Nitin Keshavlal Shah vs Pratima Nayankumar Shah And ...
2017 Latest Caselaw 7990 Bom

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            IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                        BENCH AT AURANGABAD

                         WRIT PETITION NO.11514 OF 2017

Nitin Keshavlal Shah,
Age-54 years, Occu-Business,
R/o Tilak Nagar, Latur.                                - PETITIONER 

VERSUS 

1.        Pratima Nayankumar Shah,
          Age-62 years, Occu-Household,
          R/o Pant Nagar, Ghatkoppar,
          Mumbai (E), A/P C/o Pritam Shah,
          1/11, 1st floor, Ghanshyam Nagar,
          Opp.Nakhwa High School,
          Kopri, Thane (East) 400 603

2.        Nilima d/o Keshavlal Shah,
          Age-60 years, Occu-Household,
          R/o Latur, A/P, F-1, Sai Nagar
          Co.op. Housing Society,
          Near Nagarwala High School,
          Kalyan Nagar, Pune - 411006.

3.        Dr.Pradipkumar s/o Keshavlal Shah,
          Age-58 years, Occu-Medical
          Practititoner, R/o Ganraj Apartment,
          Tilak Nagar, Latur, Dist.Latur               - RESPONDENTS 

Mr.A.N.Sabnis h/f Mr.V.D.Gunale, Advocate for the petitioner. Mr.R.S.Deshmukh h/f Mr.A.R.Joshi, Advocate for respondent Nos. 1 to 3.

( CORAM : Ravindra V.Ghuge, J.)

DATE : 10/10/2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

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consent of the parties.

2. The petitioner is aggrieved by the order dated 05/07/2017 by

which the application Exh.59 dated 20/06/2017 praying for framing

of proper issues and grant of leave to the plaintiffs to adduce

evidence, has been rejected.

3. By the Civil Application No.12547/2017, the petitioner has

prayed for leave to amend the prayer clause and challenge the order

dated 06/04/2017 passed below Exh.19 and 20. Consequentially, the

petitioner desires to add prayer clause C-1.

4. While hearing this petition extensively, I have permitted the

petitioner to proceed with the matter even as against the order which

is sought to be assailed by the proposed prayer clause C-1.

5. The petitioner has preferred Spl.C.S.No.7/2017 before the Trial

Court praying for partition and separate possession to the extent of

1/4th share from the suit property. Defendant Nos.1 and 2 are the

elder sisters of the petitioner/plaintiff and defendant No.3 is the elder

brother of the plaintiff.

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6. The petitioner has contended that his father Keshavlal has died

intestate living behind the plaintiff and all the defendants. Keshavlal

died on 15/01/2004 and the mother of the litigating sides passed

away on 23/07/2005.

7. In paragraph No.6 of the plaint, the petitioner has contended

that the defendants have prepared a forged and fabricated Will Deed

dated 21/01/2000 in collusion with each other and purportedly

without the knowledge and information of the deceased father by

taking undue advantage of his ill health and mental condition. It is

specifically contended in paragraph No.6 that the Will Deed in favour

of defendant Nos. 2 and 3 is absolutely illegal, void and has got no

value in the eyes of law as the same is a forged document.

8. In paragraph No.7 of the plaint, it is specifically contended that

the said defendant Nos. 2 and 3, by taking undue advantage of an

illegal will deed, have got their names mutated in the revenue records

of the municipal Corporation, which is followed by an illegal sale deed

dated 09/01/2017 bearing Day Book No.61/2017 registered before

the Sub Registrar No.2 of Latur. A false consideration amount of

Rs.15,00,000/- is said to have been paid by defendant No.3 to

defendant No.2. The said sale deed is also bogus.

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9. In paragraph No.8 of the plaint, it is specifically contended that

though the plaintiff has got his undivided 1/4 th share in the suit

property and he should be granted separate and Khas possession of

1/4th share out of the suit property.

10. It is in the above backdrop that the Trial Court has passed an

order dated 06/04/2017, keeping in view that the suit has been

lodged by the petitioner on 13/02/2017 and has framed a

preliminary issue regarding limitation as under :-

"Whether the suit is within limitation ?"

By the order dated 06/04/2017, the Trial Court has permitted

the parties to lead evidence on the preliminary issue.

11. Grievance of the petitioner is that once the jurisdiction issue

appears to be a mixed question of facts and law, the Trial Court

cannot deal with the said issue peremptorily without an order being

passed under Order 14 Rule 2 of the CPC or without taking

cognizance of the objections of the defendants u/s 9-A of the CPC. It

is, therefore, canvassed that the impugned order dated 06/04/2017

is illegal.

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12. The petitioner has further contended in Exh.49 which is an

application filed on 20/06/2017, once again reiterating the contents

of paragraph No.7 of the plaint and that the Will Deed is false, illegal

and void and hence the sale deed dated 09/01/2017 based on an

illegal Will-Deed deserves to be set aside. It is, therefore, prayed in

Exhibit 59 that proper issues be cast and the plaintiff be permitted to

lead evidence.

13. Reliance is placed by the petitioner on the following judgments :-

[a] Hareendran and others Vs.Sukumaran and others [2017 SCC (SC) 685], [b] Kamlakar Eknath Salunkhe [(2015) 7 SCC 321], [c] Ramesh B.Desai and others Vs. Bipin Vadilal Mehta and others [(2006) 5 SCC 638]

14. Mr.Deshmukh, learned Advocate appearing on behalf of all the

respondents contends that the entire thrust of the petitioner's case is

on the purported illegality of the Will Deed which was executed about

17 years ago. The limitation period for challenging the Will Deed is 3

years and any suit filed thereafter, raising a challenge to the Will

Deed, would be barred by limitation.

15. He further submits that paragraph Nos. 6 to 8 of the plaint as

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well as the opening paragraph of Exh.59 would indicate that the

plaintiff is solely and wholly banking on the legality of the Will-Deed

and unless the Will-Deed is held to be a forged and fabricated

document, he would not stand to gain any relief in the said suit. He,

therefore, contends that though the plaintiff has shrewdly drafted the

plaint in order to create a make-believe picture that he has not put

forth any prayer against the Will-Deed, it is purely a camouflage and

without denting the Will Deed, the sale deed dated 09/01/2017

cannot be set aside. Only if the will deed dated 27/01/2000 suffers

an adjudicatory process and is declared to be a forged document, the

sale deed would not suffer any consequences.

16. He submits that it is in this backdrop that the order below

Exh.19 and 20 was delivered by the Trial Court framing a preliminary

issue with regard to whether the suit would be barred by the law of

limitation. He hastens to add that as the plaintiff has been granted

an ex-parte ad-interim relief thereby preventing defendant No.3 from

constructing his hospital, the plaintiff is moving different

applications before the Trial Court so as to prolong the suit and

practically strangulate the 3rd defendant with the hope that the

matter could be settled in some way.

khs/OCT. 2017/11514-d

17. He relies upon the judgment of the Hon'ble Apex Court in the

matter of Hardesh Ores Pvt.Ltd., Vs. Hede and Co. [2007(5) SCC 614]

and Foreshore Cooperative Housing Society Limited Vs. Praveen

D.Desai (Dead), through legal heirs and others, [(2015) 6 SCC 412] to

support his contention that when the limitation issue as regards the

maintainability of the suit is to be gone into, there cannot be a

temporary injunction cannot be granted against the defendants.

18. After considering the extensive submissions of the learned

Advocates for the respective sides and upon perusing paragraph Nos.

6, 7 and 8 of the plaint and the entire contents of Exh. 59, it is

obvious that the thrust of the plaintiff's case is solely upon the Will-

Deed dated 27/01/2000. If that be so, then the suit would appear to

be barred by limitation. Considering the effect of paragraph Nos. 6, 7

and 8, though the petitioner contends that he has not challenged the

sale deed, the said contention is a camouflage as the whole claim of

the petitioner is based on the contention that a false, forged and

fabricated Will-Deed was prepared on 27/01/2000.

19. The petitioner has relied upon the observations of the Hon'ble

Apex Court in paragraph No.13 in the Ramesh Desai case (supra)

wherein the Hon'ble Apex Court, relied upon its earlier judgment in

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the matter of Major S.S.Khanna Vs. Brig. F.J. Dillon [AIR 1964 SC

497] and concluded that normally all the issues in a suit should be

tried together and especially when the decision on the issues even on

law depend upon the decision on the issues on facts. Trial of the suit

in bits and pieces or phasewise would result in a lopsided trial.

20. I do not find that the view taken by the Apex Court would

assist the plaintiff for reasons more than one. Firstly, that the

plaintiff has shrewdly attempted to camouflage his challenge to the

Will-Deed by not putting forth any prayer seeking a declaration that

the Will Deed is void or is a fabricated document and hence not

binding on the parties. Secondly, the pleadings clearly indicate that

the entire attack of the plaintiff is as against the will deed. If the Will

Deed is declared to be a fabricated document, the right created in

favour of defendant No.2 is likely to be extinguished and

consequentially defendant No.2 would then be precluded from

creating third party interest in the suit property even in favour of her

real brother / defendant No.3.

21. There is no explanation forth coming from the plaintiff as to

why has he chosen to assail the Will Deed indirectly rather than

putting forth a challenge directly. It is obvious as to why the plaintiff

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is stupefied on this count and that is because the moment he

challenges the sale deed expressly, the suit would suffer the bar of

limitation. So also, what cannot be challenged directly, cannot be

permitted to be challenged indirectly. If the plaintiff does not desire

any relief of the nature of declaring the Will-Deed bad in law for any

reason whatsoever, the Trial Court would not be obliged to deal with

the legality of the Will Deed. The petitioner, however, has not given

up his indirect challenge to the Will-Deed.

22. The Hon'ble Apex Court has crystallized the law in catena of

judgments, lastly in Foreshore Co-operative Housing Society (supra)

that if the jurisdiction issue u/s 9-A or Order 14 Rule 2 of the CPC is

to be dealt with, there cannot be grant of interim injunction. It is

trite that if the issue of jurisdiction and maintainability of a claim is

to be gone into, granting interim relief first and then scrutinizing

whether the Court had jurisdiction to entertain a claim, would

amount to put the cart in front of the horse.

23. Keeping the fact situation as above in focus, I do not find that

the Trial Court has committed any error in passing the impugned

order dated 06/04/2017 framing an issue with regard to the

maintainability of the suit on the count of limitation.

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24. An element of shrewdness also appears in Exh.59. The

plaintiff has attempted to create a picture that unless proper issues

are not framed, the Trial Court cannot proceed with the matter. It is

also prayed that the plaintiff be permitted to lead evidence. While

doing so, in the skeletal pleadings in Exh.59, the plaintiff neither has

proposed any issues nor has he averred that all the issues be framed

and such issues be considered together by finally adjudicating upon

the suit.

25. Considering the averments in Exh.59, the plaintiff appears to

suggest to the Trial Court that it should frame an issue with regard

to the legality of the Will Deed. Even before this Court, the plaintiff

contends, on the one hand, that he does not desire to touch the Will-

Deed and on the other hand, cannot justify the averments in Exh.59

as to why the entire thrust of the plaintiff is on the purported

fabrication of the Will Deed. It, therefore, appears that Exh.59 was

filed only with the intention of delaying the proceedings while

enjoying the order of status-quo.

26. Considering the above, this petition being misconceived and

devoid of merit, is therefore, dismissed. Needless to state, the

petitioner has been granted the liberty to lead evidence on the

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preliminary issue. The Trial Court shall therefore proceed with

recording of evidence on the preliminary issue expeditiously and

keeping in view that the ex-parte status-quo order is in operation

since February 2017, the Trial Court shall endeavour to decide the

preliminary issue as expeditiously as possible and preferably on or

before 31/01/2018.

27. The ex-parte ad-interim order passed by the Trial Court would

be co-terminus with the decision on the preliminary issue or till

31/01/2018, whichever is earlier. It goes without saying that if the

Trial Court concludes that the suit is maintainable even on the point

of limitation, it shall proceed to decide application Exh.5 pending

under Order 39 Rule 1 and 2 of the CPC.

28. Rule is discharged.

29. The prayer in the pending civil application, having been

considered, does not survive and stands disposed of.

( Ravindra V.Ghuge, J.)

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