Smt. Archana D/O Bhimrao Randaye vs Dr. Sau. Kavita W/O Dilip Changole
2017 Latest Caselaw 113 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                Civil Revision Application No. 54 of 2016

 Smt. Archana daughter of Bhimrao
 Randaye,
 aged 40 years,
 occupation - Household,
 resident of K/5, Manjula Building,
 Laxmi Nagar,
 Nagpur.                                    .....          Applicant
                                                    [Org. Defendant]

                                 Versus


 Dr. Sau. Kavita wife of Dlip
 Changole,
 aged about 45 years,
 occupation - Doctor,
 resident of Nilayam Apartment,
 Aath Rasta Chowk,
 Laxmi Nagar,
 Nagpur.                                    .....      Non-applicant.
                                                      [Org. Plaintiff]



                                  *****
 Mr. S. Y. Deopujari, Adv., for the Applicant.

 Mr. S. A. Kalbande, Adv., for the Non-applicant.




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                                      *****


                                  CORAM :         A.S. CHANDURKAR, J.

               Date on which
               arguments were heard :             25th January, 2017


               Date on which the
               the judgment is
               pronounced                     :   28th February, 2017



 JUDGMENT:

01. The original defendant in Regular Civil Suit No. 1041 of 2014

is aggrieved by the order passed by the trial Court dated 3 rd May, 2016

below Exh.18 whereby the Preliminary Issues have been answered in

favour of the plaintiff after rejecting the objection raised by the

defendant.

02. The Applicant and Non-applicant are sisters. It is the case of

the Non-applicant-plaintiff that their father had constructed a huge

bungalow on a plot admeasuring about 750 square meters. The father

had executed a Will on 1st January, 1997, and subsequently another

Will on 3rd August, 2000. According to the plaintiff, after the demise of

her parents, she was residing in a portion of the said bungalow, while

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the applicant-defendant was residing in another part of the said

bungalow. On the plaintiff getting knowledge, that the defendant was

setting up a claim for the entire property, she lodged a police

complaint and thereafter in August, 2014, filed a suit for declaration

that she had legal right to reside in the suit property and that the

alleged Will dated 30th December, 2004 said to have been executed by

her father was invalid. Other ancillary reliefs were also sought in the

suit. Along with the plaint, the plaintiff also filed an application for

temporary injunction seeking to protect her possession and for

restraining the defendant from alienating the same.

03. The defendant filed her Written Statement and raised an

objection that the suit had been undervalued. It was further asserted

that the suit was barred by limitation as the plaintiff was aware about

the existence of the Will dated 30 th December, 2004, executed by her

father. The prayers as made in the plaint were also opposed. The

defendant also filed her reply to the application for grant of temporary

injunction.

04. The defendant thereafter moved two applications, one being

under provisions of Order-VII, Rule 11 of the Code of Civil Procedure,

1908 [for short "the Code"] as well as an application under Section 9-A

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of the Code. These applications were opposed by the defendant and

the trial Court by its order dated 13 th July, 2015 rejected both these

applications. The plaintiff challenged the said order in Civil Revision

Application No. 77 of 2015 and this Court by its judgment dated 26 th

October, 2015 set aside the order passed on the application under

Section 9-A of the Code and directed the trial Court to decide the

questions of valuation and limitation in accordance with law. The

order passed on the application under provisions of Order-VII, Rule 11

of the Code was maintained.

05. Pursuant to the aforesaid directions, the trial Court framed

Preliminary Issues below Exh.33. While the plaintiff did not lead any

evidence, the defendant examined herself and two other witnesses.

The trial Court by its order dated 3 rd May, 2016 held that the plaintiff

being a co-owner of the suit property, the claim had been properly

valued under provisions of Section 6-A (iv) (j) of the Maharashtra Court

Fees Act, 1959 [ for short, "the Act of 1959"]. It further held that the

suit was filed within limitation, as, according to the plaintiff, the cause

of action had arisen on 25th March, 2014 and the suit was filed on 3rd

September, 2014. The defendant being aggrieved has filed the

present Revision Application.

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06. Shri S. Y. Deopujari, learned counsel for the applicant,

submitted that the trial Court erred in deciding both the Preliminary

Issues in favour of the plaintiff. It was submitted that the suit had not

been properly valued, inasmuch as even according to the plaintiff, she

had fifty per cent share in the suit property and even on that basis if

the suit was appropriately valued, the same would take it beyond the

pecuniary jurisdiction of the trial Court. He referred to the plaint

averments and submitted that the plaintiff was not in possession of the

portion of the suit property and she intended to obtain possession

without paying the proper court fee. The suit as filed could not be

treated to be a suit for declaration, but was, in fact, one for seeking

possession and hence the claim was susceptible to monetary

valuation. According to the learned counsel, the plaint ought to have

been valued as per provisions of Section 6 (vii) of the Act of 1959.

On the aspect of limitation, it was submitted that the

plaintiff had full knowledge about the execution and existence of Will

dated 30th December, 2004 by her father. He referred to various

documents on record as well as the deposition of witnesses to indicate

that as per communication dated 21st March, 2005 and the registered

Lease-Deed signed by the plaintiff on 25 th March, 2009, it was clear

that the suit as filed was barred by limitation. He urged that the

limitation as prescribed by Article 58 of the Limitation Act, 1963 [for

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short, "the Act of 1963"], was applicable and the trial Court, therefore,

erred in holding that the suit was filed within limitation. The cause of

action as mentioned in paragraph 14 of the plaint could not be

accepted in the light of tacit knowledge of said Will immediately after

its execution. He sought to draw support from the following decisions

in support of his submissions:-

  [a]           Samrat Furniture & others Vs. Bhaurao Natthuji
                Mankar [2001 (3) Mh. L.J. 456],


  [b]           G.     V.      Iyengar   (Dr.)   &    another         Vs.     A.R.
                Sampathkumar & others [2008 (3) Mh. L.J. 621],


  [c]           Ramchandra Babaji Thali & others Vs. Bhaskar
                Babaji Thali & another [2012 (5) Mh. L.J. 327],


  [d]           L. C. Hanumanthappa (since dead) represented by

his Lrs. Vs. H.B. Shivakumar [2016 (4) Mh. L.J. 762], and

[e] Vinod Arjundas Sahani & others Vs. The Servants of Nagpur Homeless Co-operative Housing Society Ltd. Nagpur [Civil Revision Application No. 36/16; decided on 8th October, 2016 [Coram : S.B. Shukre, J.].

07. Shri S. A. Kalbande, learned counsel for the non-applicant,

supported the impugned order. According to him, the plaintiff's right

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in the suit property was not disputed and that it was specifically

pleaded in the plaint that she was in possession of part of the suit

property. The plaintiff was only seeking the relief of enjoyment of joint

family property. As share in the suit property was not being claimed,

the suit had been properly valued under provisions of Section 6 (iv) (j)

of the Act of 1959. He also submitted that the Revision Application, in

so far as challenge to the valuation is concerned, was not maintainable

in view of the judgment in Sri Rathnavarmaraja Vs. Smt. Vimla

[AIR 1961 SC 1299].

On the question of limitation, it was submitted that the

application filed under Section 9A of the Code did not contain any

ground to indicate that the suit was barred by limitation. The

application under provisions of Order-VII, Rule 11 of the Code filed on

the same ground had already been dismissed. He then submitted that

the suit as filed was within limitation and he referred to the averments

in the plaint to indicate that the alleged documents sought to be relied

by the plaintiff were signed under misconception. He referred to the

provisions of Section 17 of the Act of 1963 and urged that the question

of limitation was a mixed question of law and facts. The cause of

action as pleaded was valid and the suit was filed within limitation in

accordance with law. He, therefore, submitted that the trial Court did

not commit any error when it passed the impugned order. He placed

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reliance upon the decisions in [1] National Textile Corporation Ltd.

Vs. Nareshkumar Badrikumar Jagad & others [AIR 2012 SC 264]

and [2] Sheila Devi & others Vs. Kishan Lal Kalra & others [ILR

1974 Delhi 491].

08. I have heard learned counsel for the parties at length and I

have also gone through the documents placed on record.

09. Two-fold objections have been raised by the applicant, on

the basis of which, it is sought to be urged that the Civil Court had no

jurisdiction to entertain the suit. Taking the objection with regard to

the suit being filed beyond the period limitation, it is to be noted that

initially the applicant had filed an application under provisions of

Order-VII Rule 11 of the Code, stating therein that the plaint was liable

to be rejected as the suit was filed beyond the period of limitation.

This application was considered by the trial Court along with another

application filed by the applicant under provisions of Section 9-A of the

Code. By common order dated 13 th July, 2015, both the objections

were turned down. In Civil Revision Application No. 77 of 2015, this

Court maintained the rejection of the application filed under provisions

of Order-VII Rule 11 of the Code. It, however, directed the trial Court

to frame Preliminary Issues on the aspect of valuation of the suit and

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limitation. Accordingly, these Preliminary Issues were framed on 4 th

February, 2016. Only the applicant led evidence in support of her

objections.

Though it was urged on behalf of the Non-applicant that this

Court had directed the trial Court to frame appropriate issues while

considering the objections under Section 9-A of the Code, as there

were no averments made in the said application with regard to

limitation, the applicant should not be heard on said objection.

According to him, such objection without any sufficient averments did

not deserve to be entertained. For said purpose, he placed reliance on

the decision in National Textile Corporation Ltd . [supra]. This

submission cannot be accepted in view of the fact that as per the

directions issued in Civil Revision Application No. 77 of 2015, the trial

Court had framed Preliminary Issues. These Issues were, therefore,

required to be decided by taking into consideration the pleadings of

the parties. What was under consideration was the objection under

Section 9-A of the Code and not one under provisions of Order-VII Rule

11 of the Code. For said reason, ratio of the decision relied upon by

the learned counsel for non-applicant cannot be applied to the case in

hand.

10. According to the applicant, as the non-applicant was well

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aware about the execution of Will dated 30 th December, 2004 in view

of her affidavit sworn in March, 2005 as well as authority letter dated

21st March, 2005 along with Lease-Deed dated 25 th March, 2009, the

suit as filed on 27th August, 2014 was barred by limitation. He had

relied upon provisions of Article 58 of the Act of 1963. In the plaint, it

has been pleaded that on the basis of alleged Will dated 30 th

December, 2004, the applicant was seeking to assert her rights and

that there was a threat to her possession. Reference is then made to

lodging of an FIR by her on 25 th March, 2014. If the plaint is examined

in its entirety, it can be gathered that the applicant sought to assert

her rights on the basis of said Will dated 30 th December, 2004 in the

month of March, 2014. The Non-applicant, therefore, lodged a First

Information Report and thereafter filed the present suit.

11. Under Article 58 of the Act of 1963, the limitation begins to

run when the right to sue first accrues. It is well settled and requires

no reiteration that unless there is a clear and unequivocal threat to

infringe the right of a party by the defendant against whom the suit is

instituted, there would be no right to sue. Reference in that regard

can be made to the decision in Mst. Rukhamabai Vs. Lala

Laxminarayan & others [AIR 1960 SC 335] where it has been held

that every threat by a party to such right, however, ineffective and

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innocuous it may be, cannot be considered to be a clear and

unequivocal threat so as to compel him to file a suit. This decision has

been referred in L. C. Hanumanthappa [supra] which was relied upon

by the learned counsel for the applicant. The facts on record indicate

that though the non-applicant was aware of execution of Will dated

30th December, 2004 when she signed various documents in the years

2005 and 2009, a clear and unequivocal threat to her legal rights was

given by the applicant only in March, 2014 which led her to lodge a

report. Hence, mere knowledge of execution of said Will in the present

facts cannot be held to be giving rise to the right to sue. On reading

the plaint in its entirety, I find that the suit has been filed within a

period of three years when the right to sue first accrued in March,

2014. Hence, finding recorded by the trial Court holding the suit to

have been filed within limitation does not deserve to be interfered

with.

12. As regards the objection to the valuation of the suit, it was

submitted on behalf of the non-applicant that a Civil Revision

Application challenging the adjudication on the question of court fees

was not maintainable. He had relied upon the decision in Sri

Rathnavarmaraja [supra]. It has been held in aforesaid decision that a

Revision Application on the question of court fee at the instance of the

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defendant should not be entertained when no question of jurisdiction is

involved. In the present case, the objection to the pecuniary

jurisdiction has been directed to be considered in the light of

provisions of Section 9-A of the Code. Provisions of Section 9-A of the

Code permit consideration of such jurisdictional issue. If the objection

of the applicant is accepted, the trial Court would not have pecuniary

jurisdiction to entertain the suit. In other words, a question of

jurisdiction is involved and, therefore, the present case falls within the

exception carved out in the aforesaid decision of the Honourable

Supreme Court. Hence, said objection raised by the non-applicant

cannot be accepted.

13. According to the applicant, the suit ought to have been

valued under provisions of Section 6 (iv) (d) of the Act of 1959.

Reference was also made to the provisions of Section 6 (vii) of the Act

of 1959. The suit has been valued in terms of provisions of Section 6

(iv) (j) of the Act of 1959. If the plaint is read in its entirety along with

reliefs sought therein, it is clear that the non-applicant was not

claiming any share in the property that was owned by her father. She

was neither claiming possession of any portion thereof as, according to

her, she was already in possession of portion of the suit property.

Validity of the Will dated 30th December, 2004 was in question along

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with other ancillary reliefs. The subject matter of dispute was,

therefore, the validity of said Will which, in turn, cannot be said to be

susceptible to monetary valuation. The trial Court has rightly

considered this aspect and has held the suit to be properly valued.

The decisions relied upon by the learned counsel for the

applicant are clearly distinguishable. In Vinod Arjundas Sahani &

others [supra], declaration of ownership had been sought and it was

found that this issue was sought to be adjudicated. In Samrat

Furniture & others [supra], the issue of ownership was sought to be got

adjudicated without properly valuing the suit. Similarly, in G.V.

Iyengar [supra], declaration that the plaintiff was the legal heir of the

original owner of the property was sought. In Ramchandra Babaji Thali

& others [supra], adjudication of share in the plots allotted by virtue of

joint family property was sought. It is, therefore, clear that the

aforesaid decisions do not assist the case of the applicant considering

the nature of reliefs sought by the non-applicant. It can be said that

non-applicant was seeking enjoyment of joint family property. The suit

was, thus, properly valued under provisions of Section 6 (iv) (j) of the

Act of 1959. Hence, said objection raised by the applicant does not

have merit.

14. As a result of aforesaid discussion, I do not find that the trial

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Court has committed any jurisdictional error that would require

interdiction by this Court under Section 115 of the Code. The Civil

Revision Application is, therefore, dismissed with no order as to costs.

Judge

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