Judgment:
Oral Judgment:
1. The respondents are the original plaintiffs who have filed Special Civil Suit No. 691 of 1993 sometime on or about 2nd September, 2013. The suit claims a declaration that the sale deed dated 13th December, 1978 said to have been executed by Mrs. Cecilea Azavedo Cordeiro in favour of the father of the defendants Shri Basantkumar Shukla as illegal, null and void. The suit also claims a declaration that the defendants have no right to remain in possession of the suit property and the decree for possession has been claimed. The plaintiffs have asked for a decree of permanent injunction restraining the defendants from trespassing, obstructing or dealing with the property in any manner in future.
2. Immediately upon the receipt of suit summon, the defendants filed an application Exh. 18 under Order VII, Rule 11 (a) and (d) of C.P.C for rejection of plaint on the ground that the plaint does not disclose the cause of action and that the suit is barred by law of limitation. This application has been rejected by the trial Court on 20th January, 2014. The Court has held that the question of limitation is a mixed question of law and fact and cannot, therefore, be decided under Order VII, Rule 11 (d) of C.P.C. The Court has perused paragraph No. 25 of the plaint and has observed that the plaint discloses the cause of action. The original defendants are, therefore, before this Court in this writ petition.
3. On 12th February, 2014, this Court had issued notice and granted ad-interim relief of stay of further proceedings of the suit. On 7th January, 2015, Rule was granted in the matter and the interim order was continued.
4. It is not in dispute that the trial Court has proceeded against the defendants with the order of "No W.S". Till this date the defendants have not filed their written statement, nor such order of "No W.S" has been challenged. Undisputedly, when the application at Exh. 18 under Order VII, Rule 11 (a) and (d) of C.P.C was filed, the application under Order XXXIX, Rule 1 and 2 was pending. Upon rejection of the application at Exh. 18, this Court has stayed the further proceedings of the civil suit, as a result the application under Order XXXIX, Rule 1 and 2 has also not been decided and it is pending.
5. Before filing of the written statement, the trial Court can dispose of the suit on the basis of preliminary objections relating to the jurisdiction of the court to entertain, try and decide the suit, either on the application under Order VII, Rule 11 (a) and (d) of C.P.C or on the application under Section 9A (Maharashtra Amendment) of C.P.C. The application under Section 9A of C.P.C can be entertained only during the pendency of the application under Order XXXIX, Rule 1 and 2 of C.P.C, whereas the application under order VII, Rule 11(a) and (d) of C.P.C can be entertained and decided by the trial Court at any stage of the proceedings. While deciding the application under Order VII, Rule 11 (a) and (d) of C.P.C, the Court is not required to frame any issue, as the averments made in the plaint are required to be treated as true and correct as per its face value. If the jurisdictional facts giving rise to an issue are disputed then the trial Court is at liberty to decide the said issue by framing a preliminary issue under Section 9A of C.P.C, which can be decided before the decision of the application under Order XXXIX, Rules 1 and 2 of C.P.C.
6. In view of the aforesaid position of law and the fact that the application at Exh. 18 raises a pure question of law in respect of entitlement of the plaintiff to get the relief and the jurisdiction of the Court to grant such relief claimed in the suit and also raises an issue as to bar of limitation, which is a mixed question of law and fact, to entertain, try and decide the application, such application can be treated as one under Section 9A of C.P.C irrespective of the fact that it is styled as one under Order VII, Rule 11 (a) and (d) of C.P.C for the reason that such objections can be considered under Section 9A of C.P.C also.
7. If the issues are answered in favour of the defendants, obviously the suit would not survive and if the issues are answered in favour of the plaintiff, naturally the Court would proceed to frame the issues on merits of the matter taking into consideration the fact that there is already an order of "no W.S." passed by the Court.
8. In view of above, the revision application is allowed. The order dated 20th January, 2014 passed below Exh. 18 in Special Civil Suit No. 691 of 2013 is hereby quashed and set aside. The application at Exh. 18 though styled as one under Order XXXIX, Rule 11(a) and (d) of C.P.C., shall be treated as an application under Section 9A of C.P.C. The Court shall frame preliminary issues on the basis of the pleadings of the parties and the same shall be decided, if required, by permitting the parties to lead oral evidence in the matter.
9. Shri Bhangde, the learned counsel appearing for the defendants makes a statement that the defendants are not intending either to create any third party interest in the suit property or to transfer the property in any manner pending the decision of the suit itself. In view of this, the statement shall be binding upon the defendants till the decision on the preliminary issue. After the said decision, the trial Court shall dispose of the application under Order XXXIX, Rule 1 and 2 of C.P.C. and shall accordingly proceed with the matter on merits. The parties to appear before the trial Court on 23rd November, 2015. No fresh notices shall be issued to the parties for their appearance. .
The trial Court shall decide the preliminary issue within a period of six months from the date of first appearance of the parties. No costs.