Jayant Alias Janardan Nivrutti ... vs Sou Rekha Ashok Masale And Ors
2021 Latest Caselaw 3699 Bom

                                                                   9.5983.19 wp.doc

ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO. 5983 OF 2019

      Jayant Alias Janardan Nivrutti Patil and others             ....Petitioners

              V/s.

      Sou. Rekha Ashok Masale and others                          .....Respondents

      Mr. Ramdas A. Shelke for the Petitioners


                               CORAM :   NITIN W. SAMBRE, J.

                               DATE:     FEBRUARY 26, 2021.

      P.C.:

      1]      In Special Civil Suit No. 27 of 2016, Petitioner-Defendant took

out proceedings under Order VII Rule 11 (A)&(D) of the Code of Civil

Procedure, 1908 (Hereinafter referred to as 'CPC' for the sake of

brevity) vide impugned order dated 01/12/2018 passed by 4th Civil

Judge Senior Division, Sangli. Said prayer came to be rejected. As

such this petition.

2] The submissions are, Suit for declaration and injunction is

9.5983.19 wp.doc

based on an agreement of sale deed dated 11 th July 2000. As far as

the allocation of Suit property is concerned, in an earlier round of

litigation in between Petitioner and predecessor in title of the

Respondent-Plaintiff in First Appeal No. 479 of 1990, the issue was

answered against the claim in the Suit and that being so, the second

Suit for similar relief ought not to have been entertained. Further

contention is, during intervening period, certain orders are passed by

the revenue authorities adverse to the interest of the Respondent-

Plaintiff and that being so, Suit itself is not maintainable. According

to him, both these issues are not properly appreciated by the learned

trial court.

3]     Considered submissions.




4]     If the Petitioner-Defendant has come out with a case under

provisions of Order VII Rule 11 (A)&(D) of CPC, it is for him to

demonstrate that the Suit claim is barred by limitation and also law.

The only piece of pleadings which is made by the Petitioner is, that

the Suit itself is not maintainable under Section 34 of the Specifc

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Relief Act and Judgment in First Appeal No. 479 of 1990.

5] I have appreciated the aforesaid contentions as regards non

maintainability under section 34 of the Specifc Relief Act, however,

there is no material to infer that Suit for declaration and injunction

at the behest of the Respondent-Plaintiff is not maintainable under

the said act. At least no such statutory embargo is demonstrated.

6] As far as Decree passed in First Appeal No. 479 of 1990 is

concerned, same is in the form of defence raised by the Petitioner-

Defendant to the Suit. It is a settled position of law that while dealing

with the prayer for rejection of plaint under the provisions of Order

VII Rule 11, court is not required to appreciate the defence.

7] That being so, no case for interference is made out. Petition fails

stands dismissed.

[NITIN W. SAMBRE, J.]