Bombay High Court
Shri Vaibhav S/O Basantkumar ... vs Miss. Lorna Cordeiro And Another on 29 October, 2015
Bench: Ravi K. Deshpande
1 cra16.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION No. 16 OF 2014
1] Shri Vaibhav Basantkumar Shukla,
aged about 32 years, Occ. Service.
2] Shri Saurabh Basantkumar Shukla,
aged about 36 years, Occ. Not known
3] Miss. Amita Basantkumar Shukla,
aged about 36 uyeas, Occ. Not known.
All R/o. P.K.Salve Marg, Mohan Nagar,
Nagpur. APPLICANT
Org.Defts
...VERSUS...
1] Miss. Lorna Cordeiro, aged 68 years,
Occ. Retired, R/o. 629-A, First Floor,
House, J.S.S. Road, Dhobi Talao,
Mumbai-2
2] Mrs. Clementine w/o. Brian D'souza,
aged 61 years, Occ. Service, R/o. Helal
Building, D-4, Mazgaon, Mumbai-10 ....... NON-APPLICANTS
Org.Pltffs.
-------------------------------------------------------------------------------------------
Shri V.V.Bhangde , counsel for applicants.
Shri K.D.Shukla, counsel for Non-applicant Nos. 1 & 2
-------------------------------------------------------------------------------------------
CORAM: R. K. DESHPANDE, J.
th
DATE : 27 OCTOBER, 2014 .
2 cra16.14.odt
ORAL JUDGMENT
1] The respondents are the original plaintiffs who
have filed Special Civil Suit No. 691 of 1993 sometime on or
about 2nd September, 2013. The suit claims a declaration that
the sale deed dated 13th December, 1978 said to have been
executed by Mrs. Cecilea Azavedo Cordeiro in favour of the
father of the defendants Shri Basantkumar Shukla as illegal,
null and void. The suit also claims a declaration that the
defendants have no right to remain in possession of the suit
property and the decree for possession has been claimed.
The plaintiffs have asked for a decree of permanent
injunction restraining the defendants from trespassing,
obstructing or dealing with the property in any manner in
future.
2] Immediately upon the receipt of suit summon,
the defendants filed an application Exh. 18 under Order VII,
Rule 11 (a) and (d) of C.P.C for rejection of plaint on the
ground that the plaint does not disclose the cause of action
and that the suit is barred by law of limitation. This
application has been rejected by the trial Court on 20th
3 cra16.14.odt
January, 2014. The Court has held that the question of
limitation is a mixed question of law and fact and cannot,
therefore, be decided under Order VII, Rule 11 (d) of C.P.C.
The Court has perused paragraph No. 25 of the plaint and
has observed that the plaint discloses the cause of action.
The original defendants are, therefore, before this Court in
this writ petition.
3] On 12th February, 2014, this Court had issued
notice and granted ad-interim relief of stay of further
proceedings of the suit. On 7th January, 2015, Rule was
granted in the matter and the interim order was continued.
4] It is not in dispute that the trial Court has
proceeded against the defendants with the order of "No
W.S". Till this date the defendants have not filed their written
statement, nor such order of "No W.S" has been challenged.
Undisputedly, when the application at Exh. 18 under Order
VII, Rule 11 (a) and (d) of C.P.C was filed, the application
under Order XXXIX, Rule 1 and 2 was pending. Upon
rejection of the application at Exh. 18, this Court has stayed
the further proceedings of the civil suit, as a result the
4 cra16.14.odt
application under Order XXXIX, Rule 1 and 2 has also not
been decided and it is pending.
5] Before filing of the written statement, the trial
Court can dispose of the suit on the basis of preliminary
objections relating to the jurisdiction of the court to entertain,
try and decide the suit, either on the application under Order
VII, Rule 11 (a) and (d) of C.P.C or on the application under
Section 9A (Maharashtra Amendment) of C.P.C. The
application under Section 9A of C.P.C can be entertained
only during the pendency of the application under Order
XXXIX, Rule 1 and 2 of C.P.C, whereas the application under
order VII, Rule 11(a) and (d) of C.P.C can be entertained and
decided by the trial Court at any stage of the proceedings.
While deciding the application under Order VII, Rule 11 (a)
and (d) of C.P.C, the Court is not required to frame any issue,
as the averments made in the plaint are required to be
treated as true and correct as per its face value. If the
jurisdictional facts giving rise to an issue are disputed then
the trial Court is at liberty to decide the said issue by framing
a preliminary issue under Section 9A of C.P.C, which can be
decided before the decision of the application under Order
5 cra16.14.odt
XXXIX, Rules 1 and 2 of C.P.C.
6] In view of the aforesaid position of law and the
fact that the application at Exh. 18 raises a pure question of
law in respect of entitlement of the plaintiff to get the relief
and the jurisdiction of the Court to grant such relief claimed in
the suit and also raises an issue as to bar of limitation, which
is a mixed question of law and fact, to entertain, try and
decide the application, such application can be treated as
one under Section 9A of C.P.C irrespective of the fact that it
is styled as one under Order VII, Rule 11 (a) and (d) of C.P.C
for the reason that such objections can be considered under
Section 9A of C.P.C also.
7] If the issues are answered in favour of the
defendants, obviously the suit would not survive and if the
issues are answered in favour of the plaintiff, naturally the
Court would proceed to frame the issues on merits of the
matter taking into consideration the fact that there is already
an order of "no W.S." passed by the Court.
8] In view of above, the revision application is
6 cra16.14.odt
allowed. The order dated 20th January, 2014 passed below
Exh. 18 in Special Civil Suit No. 691 of 2013 is hereby
quashed and set aside. The application at Exh. 18 though
styled as one under Order XXXIX, Rule 11(a) and (d) of
C.P.C., shall be treated as an application under Section 9A of
C.P.C. The Court shall frame preliminary issues on the
basis of the pleadings of the parties and the same shall be
decided, if required, by permitting the parties to lead oral
evidence in the matter.
9] Shri Bhangde, the learned counsel appearing for
the defendants makes a statement that the defendants are
not intending either to create any third party interest in the
suit property or to transfer the property in any manner
pending the decision of the suit itself. In view of this, the
statement shall be binding upon the defendants till the
decision on the preliminary issue. After the said decision,
the trial Court shall dispose of the application under Order
XXXIX, Rule 1 and 2 of C.P.C. and shall accordingly proceed
with the matter on merits.
The parties to appear before the trial Court on
23rd November, 2015. No fresh notices shall be issued to the
7 cra16.14.odt
parties for their appearance. .
The trial Court shall decide the preliminary issue
within a period of six months from the date of first
appearance of the parties. No costs.
JUDGE
Rvjalit
