IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 2313 OF 2021 1)Shri Anandraj S/o Khemraj Dhariwal Aged about 63 years, Occ : Business, R/o. Mulik Complex, Somalwada, Nagpur

2)Smt. Santoshidevi wd/o Khemraj Dhariwal, .. Petitioner Aged about 82 years, Occ : Nil, R/o. Ward No. 67, Near Police Chowki, Sadar, Nagpur Versus Shri Nemichand Gulabchand Parekh (Dead)

Through his Legal Heirs i)Shri. Vinod S/o Nemichand Parekh Aged about Major, Occ : Business, R/o. Opp Hanuman Mandir, Goleccha Marg, Sadar Bazar, Sadar, Napur ii)Smt. Vimaladevi W/o Subhashchand Ranka .. Respondents Aged about Major, Occ : Housewife, R/o. Main Road Khidkiya, Via Itarsi, Tal. Iatarsi, Dist. Khandwa (M.P.)

iii)Shri. Vivek S/o Hukumchand Surana, Aged about Major, Occ: Business, R/o. C/o. Abhaychandji S/o Fulchandji Khiwsara, Jama Masjid Square, Lonar, Tal. Lonar, Dist. Buldhana Mr. Devendra Chauhan along with Mr. Aditya Chaudhari Advocate for petitioners.

Mr. Kamal Satuja, advocate for respondent Nos.1(i).

CORAM : MANISH PITALE, J. RESERVED ON : 12/04/2022 PRONOUNCED ON : 29/04/2022 JUDGMENT Rule. Rule made returnable forthwith. Heard finally with consent of the learned counsel appearing for the rival parties.

(2) The present writ petition challenges order dated 23/09/2016, passed by the Court of 6th Joint Civil Judge Junior Division, Nagpur, whereby an application filed by the respondent under Order 7 Rule 11 of the Code of Civil Procedure (CPC) was allowed and the plaint stood rejected. The petitioners had filed a suit for restoration of possession under Section 6 of the Specific Relief Act, 1963 and on the basis of the statements made in the plaint, it was found that the suit was filed beyond the period of limitation of six months.

(3) Initially, the petitioners had filed revision application before this Court and when an objection regarding the tenability of the same was raised, it was converted into a first appeal. Due to change in pecuniary jurisdiction by way of amendment, the appeal stood transferred to the District Court. But, by order dated 10/02/2021, the said appeal was permitted to be withdrawn with liberty to avail appropriate remedy. It was thereafter, that the petitioners filed the present writ petition.

(4) Upon notice being issued for final disposal in the writ petition, the respondents entered appearance through counsel.

(5) As per the case pleaded by the petitioners in the suit for restoration of possession under Section 6 of the aforesaid Act, the suit house property was occupied by the petitioners and the petitioner No.1 put his lock on the suit property as his mother i.e. petitioner No.2 continued to reside in the said house, despite the petitioner No.1 having shifted to an apartment. It was claimed that the defendants are related to the petitioners as the father of the petitioner No.1 was brother-in-law of the father of original defendant No.1. It was stated in the plaint that on 28/04/1995, the respondents had put another lock over the lock of the petitioner on the suit premises.

(6) On this basis, the petitioner filed Regular Civil Suit No.784/1995 for injunction, wherein an application for grant of temporary injunction was also filed. The said application was rejected. The petitioner filed appeal against the rejection of application for temporary injunction. It was claimed that during pendency of the said appeal, the respondents on 11/06/1996, illegally broke open the lock on the suit house premises, thereby giving cause of action to the petitioners to file the suit for restoration of possession. The said suit was filed on 05/12/1996 and accordingly, it was claimed that since the dispossession was within six months of filing of the suit, the same was within limitation, as prescribed in Section 6 of the said Act.

(7) The respondents filed an application under Order 7 Rule 11 of the CPC, contending that even on the basis of the statements made in the plaint, the suit was clearly barred by limitation, as the c