TaxTMI 
TaxTMI 
2018 (3) TMI 1391
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....arred by limitation under Article 58 of the schedule to the Limitation Act, 1963. 2] By the impugned judgment and order, the court below has held that none of these grounds raised for claiming that the plaint deserved to be rejected, could be decided at the threshold and that all of them required evidence to be led, thereby demonstrating that the application filed by the defendant No.1 under Order 7 Rule 11 (d) of the C.P.C. deserved to be rejected. 3] The facts leading upto to filing of this application are that the respondent No.1 herein filed a suit on 20.11.2011 against his own sister (defendant no.1) and two others claiming declaration of right, title and interest in suit property being Plot No.275, CRSIII, scheme of the Nagpur Improvement Trust, Old Bagadganj Layout, Nagpur and direction restraining the defendants from claiming any kind of relief in relation to the said suit property. In the said suit, the respondent No.1 (plaintiff) claimed that although the suit property was purchased in the name of defendant No.1, his own sister, by agreement dated 29.10.1972, she was owner only for name and that all rights towards ownership and possession of the suit property were e....
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....grounds. In respect of the ground that the suit was barred by limitation, while referring to Article 58 of the schedule to the Limitation Act, 1963, the defendant No.1 relied upon the words "when the right to sue first accrues" placing emphasis on the word "first". It was contended that when the earlier suit was filed by her on 21.12.1994, specifically stating that she was the absolute owner of the suit property and when she sought permanent injunction against the respondent No.1 restraining him and others from interfering with construction activities being carried out by her on the suit property, the cause of action for the respondent No.1 first occurred for filing the suit in the nature of the suit that he has filed on 30.11.2011. It was contended that when the period of limitation was only for three years, such a suit could have been filed by the respondent No.1 within three years from the date when he was served with notices in the suit filed on 21.12.1994. Therefore, the suit filed by the respondent No.1 in the year 2011 was clearly barred by limitation. 7] By the impugned order, the court below has rejected the application of the defendant No.1, as stated above, holding th....
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....1, it was evident that the suit was barred by limitation. It was contended that clever drafting on behalf of the plaintiff (respondent No.1 herein) could not be permitted to get over the bar of limitation. Reliance was placed on judgments of the Hon'ble Supreme Court in the case of Khatri Hotels Private Limited and Anr. v. Union of India and Anr. reported in AIR 2011 SC 3590, N.V. Srinivasa Murthy and others v. Mariyamma (Dead) by proposed LRS. and others reported in (2005) 5 SCC 548, Hardesh Ores (P) Ltd. v. Hede and Company reported in (2007) 5 SCC 614, L.C. Hanumanthappa (Since Dead) represented by his legal representatives v. H.B. Shivakumar reported in (2016) 1 SCC 332 and judgment of this court in the case of Laxmichand Kalyanji v. Municipal Corporation of Greater Bombay reported in 2002(2) Mh.L.J. 210. 10] Per contra, Shri V.V. Bhangde, learned counsel appearing on behalf of the respondent No.1, submitted that the order passed by the court below was justified and that no ground was made out by the defendant No.1 while seeking rejection of plaint under Order 7 Rule 11 (d) of the C.P.C. It was pointed out that when the respondent No.1 had stated throughout in the....
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....g on behalf of the respondent No.1 relied upon judgments of this court in the case of National Sports Club of India & others v. Nandlal Dwarkadas Chhabria & others reported in 1997(3) Bom.C.R. 565, Geeta Patkar v. Chandrakant Kantilal Shah and others reported in 2015(6) Mh.L.J. 692 and judgments of the Hon'ble Supreme Court in the case of Daya Singh and another v. Gurdev Singh (Dead) by LRS. and others reported in (2010) 2 SCC 194 and in the case of Marcel Martins (supra). 12] Having heard the learned counsel for the parties, it appears that the ground of limitation argued on behalf of the applicants seeking rejection of plaint requires to be considered in detail. As regards the ground pertaining to the suit of respondent No.1 being hit by Section 34 of the Specific Relief Act, 1963, it is clear that when the plaint is full of pleadings regarding the possession of the respondent No.1 in the suit property, if it is disputed by the defendant No.1, it becomes a matter for trial and therefore, it cannot be said that the plaint deserves to be rejected on account of failure to claim relief of possession. 13] In respect of the ground pertaining to the suit of respondent No.1 bei....
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....that whenever some right is denied or asserted, the party need not rush to court and file a suit and that a party has to rush to court only when its rights are interfered or when there is unequivocal and effective threat to its rights. Similarly, it has been held by the Hon'ble Supreme Court in the case of Daya Singh and another v. Gurdev Singh (supra) that right to sue accrues when a clear and unequivocal threat to infringe right of the plaintiff was shown. It was also earlier held by the Hon'ble Supreme Court in the case of Mst. Rukhmabai v. Lala Laxminarayan and others reported in AIR 1960 SC 335 that every threat by a party to right of a person however ineffective and innocuous cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. This judgment has been relied upon by this court in the case of Geeta Patkar v. Chandrakant (supra). 15] The position of law as it emerges from the aforesaid judgments relied upon on behalf of the respondent No.1, is that cause of action may arise in its different shades at various points of time, but cause of action for approaching the court for filing a suit occurs only when the right sought ....
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....red therein, as to whether cause of action for the plaintiff herein i.e. respondent No.1 first accrued in clear and unequivocal terms only in the year 2009-2010, as claimed by the said respondent or that the cause of action accrued earlier. A perusal of the claim in the earlier suit filed by the defendant No.1 herein (sister of respondent No.1) on 21.12.1994, being Regular Civil Suit No.2465/1994, shows that she claimed to be the absolute owner of the suit property and she claimed that the respondent No.1 and others had no right to interfere with the construction being undertaken by her on the said property. The relevant paragraph of the said plaint reads as follows: "1. ..... 2. ..... 3. It is further submitted that the plaintiff is the absolute owner of the suit plot bearing No.275 situated in the Old Bagadganj Layout. That the suit plot originally belongs to Nagpur Improvement Trust. The plaintiff has purchased the said plot from Karimuddin Alibhai Samarbhai which was transferred in her name by Nagpur Improvement Trust. The plaintiff has completed all the formalities of purchasing the suit plot from the Nagpur Improvement Trust and thus it is the plaintiff alone w....
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....lear and unequivocal terms, which was issued by the defendant No.1 and that was the point in time when the cause of action first accrued for the respondent No.1, thereby triggering the period of limitation under Article 58 of the schedule to the Limitation Act, 1963. This was clearly an overt act on the part of defendant No.1, giving cause of action for the respondent No.1 to rush to the court, as laid down by this court in the case of Laxmichand Kalyanji v. Municipal Corporation of Greater Bombay (supra). 20] The learned counsel appearing on behalf of the respondent No.1 has relied upon various judgments to contend that the cause of action in clear and unequivocal term accrued to the respondent No.1 only when the defendant No.1 sought to alienate the property in the year 2009-2010. According to him, filing of suit on 21.12.1994 was not a threat to the right sought to be canvassed in the suit filed by the respondent No.1 on 20.11.2011. But, the said contention is unsustainable in the face of the pleading in the plaint of the suit filed on behalf of respondent No.1. Any amount of lengthy and clever drafting cannot permit the respondent No.1 from escaping the facts that stare him ....