- (1.) Since both the revisional applications arise out of the same suit, being Title Suit No. 495 of 2014 (hereinafter referred to "as the said suit'), pending before the Court of the learned Judge, 7th Bench, City Civil Court at Calcutta and the facts involved in the adjudication of disputes in these revisional applications are same, both the revisional applications were heard together and the same are disposed of by this common order.
(2.) The revisional application, being CO 3013 of 2016 is at the instance of the defendant no.1 in the said suit challenging the order dated July 28,2016 passed by the learned Court below. By the said order dated July 28,2016 the learned Court below adjourned the hearing of the applications of the defendant no.1, for acceptance of her written statement and for deciding a preliminary issue under Order XIV Rule 2 of the Code of Civil Procedure, 1908, hereinafter called as "the Code", and fixed the application filed by the plaintiff for appointment of Receiver under Order XL Rule 1 of the Code on August 24,2016. Mr. Anindya Kumar Mitra, learned Senior Counsel appearing for the defendant no.1-petitioner in the first revisional application, strenuously contended that from the averments made in the plaint filed in the said suit and particularly the reliefs claimed in prayers (b),(f) and (i) of the plaint, it is evident that the suit filed by the plaintiff on April 16,2014 is barred by the lacks of limitation. He further contended that although in the plaint it is the case of the plaintiff-opposite party that he had filed the suit on the strength of the order dated March 14,2002 passed by the Supreme Court in Special Leave to Appeal(C) No.17661 of 2012, but the said order cannot be construed to have any overriding effect on the provisions contained in the Limitation Act, 1963. He urged that Section 3 of the Limitation Act enjoins a mandatory obligation on a Court to decide the point of maintainability of the suit on the ground of limitation, even though the same is not raised by the defendant. Mr. Mitra next contended that it is well settled principle of law that the point of limitation touches jurisdiction and if a suit is barred by the laws of limitation, the Court lacks the jurisdiction to entertain the said suit. He next referred to an order dated July 12,2016 passed by the Supreme Court in Special Leave to Appeal(C) No. 15835 of 2016 arising out of an application filed by the defendant no.1 under Order VII Rule 11 of the Code, where the Court directed that the question of limitation in respect of filing of the suit by the plaintiff is kept open. According to Mr. Mitra, since the defendant no.1 in the said suit has already raised a contention that the suit is barred by limitation, the learned Court below is required to decide such issue as a preliminary issue under Order XIV Rule of the Code. On these grounds Mr. Mitra urged that the learned Court below erred in passing the order dated July 28,2016 thereby adjourning the hearing of the applications filed by the defendant-petitioner for acceptance of her written statement and under Order XIV Rule 2 of the Code and fixing the application for appointment of receiver for hearing.
(3.) However, Mr. Dulal Dey, learned advocate appearing for the plaintiff-opposite party no.1 in the first revisional application and the petitioner in the second revisional application, submitted that no doubt by the said order dated May 11,2016 the Supreme Court has kept the question of limitation open, but since the plaintiff in the said suit had filed the said suit under Order XL Rule 1 of the Code long time back the learned Court below has not committed any error of law in fixing the hearing of the said application and adjourning the aforementioned applications filed by the defendant no.1. He further submitted that by an order dated March 20,2015 the learned Court below had already closed the right of the defendant no.1 to file her written statement in the said suit and her subsequent application for recalling of the said order dated March 20,2015 and to allow her to file her written statement is yet to be decided by the learned Court below. According to Mr. Dey, this Court should allow the revisional application CO 3139 of 2016, filed by the plaintiff in the said suit, by directing the learned Court below to dispose of the application for appointment of Receiver within one month from date. Mr. Dey, however, submitted that while deciding the application under Order XL Rule 1 of the Code, the learned Court below will be required to decide the contention raised by the defendant no.1 with regard to the point of limitation.;