24-IA-12340-2024 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIRCUIT BENCH AT KOLHAPUR CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION ST NO. 16357 OF 2024 WITH INTERIM APPLICATION NO. 12340 OF 2024 WITH INTERIM APPLICATION NO. 3699 OF 2025 Hanmant Laxman Jagdale ...Applicant Versus Vitthal Yedu Ingawale And Ors ...Respondents —————— Mr. Avinash B. Patil, (Through VC), Advocate for the applicant. Mr. Chintan Yogesh Shah, (Through VC), Advocate for respondent nos. 1A to 1E. —————— Coram : MEHROZ K. PATHAN, J. Date : July 02, 2026. P. C. : 1. The applicant has approached this Court challenging the order dated 13th October 2023 passed by the learned Trial Court, whereby the application preferred by the defendants under Order VII Rule 11 of the Code of Civil Procedure seeking rejection of the plaint came to be rejected. 2. Mr. Patil, learned counsel for the applicant, submits that the adn 1 24-IA-12340-2024 learned Trial Court has committed a grave error in rejecting the application under Order VII Rule 11 of the Code of Civil Procedure. He submits that the learned Trial Court misconstrued the application as raising only an objection with regard to limitation, whereas the applicant had also specifically raised an objection regarding the maintainability of the suit on the ground of res judicata. He submits that the learned Trial Court failed to consider the said objection while deciding the application. 3. Mr. Patil, learned counsel for the applicant, further submits that the application filed under Order VII Rule 11 of the Code of Civil Procedure specifically raised objections both on the ground of res judicata as well as limitation. However, the learned Trial Court rejected the application by considering only the issue of limitation without adverting to the objection regarding res judicata. He further submits that, since a Second Appeal arising out of the same cause of action was pending before this Court, the plaintiff could not have instituted a fresh civil suit in respect of the same subject matter. He, therefore, submits that the impugned order deserves to be quashed and set aside and, consequently, the plaint is liable to be rejected. 4. On the other hand, Mr. Shah, learned counsel holding for the respondents, supports the impugned order dated 13th October 2023. He submits that the application filed by the defendants under Order VII Rule adn 2 24-IA-12340-2024 11 of the Code of Civil Procedure does not specifically raise any objection regarding the maintainability of the suit on the ground of res judicata. He further submits that the suit was instituted after obtaining liberty from this Court during the pendency of Second Appeal No. 591 of 2011. By order dated 23rd December 2013, this Court permitted the appellant, namely, Hirabai Ingvale, to withdraw the Second Appeal and kept the issue of possession open. He further submits that while passing the said order, this Court took note of the fact that Regular Civil Suit No. 140 of 2012 had already been instituted and, accordingly, permitted withdrawal of the Second Appeal. Thus, the institution of the said suit was very much within the knowledge of this Court while deciding the Second Appeal. He, therefore, submits that the suit filed by Vitthal, the husband of Hirabai, was maintainable. Insofar as the issue of limitation is concerned, he submits that the learned Trial Court has rightly held that the question of limitation is a mixed question of law and fact and, therefore, the same can appropriately be decided at the time of adjudication of the suit. He, therefore, prays for dismissal of the present Civil Revision Application. 5. I have gone through the impugned order dated 13th October 2023 passed by the learned Trial Court below Exhibit 96. I have also perused the order dated 23rd December 2013 passed by this Court in Second Appeal No. 591 of 2011, as well as the interim order dated 18th October adn 3 24-IA-12340-2024 2011. 6. A perusal of the application filed by the applicant under Order VII Rule 11 of the Code of Civil Procedure would show that, although reference has been made to the earlier proceedings, namely, the filing of the civil suit, the First Appeal and the subsequent withdrawal of the Second Appeal, the principal objection raised therein is with regard to limitation. The prayer clause in the said application itself makes the position abundantly clear. Prayer clause (b) reads thus: ब) सदरील दाव्याला मुदतीच्या कायद्याची बाधा दावा दाखल तारखेपूवच होती त्यामुळे सदरील दावा हा दिदवाणी प्रदिया संदिहता आदेश ७ दि$यम ११ (ड) प्रमाणे या दाव्याला मुदतीच्या कायद्याची बाधा दि$मा'ण झाली आहे,. म्हणू$ सदरील वादपत्र मे. न्यायालया$े त्वरिरत काढू$ टाकावे. ही दिव$ंती. 7. Thus, the learned Trial Court has considered the objections raised by the applicant and has recorded findings thereon. The learned Trial Court found that the objection raised in the application under Order VII Rule 11 of the Code of Civil Procedure was essentially confined to the issue of limitation. It further held that the question of limitation is a mixed question of law and fact and, therefore, the same can appropriately be decided at the time of adjudication of the suit. The learned Trial Court has placed reliance upon the judgment of this Court in Condolim Developers Pvt. Ltd. & Anr. v. Pravin Grover & Ors., reported in 2016 SCC OnLine Bom 12718, wherein it has been held that, while deciding an application under Order VII Rule 11 of the Code of Civil adn 4 24-IA-12340-2024 Procedure, the Court is required to consider only the averments made in the plaint and not the defence raised by the defendants in the written statement. 8. The learned Trial Court has also considered various judgments and has come to the conclusion that the issue of limitation, being a mixed question of law and fact, is required to be decided at the time of adjudication of the suit. In my opinion, the learned Trial Court has rightly rejected the application under Order VII Rule 11 of the Code of Civil Procedure, while keeping the issue of limitation open to be decided at the trial. 9. Insofar as the contention regarding res judicata is concerned, though the same has not been specifically raised in the application under Order VII Rule 11 of the Code of Civil Procedure, it is pertinent to note that, by order dated 23rd December 2013 passed in Second Appeal No. 591 of 2011, this Court had taken note of the institution of the subsequent civil suit and permitted withdrawal of the Second Appeal while keeping the issue of possession expressly open. The rights and contentions of the parties were left open to be agitated in the said civil suit, which had already been instituted during the pendency of the Second Appeal. 10. In view of the aforesaid discussion, I do not find that the learned adn 5 24-IA-12340-2024 Trial Court has committed any error in rejecting the application filed under Order VII Rule 11 of the Code of Civil Procedure. The present Civil Revision Application is devoid of merits and is accordingly rejected. 11. Considering that Regular Civil Suit No. 140 of 2012 has been pending for a considerable period, the learned Trial Court shall make an endeavour to dispose of the said suit as expeditiously as possible and, in any event, within a period of one year from the date of receipt of this order. 12. In view of the disposal of the present Civil Revision Application, all pending Interim Applications, if any, stand disposed of. [MEHROZ K. PATHAN, J.] adn 6