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Judgment
A.P. Lavande, J.—Heard Mr. P. Rao, learned Advocate for the appellant and Mr. M. B. D''Costa, learned Senior Advocate for the respondent nos. 1 and 2.
With the consent of the learned Counsel for the parties the appeal is taken "up for final disposal.
By this appeal, the appellant takes exception to the order dated 24.2.2011 passed by the Civil Judge, Senior Division, Margao in Special Civil Suit No. 31/2008/A by which application for temporary injunction filed by respondent nos. 1 and 2 has been allowed.
Respondent nos. 1 and 2 herein filed the above suit against the defendants seeking reliefs of declaration, permanent injunction and in the alternative recovery of possession. The plaintiffs claim that they are the owner in possession of the suit property.
It was case of defendant nos. 1 to 3 that they had title to the suit property and they had sold the suit property to defendant no. 6 by sale deed dated 21.10.2006.
According to the plaintiffs in a final chart of partition in the inventory proceedings held in the year 1973 of the suit property was wrongly shown to have been allotted to husband of respondent no.1, contrary to the earlier orders passed by inventory Court.
The suit was contested by the defendants nos. 1 to 3 as well as defendant no. 6. Defendant nos. 4 and 5 supported the plaintiffs. It is the case of the contesting defendants that in the inventory proceedings initiated in the year 1973 a final chart of partition was drawn on 14.4.1974 and a copy of the same was served on all the interested parties including the plaintiff no.1, who had by that time attained majority. In the written statement and the reply filed by the said defendants, specific plea has been taken that the suit filed by the plaintiffs in the year 2008 was barred by limitation and as such the Court has no jurisdiction to grant any interim relief.
Learned Trial Judge recorded all the findings on merits against the contesting defendants and has granted the injunction restraining them from alienating and creating any third party rights or disposing of or dealing in any manner with the suit property or changing the nature of the suit property or putting up any construction.
While dealing with the issue of limitation, the learned trial Judge in paragraph 33 of the impugned order has relied upon the Judgment of the Apex Court in the case of Balasaria Construction(P) Ltd Vs. Hanuman Seva Trust and ors.[(2006) 5 SCC 658.] and further in paragraph 37 has held that at the stage of deciding temporary injunction, the Court cannot hold a mini trial and decide the issue of limitation.
I have heard the learned Counsel for the parties at length.
Having considered the submissions made by the learned Counsel for the parties and having perused the record, I am of the considered opinion that the impugned order is liable to be set aside on short ground.
The contesting defendants had taken a specific plea that the suit filed by the plaintiffs was barred by limitation and therefore, the Court has no jurisdiction to entertain the suit and obviously granting any interim relief in the suit was not maintainable. In the written statement filed by respondent nos. 1 to 3 in paragraph 5(e), the defendants have categorically stated that the map of partition dated 25.2.1976 in the inventory proceeding was notified to plaintiff no.1, defendant no.4 and husband of defendant no.1 which was received by all of them on 17.4.1976. Moreover, defendant no. 6 in paragraphs no.1 and 2 has categorically averred that the suit filed in the year 2008 is barred by limitation and as such, needs to be dismissed in limine. In view of the said pleadings, it was necessary for the trial Court to come to a prima facie finding that the suit filed was within limitation. Section 3 of the Limitation Act mandates the Court to find out whether a suit or other proceeding initiated is within the period of limitation prescribed in the schedule, although such a defence is even not taken by the defendants/opposite parties.
Having regard to the pleadings of the parties, in my considered opinion, the view taken by learned trial Judge that he was not bound to decide the issue of limitation, is patently unsustainable in law. In my considered opinion, considering the factual background in the light of the pleadings of the parties, it was for the trial Court to come to a prima facie finding that the suit filed was within limitation in as much as if the suit is held to be not within limitation the Court would not have any jurisdiction to deal with the application for temporary injunction.
In my considered opinion, having regard to the factual background in the present case deciding the issue of limitation, would not amount to holding of a mini trial at the stage of temporary injunction, as has been observed by learned trial Court. Therefore in my considered opinion, this is a fit case in which impugned order deserves to be set aside on this ground alone.
Since I am inclined to set aside the order on the above mentioned ground, I do not deem it appropriate to express any opinion on the other contentions of the parties on merits.
In the result therefore, impugned order dated 24.2.2011 passed by Civil Judge Senior Division, Margao in Special Civil Suit No. 31/2008/A is quashed and set aside. The learned Trial Judge to decide the application for temporary injunction filed by the plaintiffs afresh in the light of the observations made above.
Since the impugned order has been in operation for a period of more than a year, the defendants shall maintain the status quo and the interim relief granted by trial Court against the defendants insofar as alienation of the suit property and changing nature of the suit property is concerned, shall operate till the disposal of the application for interim relief.
Considering that the suit was filed in the year 2008 and the impugned order was passed in the year 2011, learned trial Judge to decide the application for temporary injunction expeditiously and in any case on or before 21.8.2012.
Parties to appear before learned trial Judge on 10.7.2012 at 10.00 a.m. Appeal stands disposed of.