Rajendra v. Harbanssingh

cra64.15.J.odt 3 suit was hit by Section 34 of the Specific Relief Act, 1963, as the crucial relief of possession was not sought by the plaintiff and thirdly, that the suit was barred by limitation under Article 58 of the schedule to the Limitation Act, 1963.

2] By the impugned judgment and order, the court below has held that none of these grounds raised for claiming that the plaint deserved to be rejected, could be decided at the threshold and that all of them required evidence to be led, thereby demonstrating that the application filed by the defendant No.1 under Order 7 Rule 11 (d) of the C.P.C. deserved to be rejected.

3] The facts leading upto to filing of this application are that the respondent No.1 herein filed a suit on 20.11.2011 against his own sister (defendant no.1) and two others claiming declaration of right, title and interest in suit property being Plot No.275, CRS-III, scheme of the Nagpur Improvement Trust, Old Bagadganj Layout, Nagpur and direction restraining the defendants from claiming any kind of relief in relation to the said suit property. In the said suit, the respondent No.1 (plaintiff)

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cra64.15.J.odt 4 claimed that although the suit property was purchased in the name of defendant No.1, his own sister, by agreement dated 29.10.1972, she was owner only for name and that all rights towards ownership and possession of the suit property were exercised by the respondent No.1 himself. The respondent No.1 claimed that the amount towards consideration for purchase of the said suit property was paid from the account of partnership firm M/s. Jaswant Saw Mill of which the respondent Nos.1, 2 and 3 along with another family member were partners. Details of the dates of payment were given and it was claimed that from the very beginning the respondent No.1 was in possession of the said suit property.

4] It was claimed that the defendant No.1 had completed her M.B.B.S. qualification and that she had no income of her own when the said suit property was purchased in her name in 1972. It was further contended that all the taxes pertaining to the said suit property were regularly paid by the respondent No.1 and further that when penalty of a certain amount was imposed by the Nagpur Improvement Trust for failure

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cra64.15.J.odt 5 to commence construction on the suit property within prescribed period of time, the said penalty was also paid by the respondent No.1 himself.

5] In the plaint itself, reference was made to an earlier litigation in respect of the suit property. It was stated that the defendant No.1 had filed a suit for declaration and permanent injunction in respect of the suit property on 22.12.1994, wherein she claimed that she was the owner and in possession of the suit property and further that the respondent No.1 along with five other members of the family were seeking to disturb her possession. The defendant No.1 had filed an application for temporary injunction in the said suit wherein the court had granted relief to her by restraining the defendants, including the respondent No.1 herein, from interfering with the possession and construction being undertaken by the defendant No.1 in the suit property. The respondent No.1 along with other defendants had filed written statement in the said suit claiming that the suit property was purchased by the respondent No.1 in the name of the plaintiff therein along with another sister who was defendant

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cra64.15.J.odt 6 No.6. Issues were framed in the said suit on 26.11.1997. But, thereafter on 10.10.2000, the said suit was dismissed in default.

6] In the suit filed by the respondent No.1 for declaration and other reliefs, the defendant No.1 (vendor of the applicants herein) filed an application under Order 7 Rule 11(d) of the C.P.C. for rejection of plaint on the aforementioned three grounds. In respect of the ground that the suit was barred by limitation, while referring to Article 58 of the schedule to the Limitation Act, 1963, the defendant No.1 relied upon the words

"when the right to sue first accrues" placing emphasis on the word

"first". It was contended that when the earlier suit was filed by her on 21.12.1994, specifically stating that she was the absolute owner of the suit property and when she sought permanent injunction against the respondent No.1 restraining him and others from interfering with construction activities being carried out by her on the suit property, the cause of action for the respondent No.1 first occurred for filing the suit in the nature of the suit that he has filed on 30.11.2011. It was contended that when the period of limitation was only for three years, such a suit could

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cra64.15.J.odt 7 have been filed by the respondent No.1 within three years from the date when he was served with notices in the suit filed on 21.12.1994. Therefore, the suit filed by the respondent No.1 in the year 2011 was clearly barred by limitation.

7] By the impugned order, the court below has rejected the application of the defendant No.1, as stated above, holding that all the three grounds raised while seeking rejection of plaint could be decided only upon leading of evidence and completion of trial. It is relevant for the present case that during the pendency of the said application before the court below, the defendant No.1 sold the suit property to the applicants herein by registered sale-deed dated 11.06.2012. As a consequence, the respondent No.1 moved an application for the purchasers, i.e. applicants herein, to be joined as parties to the suit, which was allowed, whereby the applicants became parties to the suit. Since they are the affected parties, having purchased the suit property, they are aggrieved by the impugned order passed by the court below and they have challenged the same by way of this civil revision application.

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cra64.15.J.odt 8

8] Mr. S.V. Purohit, learned counsel appearing on behalf of the applicants contended that the suit filed by respondent No.1 was hit by the provisions of the Benami Transactions (Prohibition) Act, 1988. He claimed that since the respondent No.1 himself admitted in the suit that the suit property was purchased in the name of the defendant No.1 (vendor of the applicants), he was prohibited by Section 4 of the said Act from claiming any title or ownership in the suit property. In this regard, the learned counsel placed reliance upon the judgment of the Hon'ble Apex Court in the case of Marcel Martins v. M. Printer and others reported in

(2012) 5 SCC 342.

9] He further contended that since the respondent No.1 had failed to claim consequential relief of possession, the suit was hit by Section 34 of the Specific Relief Act. Lastly, the learned counsel submitted that the suit was barred by limitation, in view of the fact that earlier suit was filed by the defendant No.1 on 21.12.1994, wherein she had categorically stated that she was absolute owner of the suit property and that the said event first triggered period of limitation under Article 58 of the schedule to

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cra64.15.J.odt 9 the Limitation Act, 1963 and that the suit was filed by the respondent No.1 on 30.11.2011 was clearly barred by limitation. The learned counsel emphasized on the use of word "first" and the words "first accrues" as found in the aforesaid article. The learned counsel further submitted that even on a bare reading of the plaint as it is and the documents referred to therein i.e. the earlier suit filed by the defendant No.1, it was evident that the suit was barred by limitation. It was contended that clever drafting on behalf of the plaintiff (respondent No.1 herein) could not be permitted to get over the bar of limitation. Reliance was placed on judgments of the Hon'ble Supreme Court in the case of Khatri Hotels Private Limited and Anr. v. Union of India and Anr. reported in AIR 2011 SC 3590, N.V. Srinivasa Murthy and others v. Mariyamma (Dead) by proposed LRS. and others reported in (2005) 5 SCC 548, Hardesh Ores (P) Ltd. v. Hede and Company reported in (2007) 5 SCC 614, L.C. Hanumanthappa (Since Dead) represented by his legal representatives v. H.B. Shivakumar reported in (2016) 1 SCC 332 and judgment of this court in the case of Laxmichand Kalyanji v. Municipal Corporation of Greater Bombay reported in 2002(2) Mh.L.J. 210.

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cra64.15.J.odt 10

10] Per contra, Shri V.V. Bhangde, learned counsel appearing on behalf of the respondent No.1, submitted that the order passed by the court below was justified and that no ground was made out by the defendant No.1 while seeking rejection of plaint under Order 7 Rule 11 (d) of the C.P.C. It was pointed out that when the respondent No.1 had stated throughout in the plaint that he was in possession of the suit property right from 1972, it could not be said that the suit was hit by Section 34 of the Specific Relief Act, 1963. It was contended that only contents of the plaint could be seen and that if the claim of the respondent No.1 of being in possession of the suit property was disputed, it was matter for trial and not for rejection of plaint at the threshold. As regards the suit being hit by the provisions of Benami Transactions (Prohibition) Act, 1988, the learned counsel contended that the judgment of the Hon'ble Supreme Court in the case of Marcel Martins (supra) relied upon by the applicant, was in fact, in favour of respondent No.1, because there were sufficient pleadings in the plaint itself demonstrating that the respondent No.1 stood in a fiduciary capacity in respect of the defendant No.1 in whose name the property stood.

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cra64.15.J.odt 11

11] On the question of limitation, the learned counsel appearing on behalf of the respondent No.1 contended that any and every reason giving rise to cause of action could not trigger the period of limitation, because the law as interpreted by various courts laid down that a person is required to approach the court when the cause of action is clear and unequivocal and in clear terms threatens the right claimed by such person. It was contended that mere filing of the suit on 21.12.1994 by the defendant No.1 and stating that she was absolute owner of the suit property did not threaten in clear and unequivocal terms, the right of the respondent No.1 in the suit property, particularly because he continued to be in possession of the suit property throughout the period beginning from 1972. It was contended that the respondent No.1 was exercising all rights as owner in possession of the suit property and that the real trigger for cause of action for respondent No.1 arose when sometime in the year 2009-2010, the defendant No.1 (his own sister) took steps to alienate the suit property. It was contended that when such an event occurred, which directly threatened in unequivocal terms to interfere with the right of the respondent No.1 to enjoy and

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cra64.15.J.odt 12 possess the property that cause of action arose. On this basis it was claimed that the suit was well within limitation and that the court below was justified in passing the impugned order. In support of his contention, the learned counsel appearing on behalf of the respondent No.1 relied upon judgments of this court in the case of National Sports Club of India & others v. Nandlal Dwarkadas Chhabria & others reported in 1997(3) Bom.C.R. 565, Geeta Patkar v. Chandrakant Kantilal Shah and others reported in 2015(6) Mh.L.J. 692 and judgments of the Hon'ble Supreme Court in the case of Daya Singh and another v. Gurdev Singh (Dead) by LRS. and others reported in (2010) 2 SCC 194 and in the case of Marcel Martins (supra).

12] Having heard the learned counsel for the parties, it appears that the ground of limitation argued on behalf of the applicants seeking rejection of plaint requires to be considered in detail. As regards the ground pertaining to the suit of respondent No.1 being hit by Section 34 of the Specific Relief Act, 1963, it is clear that when the plaint is full of pleadings regarding the possession of the respondent No.1 in the suit property, if it is

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cra64.15.J.odt 13 disputed by the defendant No.1, it becomes a matter for trial and therefore, it cannot be said that the plaint deserves to be rejected on account of failure to claim relief of possession.

13] In respect of the ground pertaining to the suit of respondent No.1 being hit by the provisions of Benami Transactions (Prohibition) Act, 1988, a reading of the plaint shows that the respondent No.1 has claimed that he effectively stood in a fiduciary capacity in respect of the defendant No.1. There are details given about the amounts and the dates regarding payment of consideration made in respect of the purchase of the suit property in the name of the defendant No.1. In the aforesaid judgment of the Hon'ble Supreme Court in the case of Marcel Martins (supra) it has been held that in determining whether the relationship is based on trust or confidence and whether a person stands in a fiduciary capacity, the court shall take into consideration factual context for deducing existence of such relationship. This demonstrates that it would be a matter of evidence. Whether the provisions of the Benami Transactions (Prohibition) Act, 1988, would apply to a transaction of the year

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cra64.15.J.odt 14 1972 is another matter, but, in view of pleadings in the suit filed by respondent No.1, it cannot be said that this could be a ground for rejection of the plaint at the threshold. It would certainly be a matter requiring evidence, particularly when the defendant No.1 would dispute the claim made by the respondent No.1 in the plaint. Thus, this ground also does not hold good and the court below was justified in holding in favour of the respondent in that regard.

14] The only ground that now remains is the question of limitation. A perusal of the judgment in the case of National Sports Club of India & others v. Nandlal (supra) relied upon by the counsel appearing for the respondent No.1 and other judgments in support of his contention regarding the point of limitation show that reliance has been placed in the said judgments on the judgment of the Privy Council in the case of Mt. Bolo v. Mt. Koklan, and others reported in AIR 1930 PC 270. In this judgment of the Privy Council, while interpreting Article 120 of the schedule to the earlier Limitation Act, it was held that there could not be a right to sue until there was accrual of the right asserted in the suit

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cra64.15.J.odt 15 and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit was instituted. This court in the case of National Sports Club of India & others v. Nandlal (supra), while relying upon the aforesaid judgment of the Privy Council has held that whenever some right is denied or asserted, the party need not rush to court and file a suit and that a party has to rush to court only when its rights are interfered or when there is unequivocal and effective threat to its rights. Similarly, it has been held by the Hon'ble Supreme Court in the case of Daya Singh and another v. Gurdev Singh (supra) that right to sue accrues when a clear and unequivocal threat to infringe right of the plaintiff was shown. It was also earlier held by the Hon'ble Supreme Court in the case of Mst. Rukhmabai v. Lala Laxminarayan and others reported in AIR 1960 SC 335 that every threat by a party to right of a person however ineffective and innocuous cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. This judgment has been relied upon by this court in the case of Geeta Patkar v. Chandrakant (supra).

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cra64.15.J.odt 16

15] The position of law as it emerges from the aforesaid judgments relied upon on behalf of the respondent No.1, is that cause of action may arise in its different shades at various points of time, but cause of action for approaching the court for filing a suit occurs only when the right sought to be claimed in the suit is infringed or sought to be infringed in clear and unequivocal terms. But, this has to be also read with the words "when the right to sue first accrues" used in Article 58 of the schedule to the Limitation Act, 1963. Therefore, the position of law deducible is that when a clear and unequivocal threat to the right of a person first occurs, the right to sue accrues and the period of limitation is triggered. The addition of the word "first" in the said Article 58 of the 1963 Act, has been taken note of by the Hon'ble Supreme Court in the case of Khatri Hotel Private Limited and Anr. v. Union of India and Anr. (supra) and it has been held therein as follows:

"27. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word 'first' has been used between the words 'sue' and 'accrued'. This 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. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be

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cra64.15.J.odt 17 liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued."

This court in the case of Laxmichand Kalyanji v. Municipal Corporation of Greater Bombay (supra) has held that there must be some overt act in the context of infringement of a right and only then does it give rise to a cause of action, which in turn would trigger limitation under Article 58 of the schedule to the Limitation Act, 1963.

16] It is also settled law that while considering the question of whether a plaint deserves to be rejected as being barred by limitation, the averments made in the plaint in the entirety need to be looked at, presuming them to be correct. It has also been held by the Hon'ble Supreme Court in the case of Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I and another reported in (2004) 9 SCC 512, that documents produced along with the plaint can be looked into while considering a question of rejection of plaint raised on behalf of the defendant.

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cra64.15.J.odt 18

17] Taking into consideration the aforesaid position of law, it will have to be examined on the basis of the plaint and the documents referred therein, as to whether cause of action for the plaintiff herein i.e. respondent No.1 first accrued in clear and unequivocal terms only in the year 2009-2010, as claimed by the said respondent or that the cause of action accrued earlier. A perusal of the claim in the earlier suit filed by the defendant No.1 herein (sister of respondent No.1) on 21.12.1994, being Regular Civil Suit No.2465/1994, shows that she claimed to be the absolute owner of the suit property and she claimed that the respondent No.1 and others had no right to interfere with the construction being undertaken by her on the said property. The relevant paragraph of the said plaint reads as follows:

"1. …..

2. …..

3. It is further submitted that the plaintiff is the absolute owner of the suit plot bearing No.275 situated in the Old Bagadganj Layout. That the suit plot originally belongs to Nagpur Improvement Trust. The plaintiff has purchased the said plot from Karimuddin Alibhai Samarbhai which was transferred in her name by Nagpur Improvement Trust. The plaintiff has completed all the formalities of purchasing the suit plot from the Nagpur Improvement Trust and thus it is the plaintiff alone who is the legal owner of suit plot No. 275 situated in old Bagadganj Layout, Nagpur."

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cra64.15.J.odt 19

18] The respondent No.1 along with other defendants appeared in the said suit and claimed that the defendant No.6 therein, being another sister of the respondent No.1, was a co-owner with the plaintiff therein (defendant No.1 in the present proceeding). The court in the said proceedings granted temporary injunction order in favour of the plaintiff restraining the defendants, including the respondent No.1 herein, from interfering in the construction work being carried out by her. The aforesaid pleading and the facts claimed by the defendant No.1 herein, show that she had in clear and unequivocal terms stated that she was the absolute owner of the suit property and in exclusive possession thereof, seeking an injunction against defendants, including respondent No.1 herein. As stated above, temporary injunction order was, in fact, granted in her favour against respondent No.1 and others. This was the first occasion when such clear and unequivocal infringement with the right of the respondent No.1 was manifested. But, it is an admitted fact that neither did the respondent No.1 file a counter claim in the suit filed by his sister (defendant No.1 herein) nor did he file any suit in the nature that he has now filed for declaration of

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cra64.15.J.odt 20 ownership and title in the suit property. The fact that the aforesaid suit was later dismissed in default, would not have any impact on the question of accrual of cause of action for the first time in clear and unequivocal terms for the respondent No.1 to have approached the court in that regard.

19] The details about the filing of the earlier suit by the defendant No.1 on 21.12.1994 have been stated by the respondent No.1 in his present suit filed on 20.11.2011 and the plaint and other documents have been referred therein. Therefore, even looking only at the plaint and the documents referred therein, in the present case, it is found that the defendant No.1 (vendor of the applicants) had claimed to be absolute owner and in exclusive possession of the suit property on 21.12.1994 itself and that no further threat in clear or unequivocal terms was expected from her, for the respondent No.1 herein to rush to the court. Such filing of suit and claiming of relief therein on the basis of being absolute owner of the suit property was a threat in clear and unequivocal terms, which was issued by the defendant No.1 and that was the point in time when the cause of action first

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cra64.15.J.odt 21 accrued for the respondent No.1, thereby triggering the period of limitation under Article 58 of the schedule to the Limitation Act, 1963. This was clearly an overt act on the part of defendant No.1, giving cause of action for the respondent No.1 to rush to the court, as laid down by this court in the case of Laxmichand Kalyanji v. Municipal Corporation of Greater Bombay (supra).

20] The learned counsel appearing on behalf of the respondent No.1 has relied upon various judgments to contend that the cause of action in clear and unequivocal term accrued to the respondent No.1 only when the defendant No.1 sought to alienate the property in the year 2009-2010. According to him, filing of suit on 21.12.1994 was not a threat to the right sought to be canvassed in the suit filed by the respondent No.1 on 20.11.2011. But, the said contention is unsustainable in the face of the pleading in the plaint of the suit filed on behalf of respondent No.1. Any amount of lengthy and clever drafting cannot permit the respondent No.1 from escaping the facts that stare him in the face, which is that the cause of action first arose in clear and unequivocal terms, upon the defendant No.1 filing

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cra64.15.J.odt 22 suit on 21.12.1994 for declaration and permanent injunction against respondent No.1.

21] The court below committed a grave error in holding that since the defendant No.1 had not filed a suit for declaration of title, it could not be said that cause of action for the respondent No.1 herein had arisen. The suit filed on 21.12.1994 was on the basis that the plaintiff therein was the absolute owner of the suit property and in exclusive possession thereof. There was no question of seeking declaration of title at that point in time. At the same time, such clear statement in the aforesaid suit filed in the year 1994 did trigger cause of action for the respondent No.1 and he ought to have filed a suit or counter claim for claiming the right that he is now claiming in respect of right, title and ownership in the suit property. The said reasoning of the court below is unsustainable. The court below has also erred in holding in the impugned order that the question of limitation in the facts of the present case would require evidence and that therefore, it could be decided only at the time of trial of the suit. As stated above, on an interpretation of the law pertaining to the accrual of

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cra64.15.J.odt 23 the cause of action in the context of Article 58 of schedule to the Limitation Act, 1963, in the present case, on the face of record, it is evident that the suit filed on 20.11.2011 by the respondent No.1 was barred by limitation and that therefore, the application for rejection of plaint filed on behalf of the defendant No.1 (vendor of the applicants) deserved to be allowed on this count.

22] In the light of the above, this application is allowed, the impugned order of the court below is set aside. It is held that the suit filed by respondent No.1 is barred by limitation and hence the plaint deserves to be rejected under Order 7 Rule 11 (d) of the C.P.C. and accordingly it is rejected. There shall be no order as to costs.

JUDGE

NSN

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