Bharat Mulji Khona v. M/s. Fiza Construction Company & Ors.

Judgment

1.Rule. Rule made returnable forthwith, and, with the consent of thelearned Counsel for the parties, heard finally. 2.All these Petitions arise out of the orders passed by the learned CivilJudge, Sr. Division, Panvel, in Special Civil Suit No.140 of 2008 and since theissues raised in each of the Petitions are intermingled, all these Petitions wereSSP 1/24

wp 2457 of 2026.docheard together and are being decided by this common judgment. 3.The background facts leading to these petitions can be summerized asunder : 3.1Smt. Akkabai Shantaram Patil (D1), Parvati Gana Patil (D2), BhagwanKrushna Bhagat (D3) and Smt. Shevantibai Ashok Bhagat (D6) were theproject affected persons. The lands held by these Defendants was acquiredby 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 beallotted to them, in favour of the Petitioner. As Defendant Nos.1, 2, 3 and 6did not transfer the plot as agreed, the Petitioner instituted a suit being SCSNo.85 of 2005, wherein the consent decree came to be passed on 27September 2005. In the meanwhile, on 5 February 2006, Defendant Nos.1 to6 allegedly executed an Agreement in favour of the Plaintiff – RespondentNo.1, to sell the very same plot. 3.2Eventually, the Respondent No.1 instituted a suit for specificperformance of the agreement against Defendant Nos.1 to 6 seeking adeclaration that the decree passed in SCS No.85 of 2005 and the subsequentinstruments executed on the strength of the said decree were not binding onthe Plaintiff; for specific performance of the contract contained in theSSP 2/24 wp 2457 of 2026.docAgreement dated 5 February 2006 and for consequential reliefs. On 18 July2016, the Petitioner came to be impleaded as Defendant No.9 in the said suit.3.3The Petitioner filed an application for rejection of the plaint under OrderVII Rule 11 of the Code of Civil Procedure, 1908, on the ground of bar oflimitation and absence of cause of action. As the trial Court rejected the saidapplication, the Petitioner preferred a Revision before this Court. By an orderdated 23 April 2024, the Revision application came to be disposed, keepingall the contentions of the parties open. 3.4Respondent No.1, thereafter, preferred an application for amendment inthe plaint. The said application was also allowed by the trial Court. In WritPetition No.9801 of 2019, this Court declined to interfere with the said orderopining that, it would be open for the Petitioner to raise the issue of limitationat the appropriate stage. 3.5Eventually, the parties led evidence. After the evidence of the Plaintiffand Defendants was closed, the Plaintiff (R1) sought permission to producedocuments. By an order dated 6 February 2026, impugned in WP No.2457 of2026, the learned Civil Judge was persuaded to allow the application forproduction of documents observing that the documents which were sought tobe produced were certified copies of the affidavits and documents in CivilMisc. 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 beSSP 3/24 wp 2457 of 2026.docrelevant for adjudicating the controversy between the parties. However,permission to adduce additional evidence was not granted by the learnedCivil Judge. 3.6The Petitioner, thereafter, filed an application seeking permission to cross-examine the Plaintiff (R1), in the wake of the order passed by the Trial Court on6 February 2026 permitting the Plaintiff to produce the documents on record.3.7By an order dated 10 February 2026, learned Civil Judge rejected theapplication observing that, no purpose would be served by allowingDefendant No.9 to cross-examine the Plaintiff as the latter was not the authorof the documents which were produced pursuant to the order passed by theCourt on the application for production of documents. The said order isassailed in WP No.2458 of 2026. 3.7On 5 February 2026, the Petitioner avers, the Trial Court framed fouradditional issues. However, the issue of limitation, which was pressed intoservice by the Defendant No.9, was not framed by the Trial Court. By an orderdated 10 February 2026, the application preferred by Defendant No.9 forframing additional issues of bar of limitation, and absence of a cause ofaction to institute the suit, came to be rejected. The learned Civil Judge was ofthe opinion that, though an opportunity was granted to the Petitioner (D9) toraise an issue of limitation, after the amendment was carried out by thePlaintiff (R1), Defendant No.9 did not raise the defence of bar of limitation bySSP 4/24 wp 2457 of 2026.docfiling an additional written statement to the amended plaint. Thus, it was notnecessary to frame the additional issues of limitation and absence of cause ofaction. WP No.2505 of 2026, calls in question the said order. 3.8Being aggrieved, the Defendant No.9 has invoked the writ jurisdiction.4.I have heard Mr. Mayur Khandeparkar, learned Counsel for thePetitioner, and Dr. Warunjikar, learned Counsel for Respondents, at somelength. With the assistance of the learned Counsel for the parties, I have alsoperused the material on record. 5.Mr. Khandeparkar submitted that the impugned orders are legallyunsustainable. The learned Civil Judge lost sight of the fact that theapplication for production of documents was filed at the fag end of the trial. Noexplanation was offered as to why those documents were not produced at anearlier point of time. The provisions contained in Order VII Rule 14 of theCode were observed in breach, while allowing the application for productionof the documents at the fag end. The explanation sought to be offered for thenon-production of the documents that, it was during the course of the cross-examination of Defendant No.9 that the Plaintiff became aware of thosedocuments, was demonstrably incorrect. The learned Civil Judge committed agrave error in law in allowing the production of documents by observing thatDefendant No.9 was confronted with those documents during the course ofthe cross-examination. SSP 5/24 wp 2457 of 2026.doc6.Mr. Khandeparkar would urge, even if the Plaintiff’s case is construedrather generously and the documents were permitted to be tendered, yet,Defendant No.9 could not have been, under any circumstances, deprived ofthe opportunity to further cross-examine the Plaintiff. Therefore, the rejectionof the application (Exh.216) seeking permission to further cross-examine thePlaintiff, in view of the production of those documents, was whollyunsustainable. The Petitioner was, thus, deprived of the opportunity toeffectively defend the suit. 7.Refusal to frame an issue on the aspect of bar of limitation, despite thesaid issue having been kept open by this Court, was equally unsustainable,submitted Mr. Khandeparkar. Laying emphasis on the fact that, on the oralapplication of the Plaintiff, as many as four additional issues were framed, Mr.Khandeparkar wold urge that the refusal to frame an issue of limitation whenthere was a specific pleading in the written statement that the suit was barredby law of limitation, was wholly unjust and iniquitous. Therefore, all the threeorders deserve to be quashed and set aside, urged Mr. Khandeparkar. 8.In opposition to this, Dr. Warunjikar, the learned Counsel for theRespondents, would submit that the Defendant No.9 has resorted to dilatorytactics to delay the disposal of the suit. In fact, the last of the three Petitionsconstitutes the fifth round of challenge before this court. Each and everyorder passed by the learned Civil Judge is sought to be challenged bySSP 6/24 wp 2457 of 2026.docinvoking the revisional and writ jurisdiction, and thereby the trial in the suit isprotracted. Such procedural orders are not open for interference in anexercise 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 mereproduction of the certified copies of the affidavits filed in Misc. Civil ApplicationNo.268 of 2017 for grant of heirship certificate. Those affidavits formed partof the record of the proceedings. The trial Court has not allowed the Plaintiffto lead further evidence. Those documents were not in existence when thesuit was instituted, and, therefore, there was no question of production ofthose affidavits at the time of the institution of suit. Thus, the objection onbehalf of Defendant No.9 for the production of the documents was whollyunfounded. The Court would consider the import of the said affidavits at thetime of final adjudication. From this standpoint, according to Dr. Warunjikar,the learned Civil Judge was justified in rejecting the application seekingpermission to further cross-examine the Plaintiff. 10.On the aspect of bar of limitation, Dr. Warunjikar would urge, as amatter of fact, the Defendants did not file additional written statement. Thus,the learned Civil Judge was well within her rights in observing that DefendantNo.9 had not raised the issue of limitation, despite an opportunity. Thus, noneof the objections deserve to be countenanced, submitted Dr. Warunjikar. SSP 7/24 wp 2457 of 2026.doc Writ Petition No.2457 of 2026 11.Under the provisions of Order VII Rule 14 of the Code, where thePlaintiff seeks to rely upon any document, he is enjoined to produce it whenthe plaint is presented. Sub-rule (3) of Rule 14 of Order VII provides for theproduction of documents by the Plaintiff at a latter point of time, albeit with theleave of the Court. It provides that the document which ought to be producedin Court by the Plaintiff when the plaint is presented, shall not, without theleave of the Court, be received in evidence on his behalf at the hearing of thesuit. However, the said Rule 14 does not apply to document produced for thecross-examination of the Plaintiff’s witness or handed over to a witnessmerely to refresh his memory. A corresponding provision is made in OrderVIII Rule 1A, which proscribes the production of the documents by theDefendant, after the filing of the Written Statement without the leave of theCourt. 12.Undoubtedly, the prescription by Rules as to the stage of the productionof the documents is with a view to ensure that the adversary is not taken bysurprise and the trial is not protracted on account of the production of thedocuments at an advanced stage, necessitating further controversion andresponse by the adversary. In both cases, however, a discretion is conferredupon the Court to grant leave to produce the documents at a subsequentstage. The discretion is required to be exercised judiciously. The Court maySSP 8/24 wp 2457 of 2026.docnot be advised to take a very rigid and constricted view of the matter. Theprocedure is a handmaid of justice and shall not be allowed to score marchover the substantive justice. In a case where a party satisfies the Court thatthe 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 1Aprovide sufficient discretion to the Court to permit the production of thedocuments. At the same time, the production of the documents cannot beallowed at a subsequent stage, as a matter of course, lest the aforesaidprovisions would be denuded of their meaning and purpose. 13.A profitable reference in this context can be made to a judgment of theSupreme Court in the case of Sugandhi (dead) by Legal Representativesand Anr. v/s. P. Rajkumar represented by his Power Agent Imam Oli1,wherein in the context of the provisions contained in Order VIII Rule 1A of theCode, the Supreme Court enunciated the law, as under : “7.Sub-Rule (1) mandates the defendant to produce thedocuments in his possession before the court and file thesame along with his written statement. He must list out thedocuments which are in his possession or power as well asthose which are not. In case the defendant does not file anydocument or copy thereof along with his written statement,such a document shall not be allowed to be received inevidence 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 706SSP 9/24 wp 2457 of 2026.docexamination of the plaintiff’s witnesses or handed over to awitness merely to refresh his memory. Sub-rule (3) states thata document which is not produced at the time of filing of thewritten statement, shall not be received in evidence exceptwith the leave of the court. Rule (1) of Order 13 of CPC againmakes it mandatory for the parties to produce their originaldocuments before settlement of issues. 8.Sub-rule (3), as quoted above, provides a secondopportunity to the defendant to produce the documents whichought to have been produced in the court along with thewritten statement, with the leave of the court. The discretionconferred upon the court to grant such leave is to be exercisedjudiciously. While there is no straight jacket formula, this leavecan be granted by the court on a good cause being shown bythe defendant.9.It is often said that procedure is the handmaid ofjustice. Procedural and technical hurdles shall not be allowedto come in the way of the court while doing substantial justice.If the procedural violation does not seriously cause prejudiceto the adversary party, courts must lean towards doingsubstantial justice rather than relying upon procedural andtechnical violation. We should not forget the fact that litigationis nothing but a journey towards truth which is the foundationof justice and the court is required to take appropriate steps tothrash out the underlying truth in every dispute. Therefore, thecourt should take a lenient view when an application is madefor production of the documents under sub-rule (3).”14.In the case at hand, the interdict contained in Order VII Rule 14 maynot be strictly attracted as the Plaintiff professed to produce certified copies ofSSP 10/24 wp 2457 of 2026.docthe affidavits affirmed by the purported legal heirs of Akkabai Patil (D1), on 27June 2017. Those affidavits came into existence much later the institution ofthe suit. However, the admissibility of those affidavits was a matter which thelearned Civil Judge, it seems, failed to take into account. 15.The Plaintiff sought permission to produce the claim Affidavits ofDefendant Nos.2, 3, 5 and 6 and Tulsibai Bhagat, Tushar Bhagat and PrateshBhagat, who professedly affirmed that Defendant Nos.4 and 5 were the legalrepresentatives of late Krushna Bhagat. In addition, a citation published inthe newspaper was sought to be produced. 16.Whether the certified copies of the claim Affidavits in the heirshipapplication could have been permitted to be produced for the reason that theyformed part of the record of proceedings in Misc. Civil Application No.268 of2017, is the moot question. 17.First and foremost, it is necessary to note that the affidavits do notconstitute evidence. The Evidence Act, 1872, as well as Bharatiya SakshyaAdhiniyam, 2023, which repealed the Evidence Act, 1872, do not apply toaffidavits. On first principles, while adjudicating the suit finally, the Civil Courtcannot construe affidavits filed in other judicial proceedings as evidence. Theevidence recorded in the earlier proceedings can become relevant only uponthe fulfillment of the conditions stipulated in Section 33 of the Indian EvidenceAct, 1872. Section 33 of the Act, 1872 reads as under : SSP 11/24 wp 2457 of 2026.doc33.Relevancy of certain evidence for proving, insubsequent proceeding, the truth of facts therein stated- Evidence given by a witness in a judicial proceeding, orbefore any person authorised by law to take it, is relevant forthe purpose of proving, in a subsequent judicial proceeding,or in a later stage of the same judicial proceeding, the truthof the facts which it states, when the witness is dead, orcannot be found, or is incapable of giving evidence, or iskept out of the way by the adverse party, or if his presencecannot be obtained without an amount of delay or expensewhich under the circumstances of the case, the Courtconsiders unreasonable : Provided that the proceeding was between the sameparties or their representatives in interest; that the adverse party in the first proceeding had the rightand opportunity to cross-examine; that the questions in issue were substantially the same inthe first as in the second proceeding.Explanation. - A criminal trial or inquiry shall be deemed tobe a proceeding between the prosecutor and the accusedwithin the meaning of this section.”18.A plain reading of the aforesaid Section would indicate that, itencapsulates the circumstances in which the evidence given by a witness in aprior proceeding, becomes relevant, and the conditions which need to besatisfied to make such evidence relevant. Evidence must have been given bya witness in a judicial proceeding or before any person authorized by law totake it. In a subsequent judicial proceeding or in a latter stage of the sameSSP 12/24 wp 2457 of 2026.docjudicial proceeding, such evidence becomes relevant for the purpose ofproving 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 amountof delay or expense. However, even if any of the aforesaid circumstances are obtained, suchevidence does not become relevant, unless the following conditions aresatisfied, namely; (i) first proceeding was between the same parties or theirrepresentatives in interest, (ii) that the adverse party in the first proceeding had a right andopportunity to cross-examine such witness, and, (iii) questions in issue were substantially same in the first as well as inthe 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 thetruth of the facts stated therein, is in the nature of an exception to the hearsayrule. However, for clothing admissibility on such deposition in the prior judicialSSP 13/24 wp 2457 of 2026.docproceeding, non-availability of the witness ought to be on account of any ofthe five circumstances enumerated therein, and the further conditionsextracted above, need to be fulfilled. 20.A profitable reference in this context can be made to a judgment of theSupreme Court in the case of Sashi Jena and Ors. V/s. Khadal Swain andAnr.2, wherein the Supreme Court expounded the import of the provisionscontained in Section 33, as under : “7.From a bare perusal of the aforesaid provision, it wouldappear that evidence given by a witness in a judicialproceeding or before any person authorized to take it isadmissible for the purpose of proving in a subsequent judicialproceeding or in a later stage of the same judicial proceeding,the truth of the facts which it states in its evidence given inearlier judicial proceeding or earlier stage of the same judicialproceeding, but under proviso there are three pre-requisitesfor making the said evidence admissible in subsequentproceeding or later stage of the same proceeding and theyare (i) that the earlier proceeding was between the sameparties; (ii) that the adverse party in the first proceeding hadthe right and opportunity to cross examine; and (iii) that thequestions in issue in both the proceedings were substantiallythe same, and in the absence of any of the three pre-requisites afore-stated, Section 33 of the Act would not beattracted. This Court had occasion to consider this question inthe case of V.M.Mathew V/s. V.S.Sharma and Ors.3, in whichit was laid down that in view of the second proviso, evidence2(2004) 4 SCC 2363AIR 1996 SC 109SSP 14/24 wp 2457 of 2026.docof a witness in a previous proceeding would be admissibleunder Section 33 of the Act only if the adverse party in the firstproceeding had the right and opportunity to cross examine thewitness. The Court observed thus at AIR pp. 110 and 111 :- “8.The adverse party referred in the proviso is the party inthe previous proceeding against whom the evidence adducedtherein was given against his interest. He had the right andopportunity to cross- examine the witness in the previousproceeding….the proviso lays down the acid test thatstatement of a particular witness should have been tested byboth parties by examination and cross-examination in order tomake it admissible in the later proceeding." (emphasisadded) 9.Thus, the question to be considered is as to whetheraccused has any right to cross examine a prosecution witnessexamined during the course of inquiry under Section 202 ofthe Code. It is well settled that the scope of inquiry underSection 202 of the Code is very limited one and that is to findout whether there are sufficient grounds for proceedingagainst the accused who has no right to participate thereinmuch less a right to cross examine any witness examined bythe prosecution, but he may remain present only with a viewto be informed of what is going on. This question is no longerres integra having been specifically answered by a four-Judgebench decision of this Court in the case of Chandra DeoSingh V/s. Prokash Chandra Bose4, wherein this Courtcategorically laid down that an accused during the course ofinquiry under Section 202 of the Code of Criminal Procedure,1898, has no right at all to cross examine any witness4AIR 1963 SC 1430SSP 15/24 wp 2457 of 2026.docexamined on behalf of the prosecution. It was observed thusat page 1432, para 7 : “7."Taking the first ground, it seems to usclear from the entire scheme of Ch. XVI of the Code ofCriminal Procedure that an accused person does not comeinto the picture at all till process is issued. This does not meanthat he is precluded from being present when an enquiry isheld by a Magistrate. He may remain present either in personor through a counsel or agent with a view to be informed ofwhat is going on. But since the very question for considerationbeing whether he should be called upon to face anaccusation, he has no right to take part in the proceedings norhas the Magistrate any jurisdiction to permit him to do so. Itwould follow from this, therefore, that it would not be open tothe Magistrate to put any question to witnesses at theinstance of the person named as accused but against whomprocess has not been issued; nor can he examine anywitnesses at the instance of such a person." 21.Following the aforesaid pronouncement, in the case of PadamChandra Singhi and Ors. V/s. Praful B. Desai (Dr.) and Ors.5, a learnedSingle Judge of this Court enunciated the law, as under : “14.The above section enumerates the cases in which theevidence given by a witness (a) in a judicial proceeding, or (b)before any person authorized by law to take it, is relevant in asubsequent judicial proceeding or a later Page 0802 stage ofthe same proceeding and can be read in five eventualities,viz.; (a) when the witness is dead; (b) when he cannot be52008 SCC Online Bom 183SSP 16/24 wp 2457 of 2026.docfound; (c) when he is incapable of giving evidence; (d) whenhe is kept out of the way by the adverse party; or (e) when hispresence cannot be obtained without any amount of delay orexpense which the Court considers unreasonable; provided(1) if the proceeding was between the same parties, or theirrepresentatives in interest; (2) if the adverse party in the firstproceeding had the right and opportunity to cross-examine;and (3) if the questions in issue were substantially the same inthe first as in the second proceeding. It is, thus, clear fromSection 33 that the evidence of depositions in former trials isadmissible. This section is an exception to the hearsay rule. 15.The depositions are in general admissible only afterproof that the persons who made them cannot be producedbefore the Court to give evidence. It is only in cases wherethe production of the primary evidence is beyond the party’spower that secondary evidence of oral testimony isadmissible. 16.It is an elementary right of a litigant in civil suit that awitness, who is to testify against him, should give hisevidence before the Court trying the case, the adverse partygets an opportunity to cross-examine at the same time so thatthe Court has the opportunity of seeing the witness andobserving his demeanour and can, thus, form a better opinionas to his reliability rather than reading a statement ordeposition given by that witness in a previous judicialproceeding or in an early stage of the same judicialproceeding. 17.Where a statute i.e. the Evidence Act, makes provisionfor exceptional cases where it is impossible for the witness tobe before the Court, the Court is expected to be careful to seeSSP 17/24 wp 2457 of 2026.docthat the conditions on which the statute permits previousevidence given by the witness to be read are strictly compliedwith. Previous statement of a witness not appearing in Courtcannot be taken on record under Section 33 without strictproof of the conditions justifying it before taking it on record.” 22.This court has thus held, in clear and explicit terms that, the previousstatement of the witness not appearing in Court cannot be taken on recordunder Section 33 without strict proof of the conditions justifying reception ofsuch evidence before taking it on record. 23.Reverting to the facts of the case, the learned Civil Judge has simplyallowed the production of the documents for the reason that those affidavitsformed part of the judicial record. The learned Civil Judge, however, lost sightof both the inadmissibility of the affidavits as evidence, as such, and thecircumstances under which the evidence tendered in the prior proceedingscould become relevant without examining the witness before the Court. If theproduction of the affidavits is allowed and the trial Court proceeds to considerthe said affidavits, it would amount to considering the evidence untested bythe cross-examination, which is against the elementary rule of reliability ofevidence. 24.For the foregoing reasons, this Court is persuaded to hold that thelearned Civil Judge has committed an error in allowing the production of thecertified copies of the affidavits in Misc. Civil Application No.268 of 2017 as aSSP 18/24 wp 2457 of 2026.docpart of evidence on behalf of the Plaintiff. 25.So far as the publication of citation in the newspaper, it being a part ofthe judicial record in Misc. Civil Application No.268 of 2017, the permission toproduce 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 ofthe order dated 10 February 2026, whereby the learned Civil Judge declinedto grant the Petitioner an opportunity to cross-examine the Plaintiff. Since thiscourt is inclined to reject the application for the production of the documentsto 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 framingadditional issues with regard to the limitation and absence of cause of action,opining that Defendant No.9 had not filed an additional written statementraising the ground of bar of limitation, though in WP No.9801 of 2019, thisCourt had opined that, it would be open to the Defendant No.9 to raise anissue of limitation at an appropriate stage. That seems to be the only reasonwhich weighed with the learned Civil Judge. 28.From a perusal of the written statement filed on behalf of the PetitionerSSP 19/24 wp 2457 of 2026.doc(D9), it becomes explicitly clear that Defendant No.9 had raised the groundthat the suit is barred by law of limitation. If the issue arose out of the originalpleadings, it was not incumbent upon the Petitioner to again raise thecontention by filing an additional written statement, post amendment in theplaint. 29.Incontrovertibly, the Petitioner came to be pleaded as Defendant on 18July 2016. Written statement was filed on 7 March 2017, raising thecontention that the suit was barred by law of limitation. The learned CivilJudge does not seem to have considered the contentions in the writtenstatement while passing the impugned order. 30.In any event, it is the duty of the Court to examine whether the suit hasbeen instituted within the prescribed period of limitation, notwithstanding theabsence of pleadings. Section 3 of the Limitation Act, 1963, peremptorilymandates that every suit instituted after the prescribed period shall bedismissed, although limitation has not been set up as a defence. SinceDefendant No.9 came to be impleaded on 18 July 2016, the question as towhether Defendant No.9 shall be deemed to have been impleaded on anearlier date, qua the relief against Defendant No.9, in view of the provisionscontained in the proviso to Section 21 of the Limitation Act, may also warrantconsideration. 31.In the case of R. Nagaraj (dead) through LRs and Anr. V/s. RajmaniSSP 20/24 wp 2457 of 2026.docand Ors.6, the Supreme Court emphasised the duty of the Court to ascertainwhether 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 questionof fact and law. However, there is no hard and fast rule thatevery question of limitation is to be treated as a mixedquestion of fact and law. In cases, where the action isinitiated after several years after the right to sue accrued,without any pleadings to explain the reasons for delay or asto when the fraud was discovered, the question of limitationis to be treated as a question of law. A recourse may be hadto Order VI Rules 4 and 10 CPC, which mandates thatspecific particulars would have to be given in the pleadings.Once such a plea is raised in the pleadings, then the burdenlies on the person to prove that the delay was due to anyplausible reason and it is always well within the knowledgeof the other party to contend and prove that the oppositeparty had prior knowledge about the disputed fact and thathis right to sue or defend had also accrued by that date.Even in the absence of specific pleadings regarding thelimitation in the plaint or a plea of defence, there is abounden duty on every civil court to ascertain as to whetherthe lis has been initiated within the time prescribed underlaw, even if the parties to the lis had not raised anyobjections. This right flows from the mandate of Section 3 ofthe Limitation Act, 1963. A useful reference may be had tothe judgment of this Court on this aspect, in V.M.Salgaocar62025 SCC Online SC 762SSP 21/24 wp 2457 of 2026.docand Bros. V. Board of Trustees of Port of Mormugao7wherein it was held as follows : “20. The mandate of Section 3 of the Limitation Act isthat it is the duty of the court to dismiss any suit institutedafter the prescribed period of limitation irrespective of thefact that limitation has not been set up as a defence. If a suitis ex facie barred by the law of limitation, a court has nochoice but to dismiss the same even if the defendantintentionally has not raised the plea of limitation. 21.This Court in Manindra Land & Building Corpn.Ltd. v. Bhutnath Banerjee [(1964) 3 SCR 495 : AIR 1964SC1336] held (AIR para 9) : “Section 3 of the Limitation Act enjoins a court todismiss any suit instituted, appeal preferred and applicationmade, after the period of limitation prescribed therefor bySchedule I irrespective of the fact whether the opponent hadset up the plea of limitation or not. It is the duty of the courtnot to proceed with the application if it is made beyond theperiod of limitation prescribed. The Court had no choice and ifin construing the necessary provision of the Limitation Act orin determining which provision of the Limitation Act applies,the subordinate court comes to an erroneous decision, it isopen to the court in revision to interfere with that conclusionas that conclusion led the court to assume or not to assumethe jurisdiction to proceed with the determination of thatmatter.” In cases, where the pleadings are silent, then itbecomes the duty of the Court to ascertain from the evidenceand the overall facts of the case, as pleaded by either party,7(2005) 4 SCC 613SSP 22/24 wp 2457 of 2026.docand to render a finding on limitation where the question oflimitation is to be treated as a question of law, since the Courtcannot entertain frivolous or stale claims. It is also apropos toreiterate the settled position of law that a question of law canbe raised at any stage.” 32.The conspectus of aforesaid consideration is that the trial Court couldnot have declined to frame the issue of limitation, especially when on the oralapplication of the Plaintiff, as many as four additional issues were settled bythe trial court on 5 February 2026, on the sole ground that Defendant No.9had not raised the ground of bar of limitation in the additional writtenstatement, when in the original written statement Defendant No.9 had alreadyraised the ground of limitation. 33.This Court is mindful of the fact that the trial in the suit has beenexpedited. However, whether the trial court unjustifiably declined to frame theissue which crops up for consideration, an interference with the orderbecomes necessary so as to obviate further challenges. At this stage, it isnecessary to note that, Mr. Khandeparkar, learned Counsel for the Petitioner– Defendant No.9, on instructions, made a statement that Defendant No.9would not lead any further evidence and would advance final arguments. 34.I am, therefore, inclined to partly allow Writ Petition Nos.2457 of 2026and 2505 of 2026 and dispose WP No.2458 of 2026. 35.Hence, the following order : SSP 23/24 wp 2457 of 2026.docORDER (I)(a)Writ Petition No.2457 of 2026 stands partly allowed. (b)The impugned order dated 6 February 2026 passed belowExh.206 permitting production of the documents stands quashed and setaside in regard to the document Nos.1 to 7 i.e. claim Affidavits of DefendantNos.2, 3, 5 and 6 and other witnesses in Misc. Civil Application No.268 of2017. (c)The Application stands allowed only to the extent ofproduction 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 additionalissue : whether the suit is barred by law of limitation ? (c)The prayer to frame the issue of absence of cause of actionstands rejected. (III) In view of the disposal of Writ Petition No.2457 of 2026, WritPetition No.2458 of 2026 stands disposed as having been substantiallyworked out.(IV)Rule made absolute to the aforesaid extent. (V)No costs. ( N.J.JAMADAR, J. )SSP 24/24