Full Judgment Text
2026:BHC-AS:18047
wp 2457 of 2026.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2457 OF 2026
Bharat Mulji Khona ... Petitioner
versus
M/s. Fiza Construction Company and Ors. … Respondents
WITH
WRIT PETITION NO.2458 OF 2026
Bharat Mulji Khona ... Petitioner
versus
M/s. Fiza Construction Company and Ors. … Respondents
WITH
WRIT PETITION NO.2505 OF 2026
Bharat Mulji Khona ... Petitioner
versus
M/s. Fiza Construction Company and Ors. … Respondents
Mr. Mayur Khandeparkar with Mr. Nishant Tripathi, Mr. Pranav Vaidya i/by M.
Tripathi and Co., for Petitioner.
Dr. Uday Warunjikar with Mr. Siddhesh Pilankar, for Respondent No.1.
CORAM: N.J.JAMADAR, J.
RESERVED ON : 1 APRIL 2026
PRONOUNCED ON : 17 APRIL 2026
JUDGMENT :
1. Rule. Rule made returnable forthwith, and, with the consent of the
learned Counsel for the parties, heard finally.
2. All these Petitions arise out of the orders passed by the learned Civil
Judge, Sr. Division, Panvel, in Special Civil Suit No.140 of 2008 and since the
issues raised in each of the Petitions are intermingled, all these Petitions were
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heard together and are being decided by this common judgment.
3. The background facts leading to these petitions can be summerized as
under :
3.1 Smt. Akkabai Shantaram Patil (D1), Parvati Gana Patil (D2), Bhagwan
Krushna Bhagat (D3) and Smt. Shevantibai Ashok Bhagat (D6) were the
project affected persons. The lands held by these Defendants was acquired
by CIDCO for new town development. In lieu of the acquisition of the lands,
the land holders were, inter alia, entitled to a developed plot under 12.5%
scheme. The Petitioner – Defendant No.9 claims that, on 21 May 2005,
Defendant Nos.1, 2, 3 and 6 had agreed to transfer the said plot, to be
allotted to them, in favour of the Petitioner. As Defendant Nos.1, 2, 3 and 6
did not transfer the plot as agreed, the Petitioner instituted a suit being SCS
No.85 of 2005, wherein the consent decree came to be passed on 27
September 2005. In the meanwhile, on 5 February 2006, Defendant Nos.1 to
6 allegedly executed an Agreement in favour of the Plaintiff – Respondent
No.1, to sell the very same plot.
3.2 Eventually, the Respondent No.1 instituted a suit for specific
performance of the agreement against Defendant Nos.1 to 6 seeking a
declaration that the decree passed in SCS No.85 of 2005 and the subsequent
instruments executed on the strength of the said decree were not binding on
the Plaintiff; for specific performance of the contract contained in the
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Agreement dated 5 February 2006 and for consequential reliefs. On 18 July
2016, the Petitioner came to be impleaded as Defendant No.9 in the said suit.
3.3 The Petitioner filed an application for rejection of the plaint under Order
VII Rule 11 of the Code of Civil Procedure, 1908, on the ground of bar of
limitation and absence of cause of action. As the trial Court rejected the said
application, the Petitioner preferred a Revision before this Court. By an order
dated 23 April 2024, the Revision application came to be disposed, keeping
all the contentions of the parties open.
3.4 Respondent No.1, thereafter, preferred an application for amendment in
the plaint. The said application was also allowed by the trial Court. In Writ
Petition No.9801 of 2019, this Court declined to interfere with the said order
opining that, it would be open for the Petitioner to raise the issue of limitation
at the appropriate stage.
3.5 Eventually, the parties led evidence. After the evidence of the Plaintiff
and Defendants was closed, the Plaintiff (R1) sought permission to produce
documents. By an order dated 6 February 2026, impugned in WP No.2457 of
2026, the learned Civil Judge was persuaded to allow the application for
production of documents observing that the documents which were sought to
be produced were certified copies of the affidavits and documents in Civil
Misc. Application No.268 of 2017 filed by the legal heirs of Akkatai Patil (D1)
for grant of heirship certificate, and, thus, those documents appeared to be
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relevant for adjudicating the controversy between the parties. However,
permission to adduce additional evidence was not granted by the learned
Civil Judge.
3.6 The Petitioner, thereafter, filed an application seeking permission to cross-
examine the Plaintiff (R1), in the wake of the order passed by the Trial Court on
6 February 2026 permitting the Plaintiff to produce the documents on record.
3.7 By an order dated 10 February 2026, learned Civil Judge rejected the
application observing that, no purpose would be served by allowing
Defendant No.9 to cross-examine the Plaintiff as the latter was not the author
of the documents which were produced pursuant to the order passed by the
Court on the application for production of documents. The said order is
assailed in WP No.2458 of 2026.
3.7 On 5 February 2026, the Petitioner avers, the Trial Court framed four
additional issues. However, the issue of limitation, which was pressed into
service by the Defendant No.9, was not framed by the Trial Court. By an order
dated 10 February 2026, the application preferred by Defendant No.9 for
framing additional issues of bar of limitation, and absence of a cause of
action to institute the suit, came to be rejected. The learned Civil Judge was of
the opinion that, though an opportunity was granted to the Petitioner (D9) to
raise an issue of limitation, after the amendment was carried out by the
Plaintiff (R1), Defendant No.9 did not raise the defence of bar of limitation by
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filing an additional written statement to the amended plaint. Thus, it was not
necessary to frame the additional issues of limitation and absence of cause of
action. WP No.2505 of 2026, calls in question the said order.
3.8 Being aggrieved, the Defendant No.9 has invoked the writ jurisdiction.
4. I have heard Mr. Mayur Khandeparkar, learned Counsel for the
Petitioner, and Dr. Warunjikar, learned Counsel for Respondents, at some
length. With the assistance of the learned Counsel for the parties, I have also
perused the material on record.
5. Mr. Khandeparkar submitted that the impugned orders are legally
unsustainable. The learned Civil Judge lost sight of the fact that the
application for production of documents was filed at the fag end of the trial. No
explanation was offered as to why those documents were not produced at an
earlier point of time. The provisions contained in Order VII Rule 14 of the
Code were observed in breach, while allowing the application for production
of the documents at the fag end. The explanation sought to be offered for the
non-production of the documents that, it was during the course of the cross-
examination of Defendant No.9 that the Plaintiff became aware of those
documents, was demonstrably incorrect. The learned Civil Judge committed a
grave error in law in allowing the production of documents by observing that
Defendant No.9 was confronted with those documents during the course of
the cross-examination.
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6. Mr. Khandeparkar would urge, even if the Plaintiff’s case is construed
rather generously and the documents were permitted to be tendered, yet,
Defendant No.9 could not have been, under any circumstances, deprived of
the opportunity to further cross-examine the Plaintiff. Therefore, the rejection
of the application (Exh.216) seeking permission to further cross-examine the
Plaintiff, in view of the production of those documents, was wholly
unsustainable. The Petitioner was, thus, deprived of the opportunity to
effectively defend the suit.
7. Refusal to frame an issue on the aspect of bar of limitation, despite the
said issue having been kept open by this Court, was equally unsustainable,
submitted Mr. Khandeparkar. Laying emphasis on the fact that, on the oral
application of the Plaintiff, as many as four additional issues were framed, Mr.
Khandeparkar wold urge that the refusal to frame an issue of limitation when
there was a specific pleading in the written statement that the suit was barred
by law of limitation, was wholly unjust and iniquitous. Therefore, all the three
orders deserve to be quashed and set aside, urged Mr. Khandeparkar.
8. In opposition to this, Dr. Warunjikar, the learned Counsel for the
Respondents, would submit that the Defendant No.9 has resorted to dilatory
tactics to delay the disposal of the suit. In fact, the last of the three Petitions
constitutes the fifth round of challenge before this court. Each and every
order passed by the learned Civil Judge is sought to be challenged by
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invoking the revisional and writ jurisdiction, and thereby the trial in the suit is
protracted. Such procedural orders are not open for interference in an
exercise of the limited jurisdiction, submitted Dr. Warunjikar.
9. On the merits of the order permitting production of the documents, Dr.
Warunjikar would urge that, what the trial Court has permitted is a mere
production of the certified copies of the affidavits filed in Misc. Civil Application
No.268 of 2017 for grant of heirship certificate. Those affidavits formed part
of the record of the proceedings. The trial Court has not allowed the Plaintiff
to lead further evidence. Those documents were not in existence when the
suit was instituted, and, therefore, there was no question of production of
those affidavits at the time of the institution of suit. Thus, the objection on
behalf of Defendant No.9 for the production of the documents was wholly
unfounded. The Court would consider the import of the said affidavits at the
time of final adjudication. From this standpoint, according to Dr. Warunjikar,
the learned Civil Judge was justified in rejecting the application seeking
permission to further cross-examine the Plaintiff.
10. On the aspect of bar of limitation, Dr. Warunjikar would urge, as a
matter of fact, the Defendants did not file additional written statement. Thus,
the learned Civil Judge was well within her rights in observing that Defendant
No.9 had not raised the issue of limitation, despite an opportunity. Thus, none
of the objections deserve to be countenanced, submitted Dr. Warunjikar.
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Writ Petition No.2457 of 2026
11. Under the provisions of Order VII Rule 14 of the Code, where the
Plaintiff seeks to rely upon any document, he is enjoined to produce it when
the plaint is presented. Sub-rule (3) of Rule 14 of Order VII provides for the
production of documents by the Plaintiff at a latter point of time, albeit with the
leave of the Court. It provides that the document which ought to be produced
in Court by the Plaintiff when the plaint is presented, shall not, without the
leave of the Court, be received in evidence on his behalf at the hearing of the
suit. However, the said Rule 14 does not apply to document produced for the
cross-examination of the Plaintiff’s witness or handed over to a witness
merely to refresh his memory. A corresponding provision is made in Order
VIII Rule 1A, which proscribes the production of the documents by the
Defendant, after the filing of the Written Statement without the leave of the
Court.
12. Undoubtedly, the prescription by Rules as to the stage of the production
of the documents is with a view to ensure that the adversary is not taken by
surprise and the trial is not protracted on account of the production of the
documents at an advanced stage, necessitating further controversion and
response by the adversary. In both cases, however, a discretion is conferred
upon the Court to grant leave to produce the documents at a subsequent
stage. The discretion is required to be exercised judiciously. The Court may
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not be advised to take a very rigid and constricted view of the matter. The
procedure is a handmaid of justice and shall not be allowed to score march
over the substantive justice. In a case where a party satisfies the Court that
the production of the documents is necessary for a just decision of the case,
sub-rule (3) of Order VII Rule 14 and sub-rule (3) of Order VIII Rule 1A
provide sufficient discretion to the Court to permit the production of the
documents. At the same time, the production of the documents cannot be
allowed at a subsequent stage, as a matter of course, lest the aforesaid
provisions would be denuded of their meaning and purpose.
13. A profitable reference in this context can be made to a judgment of the
Supreme Court in the case of Sugandhi (dead) by Legal Representatives
1
and Anr. v/s. P. Rajkumar represented by his Power Agent Imam Oli ,
wherein in the context of the provisions contained in Order VIII Rule 1A of the
Code, the Supreme Court enunciated the law, as under :
“7. Sub-Rule (1) mandates the defendant to produce the
documents in his possession before the court and file the
same along with his written statement. He must list out the
documents which are in his possession or power as well as
those which are not. In case the defendant does not file any
document or copy thereof along with his written statement,
such a document shall not be allowed to be received in
evidence on behalf of the defendant at the hearing of the suit.
However, this will not apply to a document produced for cross-
1 (2020) 10 SCC 706
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examination of the plaintiff’s witnesses or handed over to a
witness merely to refresh his memory. Sub-rule (3) states that
a document which is not produced at the time of filing of the
written statement, shall not be received in evidence except
with the leave of the court. Rule (1) of Order 13 of CPC again
makes it mandatory for the parties to produce their original
documents before settlement of issues.
8. Sub-rule (3), as quoted above, provides a second
opportunity to the defendant to produce the documents which
ought to have been produced in the court along with the
written statement, with the leave of the court. The discretion
conferred upon the court to grant such leave is to be exercised
judiciously. While there is no straight jacket formula, this leave
can be granted by the court on a good cause being shown by
the defendant.
9. It is often said that procedure is the handmaid of
justice. Procedural and technical hurdles shall not be allowed
to come in the way of the court while doing substantial justice.
If the procedural violation does not seriously cause prejudice
to the adversary party, courts must lean towards doing
substantial justice rather than relying upon procedural and
technical violation. We should not forget the fact that litigation
is nothing but a journey towards truth which is the foundation
of justice and the court is required to take appropriate steps to
thrash out the underlying truth in every dispute. Therefore, the
court should take a lenient view when an application is made
for production of the documents under sub-rule (3).”
14. In the case at hand, the interdict contained in Order VII Rule 14 may
not be strictly attracted as the Plaintiff professed to produce certified copies of
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the affidavits affirmed by the purported legal heirs of Akkabai Patil (D1), on 27
June 2017. Those affidavits came into existence much later the institution of
the suit. However, the admissibility of those affidavits was a matter which the
learned Civil Judge, it seems, failed to take into account.
15. The Plaintiff sought permission to produce the claim Affidavits of
Defendant Nos.2, 3, 5 and 6 and Tulsibai Bhagat, Tushar Bhagat and Pratesh
Bhagat, who professedly affirmed that Defendant Nos.4 and 5 were the legal
representatives of late Krushna Bhagat. In addition, a citation published in
the newspaper was sought to be produced.
16. Whether the certified copies of the claim Affidavits in the heirship
application could have been permitted to be produced for the reason that they
formed part of the record of proceedings in Misc. Civil Application No.268 of
2017, is the moot question.
17. First and foremost, it is necessary to note that the affidavits do not
constitute evidence. The Evidence Act, 1872, as well as Bharatiya Sakshya
Adhiniyam, 2023, which repealed the Evidence Act, 1872, do not apply to
affidavits. On first principles, while adjudicating the suit finally, the Civil Court
cannot construe affidavits filed in other judicial proceedings as evidence. The
evidence recorded in the earlier proceedings can become relevant only upon
the fulfillment of the conditions stipulated in Section 33 of the Indian Evidence
Act, 1872. Section 33 of the Act, 1872 reads as under :
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33. Relevancy of certain evidence for proving, in
subsequent proceeding, the truth of facts therein stated
- Evidence given by a witness in a judicial proceeding, or
before any person authorised by law to take it, is relevant for
the purpose of proving, in a subsequent judicial proceeding,
or in a later stage of the same judicial proceeding, the truth
of the facts which it states, when the witness is dead, or
cannot be found, or is incapable of giving evidence, or is
kept out of the way by the adverse party, or if his presence
cannot be obtained without an amount of delay or expense
which under the circumstances of the case, the Court
considers unreasonable :
Provided that the proceeding was between the same
parties or their representatives in interest;
that the adverse party in the first proceeding had the right
and opportunity to cross-examine;
that the questions in issue were substantially the same in
the first as in the second proceeding.
Explanation. - A criminal trial or inquiry shall be deemed to
be a proceeding between the prosecutor and the accused
within the meaning of this section.”
18. A plain reading of the aforesaid Section would indicate that, it
encapsulates the circumstances in which the evidence given by a witness in a
prior proceeding, becomes relevant, and the conditions which need to be
satisfied to make such evidence relevant. Evidence must have been given by
a witness in a judicial proceeding or before any person authorized by law to
take it. In a subsequent judicial proceeding or in a latter stage of the same
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judicial proceeding, such evidence becomes relevant for the purpose of
proving the truth of the facts which such evidence states when
(i) the witness is dead, or
(ii) cannot be found, or
(iii) is incapable of giving evidence, or
(iv) is kept out of way by the adverse party, or
(v) if his presence cannot be obtained without an unreasonable amount
of delay or expense.
However, even if any of the aforesaid circumstances are obtained, such
evidence does not become relevant, unless the following conditions are
satisfied, namely;
(i) first proceeding was between the same parties or their
representatives in interest,
(ii) that the adverse party in the first proceeding had a right and
opportunity to cross-examine such witness, and,
(iii) questions in issue were substantially same in the first as well as in
the second proceedings.
19. The aforesaid Section which makes the evidence of a witness,
tendered in a prior judicial proceeding relevant for the purpose of proving the
truth of the facts stated therein, is in the nature of an exception to the hearsay
rule. However, for clothing admissibility on such deposition in the prior judicial
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proceeding, non-availability of the witness ought to be on account of any of
the five circumstances enumerated therein, and the further conditions
extracted above, need to be fulfilled.
20. A profitable reference in this context can be made to a judgment of the
Supreme Court in the case of Sashi Jena and Ors. V/s. Khadal Swain and
2
Anr. , wherein the Supreme Court expounded the import of the provisions
contained in Section 33, as under :
“7. From a bare perusal of the aforesaid provision, it would
appear that evidence given by a witness in a judicial
proceeding or before any person authorized to take it is
admissible for the purpose of proving in a subsequent judicial
proceeding or in a later stage of the same judicial proceeding,
the truth of the facts which it states in its evidence given in
earlier judicial proceeding or earlier stage of the same judicial
proceeding, but under proviso there are three pre-requisites
for making the said evidence admissible in subsequent
proceeding or later stage of the same proceeding and they
are (i) that the earlier proceeding was between the same
parties; (ii) that the adverse party in the first proceeding had
the right and opportunity to cross examine; and (iii) that the
questions in issue in both the proceedings were substantially
the same, and in the absence of any of the three pre-
requisites afore-stated, Section 33 of the Act would not be
attracted. This Court had occasion to consider this question in
3
the case of V.M.Mathew V/s. V.S.Sharma and Ors. , in which
it was laid down that in view of the second proviso, evidence
2 (2004) 4 SCC 236
3 AIR 1996 SC 109
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of a witness in a previous proceeding would be admissible
under Section 33 of the Act only if the adverse party in the first
proceeding had the right and opportunity to cross examine the
witness. The Court observed thus at AIR pp. 110 and 111 :-
“8. The adverse party referred in the proviso is the party in
the previous proceeding against whom the evidence adduced
therein was given against his interest. He had the right and
opportunity to cross- examine the witness in the previous
proceeding….the proviso lays down the acid test that
statement of a particular witness should have been tested by
both parties by examination and cross-examination in order to
make it admissible in the later proceeding." (emphasis
added)
9. Thus, the question to be considered is as to whether
accused has any right to cross examine a prosecution witness
examined during the course of inquiry under Section 202 of
the Code. It is well settled that the scope of inquiry under
Section 202 of the Code is very limited one and that is to find
out whether there are sufficient grounds for proceeding
against the accused who has no right to participate therein
much less a right to cross examine any witness examined by
the prosecution, but he may remain present only with a view
to be informed of what is going on. This question is no longer
res integra having been specifically answered by a four-Judge
bench decision of this Court in the case of Chandra Deo
4
Singh V/s. Prokash Chandra Bose , wherein this Court
categorically laid down that an accused during the course of
inquiry under Section 202 of the Code of Criminal Procedure,
1898, has no right at all to cross examine any witness
4 AIR 1963 SC 1430
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examined on behalf of the prosecution. It was observed thus
at page 1432, para 7 :
“7. "Taking the first ground, it seems to us
clear from the entire scheme of Ch. XVI of the Code of
Criminal Procedure that an accused person does not come
into the picture at all till process is issued. This does not mean
that he is precluded from being present when an enquiry is
held by a Magistrate. He may remain present either in person
or through a counsel or agent with a view to be informed of
what is going on. But since the very question for consideration
being whether he should be called upon to face an
accusation, he has no right to take part in the proceedings nor
has the Magistrate any jurisdiction to permit him to do so. It
would follow from this, therefore, that it would not be open to
the Magistrate to put any question to witnesses at the
instance of the person named as accused but against whom
process has not been issued; nor can he examine any
witnesses at the instance of such a person."
21. Following the aforesaid pronouncement, in the case of Padam
5
Chandra Singhi and Ors. V/s. Praful B. Desai (Dr.) and Ors. , a learned
Single Judge of this Court enunciated the law, as under :
“14. The above section enumerates the cases in which the
evidence given by a witness (a) in a judicial proceeding, or (b)
before any person authorized by law to take it, is relevant in a
subsequent judicial proceeding or a later Page 0802 stage of
the same proceeding and can be read in five eventualities,
viz.; (a) when the witness is dead; (b) when he cannot be
5 2008 SCC Online Bom 183
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found; (c) when he is incapable of giving evidence; (d) when
he is kept out of the way by the adverse party; or (e) when his
presence cannot be obtained without any amount of delay or
expense which the Court considers unreasonable; provided
(1) if the proceeding was between the same parties, or their
representatives in interest; (2) if the adverse party in the first
proceeding had the right and opportunity to cross-examine;
and (3) if the questions in issue were substantially the same in
the first as in the second proceeding. It is, thus, clear from
Section 33 that the evidence of depositions in former trials is
admissible. This section is an exception to the hearsay rule.
15. The depositions are in general admissible only after
proof that the persons who made them cannot be produced
before the Court to give evidence. It is only in cases where
the production of the primary evidence is beyond the party’s
power that secondary evidence of oral testimony is
admissible.
16. It is an elementary right of a litigant in civil suit that a
witness, who is to testify against him, should give his
evidence before the Court trying the case, the adverse party
gets an opportunity to cross-examine at the same time so that
the Court has the opportunity of seeing the witness and
observing his demeanour and can, thus, form a better opinion
as to his reliability rather than reading a statement or
deposition given by that witness in a previous judicial
proceeding or in an early stage of the same judicial
proceeding.
17. Where a statute i.e. the Evidence Act, makes provision
for exceptional cases where it is impossible for the witness to
be before the Court, the Court is expected to be careful to see
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that the conditions on which the statute permits previous
evidence given by the witness to be read are strictly complied
with. Previous statement of a witness not appearing in Court
cannot be taken on record under Section 33 without strict
proof of the conditions justifying it before taking it on record.”
22. This court has thus held, in clear and explicit terms that, the previous
statement of the witness not appearing in Court cannot be taken on record
under Section 33 without strict proof of the conditions justifying reception of
such evidence before taking it on record.
23. Reverting to the facts of the case, the learned Civil Judge has simply
allowed the production of the documents for the reason that those affidavits
formed part of the judicial record. The learned Civil Judge, however, lost sight
of both the inadmissibility of the affidavits as evidence, as such, and the
circumstances under which the evidence tendered in the prior proceedings
could become relevant without examining the witness before the Court. If the
production of the affidavits is allowed and the trial Court proceeds to consider
the said affidavits, it would amount to considering the evidence untested by
the cross-examination, which is against the elementary rule of reliability of
evidence.
24. For the foregoing reasons, this Court is persuaded to hold that the
learned Civil Judge has committed an error in allowing the production of the
certified copies of the affidavits in Misc. Civil Application No.268 of 2017 as a
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part of evidence on behalf of the Plaintiff.
25. So far as the publication of citation in the newspaper, it being a part of
the judicial record in Misc. Civil Application No.268 of 2017, the permission to
produce the certified copy of the said citation, can hardly be questioned.
Writ Petition No.2458 of 2026 :
26. In the light of the aforesaid view which this Court is persuaded to take,
it may not be necessary to delve into the legality, propriety and correctness of
the order dated 10 February 2026, whereby the learned Civil Judge declined
to grant the Petitioner an opportunity to cross-examine the Plaintiff. Since this
court is inclined to reject the application for the production of the documents
to the extent of the affidavits filed in Misc. Civil Application No.268 of 2017,
the prayer for cross-examination does not survive.
Writ Petition No.2505 of 2026 :
27. Learned Civil Judge was persuaded to reject the application for framing
additional issues with regard to the limitation and absence of cause of action,
opining that Defendant No.9 had not filed an additional written statement
raising the ground of bar of limitation, though in WP No.9801 of 2019, this
Court had opined that, it would be open to the Defendant No.9 to raise an
issue of limitation at an appropriate stage. That seems to be the only reason
which weighed with the learned Civil Judge.
28. From a perusal of the written statement filed on behalf of the Petitioner
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(D9), it becomes explicitly clear that Defendant No.9 had raised the ground
that the suit is barred by law of limitation. If the issue arose out of the original
pleadings, it was not incumbent upon the Petitioner to again raise the
contention by filing an additional written statement, post amendment in the
plaint.
29. Incontrovertibly, the Petitioner came to be pleaded as Defendant on 18
July 2016. Written statement was filed on 7 March 2017, raising the
contention that the suit was barred by law of limitation. The learned Civil
Judge does not seem to have considered the contentions in the written
statement while passing the impugned order.
30. In any event, it is the duty of the Court to examine whether the suit has
been instituted within the prescribed period of limitation, notwithstanding the
absence of pleadings. Section 3 of the Limitation Act, 1963, peremptorily
mandates that every suit instituted after the prescribed period shall be
dismissed, although limitation has not been set up as a defence. Since
Defendant No.9 came to be impleaded on 18 July 2016, the question as to
whether Defendant No.9 shall be deemed to have been impleaded on an
earlier date, qua the relief against Defendant No.9, in view of the provisions
contained in the proviso to Section 21 of the Limitation Act, may also warrant
consideration.
31. In the case of R. Nagaraj (dead) through LRs and Anr. V/s. Rajmani
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6
and Ors. , the Supreme Court emphasised the duty of the Court to ascertain
whether the suit has been instituted within the statutory period of limitation.
The observations in para 20 read as under :
“20. Limitation, as we generally know is a mixed question
of fact and law. However, there is no hard and fast rule that
every question of limitation is to be treated as a mixed
question of fact and law. In cases, where the action is
initiated after several years after the right to sue accrued,
without any pleadings to explain the reasons for delay or as
to when the fraud was discovered, the question of limitation
is to be treated as a question of law. A recourse may be had
to Order VI Rules 4 and 10 CPC, which mandates that
specific particulars would have to be given in the pleadings.
Once such a plea is raised in the pleadings, then the burden
lies on the person to prove that the delay was due to any
plausible reason and it is always well within the knowledge
of the other party to contend and prove that the opposite
party had prior knowledge about the disputed fact and that
his right to sue or defend had also accrued by that date.
Even in the absence of specific pleadings regarding the
limitation in the plaint or a plea of defence, there is a
bounden duty on every civil court to ascertain as to whether
the lis has been initiated within the time prescribed under
law, even if the parties to the lis had not raised any
objections. This right flows from the mandate of Section 3 of
the Limitation Act, 1963. A useful reference may be had to
the judgment of this Court on this aspect, in V.M.Salgaocar
6 2025 SCC Online SC 762
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7
and Bros. V. Board of Trustees of Port of Mormugao
wherein it was held as follows :
“20. The mandate of Section 3 of the Limitation Act is
that it is the duty of the court to dismiss any suit instituted
after the prescribed period of limitation irrespective of the
fact that limitation has not been set up as a defence. If a suit
is ex facie barred by the law of limitation, a court has no
choice but to dismiss the same even if the defendant
intentionally has not raised the plea of limitation.
21. This Court in Manindra Land & Building Corpn.
Ltd. v. Bhutnath Banerjee [(1964) 3 SCR 495 : AIR 1964
SC1336] held (AIR para 9) :
“Section 3 of the Limitation Act enjoins a court to
dismiss any suit instituted, appeal preferred and application
made, after the period of limitation prescribed therefor by
Schedule I irrespective of the fact whether the opponent had
set up the plea of limitation or not. It is the duty of the court
not to proceed with the application if it is made beyond the
period of limitation prescribed. The Court had no choice and if
in construing the necessary provision of the Limitation Act or
in determining which provision of the Limitation Act applies,
the subordinate court comes to an erroneous decision, it is
open to the court in revision to interfere with that conclusion
as that conclusion led the court to assume or not to assume
the jurisdiction to proceed with the determination of that
matter.”
In cases, where the pleadings are silent, then it
becomes the duty of the Court to ascertain from the evidence
and the overall facts of the case, as pleaded by either party,
7 (2005) 4 SCC 613
SSP 22/24
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and to render a finding on limitation where the question of
limitation is to be treated as a question of law, since the Court
cannot entertain frivolous or stale claims. It is also apropos to
reiterate the settled position of law that a question of law can
be raised at any stage.”
32. The conspectus of aforesaid consideration is that the trial Court could
not have declined to frame the issue of limitation, especially when on the oral
application of the Plaintiff, as many as four additional issues were settled by
the trial court on 5 February 2026, on the sole ground that Defendant No.9
had not raised the ground of bar of limitation in the additional written
statement, when in the original written statement Defendant No.9 had already
raised the ground of limitation.
33. This Court is mindful of the fact that the trial in the suit has been
expedited. However, whether the trial court unjustifiably declined to frame the
issue which crops up for consideration, an interference with the order
becomes necessary so as to obviate further challenges. At this stage, it is
necessary to note that, Mr. Khandeparkar, learned Counsel for the Petitioner
– Defendant No.9, on instructions, made a statement that Defendant No.9
would not lead any further evidence and would advance final arguments.
34. I am, therefore, inclined to partly allow Writ Petition Nos.2457 of 2026
and 2505 of 2026 and dispose WP No.2458 of 2026.
35. Hence, the following order :
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ORDER
(I) (a) Writ Petition No.2457 of 2026 stands partly allowed.
(b) The impugned order dated 6 February 2026 passed below
Exh.206 permitting production of the documents stands quashed and set
aside in regard to the document Nos.1 to 7 i.e. claim Affidavits of Defendant
Nos.2, 3, 5 and 6 and other witnesses in Misc. Civil Application No.268 of
2017.
(c) The Application stands allowed only to the extent of
production of document No.8 i.e. citation published in the newspaper.
(II) (a) Writ Petition No.2505 of 2026 stands partly allowed.
(b) Learned Civil Judge shall frame and decide an additional
issue : whether the suit is barred by law of limitation ?
(c) The prayer to frame the issue of absence of cause of action
stands rejected.
(III) In view of the disposal of Writ Petition No.2457 of 2026, Writ
Petition No.2458 of 2026 stands disposed as having been substantially
worked out.
(IV) Rule made absolute to the aforesaid extent.
(V) No costs.
( N.J.JAMADAR, J. )
SSP 24/24
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 17/04/2026 17:03:18