and, therefore, the same

can appropriately be decided at the time of adjudication of the suit. He,

therefore, prays for dismissal of the present Civil Revision Application.

5.    I have gone through the impugned order dated 13th October 2023

passed by the learned Trial Court below Exhibit 96. I have also perused

the order dated 23rd December 2013 passed by this Court in Second

Appeal No. 591 of 2011, as well as the interim order dated 18th October


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2011.

6.      A perusal of the application filed by the applicant under Order VII

Rule 11 of the Code of Civil Procedure would show that, although

reference has been made to the earlier proceedings, namely, the filing of

the civil suit, the First Appeal and the subsequent withdrawal of the

Second Appeal, the principal objection raised therein is with regard to

limitation. The prayer clause in the said application itself makes the

position abundantly clear. Prayer clause (b) reads thus:

           ब) सदरील दाव्याला मुदतीच्या कायद्याची बाधा दावा दाखल तारखेपूर्वीच होती
           त्यामुळे सदरील दावा हा दिवाणी प्रक्रिया संहिता आदेश ७ नियम ११ (ड) प्रमाणे
           या दाव्याला मुदतीच्या कायद्याची बाधा निर्माण झाली आहे,. म्हणून सदरील
           वादपत्र मे. न्यायालयाने त्वरित काढू न टाकावे. ही विनंती.

7.      Thus, the learned Trial Court has considered the objections raised

by the applicant and has recorded findings thereon. The learned Trial

Court found that the objection raised in the application under Order VII

Rule 11 of the Code of Civil Procedure was essentially confined to the

issue of limitation. It further held that the question of limitation is a

mixed question of law and fact and, therefore, the same can

appropriately be decided at the time of adjudication of the suit. The

learned Trial Court has placed reliance upon the judgment of this Court

in Condolim Developers Pvt. Ltd. & Anr. v. Pravin Grover & Ors., reported

in 2016 SCC OnLine Bom 12718, wherein it has been held that, while

deciding an application under Order VII Rule 11 of the Code of Civil


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Procedure, the Court is required to consider only the averments made in

the plaint and not the defence raised by the defendants in the written

statement.

8.       The learned Trial Court has also considered various judgments and

has come to the conclusion that the issue of limitation, being a mixed

question of law and fact, is required to be decided at the time of

adjudication of the suit. In my opinion, the learned Trial Court has rightly

rejected the application under Order VII Rule 11 of the Code of Civil

Procedure, while keeping the issue of limitation open to be decided at the

trial.

9.       Insofar as the contention regarding res judicata is concerned,

though the same has not been specifically raised in the application under

Order VII Rule 11 of the Code of Civil Procedure, it is pertinent to note

that, by order dated 23rd December 2013 passed in Second Appeal No.

591 of 2011, this Court had taken note of the institution of the

subsequent civil suit and permitted withdrawal of the Second Appeal

while keeping the issue of possession expressly open. The rights and

contentions of the parties were left open to be agitated in the said civil

suit, which had already been instituted during the pendency of the

Second Appeal.

10.      In view of the aforesaid discussion, I do not find that the learned


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Trial Court has committed any error in rejecting the application filed

under Order VII Rule 11 of the Code of Civil Procedure. The present Civil

Revision Application is devoid of merits and is accordingly rejected.

11.      Considering that Regular Civil Suit No. 140 of 2012 has been

pending for a considerable period, the learned Trial Court shall make an

endeavour to dispose of the said suit as expeditiously as possible and, in

any event, within a period of one year from the date of receipt of this

order.

12.      In view of the disposal of the present Civil Revision Application, all

pending Interim Applications, if any, stand disposed of.


                                                    [MEHROZ K. PATHAN, J.]




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