Bombay High Court
Shekhar vs Smt. Manjudevi on 17 October, 2013
Bench: A.V. Nirgude
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION NO.77 OF 2013
1. Shekhar s/o. Govindrao Kinkhede,
Since deceased through L.Rs.
1(a) Smt. Shweta wd/o. Shekhar Kinkhede,
Aged about 50 yrs., Occ. Household.
r/o. Temple Road, Civil Lines,
Nagpur.
1(b) Smt. Anagha w/o. Dhananjay
Nandanpawar, aged major, r/o.
Near Chitnis Park, Mahal, Nagpur.
1(c) Smt. Prachi w/o. Himanshu Shewalkar,
Aged major, r/o. White Field,
Banglore.
2. Smt. Mangala wd/o. Govindrao Kinkhede,
aged about 80 yrs., Occ. Household.
r/o. Temple Road, Civil LInes, Nagpur.
3. Smt. Anita w/o. Ajit Kholkute,
Aged major, Occ. Household,
r/o. Near Bhartia Gyanpeeth, Mahananda
Nagar, Ujjain.
4. Smt. Sumedha w/o. Mahesh Baxi,
Aged about 45 yrs., Occ. Household,
r/o. Near Dental Girls Hostel, Manas,
Amravati. ........ PETITIONERS
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// VERSUS //
1. Smt. Manjudevi w/o. Vinodkumar
Chhawchharia, aged major.
2. Vinodkumar s/o. Sitaram Chhawchharia,
through Power of Attorney Holder
Bhushan s/o. Mangilal Jain,
Aged about 50 yrs., r/o. 1104,
C.A. Road, Nagpur. ........ RESPONDENTS
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Mr. V.V.Bhangde, Adv. for the Petitioners.
Mr.P.V.Vaidya and Ms Ketki Jaltar, Adv. for
Respondent No.1.
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CORAM : A. V. NIRGUDE, J.
DATE : 17.10.2013.
ORAL JUDGMENT :
1. Rule returnable forthwith. Heard the learned Counsel for the
respective parties.
2. This revision is challenging the order dated 24th January, 2012
passed on Exh.87 in Special Civil Suit No.583 of 1997 rejecting the plea of
defendant nos.1 to 4 that the plaint should be rejected for being barred
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by law as provided in Rule 11 of Order VII of the Code of Civil Procedure.
This suit was originally filed in the year 1997 by Smt. Manjudevi alone. In
the plaint, she stated that she and her husband Vinodkumar had agreed
to purchase certain immovable property situated at Nagpur from
defendant nos.1 to 4 and an agreement was scribed in 1996, in which
both Manjudevi and Vinodkumar were parties. Certain amount as earnest
was also given. Subsequently, they learnt that defendant nos. 1 to 4
have agreed to sell the said property to defendant nos. 5 to 8 and
therefore, the cause of action for filing the suit for specific performance
arose. But, surprisingly, though the right to sue on these set of facts
arose in favour of Manjudevi and Vinodkumar both, the suit was filed only
by Manjudevi. When the suit was filed in this fashion, it was bad in view of
the provisions of Order I, Rule 1 of the Code of Civil Procedure which says
that all persons may be joined in one suit as plaintiffs where any right to
relief arises out of the same act or transaction is alleged to exist in such
persons, whether jointly, severally or in the alternatively. In view of this
and in view of the avernments made in the plaint, both Manjudevi and her
husband Vinodkumar ought to have been joined as plaintiffs in this suit
because the right to relief arising from the transaction existed in both.
When the suit was filed in 1997, this lapse in the plaint was completely
ignored and the summons were issued. Rather belatedly, this objection
was raised in the Written Statement and thereafter, in 2005, Manjudevi
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moved an application for amendment in the plaint. She wanted to join her
husband i.e. plaintiff no.2. After a lot of litigation, the application was
allowed. But, the High Court, while allowing the application, specifically
mentioned that Vinodkumar joined the litigation from the date of order
which was in the 2005. In other words, it is clearly indicated that
inclusion of Vinodkumar as a plaintiff in the litigation would be subject to
law of limitation. It is, thus, clear that, on one hand the plaint filed by
Manjudevi in 1996 deserved to be rejected being barred by Order I, Rule 1
of the Code of Civil Procedure and on the other hand, the plaint, as
amended in the year 2005 for including Vinodkumar as plaintiff no.2,
stood barred by limitation because the plaint clearly mentioned that the
cause of action for the suit arose in 1996.
3. As per the provisions of the Limitation Act, the suit of this
nature ought to have been filed within three years from the date when
the cause of action arose. In view of this, even if the plaint is read as it
stood today for the purpose of deciding the application under Rule 11 of
Order VII of the Code of Civil Procedure, it is required to be separated in
the manner in which I have separated it above. In other words, two
plaintiffs in this suit have different cases and if examined independently,
they appear to be barred by law. Even otherwise, taken together, it would
appear to be barred by both Order I, Rule 1 of the Code of Civil Procedure
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and the Limitation Act. Though this application is filed belatedly, an error
committed by the learned Judge of the trial Court before issuance of
summons ought to be corrected now. Therefore, the order impugned
dt.24.1.2012 passed in Special Civil Suit No.583 of 1997 by the Joint Civil
Judge (Sr.Dn.), Nagpur is set aside. The plaint is rejected. The instant
Civil Revision Application is accordingly allowed.
JUDGE
jaiswal
