Bombay High Court

Alok Apartment Chs Ltd vs M/S. Homeland Corporation on 22 March, 2021

Bench: Anuja Prabhudessai

Megha                                        15_crast_6275_2021.doc


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION

          CIVIL REVISION APPLICATION (STAMP) NO.6275 OF 2021

Alok Apartment CHS Ltd. and Anr.                          ...Applicants
                      Versus
M/s. Homeland Corporation and
ors.                                                    ...Respondents
                                             ...
Mr. P.G. Karande for the Applicants.
Ms Neha Sonawane i/b. M/s. VIS Legis Law Practice for Respondent
No.1.

                                        CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED: 22nd MARCH, 2021.

P.C.:-

Heard learned counsel for the Applicant and for the

Respondents. The Applicant herein has challenged the order dated

03/03/2021 whereby the learned Judge, City Civil Court, Dindoshi has

rejected notice of motion No.203 of 2021 fled by the aforesaid

Applicant under Order VII Rule 11 (d) of CPC.

2. The Applicant herein has sought rejection of the plaint

mainly on the ground that the suit fled by the Respondent-Plaintif

was barred by law of limitation. While dismissing the said notice of

motion, learned Judge has observed that by order dated 19/03/2018

this Court in Writ Petition No.1364 of 2015 granted liberty to the

Megha 15_crast_6275_2021.doc

Respondent to withdraw the petition with liberty to fle a suit and

further by order dated 06/04/2018 this Court had observed that since

the Petitioner was prosecuting his remedy in this Court, plea raised if

any, under Section 14 of the Limitation Act shall be considered in favour

of the Petitioner.

3. Learned counsel for the Applicant has assailed the order

mainly on two grounds -(i) that the order dated 06/04/2018 was passed

without notice to the Applicant and (ii) the Applicant had not raised the

plea of beneft under Section 14 of the Limitation Act. He therefore

contends that suit is barred by limitation and is liable to be rejected

under Order VII Rule 11(d) of the CPC. Learned counsel for the

Petitioner has relied upon the decision of this Court in Narayansingh

vs. Aruna, 2020 (3) Mh.L.J. 210.

4. Per contra, the learned counsel for the Respondents states

that the writ petition fled by the plaintif before this Court and the

subsequent suit relate to the same matter in issue. The Court had

allowed the Respondent to withdraw previous proceedings, which were

prosecuted with due diligence and in good faith and had further given

directions to the Trial Court to give the beneft of Section 14 of the

Limitation Act in the event a plea was raised.

Megha 15_crast_6275_2021.doc

5. I have perused the records and considered the submissions

advanced by the learned counsel for the respective parties. The

question is whether the trial court was justifed in giving beneft of

Section 14 of the Limitation Act, 1963 for the period spent in

prosecuting the writ petition before this Court.

6. Section 14 of the Act provides for exclusion of time spent in

prosecuting another proceedings, provided such proceedings are

pursued in good faith and with due diligence. The relevant paragraph

of the judgment in Narayansingh vs. Aruna (supra) reads as under:-

"12. Once it is found that appellants are entitled to invoke the principles analogous to section 14 of the Limitation Act, then the application has to be seen in the light of the provisions of section 5 of the Limitation Act. In this regard useful reference can be made to the decision of Hon'ble Supreme Court in case of Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and Others (2008) 7 SCC 169. In the said decision, the essentials to constitute applicability of section 14 have been culled out in paragraph No.21 of the judgment, which read as follows:

"21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fde in a Court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfed before section 14 can be pressed into service.

(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith.

Megha 15_crast_6275_2021.doc

(3) The failure of the prior proceeding was due to defect of jurisdiction or other cases of this nature, (4) The earlier proceeding and the later proceeding must relate to the same matter in issue and;

(5) Both the proceedings are in a Court."

7. In the instant case, the Applicant has fled a suit challenging

the order dated 03/04/2014 passed by the Defendant No.1 granting

deemed conveyance of the property in favour of Defendant Nos.2 and 3

in respect of 'C' wing, proposed to be constructed by the Defendant,

alleging that it is not binding on the plaintif and is ab initio null and

void and has further sought to restrain the Defendant Nos.2 and 3 from

carrying out construction in contravention of sanctioned plans of 1990.

It is not in dispute that the Respondent had fled Writ Petition No.1364

of 2015 challenging the same order dated 03/04/2014. By order dated

19/03/2018 this Court had allowed the Respondent to withdraw the

said petition with liberty to fle a civil suit. Relevant paragraphs of the

said order read as under:-

"1. Mr. Inamdar, learned counsel for the petitioner does not dispute that the deed of conveyance is already executed in implementation of the impugned order dated 3 rd April, 2014 passed by the respondent no.1. He seeks liberty to fle civil suit for adjudication of title in respect of the property in question.

2. It is made clear that in the impugned order dated 3 rd April, 2014 passed by the respondent no.1, no title dispute is adjudicated upon by the respondent no.1 and the same can be decided by the Civil Court in the civil suit, if any,

Megha 15_crast_6275_2021.doc

fled by the petitioner. The suit may be fled within four weeks from today. If any, such suit is fled, the same shall be decided on its own merits. If any, application for interim relief is fled by the petitioner, the same shall also be considered by the Civil Court on its own merits. This Court has not expressed any views on merits of the matter. Writ petition is disposed of in the aforesaid terms. There shall be no order as to costs."

8. Subsequently, by order dated 06/04/2018 this Court had

observed as under:-

"The petitioner is granted ten weeks' time from today to fle a civil suit. The order dated 1t th March 2018 is modifed to this extent. Since the petitioner was prosecuting this remedy in this Court, plea raises if any under Section 14 of the Limitation Act, 1t63 by the petitioner shall be considered in favour of the petitioner."

9. It is not the case of the Applicant that the previous

proceedings were not bonafde and or were not prosecuted with due

diligence. The challenge is mainly on the ground that the order dated

06/04/2018 was passed without notice. This ground is not tenable as

the Applicant herein had not sought recall of the order dated

06/04/2018 on the ground that the said order was passed without

service of notice.

10. It is also alleged that the Respondent had not raised the plea

Megha 15_crast_6275_2021.doc

of exclusion of time under Section 14 of the Limitation Act. It is

pertinent to note that the respondent had averred in paragraph 5(u)

that order dated 03/04/2014 was passed without considering several