Bombay High Court
Balkrishna Gangabishanji Zawar vs Azmat Khan Suban Khan And Anr on 27 September, 2016
Bench: Sangitrao S. Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 109 OF 2012
Balkrishna s/o Gangabishanji Zawar,
Age : 47 years, Occu. Business,
R/o Plot No. 12, Friends Colony,
Kokanwadi, Aurangabad APPLICANT
VERSUS
1. Azmat Khan s/o Suban Khan,
Age : 53 years, Occu. Business,
R/o Kokanwadi, Aurangabad
2. Municipal Corporation,
Aurangabad,
through its Commissioner RESPONDENTS
----
Mr. A.S. Bajaj, Advocate for the Applicant
Mr. A.D. Kasliwal, Advocate for respondent No.1
Mr. V.V. Pawar, Advocate holding for Mr. S.S. Tope,
Advocate for respondent No. 2
----
CORAM : SANGITRAO S. PATIL, J.
JUDGMENT RESERVED ON : 2nd SEPTEMBER, 2016
JUDGMENT PRONOUNCED ON : 27th SEPTEMBER, 2016
JUDGMENT :
Original defendant No. 1 in Special Civil Suit
No. 21 of 2011 has taken exception to the common order
dated 5th March, 2012, passed below applications Exh-51
and Exh-55 by the learned Civil Judge, Senior Division
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(Corporation Court), Aurangabad, whereby he rejected the
said applications.
2. The applicant is the owner of plot No. 12,
C.T.S. No. 18151, situate in Friends Cooperative
Society, Kokanwadi, Aurangabad, which has been purchased
by him from one Narayan T. Jape. To the west of that
plot, there is plot No. 13, C.T.S. No. 18152 in the same
Cooperative Housing Society, which is owned by
respondent No. 1 (the original plaintiff). Plot No.13
has been purchased by respondent No. 1 from one Vimalbai
Kulkarni.
3. The case of the applicant, as disclosed from
the application (Exh.51), is that Vimalbai Kulkarni had
filed Dispute No. 367 of 2000 before the Co-operative
Court, Aurangabad against the Friends Co-operative
Society and Narayan T. Jape, claiming possession of 110
square meters of land alleged to have been encroached
upon by Narayan T. Jape out of plot No.13. She
unconditionally withdrew the said Dispute on 17th
January, 2003. Respondent No.1, who is the successor-
in-title of Vimalbai Kulkarni in respect of plot No.13,
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filed the above numbered suit seeking possession of
97.99 square meters of land from the applicant on the
allegations that the said land has been encroached upon
by him. According to the applicant, since the Dispute
filed before the Co-operative Court has been
unconditionally withdrawn by Vimalbai Kulkarni on 17 th
January, 2003, the above numbered suit filed by
respondent No. 1 seeking the same relief in respect of
the property - subject matter of that Dispute, is not
maintainable and as such, the plaint is liable to be
rejected under Order-VII Rule 11 of the Code of Civil
Procedure (for short, "the Code").
4. In the application (Exh-55), dated 9th December,
2011, the applicant alleged that plot No. 13 was
measured by the surveyor on 31st October, 1998 and in
that measurement, it was transpired that Narayan T.
Jape, the predecessor-in-title of the applicant had
encroached upon plot No. 13 to the extent of 110 square
meters. Narayan T. Jape had obtained permission to
construct a building over the land which was in his
possession in the year 1987. He completed his
construction, including the compound wall in the year
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1987-88. Therefore, the above numbered suit being
barred by the law of limitation, the plaint liable to be
rejected under Order-VII Rule 11 (d) of the Code.
5. Respondent No. 1 filed common reply to the
applications Exh-51 and Exh-55 on 20th December, 2011 and
strongly opposed the same. It is stated that the plaint
contains the events which were prevailing at the time of
withdrawal of the Dispute before the Co-operative Court
and also those took place subsequent thereto. Respondent
No. 1 has pleaded necessary facts in the plaint to show
as to how the cause of action arose for institution
thereof and how it is within limitation. According to
him, the suit is perfectly maintainable in all respects.
It is not barred by the law of limitation. The plaint is
not liable to be rejected under Order-VII Rule 11 of the
Code. He, therefore, prayed for rejection of the
applications.
6. The learned Trial Judge considered the
pleadings of the parties and rejected the applications
Exh-51 and Exh-55 as per the impugned order.
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7. The learned Advocate for the applicant submits
that after withdrawal of Dispute No. 367 of 2000 from
the Co-operative Court, Aurangabad by the predecessor-
in-title of respondent No. 1, the above numbered suit is
not at all maintainable in respect of the same subject
matter and for the same relief. He submits that the
plaint has been ingeniously drafted to make a show that
a fresh cause of action has arisen, which is not
factually correct. The suit is ex-facie vexatious and
meritless. Therefore, the learned Trial Judge ought to
have rejected the plaint under Order-VII Rule 11 of the
Code. In support of this contention, he relied on the
case of T. Arivandandam Vs. T.V. Satyapal and another
AIR 1977 S.C. 2421, wherein it has been observed that if
the allegations are vexatious and meritless and not
disclosing a clear right or materials to sue, it is the
duty of the trial Judge to exercise his power under
Order VII, Rule 11 of the Code. He further cited the
case of The Church of Christ Charitable Trust and
Educational Charitable Society Vs. M/s Ponniamman
Educational Trust AIR 2012 S.C. 3912, wherein it has
been observed that if clever drafting has created the
illusion of a cause of action, it has to be nipped in
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the bud at the first hearing.
8. The learned Advocate for the applicant further
submits that the facts on record clearly indicate that
the alleged encroachment on plot No. 13 was noticed in
the year 1998 itself when it was measured by the
Surveyor on 31st October, 1998. The construction of the
building of the applicant, including the compound wall
was completed in the year 1987-88. Therefore, the suit
for recovery of possession of the alleged encroached
portion of land, filed in the year 2011 is ex-facie
barred by limitation. The dispute in respect of the
same subject-matter filed before the predecessor-in-
title of respondent no.1 has been unconditionally
withdrawn by her. Therefore, the present suit was not at
all maintainable. He submits that the learned Trial
Judge ought to have considered these aspects of the
matter and in view of the above cited judgments, should
have rejected the plaint, exercising his powers under
Order-VII Rule 11 of the Code. He, therefore, prays
that the impugned order may be set aside and the plaint
may be ordered to be rejected.
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9. As against this, the learned Advocate for
respondent No.1 submits that the pleadings of respondent
No.1 would make it clear that the cause of action for
filing the above numbered suit for recovery of
possession of the alleged encroached portion of land
arose in the year 2011. Relying on the judgments in the
cases of C. Natrajan Vs. Ashim Bai and another 2007 ALL
SCR 2663 and Merit Magnum Constructions Vs. Nand Kumar
Anant Vaity and others 2014 (7) ALL MR 252, he submits
that at the stage of deciding the application under
Order-VII Rule 11 of the Code, the pleadings have to be
construed as they stand without addition or subtraction
of any words or by changing their apparent grammatical
sense. The averments made in the plaint only are
relevant and the defence cannot be gone into at the
stage of deciding such application. He further cited
the case of Western Coalfields Ltd. and others Vs. Shri
Chandraprakash s/o Krishnalal Khare 2010 (2) ALL MR 713,
wherein it has been held that where a plea of limitation
is raised, the Court cannot reject the plaint but may
dismiss it on framing a preliminary issue. According to
the learned Advocate for respondent No. 1, the issue of
limitation is a mixed question of law and facts,
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requiring evidence of effective adjudication thereof.
Therefore, in the absence of such evidence, the plaint
cannot be rejected on the ground of limitation by
resorting to the provisions of Order-VII Rule 11 (d) of
the Code. He further submits that the above numbered
suit has been instituted in respect of the cause of
action that arose on 20th August, 2011. The said cause of
action arose after withdrawal of the Dispute from the
Co-operative Court by the predecessor-in-title of
respondent No. 1. This being a fresh cause of action,
the withdrawal of the Dispute by her would not come in
the way of respondent No. 1 in prosecuting the present
suit. He supports the impugned order and prays that the
Revision Application may be rejected.
10. The copy of the plaint of the above numbered
suit has been produced on record. In paragraph No. 3 of
the plaint, there is a reference of Dispute bearing No.
367 of 2000 that was filed by the predecessor-in-title
of respondent No.1 before the Co-operative Court at
Aurangabad. It is averred that the predecessor-in-title
of the applicant delivered possession of the encroached
portion of the land out of plot No. 13 to the
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predecessor-in-title of respondent No. 1 and therefore,
in view of that amicable settlement, the said Dispute
came to be withdrawn. It is further averred in paragraph
No. 4 that the applicant again encroached upon plot No.
13. When the applicant started construction, he
complained against the applicant to the Municipal
Authorities on 21st June, 2011, 27th February, 2011, 4th
July, 2011, 21st July, 2011 and 26th July, 2011, alleging
that the applicant had encroached upon plot No. 13.
However, no cognizance was taken by the municipal
authorities. The applicant continued the construction of
his building and ultimately, encroached upon 97.99
square meters of land out of plot No. 13. In paragraph
No. 6 of the plaint, respondent No. 1 specifically
mentioned that the cause of action finally arose on 20th
August, 2011. In view of the judgments cited on behalf
of respondent No.1, for the purpose of deciding
application under Order-VII Rule 11 of the Code, the
averments made in the plaint only would be relevant. The
above referred averments made in the plaint prima facie
show that the cause of action for filing the above
numbered suit arose much after withdrawal of the Dispute
by the predecessor-in-title of respondent No. 1 from the
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Co-operative Court at Aurangabad. The averments made in
the plaint prima facie do not show that they are
vexatious or meritless. The averments made in the
plaint show the existence of contentious issues which
would be required to be decided after recording the
evidence of the parties.
11. Since the cause of action is stated to have
arisen on 20th August, 2011, the above numbered suit
prima facie would be within the period of limitation.
The issue of limitation is a mixed question of law and
facts. It cannot be decided at the threshold as held in
the judgments cited on behalf of respondent No. 1. The
said ground of objection would be available for the
applicant for being agitated before the Trial Court at
the appropriate stage. In the above facts and
circumstances, the judgments in the cases of T.
Arivandandam (supra) and The Church of Christ Charitable
Trust and Educational Charitable Society (supra) would
be of no assistance to the applicant to seek rejection
of the plaint under Order-VII Rule 11 of the code.
12. The learned Trial Judge has rightly considered
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the facts of the case and rightly rejected the
applications Exh-51 and Exh-55. I do not find any reason
to interfere in the impugned order. Hence, the order:-
O R D E R
(i) The Civil Revision Application is rejected.
(ii) The parties shall bear their own costs.
(iii)
The Rule stands discharged accordingly.
Sd/-
[SANGITRAO S. PATIL]
JUDGE
npj/cra109-2012
