1.0 Present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the petitioner hereinoriginal defendant no.1 to quash and set aside the impugned order dated 1.8.2009 passed by the learned Principal Senior Civil Judge, Amreli in Special Civil Suit No.47 of 2001 below Exh.57, by which, the learned trial Court has dismissed the said application submitted by the petitioner herein original defendant no.1 raising preliminary issue with respect to the limitation and holding that considering Section 14 of the Limitation Act, the suit is not barred by limitation.
2.0 Respondent no.2 hereinoriginal plaintiff instituted Special Civil Suit No.47 of 2001 in the Court of learned Principal Senior Civil Judge, Amreli for specific performance of the agreement to sell dated 6.5.1995. According to defendant no.1 the suit was barred by law of limitation, the petitioner hereinoriginal defendant no.1 submitted the application Exh.57 requesting the learned trial Court to raise preliminary issue with respect to the limitation and as such the learned trial Court directed to treat the issue no.5 framed at Exh.23 as preliminary issue which reads as under:
“5.Whether the plaintiffs suit is barred by law of limitation?”
2.1. The said application was resisted by the plaintiffs by submitting that as earlier the plaintiff instituted Special Civil Suit No.68 of 1995 for declaration and permanent injunction and the same came to be disposed of on 13.2.2001 and immediately thereafter the present suit has been filed and therefore, it was requested to grant benefit of Section 14 of the Limitation Act. Accepting the same, learned Principal Senior Civil Judge, Amreli by impugned order dated 1.8.2009 has held issue no.5 in negative and has held that the plaintiff suit is not barred by law of limitation.
Being aggrieved and dissatisfied with the impugned order passed by the learned Principal Senior Civil Judge, Amreli dated 1.8.2009 passed below Exh.57 in Special Civil Suit No.47 of 2001, the petitioner hereinoriginal defendant no.1 has preferred present Civil Revision Application under Section 115 of the Code of Civil Procedure.
3.0 Though, served nobody appears on behalf of respondent no.1 herein plaintiff.
4.0 Shri Amrsih Pandya, learned advocate for the petitioner has vehemently submitted that as such the learned trial Court has materially erred in holding that the suit is not barred by limitation. It is submitted that learned trial Court has materially erred in granting benefit of Section 14 of the Limitation Act. It is submitted that the learned trial Court ought to have appreciated that the earlier suit being No. Special Civil Suit No.68 of 1995, which came to be disposed of on 13.2.2001 was only for declaration and permanent injunction and by which the plaintiff was not prevented from instituting suit for specific performance of the agreement to sell and therefore, the learned trial Court has materially erred in granting the benefit of Section 14 of the Limitation Act by excluding period of 28.6.1995 to 13.2.2001. It is submitted that if the said period is considered, in that case the suit is barred by limitation. Therefore, it is requested to allow the present Civil Revision Application.
5.0 As stated above, though served nobody appears on behalf of the respondent no.1original plaintiff.
6.0 Heard Shri Amrish Pandya, learned advocate for the petitioneroriginal defendant no.1 and Shri Pranav Desai, learned advocate for respondent no.2 herein defendant no.2 and considered the impugned order passed by the learned trial Court, by which, the learned trial Court was held issue no.5 in negative and has held that the plaintiff suit is not barred by law of limitation. It is required to be noted that the suit in question has been instituted by the plaintiff on 11.5.2001. The learned trial Court has held that the suit is not barred by limitation solely on considering Section 14 of the Limitation Act and by excluding the period between 28.6.1995 to 13.2.2001, under which the plaintiff was prosecuting Special Civil Suit No.68 of 1995. However, it is required to be noted that the Special Civil Suit No.68 of 1995 was only a suit for declaration and permanent injunction filed by the original plaintiff restraining the defendants from transferring and / or alienating the suit property to any other person and therefore, it cannot be said that by filing the aforesaid suit and / or during the aforesaid period, the plaintiff was prevented from instituting the suit for specific performance of the agreement to sell. Under the circumstance, the learned trial Court has materially erred in excluding the period of 28.6.1995 to 13.2.2001 and has consequently materially erred in granting benefit of Section 14 of the Limitation Act and consequently has materially erred in holding that the suit is not barred by law of limitation. Under the circumstances, the impugned order passed by the learned trial Court deserve to be quashed and set aside.
7.0 In view of the above and for the reasons stated above, Civil Revision Application succeeds. The impugned order dated 1.8.2009 passed by the learned Principal Senior Civil Judge, Amreli in Special Civil Suit No.47 of 2001 below Exh.57 is hereby quashed and set aside and it is held that the plaintiff suit is barred by law of limitation. The learned trial Court to pass consequential order of dismissing the suit at the earliest. Rule is made absolute to the aforesaid extent. Direct service is permitted.
“kaushik”
sd/ ( M. R. Shah, J. )