Bombay High Court

Sou. Kamla Sharad Kapse And 4 ... vs Laxman Shantaram Kshirsagar on 22 April, 2016

Bench: Prasanna B. Varale

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             : NAGPUR BENCH : NAGPUR.




                                                                            
                                 WRIT PETITION NO. 1009 OF 2015

    (1) Sou. Kamla Sharad Kapse 
          Aged about 60 years, 




                                                                           
    (2) Satish Sharad Kapse 
          Aged about 30 years, 

    (3) Sachin Sharad Kapse 




                                                         
          Aged about 28 years, 

    (4) Umesh Sharad Kapse, 
          Aged about 25 years,  
                                 
                                
    (5) Amit Sharad Kapse 
          Aged about 23 years, all cultivators,  
          R/o Chincholi (Gawali), 
          Tq. Morshi, Distt. Amravati.                                                             ... Petitioners
      


                 VERSUS
   



    Laxman Shantaram Kshirsagar 
    Aged about 65 years, Occ. Labour, 
    R/o Pala, Tq. Morshi, Distt. Amravati.                                      ... Respondent





    -------------------------------------------------------------------------------------------------
    Shri S. M. Vaishnav, Advocate for the petitioners 
    Shri Sawan Alaspurkar, Advocate for the respondent 
    ------------------------------------------------------------------------------------------------------------------------
     
                                                      CORAM :  PRASANNA B. VARALE, J.

                                                       DATE    :   22-4-2016.
    ORAL ORDER

Heard Shri Vaishnav, learned counsel for the petitioners

and Shri Alaspurkar, learned counsel for the respondent.

2. Rule. Rule made returnable forthwith.

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3. By the present petition, the petitioner is challenging the

order passed by the learned 4 th Joint Civil Judge Senior Division,

Amravati dated 7-1-2015 thereby rejecting the application submitted at

the instance of the petitioners/defendants under Order VII Rule 11 read

with Section 9A of the Code of Civil Procedure.

4. It was the submission of Shri Vaishnav, learned counsel for

the petitioners by inviting my attention to the copy of the plaint placed

on record in Regular Civil Suit No. 3/2014 instituted at the instance of

the respondent being plaintiff that the suit relates to certain part of the

agriculture land. It is submitted by the learned counsel for the

petitioners that it is the case of the plaintiff/respondent in the plaint that

one Narayan Shantaram Kshirsagar received land from the Government

in the year 1976-77. It is further submitted in the plaint by the plaintiff

that Shri Narayan Kshirsagar died issueless on 31-3-1985. It is further

alleged that one Sharad Wamanrao Kapse by misleading Shri Narayan

Kshirsagar and by taking undue advantage, got a will registered in year

1978. It is further submitted in the plaint that the respondent/plaintiff

got knowledge that on the basis of the said will deed, certain revenue

entries were recorded in the year 2007. It is further submitted that the

fact that the will deed of the year 1978 came to the knowledge of the

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respondent/plaintiff in the year 2008 and the plaintiff specifically

averred in the plaint that the cause of action for the said suit arose in

September, 2008 and the suit was filed on 27-12-2013. Shri Vaishnav,

learned counsel for the petitioners then invited my attention to the

prayers in the suit and more particularly, prayer nos. (i) and (ii). Prayer

no. (ii) was a challenge to the will deed dated 30-10-1978 and the

consequent alleged mutation entries dated 5-4-1985 and 25-11-2000.

Submission of Shri Vaishnav, learned counsel for the petitioners by

referring to these facts, was a suit presented by the respondent was

clearly barred by limitation. It was submitted by the learned counsel for

the petitioners/defendants that the application before the learned Civil

Judge Senior Division, Amravati was filed for rejection of plaint under

Order VII Rule 11 read with Section 9A of the Code of Civil Procedure.

Shri Vaishnav, learned counsel for the petitioners further submitted that

in support of the submissions, the petitioners i.e. the applicants before

the learned Court below placed heavy reliance on the judgments of the

Apex Court as well as this Court. The learned Joint Civil Judge Senior

Division, Amravati without considering the law dealt with by this Court

as well as the Apex Court, merely, on an erroneous premises and

presumption that the issue of limitation being issue of mixed question of

fact and law rejected the application at the threshold. Shri Vaishnav,

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learned counsel for the petitioners submitted that the learned Joint Civil

Judge Senior Division, Amravati ought to have framed the issue thereby

giving an opportunity to the parties to contest that issue by leading

evidence then could have decided the issue in either way, but the

learned Judge rejected the application at the threshold. Shri Vaishnav,

learned counsel placed reliance on the following judgments of Apex

Court and this Court viz. ig (1) 2015(2) Scale 627 in the case of Om Aggarwal Vs. Haryana

Financial Corporation and ors.

(2) 2014(6) Bom. C.R. 803 in the case of Shobhabai Navinchandra

Patni Vs. Kundlik Jayanta Ukirde and ors.,

(3) 2009(5) Mh.L.J. 327 in the case of Sundeep Polymers Pvt. Ltd.,

Mumbai Vs. Maharashtra State Electricity Distribution Company

Ltd., Nagpur,

(4) 2009(1) Mh.L.J. 445 in the case of Anand Laxmi Enterprises Vs.

Vasant Balu Mhatre and ors. and

(5) 2015(3) Mh.L.J. 315 in the case of Foreshore Co-operative Hsg.

Soc. Ltd. Vs. Praveen D. Desai (dead) through L.Rs. and ors.

5. Per contra, Shri Alaspurkar, learned counsel for the

respondent made an attempt to support the order impugned in the

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petition. Shri Alaspurkar learned counsel for the respondent made an

attempt to submit that as the respondent/plaintiff initiated proceedings

in challenge to the mutation entry and the matter was pending before

the revenue authority for some time, the suit preferred by the

respondent/plaintiff was well within the limitation. Learned counsel for

the respondent placed reliance on the judgment of this Court in the case

of Export Credit Guarantee Corporation of India ltd., Mumbai Vs. T.

Mathew and ors. reported in 2014(2) ABR 801.

6. On hearing both the learned counsel appearing for the

parties and on going through the material in the nature of copy of plaint

and the application submitted by the petitioners and the order

impugned in the petition, I find considerable merit in the submissions of

Shri Vaishnav, learned counsel for the petitioners. Perusal of the copy of

plaint clearly shows that the respondent/plaintiff referred to certain

sequence of events supporting his claim of knowledge and the material

deals i.e. the alleged will deed of year 1978. The averment in the

complaint that the respondent/plaintiff got the knowledge of the

mutation entries in the year 2007 and averment in the plaint that the

cause of action arose for filing the suit in the month of September, 2008

and the date of presenting the suit which was 27-12-2013 support the

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submission of Shri Vaishnav, learned counsel for the petitioners. The

order impugned in the petition passed by the learned Judge shows that

the learned Judge only referred to the judgments relied on by the

learned counsel for the petitioners i.e. the applicants/defendants, but

there is neither observation nor the reason to show that why the learned

Judge was not taking into consideration the judgments relied on by the

applicants i.e. defendants. There is also merit in the submissions of

Shri Vaishnav, learned counsel for the petitioners that the learned Judge

only proceeded on a premises that the issue of mixed question of fact

and law is involved. It is interesting to note that though the learned

Judge observed that the issue of limitation cannot be decided without

giving opportunity to the parties to lead the evidence, if the learned

Judge was of that opinion, it was more than necessary for the learned

Judge on the backdrop of that observation to decide the issue by

hearing the parties and by appreciating evidence led by the parties.

Though Shri Alaspurkar, learned counsel for the respondent submitted

that the plaintiff was proceeding with a remedy before the revenue

authority in challenge to certain mutation entries, it will not be out of

place to refer to the judgment of this Court and the same was relied on

by Shri Vaishnav, learned counsel for the petitioners. In nearly identical

facts and circumstances, this Court in the judgment of Shobhabai

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Navinchandra Patni Vs. Kundlik Jayanta Ukirde and ors. 9 (Cited

supra) in paragraph no. 13 observed that :

13. It is clear that what was being pursued before the revenue authorities was challenge to the mutation entry

and the same was "dismissed on the count of delay". It was not due to defect of jurisdiction as required by Section 14 of the Limitation Act. Even the Writ Petition No.8045/2009 came to be dismissed keeping in view the

delay. Thus, it is not a case that trial proceedings failed due to defect of jurisdiction or other cause of like nature.

The earlier proceedings were for setting aside mutation entry. The present suit is to declare the sale deed dated 7.10.1984 as not binding on the plaintiff and for

injunction that the defendants should not create third party interest. I find that, going through the plaint as a whole, Section 14 of the Limitation Act cannot help the plaintiffs to get the delay condoned. By clever drafting, knowledge of mutation entry of 10.1.1985 and sale deed of

7.10.1984 is shown as of January 2008. The claim to set aside the sale deed was already hopelessly delayed, even if

exclusion of time is done from January 2008 till filing of suit. Even otherwise, when admittedly there was knowledge in January 2008, right to sue to set aside sale deed had accrued. The present suit filed on 1.8.2012 is

time barred under Article 58 of the Limitation Act. The time sought to be excluded from when the mutation entry was challenged before the revenue authorities on 2.4.2008 till dismissal of the Writ Petition on 27.9.2010 cannot be accepted and is not admissible under Section 14 of the

Limitation Act.

7. Shri Vaishnav, learned counsel for the petitioners is also

justified in placing reliance on the case of the Supreme Court in Om

Aggarwal Vs. Haryana Financial Corporation and ors. (cited supra)

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and other cases viz. Sundeep Polymers Pvt. Ltd., Mumbai Vs.

Maharashtra State Electricity Distribution Company Ltd., Nagpur

and Anand Laxmi Enterprises Vs. Vasant Balu Mhatre and ors. It will

not be out of place to refer to the judgment of the Apex Court in the case

of Foreshore Co-operative Hsg. Soc. Ltd. Vs. Praveen D. Desai (dead)

through L.Rs. and ors. (cited supra) in which Apex Court, in clear

terms dealing with the aspect of bar of limitation, observed that the

determination of the issue of bar of limitation as the issue being mixed