Bombay High Court

Appak Enterprises vs Kalpana Oza And 3 Ors. on 4 September, 2025

2025:BHC-OS:14474

                                                                                 1-ial 24163-24.doc

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              ORDINARY ORIGINAL CIVIL JURISDICTION

                               INTERIM APPLICATION (L) NO. 24163 OF 2024
                                                  IN
                                         SUIT NO. 135 OF 2024

               Appak Enterprises                                               ... Applicant
               In the matter between
               Kalpana Oza & Anr.                                              ... Plaintiffs
                       Versus
               Mr. Laina Killath Mohammed Ayoub & Ors.                         ... Defendants

                                                   .............

               Mr. Sharad Bansal Mr. Raj Yadav i/b Karansingh Shekhawat for the
               Applicant/Defendant No.2.
               Mr. Jehangir Jejeebhoy a/w. Mr. Rohan Mahadik, Ms. Mekhala More i/b
               The Juris Partners for the Plaintiffs.
               Mr. Mutahhar Khan a/w. Mr. Medhavin Bhatt and Ms. Manashvi Shah i/b
               M. V. Law Partners for Defendant No.1.
               Ms. Sneha Dehiya for Defendant No.3.

                                               CORAM   : PRAFULLA S. KHUBALKAR, J.
                                               DATED   : 4th SEPTEMBER, 2025.

               ORAL ORDER

1. Heard learned counsel for applicant/defendant No.2 and learned

counsel for respondents/plaintiffs.

2. Defendant No.2 has moved this application under Order VII Rule 11

(d) of the Code of Civil Procedure seeking rejection of plaint. The plaintiffs

have filed its affidavit-in-reply dated 12.11.2024 opposing the application.

3. The plaintiffs have filed the original suit seeking declaration that the

plaintiffs are owners of suit property bearing piece and parcel of land

situated at village Hariyali, Taluka-Kurla described in the plaint, and also

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seeking a further declaration that the Power of Attorney dated 15.03.1997

(Exhibit 'G') executed in favour of defendant No.1 is forged and fabricated.

In the suit, the plaintiffs have also challenged the validity of Indenture of

Conveyance dated 02.11.2008 and Development Agreement dated

12.02.2010.

4. Defendant No.2 has filed the instant Interim Application under Order

VII Rule 11(d) of the CPC seeking rejection of plaint on the ground of

limitation alleging therein that the suit filed in December, 2023 raising

challenge to the Conveyance Deed of the year 2008 is barred by limitation

being filed after 15 years of registered Conveyance Deed. Although the

Interim Application is filed only on the ground of suit being barred by

limitation, defendant No.2 has also alleged that the suit has been filed by

the plaintiff without seeking any relief of possession and as such it is not

maintainable and the plaint is liable to be rejected.

5. Mr. Bansal, learned counsel for the applicant/defendant No.2

vehemently submitted that the basic challenge in the suit is to the

registered Indenture of Conveyance Deed dated 02.11.2008 and in view

of averments in the plaint alleging cause of action to have arisen in May,

2023, the suit is beyond limitation. He submitted that although the

plaintiffs have averred that they were not aware about the Conveyance

Deed and the Development Agreement, it is inconceivable that the

plaintiffs, who claimed to be owners of the suit property, were unaware of

execution of the registered documents. It is vehemently submitted that

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the documents of Conveyance Deed and Development Agreement being

registered documents, the plaintiffs are deemed to have knowledge of the

same on the date of registration i.e. from the years 2008 and 2010 and as

such the suit which is filed in the year 2023 is hopelessly barred by

limitation. It is also vehemently submitted that although the plaintiffs have

claimed a declaration about ownership of suit property, in absence of any

prayer seeking possession, the suit is not maintainable and the plaint is

liable to be rejected in view of provisions of Section 34 of the Specific

Reliefs Act. In support of his contentions, learned counsel for the

applicant/defendant No.2 placed reliance on the judgments in the matters

of (1) Uma Devi & Ors. Vs. Anand Kumar & Ors. (2025) 5 SCC 198, (2)

Sushrutha Vishranthi Dhama Pvt. Ltd. Vs. Dr. M. P. Somaprasad & Ors.

2025 SCC OnLine Kar 1900, (3) Dilboo (Smt) (Dead) by LRs & Ors. Vs.

Dhanraji (Smt) (Dead) & Ors. (2000) 7 SCC 702, (4) Executive Officer,

Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar Vs. Chandran &

Ors. (2017) 3 SCC 702 and (5) Patil Automation Pvt Ltd. & Ors. Vs.

Rakheja Engineers Pvt Ltd. (2022) 10 SCC 1. By placing reliance on

these judgments, learned counsel for the applicant submitted that the

position of law is settled that the registration of a document amounts to

giving notice to the whole world about its execution. By referring to

various paragraphs from these judgments, it is submitted that the

averments in the plaint if taken on their face value mentioning therein that

the plaintiffs got knowledge only in May, 2023 are inconceivable and the

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plaint cannot be entertained in view of provisions of Order VII Rule 11 of

the CPC. By relying on the judgment in the matter of Sushrutha

Vishranthi Dhama Pvt. Ltd. (supra), it is submitted that the plaintiffs, who

claim to be owners of the suit property, have not exercised due diligence

as required of a prudent man and in view of the position of law, the suit

cannot be entertained. By referring to various paragraphs from these

judgments, it is vehemently submitted that the position of law is fairly

settled that whenever a document is registered, the date of registration

becomes the date of deemed knowledge and applying this legal position,

it is submitted that the plaintiffs have failed to demonstrate that the suit is

filed within limitation. Learned counsel for the applicant relied on the

judgment in the matter of Executive Officer, Arulmigu Chokkanatha

Swamy Koil Trust, Virudhunagar (supra) and vehemently submitted that in

absence of any relief for possession, the suit seeking declaratory relief is

not maintainable and therefore the plaint is liable to be rejected.

6. Advocate Jejeebhoy, learned counsel for the plaintiffs vehemently

opposed the application and submitted that the plaintiffs have specifically

averred in the plaint that the defendants have colluded with each other

and have got executed forged and fabricated documents and

consequently all the documents based on the forged documents including

the documents of Conveyance Deed and Development Agreement are

illegal and required to be set aside. Learned counsel for the plaintiffs

invited attention of the Court to the averments in the plaint in para 6 and

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submitted that the plaintiffs have alleged fraud by the defendants and as

such the plaint cannot be rejected only on the ground of limitation. He

also submitted that the issue of limitation is mixed question of law and

facts and the instant application under Order VII Rule 11 is liable to be

rejected. In support of his contentions, he invited Court's attention to the

documents of Power of Attorney dated 15.03.1997 (Exhibit 'G') and

pointed out certain interpolations in the nature of deletion and insertion of

a paragraph and therefore submitted that the issue of forgery, fabrication

and fraud need to be decided on the basis of evidence. He also

submitted that although the plaintiffs have not prayed for any relief of

possession, in view of specific prayers seeking declaration of ownership,

the plaint cannot be rejected. In support of his submission, he relied on

the judgments in the matter of P. Kumarakurubaran Vs. P. Narayanan &

Ors. 2025 SCC OnLine SC 975 and Daliben Valjibhai & Ors. Vs. Prajapati

Kodarbhai Kachrabhai & Anr. 2024 SCC OnLine SC 4105. By placing

reliance on these judgments of the Hon'ble Supreme Court he vehemently

submitted that the suit filed after getting knowledge of the fraud is very

well within limitation.

7. Having regard to the rival contentions, the issue which falls for my

consideration is about rejection of plaint under Order VII Rule 11(d) of the

CPC. A perusal of the averments in the plaint shows that the plaintiffs

have alleged forgery, fabrication of documents and resultant fraud being

practiced upon the plaintiffs. The plaintiffs have sought reliefs of

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declaration of their ownership and declaration of illegality of Indenture of

Conveyance Deed and Development Agreement. The plaintiffs have filed

several documents along with plaint including the documents of Power of

Attorney dated 15.03.1997 which is alleged to have been forged and

fabricated. As such, in the wake of allegations of fraud levelled by the

plaintiffs, the issue of rejection of plaint on the ground of limitation cannot

be concluded before the evidence of parties is recorded, particularly it

being a mixed issue of facts and law. Although the plaintiffs have not

incorporated any prayer for possession, at this stage, considering the

declaratory reliefs claimed by the plaintiffs, they cannot be non-suited,

particularly in view of the allegations of forgery and fraud.

8. The position of law laid down in the judgments relied upon by the

learned counsel for the applicant/defendant No.2 is not disputed. It is

pertinent to note that the plaintiffs, who claim to be citizens of foreign

countries, have claimed that they got knowledge of the registered

documents in the month of May, 2023. In view of these peculiar facts, the

plaintiffs can not be presumed to have got knowledge of the conveyance

immediately after their registration and cannot be non-suited only because

of registration of the documents in the years 2008 and 2010. The case

put up by the plaintiffs in the plaint alleging forgery and fabrication of

documents of Power of Attorney will have to be tested only on the strength

of evidence to be led by the parties. In this regard relevant observation of

the Hon'ble Supreme Court in the matter of P. Kumarakurubaran (supra)

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relied upon by the plaintiffs needs to be taken note of. The relevant

paragraph from this judgment is reproduced below: -

"11. It is well-settled that Article 59 of the Limitation Act, 1963, governs suits seeking cancellation of an instrument and prescribes a period of limitation of three years from the date when the plaintiff first had knowledge of the facts entitling him to such relief. The emphasis under Article 59 is not on the date of the transaction per se, but on the accrual of the cause of action, which, in cases involving allegations of fraud or unauthorized execution of documents, hinges upon the date on which the plaintiff acquired knowledge of such facts."

9. Applying the legal position as laid down in the above mentioned

pronouncement of the Hon'ble Supreme Court, I am of the considered

opinion that the fate of the suit alleging fraud upon the plaintiffs cannot be

decided at this preliminary stage. The position of law is fairly well settled

that fraud vitiates everything and the plaintiffs are, therefore, entitled to

establish commission of fraud against them by leading evidence.

Although the plaintiffs have themselves averred in the plaint that the

defendants are in possession of the property and even the construction of

rehabilitation building is complete, absence of prayer seeking possession

cannot be considered to be a ground seeking rejection of the plaint under

Order VII Rule 11 of the CPC.

10. Having regard to the factual and legal aspects mentioned above,