- (1.)RESPONDENTS in the present civil revision petition filed C. M. P. No. 4482 of 2008 praying for vacation of interim stay granted in C. R. P. No. 2816 of 2008 dated 11. 7. 2008. This Court on 11. 7. 2008 ordered notice before admission and granted interim suspension and on 01. 8. 2008 this Court admitted the civil revision petition and directed to list the matter after three weeks for filing proof of service. Though the matter is appearing under the caption of "interlocutory", at the request of the counsel on record Sri K. K. Waghray, representing the revision petitioners and Sri Pratap Narayan Sanghi, the counsel representing respondents-vacate stay petitioners, the civil revision petition itself is finally heard.
(2.)SRI K. K. Waghray, learned counsel representing the revision petitioners had taken this Court through the contents of the plaint and would maintain that if the dates pleaded in the plaint to be taken into consideration, the suit is clearly barred by limitation. The learned counsel also would maintain that when the cancellation of the exchange deed had been prayed for beyond a period of three years, the same being clearly barred by limitation, no further evidence need be let in in this regard and, hence, inasmuch as no factual controversy as such is involved and it being a pure question of law, the plaint is liable to be rejected. While further elaborating his submissions the learned counsel also pointed out that at any stage such application can be moved under Order VII Rule 11 of the Code of Civil Procedure. Further, the learned counsel also pointed out to the relevant portions of the plaint and would maintain that this cannot be got over by just cleverly drafting the plaint. The counsel pointed out that these averments relating to either fraud or misrepresentation, this stray sentence as can be seen from the plaint cannot save the plaintiffs from the rigor of operation of Law of Limitation and if the Court is satisfied that these pleas had been taken only with a view to get over the limitation, this Court can definitely go into the said question and reject the plaint at the threshold in stead of permitting the parties to contest the suit. The learned counsel placed strong reliance on several decisions to substantiate his submissions.
(3.)PER contra, Sri Pratap Narayan Sanghi, the learned counsel representing respondents-vacate stay petitioners raised a preliminary objection on the ground that the self same parties represented by Rajkumar Malpani filed an application i. A. No. 1927 of 2007 in O. S. No. 1705 of 2004 before the court below under Order vii Rule 11 of the Code of Civil Procedure and the said application was dismissed on 14. 02. 2008 and the said matter was not carried by way of revision and the said order had attained finality. The learned counsel would maintain that it is not as though this ground of limitation was not available when the said application was moved, but however, on the ground of cause of action the said application was filed and ultimately an order in detail had been made recording reasons by the learned V Senior Civil Judge, City Civil Court, hyderabad. While further elaborating his submissions, the learned counsel also would maintain that the suit is a part heard one and at the advanced stage this application had been thought of only with a view to delay the disposal of the suit. While further elaborating his submissions the learned counsel pointed out to the relevant portions of the plaint and would maintain that while reckoning the period of limitation when a plea of fraud and plea of misrepresentation were pleaded, the date of knowledge may have to be taken into consideration and this question definitely can be decided only after the parties adduce evidence. In fact, in the evidence which had been recorded already, several facts had been elicited in relation thereto and, hence, it is not a case where the plea of limitation as a pure question of law can be decided at this stage, this being a mixed question of fact and law as well, in the facts and circumstances of the case. The counsel also pointed out to several other litigations and also the proceedings and placed strong reliance on several decisions to substantiate his submissions.