(904)-CRA-96-21.doc.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO.96 OF 2021

Smt. Meena Yashwant Korlekar and Anr.

..Applicants

Versus

Shri. Nilesh Hemant Korlekar and Ors.

..Respondents

Mr. Vaijanath P. Vaze, for the Applicants.

Mr. Anurag Ghag a/w Ashish Dubey, for the Respondents.

CORAM : NITIN W. SAMBRE, J.

DATE : 2^nd MARCH, 2022

P.C.

1.

This revision is directed against the order impugned

passed below Exh.16 on 20^th March, 2021 by Joint Civil Judge

Junior Division, Uran whereby applicants’

/defendants’ application

under Order VII Rule 11(a) and (d) of the CPC is dismissed.

2.

Contentions of learned counsel for the applicants/

defendants are, as far as the claim made in RCS No.108 of 2017 is

barred by res judicata, so also the limitation. So as to substantiate

his aforesaid contentions, he would claim that the bundle of facts

narrated in the plaint does not disclose the cause of action leading

to the suit claim is hit by the principle of res judicta that the

proceedings in relation to apportionment to which the respondents/

defendants were party through their father were decided against the

plaintiffs and as such order will operate against the

BGP.

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BALAJI

GOVINDRAO

PANCHAL

Digitally

signed by

BALAJI

GOVINDRAO

PANCHAL

Date:

2022.03.03

14:37:59

+0530

(904)-CRA-96-21.doc.

plaintiffs/respondents. In addition, it is claimed that the suit claim

is based on will dated 26.06.1969. Execution of such will and

subsequent will dated 24^th January, 1973 was within the knowledge

of the plaintiffs and that being so, suit is not brought within

limitation of three years.

3.

Counsel for the respondents would support the order

impugned.

4.

Trial Court while dealing with the claim of the

applicants for rejection of plaint under Order VII Rule 11(a) and (b)

of the CPC was sensitive to the pleadings which are in the nature of

bundle of facts disclosing cause of action therein. The Court below

then noticed that in earlier round of litigation in the matter of

apportionment of compensation what was referred was will dated

24^th January, 1973. The fact remains that even if present suit is

based on the will dated 26.06.1969, it is brought to my notice that

from 1975-94 father of the plaintiffs was not traceable as could be

inferred from the proceedings produced from the record of District

Judge in land acquisition matter. In 1995, father of the plaintiffs

expired and as such plaintiffs brought the suit subsequent thereto

i.e. in the year 2017. As such, it is the contention of the plaintiffs

that neither the proceedings in question nor the will was in their

knowledge. Whether the will was within knowledge of the plaintiffs

and suit was brought within time can be termed as mixed question

of law and Trial Court can deal with the said issue upon

BGP.

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(904)-CRA-96-21.doc.

appreciation of evidence while deciding the suit claim on merits.

5.

In view of above, I hardly see any failure on the part of

the Trial Court to exercise jurisdiction in favour of the plaintiffs.

That being so, revision lacks merits.

6.

As such, revision application stands dismissed.

[NITIN W. SAMBRE, J.]

BGP.

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