Bombay High Court
Sau. Nanda W/O. Digambar Awate And ... vs Madhukar Pundlikrao Awate And ... on 13 July, 2023
Bench: Avinash G. Gharote
(1) 3wp3977.23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 3977 OF 2023
Nanda Digambar Awate and anr__ Vs. ___Madhukar Pundlikrao Awate and ors
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. S.N.Bhattad, Advocate for petitioner
CORAM : AVINASH G. GHAROTE, J.
DATE : 13/07/2023
1] Heard Mr. Bhattad, learned counsel for the
petitioner.
2] The application under Order 7 Rule 11 (b) &
(d) of CPC for rejection of the plaint in RCS No. 5/2020,
has been rejected by the learned Trial Court by the
impugned order dated 23.11.2022 (pg.159).
3] Mr. Bhattad, learned counsel for the
petitioner submits that two grounds were raised in so far
as the provisions of Order 7 Rule 11 (b) of CPC is
concerned, inasmuch as it was contended that the suit is
barred by limitation on the ground that the suit was filed
three years after the filing of the earlier suit i.e RCS No.
200/1985, which was decreed on 21.03.2011, which
decree came to be confirmed in appeal by the judgment
dated 16.02.2017, in which the shares were only
modified. It is contended that the subsequent suit ought
(2) 3wp3977.23
to have been filed within three years from the appellate
Court's decree.
4] This plea has been turned down by the
learned Trial Court on the ground that limitation in such
a situation would be a mixed question of facts and law
and therefore cannot be decided under Order 7 Rule 11
(b) of CPC, considering the nature of the claim, which is
a suit for partition, I do not see any reason to upset the
said findings.
5] The second plea under Order 7 Rule 11 (d)
of CPC is a plea under Section 11 of the CPC, on the
ground that the suit property was also a subject matter in
the earlier suit for partition bearing RCS No. 200/1985,
the decree passed in which stood confirmed by the
appellate decree as indicated above. In my considered
opinion, a plea under Section 11 of the CPC is not
susceptible to be considered under Order 7 Rule 11 (d)
of CPC and it has to be decided on an issue being framed
in that regard on the merits of the trial.
6] The plea that the claim in the suit is
improperly valued has to be considered in light of the
averments made in para 9 of the plaint (pg. 38) in which
one of the suit property being an agriculture land, it has
been valued at the land revenue payable. The other
property being a house property is valued at
Rs.7,97,228/- and court fee upon 1/7th share claimed
therein had been paid thereon. No material has been
(3) 3wp3977.23
brought to my notice to indicate that the valuation of the
house property was something more than what was done
in the plaint. I therefore do not see any reason to
interfere in the impugned order. The petition is
dismissed. No costs.
JUDGE
Rvjalit
