The Court emphasized the importance of framing preliminary issues based on the pleadings of the parties and deciding them before proceeding with the matter on its merits.

R.K. Deshpande, J.

The respondents are the original plaintiffs who have filed Special Civil Suit No. 691 of 1993 sometime on or about 2nd September, 2013. The suit claims a declaration that the sale deed dated 13th December, 1978 said to have been executed by Mrs. Cecilea Azavedo Cordeiro in favour of the father of the defendants Shri Basantkumar Shukla as illegal, null and void. The suit also claims a declaration that the defendants have no right to remain in possession of the suit property and the decree for possession has been claimed. The plaintiffs have asked for a decree of permanent injunction restraining the defendants from trespassing, obstructing or dealing with the property in any manner in future.

2. Immediately upon the receipt of suit summon, the defendants filed an application Exh. 18 under Order 7, Rule 11 (a) and (d) of C.P.C for rejection of plaint on the ground that the plaint does not disclose the cause of action and that the suit is barred by law of limitation. This application has been rejected by the trial Court on 20th January, 2014. The Court has held that the question of limitation is a mixed question of law and fact and cannot, therefore, be decided under Order 7, Rule 11 (d) of C.P.C. The Court has perused paragraph No. 25 of the plaint and has observed that the plaint discloses the cause of action. The original defendants are, therefore, before this Court in this writ petition.

3. On 12th February, 2014, this Court had issued notice and granted ad interim relief of stay of further proceedings of the suit. On 7th January, 2015, Rule was granted in the matter and the interim order was continued.

4. It is not in dispute that the trial Court has proceeded against the defendants with the order of "No W.S". Till this date the defendants have not filed their written statement, nor such order of "No W.S" has been challenged. Undisputedly, when the application at Exh. 18 under Order 7, Rule 11 (a) and (d) of C.P.C was filed, the application under Order 39, Rule 1 and 2 was pending. Upon rejection of the application at Exh. 18, this Court has stayed the further proceedings of the civil suit, as a result the application under Order 39, Rule 1 and 2 has also not been decided and it is pending.

5. Before filing of the written statement, the trial Court can dispose of the suit on the basis of preliminary objections relating to the jurisdiction of the court to entertain, try and decide the suit, either on the application under Order 7, Rule 11 (a) and (d) of C.P.C or on the application under Section 9A (Maharashtra Amendment) of C.P.C. The application under Section 9A of C.P.C can be entertained only during the pendency of the application under Order 39, Rule 1 and 2 of C.P.C, whereas the application under Order 7, Rule 11 (a) and (d) of C.P.C can be entertained and decided by the trial Court at any stage of the proceedings. While deciding the application under Order 7, Rule 11(a) and (d) of C.P.C, the Court is not required to frame any issue, as the averments made in the plaint are required to be treated as true and correct as per its face value. If the jurisdictional facts giving rise to an issue are disputed then the trial Court is at liberty to decide the said issue by framing a preliminary issue under Section 9A of C.P.C, which can be decided before the decision of the application under Order 39, Rules 1 and 2 of C.P.C.

6. In view of the aforesaid position of law and the fact that the application at Exh. 18 raises a pure question of law in respect of entitlement of the plaintiff to get the relief and the jurisdiction of the Court to grant such relief claimed in the suit and also raises an issue as to bar of limitation, which is a mixed question of law and fact, to entertain, try and decide the application, such application can be treated as one under Section 9A of C.P.C. irrespective of the fact that it is styled as one under Order 7, Rule 11(a) & (d) of C.P.C. for the reason that such objections can be