1. Rule was issued in this Civil Revision Application on 8.8.2013. Contesting parties are heard finally.

2. The present revision application has been filed by original defendant No.1 in Regular Civil Suit No. 1600/2012. The petitioner - defendant No.1 (hereinafter referred to as the defendant) filed application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC for short) for rejection of the plaint on the ground of limitation. The 16th Civil Judge, Junior Division, Aurangabad passed a brief order, which is impugned in this revision application, mentioning that it is settled principle that the plea of limitation is mixed question of law and fact and that the provisions of Section 5 of Limitation Act are not applicable to suit. The Civil Judge passed order that the aspect cannot be decided at preliminary stage without leading any evidence and rejected the application. Thus, the defendant has filed this revision application, pointing out that, if the plaint is read as a whole also, the suit is clearly time barred as time spent in pursuing revenue proceedings cannot be excluded.

3. I have heard learned counsel for both sides. Learned counsel for the defendant referred to the contents of plaint in details to show that as per the plaint itself, what was sought to be set aside was the sale deed dated 7.10.1984 and the suit was filed on 1.8.2012. According to the counsel, plaint itself mentions that the plaintiffs came to know about effecting mutation in favour of Pandharinath, the father of defendant Nos.2 and 3 in January 2008 and they pursued remedies on revenue side to get mutation entry set aside and have belatedly filed the civil suit and thus, the same is barred under the Limitation Act, 1963. Article 58 lays down limitation for such declaration of period of three years and the time starts running from the time when right to sue first accrues.

4. Learned counsel for the respondents submitted that the plaint has to be read as a whole and the plaint shows that there was earlier a partition in 1957, and entries were made in 7/12 extract, but in spite of such division of share, the parties continued without fixing boundaries and that, subsequently Pandharinath, the father of defendant Nos.2 and 3, got mutation entry No.752 recorded on 10.1.1985, which came to the knowledge of plaintiffs, from one Damodhar Ramrao Karmadkar in January 2008 and so, they initiated proceedings before the revenue officer on 2.4.2008, which was dismissed on 6.7.2009 and they filed Writ Petition No.8045/2009 in November 2009 and the same came to be disposed of on 27.9.2010. Thus, according to the learned counsel for respondents, the period spent in pursuing remedies for quashing mutation entry needs to be excluded keeping in view Section 14 of the Limitation Act. According to the learned counsel, the plaintiffs were under a bonafide belief that if the mutation entry is set aside, there will not be necessity to get the sale deed set aside and so, they pursued the remedies on revenue side and the period should be excluded.

5. Learned counsel for the petitioner-defendant has relied on the case of N.V. Srinivasa Murthy Vs. Mariyamma (Dead) by proposed L.Rs., reported in 2005 AIR (SC) 2897 to argue that the plaint has to be examined by the Court so as to see if by clever drafting suit which is otherwise barred by limitation is tried to be pursued. Reliance is also placed on the case of Hardesh Ores (P) Ltd. Vs. Hede and Company, reported in 2007(5) Mh.L.J. 577 to submit that the averments made in the suit as a whole has to be considered to find out whether clause (d) of Rule 11 of Order VII of CPC is applicable.

6. Learned counsel for respondents relied on the case of K.S. Dhondy Vs. Her Majesty Queen the Netherlands & anr., reported in 2013 (6) Bom.C.R. 758, where it was held that, in the suit brought against foreign Government, the mandatory requirement of Section 86 of CPC is required to be complied and thus