[Cites 10, Cited by 0]
Bombay High Court
Ramesh Baburao Malve vs Suman Gavanaji Mankape And Others on 23 February, 2026
2026:BHC-AUG:8234
(1) 73 CRA NO. 68 OF 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
73 CRA NO. 68 OF 2018
RAMESH BABURAO MALVE
VERSUS
SUMAN GAVANAJI MANKAPE AND OTHERS
...
Mr. S. V. Adwant, Advocate for the Applicant
Mr. S. R. Deshpande, Advocate for Respondent Nos.1, 2, 3.1 to 3.4
...
CORAM : SHAILESH P. BRAHME, J.
DATE : 23.02.2026
ORDER :
-
. Heard both sides finally.
2. The applicant is taking exception to the order dated 21.02.2018
passed below Exhibit-13 refusing to reject the plaint in Special Civil Suit No.92
of 2016. The respondents are prosecuting the suit for specific performance of
contract, possession, injunction, recovery of excess amount and alternatively
for refund of amount.
3. The plaint is sought to be rejected under Order VII Rule 11 of
C.P.C. by application Exhibit-13 mainly on the ground of limitation and want
of case of action. It was contested by the respondents resulting into rejection
of the application on 22.09.2017. Being aggrieved, Civil Revision Application
No.205 of 2017 was preferred. It was allowed on 08.01.2018 remanding the
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matter to the Trial Court for deciding application Exhibit-13 afresh. In
pursuance of the orders of this Court, the application was considered and it
was rejected by the impugned order.
4. Mr. S. V. Adwant, learned counsel for the applicant, has placed on
record note of consideration and compilation of the judgments. The following
submissions have been canvassed by learned counsel Mr. Adwant :
(i) A meaningful reading of the plaint does not make out right to sue
and the suit is manifestly vexatious and meritless.
(ii) The cause of action is illusory and far from the truth.
(iii) The case is squarely covered by part I of Article 54 of the
Limitation Act, 1963.
(iv) The suit filed on 11.04.2016 is hopelessly barred by limitation
from accruel of first cause of action on 09.11.2006. There is dearth
of action on the part of the respondents despite knowledge of refusal
of permission by the Competent Authority for alienation of the suit
land.
(v) The correspondence made inter se between the parties and the
Revenue Department would disclose inaction on the part of the
respondent - plaintiff. A time-barred claim is being agitated in the
present suit.
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(vi) The contract between the parties is unconscionable and
unexecutable in the wake of Rule 15 of the Maharashtra Land
Revenue (Disposal of Government Lands), Rules 1971.
(vii) The Trial Court committed apparent error of jurisdiction in
rejecting the application. The approach is callous. The foundation of
the claim is defective and the plaint should have been rejected.
(viii) The finding that there was no notice to the plaintiffs and the
defendant refused to pay additional Najrana is perverse.
(ix) As per Section 22, the main relief in the suit is for specific
performance of contract and other reliefs are ancillary in nature and
it is not a case of partial rejection of plaint.
5. Per contra, Mr. S. R. Deshpande, learned counsel supports the
impugned order. It is submitted that though sale deed was agreed to be
executed by 31.12.2004, thereafter the applicant accepted substantial
amounts, approached the revenue authority seeking permission and there was
correspondence with him. The conduct of the parties is indicative of extension
of period for execution of sale deed. It is further submitted that the applicant
failed to pay the deficit amount to the department which was required to be
paid by the respondents on 01.10.2008. It is further submitted that there is
exchange of notice and reply between the parties. The cause of action has
(4) 73 CRA NO. 68 OF 2018
been specifically stated in the plaint. The issue of limitation is a mixed
question of law and fact and cannot be decided at this stage. It is submitted
that even if the submissions of the applicant are accepted, that would result in
partial rejection of the plaint which is impermissible. It is further submitted
that the approach of the Trial Court is reasonable and does not suffer from any
illegality or perversity.
6. I have considered rival submissions of the parties. The
respondents have filed suit for specific performance of contract, possession,
injunction, recovery of excess amount and alternatively for refund of amount.
It is founded on agreement to sell dated 16.02.2004 in respect of 2 Acre from
land Gat No.74. Being ex-serviceman, the respondent was allotted the land on
condition. He was bound to secure the permission for alienation of the land.
7. It reveals from the plaint that the respondent proposed to sell out
2 Acre of land to Mr. Makbul Khan Rahim Khan and 3 Acre of land to Mrs.
Mohini Yevale. Initially, permission was given by the Competent Authority on
condition of depositing 75% of the Najrana amount. The transaction with Ms.
Mohini Yewale was repudiated.
8. Due to withdrawal of Mrs. Mohini Yewale from the transaction, 2
Acre of land was agreed to be sold to the respondent - plaintiff and
(5) 73 CRA NO. 68 OF 2018
accordingly permission was to be secured by the applicant. An agreement was
executed on 16.02.2004 fixing the consideration of Rs.37,02,000/-. The time
for execution of sale deed was fixed to be 31.12.2004. The earnest amount
was paid by the respondent.
9. It is specifically averred in paragraph No.13 of the plaint that the
respondent paid Rs.1,50,000/- to the applicant on 29.04.2005 which was
accepted by him. The sale deed could not be executed for want of necessary
permission before the stipulated date. It was agreed between the parties that
the applicant would obtain permission and after paying the balance amount
sale deed would be executed.
10. It is specifically averred in paragraph No.14 of the plaint that in
pursuance of the understanding and deliberations between the parties, the
application was submitted by the applicant on 27.04.2004 seeking permission.
The applicant is said to have approached the authorities due to withdrawal of
earlier purchaser Mrs. Mohini Yevale who was being replaced by the plaintiffs.
11. The further averments in paragraph Nos.15 to 17 disclose the
correspondence of the revenue officers with the applicant in respect of
modified permission and payment of deficit amount of Najrana. There is no
reason to discard the correspondence which is produced on record along with
(6) 73 CRA NO. 68 OF 2018
the plaint at this juncture. The conduct of the parties, factum of further
payment of the amount of consideration and the correspondence referred in
the plaint unequivocally disclose that the case is falling in part II of Article 54
of the Limitation Act, 1963. Time cannot be said to be the essence of contract.
There is absolutely no indication by the applicant disclosing that as the time
had lapsed for execution of sale deed, he was not bound to secure any
permission or execute sale deed.
12. My attention is adverted to letter dated 02.09.2008, at page page
no.81 and letter dated 04.01.2012 to impress that those are the
correspondence actually made by the plaintiffs. The purport of the
correspondence can be gone into at the time of full-fledged trial. These
documents cannot be read or interpreted to infer that there was no cause of
action or there is no right to sue for the plaintiffs.
13. It has been specifically pleaded in the plaint that the applicant
failed to pay the deficit amount. The respondents are stated to have paid
deficit of Rs.11,00,463/- through challan on 01.10.2008. The applicant is
stated to have been extending his promises to secure permission and to
execute sale deed. He is stated to have persuaded the Collector to issue
permission to sell 2 Acre to the respondents. It is further contended that the
respondents were required to pay Rs.40,25,463/- which was excess by
(7) 73 CRA NO. 68 OF 2018
Rs.3,23,463/-.
14. The specific cause of action has been stated in so many words in
the plaint. The respondents were required to issue notice on 11.01.2016. It
was replied on 18.03.2016. The cause of action can be said to be recurring.
Considering the averments of the plaint and documents annexed along with it,
I am of the considered view that the limitation becomes mixed question of law
and fact. The plaint cannot be rejected at this threshold.
15. My attention is adverted to Rule 15 of the Maharashtra Land
Revenue (Disposal of Government Lands), Rules 1971 to show that the
contract was unexecutable and there was no cause of action. An objective
scrutiny is required to answer the submissions of the applicant. The applicant
participated in a transaction and obtained near about 40,25,463/- and now he
is coming with a plea that the contract is unconscionable. This has to be dealt
with after full-fledged trial.
16. Learned counsel for the applicant has criticized conduct of the
respondent - plaintiff in so many words especially in the written notes of
submissions. I am of the considered view that those are not within the realm
of enquiry under Order VII Rule 11 of C.P.C. This can be gone into during the
course of trial and decided at the time of conclusion of the suit.
(8) 73 CRA NO. 68 OF 2018
17. The prayers of possession, refund of amount can be said to be
ancillary in nature but prayers of recovery of excess amount and injunction are
independent. Even if relief of specific performance and possession is said to be
barred by limitation, the plaint can survive for other prayers. Partial rejection
of the plaint is impermissible, is a trite law which is laid down in Central Bank
of India vs. Prabha Jain reported in 2025 INSC 95. I am not inclined to accept
the claim for rejection of the plaint.
18. Learned counsel for the applicant has relied on the judgment of
Hardesh Ores (P) Ltd vs. Hede and Company reported in (2007) 5 SCC 614. It
was not arising out of the suit filed for specific performance of the contract.
Therefore the facts before the Apex Court are distinguishable in nature. In that
case, the Court was dealing with the limitation as provided by Article 58 and
113 of the Limitation Act, 1963. The observations in paragraph Nos.20, 23,
25, 35 and 40 cannot enure to the benefit of the applicant. Reliance is placed
on the judgment of Ahmadsahab Abdul Mulla (2) (Dead) By Proposed Lrs vs.
Bibijan and Others reported in (2009) 5 SCC 462. In that case, the suit was for
specific performance of contract but the plaint was not sought to be rejected
on the ground of limitation. The meaning of the expression "date fixed for the
performance" occurring in Article 54 was under consideration. This judgment
will not be helpful to the applicant.
(9) 73 CRA NO. 68 OF 2018
19. Further reliance is placed on Fatehji and Company and Another
vs. L. M. Nagpal and Others reported in (2015) 8 SCC 390. In that case, the
suit was for specific performance of contract. The facts are distinguishable.
The law laid down therein will not help the applicant. In the present case, the
conduct of the parties would disclose that initially time fixed by them for
execution of the sale deed but that stood obliterated.
20. I find that the Trial Court has not committed any perversity or
illegality in the impugned order. I find no substance in the revision
application.
21. Civil Revision Application is rejected.
( SHAILESH P. BRAHME, J. )
PRW
