The issue of limitation cannot be framed as a preliminary issue under Section 9A of CPC, as established in Nusli Neville Wadia vs. Ivory Properties.

JUDGMENT:

1. The First Appeal is at the instance of the original Plainti challenging the order dated 10^th August, 2016 passed by the City Civil Court, Borivali Division, Dindoshi, Goregaon, Mumbai in S.C.Suit No.2432 of 2013, answering the preliminary issue of limitation framed under Section 9A of the Code of Civil Procedure, 1908 (for short, “CPC”) against the Plaintiff, resulting in dismissal of the suit.

2. S.C. Suit No.2432 of 2013 was filed for declaration that the consent terms dated 26th September, 1984 filed in Suit No.1782 of 1984 are based on misrepresentation and fraud and liable to be quashed and set aside. An Application below Exhibit “8” came to be filed by Defendant No.1-Society on 30th August, 2013 seeking framing of preliminary issue under Section 9A of CPC as to the maintainability of suit in view of law of limitation and whether the suit is filed within the period of limitation.

3. The Application pleads that the suit claim is not maintainable as the declaration was made in the year 1990 and the prayer clause (a) seeks time barred declaration being beyond period of three years.

4. The Application came to be resisted by the Plaintiff claiming that the Defendant No.1 cannot claim any benefit from the consent terms which were not executed by the Defendant No.1. An Afodavit in rejoinder was filed by the Defendant No.1 seeking framing of preliminary issue of maintainability alongwith the issue of limitation. Vide order dated 30^th April, 2014 passed on Exhibit “8”, the Trial Court passed the following order:

“Order on Exhibit 8. Heard both sides. It is submitted that the Plaintiff’s claim is not within limitation. However as per Plaintiff disputed consent decree was never acted upon and it is not enforced. Same cannot be executed. However def submitted that after gap of so many years this suit is filed. Same is not within limitation. Keeping open all the relevant points, it is to be seen whether claim is within limitation or not. For that purpose issue can be framed and same can be considered as preliminary issue. However regarding another point about maintainability of the suit, I am of the view that same point can be taken into account while determining suit finally. But is not proper to frame any preliminary issue about it. Hence Exh.8 is partly allowed. Issue is hereby framed as :- Whether Plaintiff’s claim is within limitation. This issue is hereby considered as preliminary issue. Both parties are given opportunity of hearing on this issue.”

5. The Trial Court by order dated 30^th April, 2014 framed the following as preliminary issue under Section 9A of CPC:

“Whether the suit is filed within limitation ?”

6. After hearing oral arguments, the Trial Court held that the suit is not within limitation as well as not maintainable in view of Order XXIII Rule 3A of the CPC and hence, dismissed the same.

7. Learned counsel appearing for the Appellants would submit that the suit came to be dismissed on ground of limitation by framing preliminary issue under Section 9A when the provision was on statute book. He submits that the Hon’ble Apex Court in Nusli Neville Wadia vs. Ivory Properties , (2020) 6 SCC 557 , has specifically held that the issue of limitation cannot be framed as a preliminary issue under Section 9A of the CPC. He submits that in view of the decision, the suit will have to be restored to file for adjudication.

8. Per contra, learned counsel appearing for the Respondent No.1 would point out paragraph 52 of the decision of Nusli Neville Wadia (supra) and would submit where the facts are not disputed, the issue of limitation can be decided as preliminary issue. He submits that the facts of present case does not require evidence to be led as the averments in the plaint would make it evident that the suit is barred by limitation. He submits that admittedly the consent terms of the year 1984 were sought to be challenged in the year 2013 and therefore, the same could have been decided as preliminary issue under Section 9