Dismissed¶¶24

Shri. Uttam Namdev Shewale and Ors. v. Shri. Dyneshwar Nivrutti Shewale and Ors.

Bombay HC11 Mar 2025AO/142/2025

Case brief

AI extract

What is this about?

A.O. 142/2025, Bombay HC, Gauri Godse J (decided 11-03-2025): defendants' appeal against remand of a partition-and-separate-possession suit (earlier dismissed solely on the preliminary point of limitation) is dismissed. Key points: limitation is a mixed question of facts and law and cannot be decided independently; Order XIV CPC mandates framing and deciding all issues arising from rival pleadings; suit to be heard afresh before the trial Court on all issues including limitation and res judicata. Advocates: Avinash B. Avhad (appellants); Swaraj M. Savant i/b Sujay H. Gangal (Respondent Nos.1 and 2). No precedents quoted or relied upon.

What did the court decide?

The issue of limitation cannot be decided independently, as it involves a mixed question of facts and law. ¶¶19

Shri. Uttam Namdev Shewale and Ors. vs Shri. Dyneshwar Nivrutti Shewale and Ors. — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶¶24

Issue for consideration

Whether the first appellate Court rightly remanded to the trial Court the suit for partition and separate possession (previously dismissed on the preliminary point of limitation) for framing all the issues and deciding them afresh, including the issues of limitation and res judicata. +1 more

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Court's answer

There is no reason for deciding the suit only on the point of limitation.

¶¶20

Ratio / Principle

The issue of limitation cannot be decided independently, as it involves a mixed question of facts and law.

¶¶19

Key takeaways

In view of Order XIV of the Code of Civil Procedure, all the issues that arise based on the rival pleadings are required to be decided after framing all the issues.ratio¶¶19
The first appellate Court rightly reversed the trial Court's findings and directed the trial Court to hear the suit afresh.ratio¶¶20
The trial Court is to hear the suit afresh by framing all the issues, including the issues of limitation and res judicata, and there is no fault in the reasons recorded by the first appellate Court.

Detailed headnote1 paragraphs

High Court of Judicature at Bombay (Civil Appellate Jurisdiction) — Appeal From Order No. 142 of 2025 — Gauri Godse, J. — Decided 11 March 2025. Defendant nos.1 to 3 (appellants: Uttam Namdev Shewale and Ors.) challenged the first appellate Court's order remanding to the trial Court a suit for partition and separate possession which the trial Court had dismissed on the preliminary point of limitation. Held: the issue of limitation cannot be decided independently, being a mixed question of facts and law; under Order XIV of the Code of Civil Procedure all issues arising from the rival pleadings must be decided after framing all the issues. The first appellate Court rightly reversed the trial Court's findings and remanded the suit for fresh hearing on all issues, including limitation and res judicata, and no fault was found in its reasons. Appeal dismissed.

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Digitally signed VARSHA by VARSHA VIJAY VIJAY RAJGURUDate: RAJGURU 2025.03.2814:40:12 +0530

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45-AO-142-2025.doc

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MJ Jadhav

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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APPEAL FROM ORDER NO. 142 OF 2025

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Uttam Namdev Shewale and Ors. … Appellants

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vs.

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Dyneshwar Nivrutti Shewale and Ors. … Respondents

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Mr. Avinash B. Avhad for the Appellants.

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Mr. Swaraj M. Savant i/b Sujay H. Gangal for Respondent Nos.1 and 2.

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CORAM : GAURI GODSE, J. DATED : 11^th MARCH 2025

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ORDER :-

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This appeal is preferred by defendant nos.1 to 3 to challenge

¶14

the order passed by the first appellate court remanding the suit to the trial Court for framing all the issues and deciding the same alongwith the issue of limitation and res judicata.

¶15

The suit for partition and separate possession was dismissed on a preliminary point of limitation. Hence, the plaintiffs had filed first appeal. The first appellate court has remanded the suit to the trial court for hearing it afresh after framing all the issues. This order is challenged by defendant nos.1 to 3 in this appeal.

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1 of 3

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45-AO-142-2025.doc

¶18

Learned counsel for the appellant submits that the plaintiffs had failed to lead any evidence on the issue that was framed by the trial Court. Hence, the trial Court by considering the evidence rightly decided the suit and dismissed the same as barred by limitation. He, therefore, submits that there was no reason for the first appellate court to remand the suit for deciding it afresh on all the issues including the issue of limitation.

¶19

I have perused the papers of the appeal. There is no dispute that the suit was dismissed only on a preliminary point of limitation. It is well established principle of law that the issue of limitation cannot be decided independently as the same involves mix question of facts and law. In the present appeal, the suit is filed for partition and separate possession. The objections raised on behalf of defendant no.3 was on the point of limitation and res judicata. The point of limitation and res judicata both would involve questions of facts and law. In view of Order XIV of Code of Civil Procedure, all the issues that arise based on the rival pleadings are required to be decided after framing all the issues.

¶20

I see no reason for deciding the suit only on the point of limitation. The first appellate court has, therefore, rightly reversed the trial Court’s findings and directed the trial Court to hear the suit

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2 of 3

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45-AO-142-2025.doc

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afresh by framing all the issues including the issues of limitation and res judicata. There is no fault in the reasons recorded by the first appellate court.

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The appeal is devoid of any merit. Hence, the appeal is dismissed.

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(GAURI GODSE, J.)

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3 of 3

Shri. Uttam Namdev Shewale and Ors. v. Shri. Dyneshwar Nivrutti Shewale and Ors.

Case brief

What is this about?

What did the court decide?

Shri. Uttam Namdev Shewale and Ors. v. Shri. Dyneshwar Nivrutti Shewale and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

All orders in this case

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