Bombay High Court
New Front Housing Through Its ... vs Mr. Ibrahim Shafi Shaikh And Ors on 1 March, 2022
Bench: Nitin W. Sambre
Digitally signed by IRESH
IRESH SIDDHARAM SIDDHARAM MASHAL
MASHAL Date: 2022.03.02 16:49:43
+0530
12.32.20 CRA.doc
ISM
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 32 OF 2020
NEW FRONT HOUSING THROUGH ITS ....APPLICANT
PARTNERS MR. PRAVIN JAGANNATH
GHADGE
V/s.
MR. IBRAHIM SHAFI SHAIKH AND ORS ...RESPONDENTS
Mr. Rakesh Reddy a/w Mr. Amit Shroff i/b Harish Shroff & Co. for
the Applicant
Mr. Nikhil Wadikar i/b Nandu V. Pawar for Respondent no. 1
CORAM : NITIN W. SAMBRE, J.
DATE: MARCH 1, 2022.
P.C.:
1) Heard Mr. Rakesh Reddy learned counsel for the Petitioner and
Mr. Wadikar for Respondent.
2) Present Application is directed against the order of rejection of
Plaint under Order VII Rule 11 (a) and (d) of Code of Civil Procedure,
1908 as it is claimed by Applicant-Defendant that the cause cited in
Special Civil Suit No. 1514/2018 is time barred. Reliance is placed on
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the cause of action specifically pleaded in the Plaint which says that
for the first time, cause has occurred on 12/07/2005 when the
present Applicant i.e. Defendant no. 1 had falsely projected that he
holds Power of Attorney for the Suit property.
3) The law on the issue of carving out limitation is well settled in
the Judgment of the Apex Court in the matter of Dahiben V/s.
Arvindbhai Kalyanji Bhanushali (Gajra) Dead through Legal
Representatives and others1. The observations in para 23.15, 27 and
28 of the said Judgment read thus:
"23.15 The provision of Order 7 Rule 11 is mandatory in
nature. It states that the plaint "shall" be rejected if any of
the grounds specified in Clause (a) to (e) are made out. If the
Court finds that the plaint does not disclose a cause of
action, or that the suit is barred by any law, the Court has
no option, but to reject the plaint.
27. In Khatri Hotels Pvt. Ltd. and Anr. v. Union of India and
Anr., (2011) 9 SCC 126 this Court held that the use of the
word 'first' between the words 'sue' and 'accrued', would
mean that if a suit is based on multiple causes of action,
the period of limitation will begin to run from the date when
the right to sue first accrues. That is, if there are successive
1 (2020) 7 Supreme Court Cases 366
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violations of the right, it would not give rise to a fresh cause
of action, and the suit will be liable to be dismissed, if it is
beyond the period of limitation counted from the date when
the right to sue first accrued.
28. A three-Judge Bench of this Court in State of Punjab v.
Gurdev Singh, (1991) 4 SCC 1 held that the Court must
examine the plaint and determine when the right to sue first
accrued to the Plaintiff, and whether on the assumed facts,
the plaint is within time. The words "right to sue" means the
right to seek relief by means of legal proceedings. The right
to sue accrues only when the cause of action arises. The
suit must be instituted when the right asserted in the suit is
infringed, or when there is a clear and unequivocal threat to
infringe such right by the Defendant against whom the suit
is instituted. Order VII Rule 11(d) provides that where a suit
appears from the averments in the plaint to be barred by
any law, the plaint shall be rejected."
4) In view of above, case for consideration is made out.
5) Admit.
6) Mr. Wadikar waives service for Respondent-Plaintiff. Hearing of
the Suit is expedited. There shall be stay to further proceedings.
[NITIN W. SAMBRE, J.]
