Bombay High Court
Smt. Mohini Gurdassingh Panjwani ... vs Shri Genu Baburao Kadu And Ors on 4 January, 2018
Bench: Dr. Shalini Phansalkar-Joshi
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vks
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3111 OF 2017
WITH
CIVIL APPLICATION NO.2397 OF 2017
1. Mohini Gurdassingh Panjwani ]
age: 74 yrs, Occn. Housewife ]
r/at Golden House, Hill View Area ]
Sec.17, near Ekta Apartment, ]
Ulhasnagar No.3, District: Thane ]
]
2. Shri.Gurumukhsingh Gurdassingh Panjwani ]
age: 52 years, Occn. Business ]
r/at Golden House, Hill View Area ]
Sec.17, near Ekta Apartment, ]
Ulhasnagar No.3, District: Thane ]
]
3. Shri. Jagjitsingh Gurdassingh Panjwani ]
age:50 yrs. Occn. Business ]
r/at Golden House, Hill View Area ]
Sec.17, near Ekta Apartment, ]
Ulhasnagar No.3, District: Thane ]
]
4. Shri. Gurdeepsingh Gurdassingh Panjwani ]
Age: 48 years, Occn. Business ]
r/at Golden House, Hill View Area ] Plaintiffs
Sec.17, near Ekta Apartment, ]
Ulhasnagar No.3, District: Thane ]
]
5. Shri. Harisingh Gurdassingh Panjwani ]
age: 45 years, Occn. Business ]
r/at Golden House, Hill View Area ]
Sec.17, near Ekta Apartment, ]
Ulhasnagar No.3, District: Thane ]
]
6. Shri.Ajitsingh Gurdassingh Panjwani ]
Age: 42 years, Occn. Business ]
r/at Golden House, Hill View Area ]
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Sec.17, near Ekta Apartment, ]
Ulhasnagar No.3, District: Thane ]
]
7. Shri.Kartarsingh Gurdassingh Panjwani ]
age: 41 years, Occn. Business. ]
r/at Golden House, Hill View Area ]
Sec.17, near Ekta Apartment, ]
Ulhasnagar No.3, District: Thane ]
]
8. Mrs. Manjeet Kaur Prakashsingh ]
age: 44 years,Occn.housewife ]
r/at Waheguru Niwas, Kon Kalyan Road ]
Village Rajnoli, Kalyan, Dist.Thane ]
V/s.
1. Shri. Genu Baburao Kadu ]
age:45 years, Occn. Business ]
r/at Old Khandala Road, Near Railway Gage ]
Lonavala, Tal. Maval, Dist.Pune ]
]
2. Mr. Jimmy Dara Engineer ]
age:75 years, Occ. Business ]
r/at Warkar Mansion, Lady Jehangir Road ]
Mancharji Joshi Colony, Dadar ]
Mumbai 400 0141 ]
]
3. Mrs. Zareen Dara Engineer ]
age: 73 years, Occn. Business ]
r/at Warkar Mansion, Lady Jehangir Road ]
Mancharji Joshi Colony, Dadar ]
Mumbai 400 0141 ]
]
4. Mr. Datta Narayan Rane ]
age: 50 years, Occn. Business ]
r/at D-ward, Lonavala ]
Tal.Maval, Dist.Pune ]
]
5. Mrs. Anita Anil Gupta ]
age:51 years,Occn. Business ]
r/at flat No.602, Lake view-1, Aarey colony road ]
Imperial Palace, Royal Park, Goregaon(E) ]
Mumbai 400 065 ]
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]
6. Mr. Anand Prabhakar Gokarna ]
age: 56 years, Occn. Business ]
r/at H-194, Oishwara Tarapur Garden CHS Ltd ]
Opp. Oshiwara Police Station, Mumbai 400 012 ]
]
7. Shri.Prem hashmatrai Lalwani ]
age:58 years,occn. Business ]
r/at 102, Gajdhar Apartments, ]
Juhu Tara Road, Ville Parle (W) ]
Mumbai 400 056. ]
and
At Grand Exotica Hotel ]
opp. Tata Bazar, Kalbhor Nagar, ]
Chinchwad, Pune 411 019 ]
8. M/s Asian Hotel Corporation, ]
a partnership firm, Through its : Partner ]
Shri.Pravin Hashmatrai Lalwani ]
r/at 102, Gajdhar Apartments, ]
Juhu Tara Road, Ville Parle (W) ]
Mumbai 400 056. ]
]
and
At Grand Exotica Hotel ]
opp. Tata Bazar, Kalbhor Nagar, ]
Chinchwad, Pune 411 019 ] Respondents.
]
9. M/s Reliance Jio Infocomm Ltd. ]
Reliance Telecommunication Division ]
Sacred World, 6th floor, North Block ]
Near Jagtap Chowk, Wanwari ]
Pune 411 040 ]
]
10. The State of Maharashtra ]
Council Road, Vidhan Bhavan, New Bldg. ]
Bund Garden, Pune 411 001. ]
]
11. The Collector, Pune ]
and Deputy Custodian of Evacuees ]
Council Road, Vidhan Bhavan, New Bldg. ]
Bund Garden, Pune 411 001. ]
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]
12. The Tahasildar, ]
Wadgaon Maval, District: Pune ]
]
13. The Talathi ]
Village: Lonawala ]
Tal.Maval, Dist.Pune ]
]
14. The Chief Officer, ]
Lonawala Municipal Council ]
at/po Lonavala, Tal. Maval ]
]
15. The City Engineer ]
Lonawala Municipal Council ]
at/po Lonavala, Tal. Maval ]
]
16. The City Survey Officer ]
at/po Lonavala, Tal. Maval. Dist.Pune ]
]
17. The Taluka Inspector of Land Records ]
at/po Wadgaon, Tal. Maval. Dist.Pune ]
]
Mr. S. P. Kanuga, i/by Sapna N. Nath, for the
Applicant.
Mr. Girish Godbole a/w Ms. Ketki Gadkari,
for the Respondent respondent Nos.7 and 8
Mr. Girish R. Agrawal, for respondent No.5.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 4 th JANUARY, 2018.
ORAL JUDGMENT
1] Heard learned counsels for the petitioners and
respondents.
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2] Rule.
3] With the consent of learned counsel for both the parties,
rule is made returnable forthwith.
4] By this petition, the petitioners are challenging the orders
dated 12th April, 2016, 8th July, 2016 and 8th November, 2016, passed
by the Court of III Jt. Civil Judge Senior Division, Pune, in Special
Civil Suit No.240 of 2016.
5] By the order dated 12th April 2017, passed below Exh.79,
the trial Court has allowed application filed by defendant Nos. 7 and 8
for framing of preliminary issue as to whether the suit is barred by
limitation. By the order dated 8 th July,2016, passed below the same
application at Exh.79, the trial Court after hearing learned counsel
for both the parties, held that on the preliminary issue of limitation,
plaintiff will have to lead evidence first. By the order dated 8 th
November, 2011, the trial Court has rejected petitioners' application
at Exh.101 for review of the order, passed below Exh.79 on 12.4.2016
thereby directing framing of preliminary issue relating to limitation.
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6] The submission of learned counsel for petitioners is that
the issue as to whether the suit is barred by limitation can be tried as
preliminary issue under Section 9-A of Code of Civil Procedure, is
placed for consideration before the Larger Bench as per order passed
by the Hon'ble Supreme Court on 17.8.2015, in a Petition for Special
leave to Appeal (C) No.22438 of 2015 , in the case of Jagdish
Shyamrao Thorve -vs- Shri. Mohan Sitaram Dravid and ors, and
therefore till the said reference is decided, it is necessary to stay the
proceeding before the trial Court as the trial Court has already
framed such preliminary issue relating to limitation and has directed
the parties to lead evidence and insisting on proceeding with the
same.
7] Secondly it is submitted that there should have been at
least some material brought before the trial Court to show that the
suit is apparently barred by limitation. It is urged that merely
because a vague plea is raised in the written statement and in the
application filed before the trial Court at Exh.79, the trial Court
should not have framed such preliminary issue when apparently as
per cause of action given in the plaint, the suit is very well within the
limitation and it does not appear to be barred by limitation.
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8] Moreover, it is submitted that Application at Exh.79 was
filed with composite prayers that it should be treated under Section 9-
A read with Order VII Rule 11 of Code of Civil Procedure. According to
learned counsel for the petitioners, as the plain reading of the plaint
sufficiently discloses the cause of action to be within the limitation,
provision of Order VII Rule 11 CPC, has no application at all as the
plaint cannot be rejected on the bare reading of the averments made
therein.
9] As regards to application for framing of preliminary issue
to that effect under Section 9-A of CPC, it is submitted that the
averments in the plaint relating to cause of action clearly go to show
that the suit is within limitation; especially the prayers like relief of
perpetual injunction, declaration, mandatory injunction etc., which
petitioners are claiming in the suit are within the period of limitation
from the date of cause of action and therefore, framing of preliminary
issue of limitation and proceeding with leading evidence on that issue
is as good as conducting trial in piecemeal. Merely because a vague
contention is raised that the suit is not within limitation, it was not
mandatory and not proper on the part of trial Court to frame said
issue and to decide it as preliminary issue. According to learned
counsel for the petitioners, therefore, the impugned order passed by
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the trial Court needs to be quashed and set aside.
10] Per contra, learned counsels for respondents have
supported the said order by submitting that in view of law laid down
by the Apex Court in case of Foreshore Co-operative Housing
Society Ltd -vs- Praveen D. Desai (dead) Through legal
Representatives and ors, (2015) 6 SCC 412, whenever such
objection is raised as to the suit being barred by limitation, then it is
mandatory on the part of the trial Court to frame such issue in view of
provisions of Section9-A of the Code of Civil Procedure. It is urged
that said provision being of a mandatory nature, the trial Court has
rightly held that as in the application Exh.79, defendant Nos. 7 and 8
had clearly raised the issue of suit being barred by limitation, it was
necessary to frame preliminary issue to that effect and direct the
parties to lead oral evidence if necessary and to proceed with the
hearing on that issue. According to learned counsel for respondents,
the trial Court has acted as per the mandate laid down by the Apex
Court and also as per mandate laid down under Section 9-A of CPC.
Hence no fault can be found in impugned order so as to interfere with
the same.
11] As regards merits, it is submitted that clear averments
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are made in the written statement and in the application Exh.79 to
show how the suit is barred by limitation and hence clever drafting of
the plaint cannot take the suit away from the bar of limitation.
According to learned counsels for respondents, no prejudice is likely
to be caused to the petitioners-plaintiffs by framing and deciding of
issue relating to limitation as preliminary issue, in view of the
provisions of Section 9-A (ii) of CPC, as till such issue is decided, the
interim relief can be availed by the petitioners. It is submitted by
learned counsel for the respondents that when the mandate of the law
is clear, then there is no substance in the argument that the trial will
be conducted in piecemeal. The very object of provision under Section
9-A of CPC is that valuable time of the Court could be saved in case, if
it is found that the suit itself is barred by limitation. By placing
reliance on the judgment of the Apex Court in case of Foreshore Co-
operative Housing Society Ltd -vs- Praveen D. Desai (dead)
Through legal Representatives and ors, ( supra ), it is urged that
the Court is bound to dismiss a suit barred by limitation as it has no
jurisdiction to entertain the same. The plea of limitation is a question
of law which is related to the jurisdiction of the Court and the Court is
precluded from adjudicating the matter on merits when the suit is
barred by limitation. Thus, according to learned counsels for
respondents, impugned order passed by the trial Court being just,
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legal and correct, no interference is warranted therein.
12] In my considered opinion, in order to appreciate these
rival contentions raised by learned counsels for the petitioners and
respondents, it would be necessary to consider the reliefs which the
petitioners are seeking in the suit in Para 73 which reads thus :-
"(a) It be declared that the Plaintiff is the allottee owner of the
suit properties more particularly described in para 1C, 1D and
1F of the plaint on the basis of Sanad dated 09/01/1956;
(b) It be further declared that the Defendant Nos. 1 to 8 jointly
and/or severally do not have any right, title and interest in the
suit properties described in para 1C, 1D and 1F of the plaint;
(c) It be declared that the transaction between the Defendant
No.1 and Defendant No.9 in respect of the portion of land
beneath the telecommunication tower erected on the property
described in para 1E of the plaint, is illegal, null and void ab-
initio and not binding on the plaintiff and the property;
(d) A decree for mandatory injunction be passed against
Defendant No.1 and Defendant No.9 jointly and severally, for
the demolition of the steel fabricated tower and for possession
of the land beneath there under which is more particularly
described in 1E of the plaint.
(e) A decree for possession of house property described in para
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1G of the plaint be passed against Defendant No.1 and the
Plaintiffs be put in actual, physical and vacant possession
thereof.
(f) The Defendant Nos 1 to 9 jointly and severally be restrained
by an order of permanent injunction restraining them from
obstructing the Plaintiff's peaceful possession over the open
land from the suit properties described in para 1C, 1D and 1F
of the plaint and from intruding upon the said open land and
from forcibly dispossessing the plaintiff therefrom and from
forcibly altering and changing its nature which is open on the
date of the suit;
(g) The Defendant Nos 1 to 8 jointly and severally be
restrained by an order of permanent injunction restraining
them from taking any steps in furtherance of any illegal and
non-est document and from in any manner transferring, selling
alienating and/or creating any third party interest in any part
or portion of the properties described in para 1C to 1G of the
plaint;
13] The cause of action for claiming these prayers in the suit
is stated in paragraph No.68 of the plaint which is as follows :-
"68. The cause of action for the suit first arose on the dismissal
of Special leave to Appeal No.5102/2006 which was dismissed
on 06/01/2015 but with liberty to the parties to prosecute the
remedies in the civil court as aforesaid. The cause of action
then arose on or about 08/12/2015 when the Defendant No.1 in
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collusion with Defendant No.9 has unauthorizedly commenced
and completed erection of a telecommunication tower which is
more particularly described in Para 1E of the plaint thereby
obstructing and interfering in the Plaintiffs peaceful possession
over the suit properties described in para 1C and 1F of the
plaint. The cause of action then arose when the Defendants in
collusion started giving threats for forcibly dispossession by
misinterpreting and misreading the judgments and orders of
the Hon'ble Supreme Court and by assuming and presuming
that their alleged claims and rights have been accepted by the
Supreme Court, but when the same is not as clearly observed
by the Supreme Court in the said judgment. The cause of action
thereafter continues to arise from time to time."
14] As against it, learned counsels for the respondents have
pointed out paragraph No.42 of the plaint which reads as follows :-
"42. The Plaintiffs say that in the year 1984 said
Gurudassingh Nawoosingh Panjumal @ Panjwani for the first
time came to know of the purported Sale Certificate dated
17/05/1956 registered on 20/07/1956 and accordingly made a
complaint to the Collector of Pune and Deputy Custodian of
Evacuee Property i.e. Defendant No.11 based on which the said
Authority vide his order dated 18/09/1984 under No.953/84
ordered to suo-motto take the ME No.1836 under revision and
accordingly the S.D.O, Haveli, initiated Revision Proceeding
under No.14/1984 and by his judgment and order dated
30/07/1985 thereby ordered to cancel M.E.No.1836. Mr. Anil
Desai and Defendant No.7 being aggrieved by the said order,
filed an R.T.S. Appeal No.128 /1985 which was decided by the
Additional Collector of Pune on 28/07/1986 and remanded the
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case for decision on merit in the light of observations made in
the judgment". ... ... ...
15] Learned counsels for the respondents have also relied on
paragraph No.49 of the plaint which reads as follows:-
"49. inspite of the decision of the Collector in RTS Appeal No.128
of 1987, a Mutation Entry No.2377 was proposed on 25/08/1994
and the same was certified on 02/07/199 by which the name of
Gulabbai Desai was mutated on the basis of the said alleged Sale
Certificate dated 17/05/1956 in respect of the properties bearing
Revenue Survey No.328, Revenue Survey No.118/2, CTS No.129,
CTS No.130A, CTS No.130B and CTS No.133. Similarly on
11/10/1994 a M.E.No.2394 was proposed in the name of Genu
Baburao Kadu i.e. Defendant No.1 herein on the basis of
purported Sale deed dated 21/04/1977 purportedly made and
executed by Gulabbai Desai in favour of Defendant No.1".
16] In this respect it would also be necessary to refer to the
averments made in the Application Exh.79 which is filed by
Defendant Nos.7 and 8 before the trial Court for framing preliminary
issue relating to the limitation. Paragraph (B) of the said application
reads thus :-
"(B) If the plaint is carefully perused, it will be seen that
the plaintiff is seeking declaration of his title on the
basis of purported Sanad dated 09/01/1956 and is also
seeking removal of a clog on his title (sale certificate in
favour of Smt. Gulabbai Gajanan Desai, gift deed dated
15/01/1979, sale deed dated 04/08/1980, sale deed
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dated 12/09/1980 etc). The plaintiff therefore, appears
to be seeking relief regarding declaration of his
ownership as provided u/s 34 of the Specific Relief Act
and also seeking cancellation of numerous sale deeds as
provided u/s 31 of the Specific Relief Act".
17] Thus, a very specific plea is raised in the application
Exh.79 by the respondents that the cause of action, according to own
showing of plaintiffs, first arose, way back in the year 1956 when
purported Sanad on the basis of which plaintiff is claiming title, was
issued and thereafter in the year 1980 when the gift deed dated
15.01.1979 and sale deeds dated 4.8.1980 and 12.9.1980 were
executed creating clog on the title of the plaintiff, and therefore, the
suit is hopelessly barred by limitation. It is further stated that
merely because the Hon'ble Supreme Court, by the order dated
6.1.2015, held that the parties may prosecute their remedies in Civil
Court in accordance with law, does not bring the claim, which is
barred by limitation within limitation, particularly when it is stated
that the parties to seek remedies "in accordance with law" clearly
implying that such remedies should be availed if permissible as per
Law of Limitation and then only it can be "in accordance with law".
Herein in the case according to defendant Nos. 7 and 8, the reliefs
which plaintiffs are claiming in the suit are as stated above,
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apparently barred by limitation.
18] As regards the reliefs of injunction, it is submitted that
those reliefs are of consequential nature and the main relief which
plaintiffs are claiming is of the declaration of their title to the suit
property and for removal of the clog on their title and as regards this
relief, the suit is barred by limitation.
19] Thus, the perusal of the pleadings of both parties, prima
facie makes it clear that, some triable issue is definitely raised as to
whether the suit is within limitation or barred by limitation. It cannot
be said that the plea raised by the defendant Nos. 7 and 8 relating to
suit being barred by limitation is vague and the trial Court has
accepted the same automatically without any application of mind. On
the pleadings of the parties themselves, there appears to be some
serious dispute as to whether the suit can be called as within
limitation or not. Now the question before the trial Court in such
situation was that when there appears to be a triable issue relating to
limitation, whether it should be tried as preliminary issue or to be
kept to be decided at the time of final hearing.
20] In this respect, the trial Court has considered the law laid
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down by the apex Court in case of Foreshore Co-operative Housing
Society Ltd -vs- Praveen D. Desai (supra) ; wherein the Apex Court
has in the light of the argument advanced before it that a preliminary
objection as to jurisdiction under Section 9-A would not include an
objection that it is barred by limitation, considered this very issue in
paragraph No.39, which reads thus :
"39. The moot question, therefore, that falls for
consideration is as to whether courts shall be guided by
the provisions of Order 14 Rule 2 of the Code of Civil
Procedure or Section 9-A of the Code as amended by the
Maharashtra Amendment Act, in the matter of
deciding the objection with regard to jurisdiction of the
Court which concerns the bar of limitation as a
preliminary issue".
21] Thereafter in paragraph No.41 of the Judgment, the Apex
Court has considered the provision of Section 9-A of the Maharashtra
Amendment Act and held that the said provision is a complete
departure from the procedure provided under Order XIV Rule 2 of the
Code of Civil Procedure and the said provision having received the
assent of the President, has to be complied with and can be held to be
a valid legislation. Lastly in paragraph No.61, it was held that Section
9-A mandates the Court to decide the jurisdiction of the Court before
proceeding with the suit and granting interim relief by way of
injunction. In paragraph No.62, it was categorically held that:-
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"At the cost of repetition, we observe that Section 9-A
provides a self contained scheme with a non obstante
clause which mandates the court to follow the provision. It
is a complete departure from the provisions contained in
Order XIV Rule 2 CPC. In other words, the non obstante
clause inserted by the Maharashtra Amendment Act of
1977 in Section 9-A and the express mandate of scheme,
the intention of the law is to decide the issue relating to
jurisdiction of the Court as a preliminary issue
notwithstanding the provision contained in Order XIV Rule
2 CPC".
22] Thus, in this decision, it is more than sufficiently held that
the issue relating to limitation pertains to the jurisdiction of the Court
as it oust the jurisdiction of the Court if the suit is barred by
limitation. Hence the issue of limitation needs to be decided as issue
relating to jurisdiction and therefore be tried as preliminary issue in
view of the mandate laid down in Section 9-A of the Maharashtra
Amendment Act.
23] Therefore, as the legal position which stands as on today is
that the issue of limitation has the effect of ousting the jurisdiction of
the Court to decide the suit, it needs to be decided as preliminary
issue, whenever such issue is raised by the defendants. It may be
true that this issue is pending for consideration before the Larger
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Bench of the Hon'ble Supreme Court . However, as on today, the
law laid down in Foreshore Co-op Housing Society Ltd -vs
Praveen D. Desai (supra) holds the ground.
24] Relying on this very legal position, the trial Court has,
after going through the averments made in the plaint, written
statement and the application filed by the defendant Nos. 7 and 8, at
Exh.79 rightly deemed it fit to frame issue of limitation as
preliminary issue and then proceed to hear the same. Needless to
state that the trial Court has acted in accordance with mandate of the
the law, and the order passed by the Trial Court is, thus, within four
corners of the law. As stated above, there is definitely a triable issue
as to whether the suit is barred by limitation or not. This Court
cannot enter into the merits as to whether suit is really barred by
limitation or not because that issue is pending for consideration
before the trial Court and has to be decided by the trial Court after
hearing learned counsels for the parties. The petitioners and the
respondents, both are given opportunities to lead their evidence on
this issue. At this stage what this Court has to see is only whether
there was sufficient pleading before the trial court to frame such issue
and as stated above there is such sufficient material for the trial
Court to frame that issue and as per the mandate of law laid down
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above, the trial Court has to decide this issue as preliminary issue.
Hence no fault can be found in the impugned order passed by the trial
Court.
25] It may be true that by deciding such issue as preliminary,
the trial is going to be conducted in piecemeal, but if it is the legal
position, then merely on that ground it cannot be said that the trial
Court should not have framed the said issue when on the pleadings of
parties there appears substance in framing of the said issue.
Moreover, the very object of such provision contained in Section 9-A
of CPC is to save the time of the Court, in the conduct of the full-
fledged trial. Therefore, the impugned order passed by the trial Court,
below Exh.79 and also subsequent consequential orders do not call for
any interference.
26] The Writ Petition, hence, being without merits stands
dismissed.
27] Rule stands discharged.
28] By way of abundant precaution, it is made clear that
whatever observations made hereinabove are only for the purpose of
deciding this Writ Petition, and the trial Court is not to be influenced
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by the same.
29] In view of disposal of this petition, Civil Application
No.2397 of 2017, becomes infructuous and the same is disposed of
accordingly.
[DR. SHALINI PHANSALKAR-JOSHI, J.]
