Bombay High Court
Mr. Ganesh Keshav Patole vs Smt. Shital Sikandar Darne And Anr on 22 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.7707 OF 2014
Ganesh Keshav Patole ]
r/at Room No.C-6, 2/3, Plot No.2, ] Petitioner
Sector -8 B. Artist Village, ] Original
Sahyadri C.H.S. Ltd. ] Defendant
C.B.D. Belapur, Navi Mumbai ]
V/s.
1. Sheetal Sikandar Darne ]
]
2. Mr. Shishant Sikandar Darne ]
] Respondents
Both are residing at Patrakar Nagar, ] Original
Lokmanya Chauk, Near Telephone Centre, ] defendants.
Flat No.12, Shivpark Building ]
Sangli, Dist. Sangli ]
Mr. Bal Joshi, i/by Rohan H. Barge, for the
Petitioner.
Mr. Vivek Vijay Salunke, i/by Sneha G.
Sanap, for the Respondents.
CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.
DATE : 22 nd JANUARY, 2018.
ORAL JUDGMENT :
1] Heard learned counsel for the petitioner and learned
counsel for respondents.
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2] Rule.
3] Rule is made returnable forthwith with the consent of
learned counsel for the parties.
4] By this petition, filed under Article 227 of the Constitution
of India, petitioner is challenging the order dated 30 th March, 2016,
passed by 8th Jt. Civil Judge, Senior Division, below Exh.27, in Special
Civil Suit No.254 of 2014, .
5] Application at Exh.27 was filed by the petitioner under
Order VII Rule 11(d) of Code of Civil Procedure, for rejection of the
plaint on the ground that the suit is barred by principles of res-
judicata under Section 11 of Code of Civil Procedure and also on the
ground of limitation. The trial Court, however, rejected the said
application.
6] The suit before the trial Court is filed by the respondent
herein seeking declaration that the agreement dated 11.7.1994, in
respect of suit land be declared as illegal, null and void and for further
declaration that the petitioner-defendant No.1 is a trespasser in the
suit property and consequently for recovery of possession of the suit
property.
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7] The contention of the petitioner herein, before trial Court
and before this Court is that already dispute between the parties has
been settled in CCT.No.237 of 2017, filed by respondent herein in the
Co-operative Court at Thane. The said proceeding was filed for the
declaration and vacant possession of the suit flat. The Co-operative
Court, Thane, vide its judgment and order dated 30 th January 2011,
decided the suit declaring that the present petitioner is trespasser
and is in illegal possession of the suit flat. Accordingly he was also
directed to hand over the possession of the suit property to
respondent. Against the said order, the present petitioner preferred
Appeal No.88 of 2011, before the Co-operative Appellate Court and
Appellate Court allowed the said Appeal vide its judgment and order
dated 26th March, 2013. The respondent herein filed Writ Petition
No.4393 of 2013 against the order of the Appellate Court. This Court
vide its order dated 17th September 2013, dismissed the said Writ
Petition, confirming the finding arrived at by the Co-operative
Appellate Court that the petitioner is in lawful possession of the suit
flat.
8] Thus, it is submitted that there is concurrent finding of
fact of Co-operative Appellate Court and this Court. Thus, the dispute
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involved in the present petition is decided finally by the Co-operative
Appellate Court, and also by the High Court, categorically holding
that the possession of the respondent-plaintiff is not as that of a
trespasser. Hence now by this suit, respondent cannot raise the same
dispute that the present petitioner is trespasser in the suit property.
Hence, the suit is barred by the principles of resjudicata. In this
respect, learned counsel for the petitioner has also relied upon the
Explanation 8 to Section 11 of CPC, relating to resjudicata which
reads thus:-
"Explanation VIII - An issue heard and finally decided by a
Court of limited jurisdiction, competent to decide such issue,
shall operate as resjudicata in a subsequent suit,
notwithstanding that such Court of limited jurisdiction was not
competent to try such subsequent suit or the suit in which such
issue has been subsequently raised."
9] Learned counsel for the petitioner has also relied upon the
judgment of Allahabad High Court, in the case of Smt. Dayawati and
ors -vs- Madan Lal Varma and ors, [AIR 2003 Allahabad 276)
and of Hon'ble Supreme Court, in the case of Abdul Rahim and ors
-vs Sk. Abdul Zabar and ors, [AIR 2010 SC 211] to advance the
plea that when the suit is apparently barred by principles of res-
judicata, only option left before the trial Court was to reject the plaint.
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10] Secondly, it is submitted that as per Section 59 of the
Limitation Act, the suit for cancellation of agreement was required to
be filed within three years from the date of the knowledge. The facts
which according to respondent entitled her for cancellation of the
agreement came to her knowledge when the earlier dispute was
decided by the Co-operative Court, in the year 2008. Therefore, the
present suit which is filed in the year 2014 is hopelessly barred by
limitation.
11] According to learned counsel for respondent, however,
both the issue of resjudicata and the issue of limitation being a mixed
question of facts and law cannot be decided at this stage. According to
settled position of law, application filed under Order VII Rule 11(d)
CPC is required to be decided on the plain reading of the plaint and
plain reading of the plaint in this case goes to show that the suit is
very much within limitation and is not barred by resjudicata.
12] Secondly, it is submitted that in the earlier suit, dispute
relating to the agreement itself being not legal and valid was not
decided as it was held that the Co-operative Court has no jurisdiction
to decide the said issue and therefore, that issue remained very much
undecided. Thus, the present suit is maintainable. Hence, it is
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submitted that under Section 14 of the Limitation Act, the present
suit is required to be held as within limitation as respondent herein
was prosecuting the remedy in the Co-operative Court, which was not
the proper forum.
13] In this case, as rightly submitted by learned counsel for
respondent, both the issue of res-judicata and also issue of limitation
being mixed question of facts and law, they cannot be decided at this
stage in an application under Order VII Rule 11(d) of CPC. As held by
this Court, in case of Smt. Sita Shripad Narvekar and ors -vs-
Auduth Timblo [2015 (11) LJSOFT 34] that "for deciding the
application under Order VII Rule 11 (d) CPC, the averments in the
plaint are to be examined without any additions or subtractions.
Resjudicata being a mixed question of law and fact, which the Court
will have to examine based on evidence adduced by both the parties
on merits of the claim. Therefore, the trial Court is not justified to
examine the contention that the suit is barred by res-judicata at this
stage while examining application under Order 7 Rule 11 (d) CPC."
14] In paragraph No.7 of the said judgment, it has been
further held that whether the suit is within the period of limitation or
not, will have to be decided on the basis of evidence led by parties and
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after framing a issue as regards the bar of limitation. It is well
settled law that in case of exercise of the power under Order VII Rule
11 of CPC, the same has to be done solely on the basis of pleadings in
the plaint and not on the basis of the materials, which can be
produced by the defendant seeking exercise of the power by the Court
under the said provisions of law.
15] In the instant case, it has to be considered that,
admittedly respondent/plaintiff was earlier prosecuting his remedy
in Co-operative Court. The Co-operative Court has categorically held
that, it cannot decide the question as to validity or legality of the said
agreement as the said question has to be decided by the Civil Court.
Therefore, when respondent was prosecuting remedy in good faith in
wrong forum, her case prima facie would fall within the four corners
of the provisions of Section 14 of the Limitation Act. At the most it
will be a question of fact to be decided, on the basis of evidence to be
led by parties before trial Court, but on plain reading of the plaint, it
cannot be said, at this stage at-least that, the suit is barred by
limitation.
16] The perusal of the judgment of the Appellate Co-operative
Court clearly goes to show that it has categorically held therein that
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whether the agreement is legal, valid or not and declaration to that
effect cannot be decided by said Court, as it has no jurisdiction and
hence said issue has to be decided by the Civil Court. It was held that
whether the possession of the petitioner is that of trespasser or
otherwise, the finding to that effect may be given, but as regards the
main contention that agreement itself is not legal or valid, no finding
could have been given by the Co-operative Court and that issue needs
to be decided by Civil Court. In such situation, it cannot be said that
the bar of resjudicata laid down in section 11 of CPC is attracted to
the present case, either by Explanation 4 or by Explanation 8 of the
said section.
17] As regards even the issue relating to possession whether
it is that of a trespasser or otherwise, it was not the issue directly and
substantially in issue before Co-operative Court in the earlier
proceeding. Thus, the issue which is now raised in this suit, being not
the issue directly and substantially in issue in that proceeding, at
this stage it cannot be said that the suit of respondent is barred by
principles of resjudicata so as to reject plaint on that ground. As per
the consistent view held by the various Courts on the issue of
resjudicata and limitation, both these issues are required to be
decided after the evidence is led by the parties. This is too early a
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stage or premature to reject the plaint under Order VII Rule 11(d)
CPC on these grounds.
18] The trial Court, has, therefore, rightly dismissed
petitioner's application for rejection of the plaint. The impugned order
passed by the trial Court being just, legal and correct, no interference
is warranted therein.
19] Accordingly, writ petition stands dismissed, with
clarification that whatever observations are made hereinabove are
only for the purpose of deciding this writ petition and trial court is not
to be influenced by them. All contentions of the parties in this respect
are expressly kept open to be decided by the trial Court.
20] Considering the fact that the parties are litigating since
more than 10 to 14 years, trial court is expected to decide the suit as
expeditiously as possible.
[DR.SHALINI PHANSALKAR-JOSHI, J.]
