JUDGMENT:- Rule made returnable forthwith. Heard finally by consent.

2. The order passed by Joint Civil Judge [Senior Division], Nagpur, dated 17th April, 2004 in Special Civil Suit No.602 of 1991 is subject matter of challenge in this Revision Application.

3. Trial Court framed two issues to be tried as Preliminary Issues. The circumstances, which have led to framing of these two issues, are narrated in Para 1 of the order, which can be summarized as follows ;-

[a] The Defendants moved an application under Order VII, Rule 11, read with Rule 9A, Civil Procedure Code.

[b] Nature of objection was that:

[i] upon reading of the contents of the plaint, no cause of action can be made out.

[ii] on reading of the plaint, the suit is barred by limitation.

4. In view of the fact that the preliminary issues were being decided, the Written Statement has not been filed.

5. Issues as to cause of action and limitation were decided in favour of plaintiff. Learned Advocate is taking exception to this order.

6. Heard learned Advocate Mr. R. P. Joshi for the petitioners at length.

The summary of submissions of learned Advocate Mr. Joshi is as follows ;-

[a] According to Mr. Joshi, on reading of the plaint, it is seen that plaintiff has sold the goods and issued various invoices and, therefore, the suit is for recovery of price of goods and, therefore, the goods were covered by Article 14 of the Limitation Act. The limitation will start from the date of each invoice.

[b] Plaint does not disclose all details of invoices. The suit, therefore, is without cause of action.

[c] Since the suit falls in Article 14 of the Limitation Act and particulars of invoices are not given, the limitation is liable to be reckoned from what is shown in the plaint. Plaintiff has claimed arrears from 1985. The claim, therefore, is, on showing by the plaintiff, barred by limitation.

[d] Barely showing some arrears of the year 1988 does not bring the plaintiff's suit within limitation.

[e] The plaintiff was granted ample opportunities to lead evidence before the Trial Court to show as to how the suit is within limitation. However, the plaintiff failed to lead evidence. Ultimately, Trial Court decided the question on the basis of pleadings. Plaintiff is not diligent in prosecuting the suit.

[f] Trial Court did not apply its mind as to the questions involved and, therefore, it is a fit case where plaint should be rejected in view of obvious case of bar of limitation as well as non-disclosure of cause of action.

7. Learned Advocate for the Applicants has relied upon two Judgments of this Court, namely

[a] Chintaman Dhundiraj Vs. Sad guru Narayan Maharj Datta Sansthan & others [1956 Bombay 553 (AIR V 43 C 214 Aug.)] and

[b] Vijaykumar Satishchandra & Co. and another Vs. Ms. Rajgopal Badrinarayan Malpani and another [1996(1) Mh.L.J. 594 : 1996(3) ALL MR 277].

8. Learned Advocate Mr. A. A. Naik, in reply, submitted that plaint aptly and properly discloses the cause of action. Barring a few invoices, of which one specimen is on record at Annex.-2 [page 17], on a very few occasions, transactions of payment by Demand Draft against invoices have occurred. All transactions prior thereto, which were on record, were debited to the defendant's account, including interest accrued thereon and payments received from time to time were credited to the account. This position submitted by the plaintiff is clear from the debits and credits shown in para 3 and para 4 of the plaint. The amounts of accumulated annual arrears and payments made year to year are not either as per invoice or invoices taken together. If the defendants want to dispute the nature of transactions, that was liable to be done by filing Written Statement. The issues as to jurisdiction, limitation, cause of action are liable to be ascertained from the averments contained in the plaint and in the present case, plaint sufficiently describes those. Learned Advocate Mr. Naik submitted that Trial Court has correctly addressed the issues involved an

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