Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.10/2019 ..1.. Suit No.2649/2018
CNR No.MHCC010000402019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.10 OF 2019
IN
SUIT NO.2649 OF 2018
Arun Harishchandra Parab & Another .. Plaintiffs
Versus
Amarbahadur Nanhu Verma .. Defendant
Ravindra Singh, advocate for plaintiffs
Harsha Shah, advocate for defendant
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 25th March, 2019
ORAL ORDER
This notice of motion is taken out by plaintiff for rejection of
plaint under Order VII Rule 11(a) & (d) of the Code of Civil Procedure.
2. It is contended by defendant that he had filed Suit No.1842 of
2011 for decree of injunction in which plaintiffs herein were the
defendants. Averments in present plaint are based on the averments
made in Suit No.1842 of 2011 filed by defendant herein. Plaintiffs
herein have not pleaded their right, title and interest in the suit
premises if any of whatsoever nature. That suit had been decreed in
favour of defendant herein as per order dated 24th December, 2013.
Though writ of summons of that suit had been duly served upon
defendants (plaintiffs herein) on 5th March, 2012, but defendants
(plaintiffs herein) did not contest the said suit. Accordingly, said suit
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was decreed exparte in favour of defendant herein as per order dated
24.12.2013. Plaintiffs have taken out notice of motion No.1604 of 2014
for setting aside said exparte decree.
3. It is further contended that suit is barred under Order VII Rule
11 (a) of CPC as suit does not disclose the cause of action against
defendant. Suit is also barred under Order VII Rule 11(d) of CPC as the
statements made in plaint para 21 does not give the cause to file
present suit. First cause accrued to plaintiffs when they threatened
defendant to dispossess him from the suit premises i.e. on 08.08.2011.
Second cause arose when plaintiffs served with writ of summons on 5th
March, 2012 in respect of Suit No.1842 of 2011. Plaintiffs ought to
have filed present suit within three years from the date of accrual of
first cause of action i.e. 8th August, 2011. But plaintiffs have filed
present suit in the year 2018 when Exparte decree was confirmed by
Hon'ble High Court. Therefore, suit is also barred by law of limitation.
Hence, prayed in above terms.
4. Plaintiffs have filed affidavit in reply and opposed the said
notice of motion. It is averred that present suit has been filed on
altogether different cause of action and therefore, question of rejection
of plaint under provision of Order VII Rule 11 of CPC does not arise.
5. I have gone through notice of motion, affidavit in support of it,
reply of plaintiffs and plaint in present suit. Heard respective counsel
for parties. They advanced their submission in accordance with
respective contention of parties. Advocate for defendant has placed
reliance upon authorities in the cases of Raghwendra Sharan Singh
Vs. Ram Prasanna Singh (Dead) by LRs, Civil Appeal No.2960 of
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2019 decided on 13.03.2019 by Hon'ble Supreme Court, Axis Bank
Limited Vs. Madhav Prasad Aggarwal and others, 2018(6) ABR 726
and Sarjerao Dhondiba Sarode & Ors. Vs. Kamal Kerubhau
Pachange & Ors., 2019(1) Bom.C.R. 268
6. In the case of Raghwendra Singh Hon'ble apex court
considered scope and ambit of application under Order 7 Rule 11 of the
CPC referred and considered in their few decisions on the said
provision. It is held that, “by clever drafting the plaintiff has tried to bring
the suit within the period of limitation which, otherwise, is barred by law
of limitation”. In present case it is not contention of defendant that
plaintiffs by clever drafting has tried to bring the suit within the period
of limitation. The defendant has raised specific plea that cause of action
first arose on 08.08.2011 and suit ought to have been brought within
three years from that date. The plaintiffs have filed suit also claiming
relief of possession within 12 years of their dispossession so authority
cited supra is not of assistance to defendant in facts of present case.
In the case of Axis Bank Limited it is held that, “Rule 11 of
Order 7 of CPC does not confer a discretion on the court, moreover it
creates an obligation on the court to reject the plaint if the requirements as
set out in the rule are satisfied”. There is no quarrel about ratio laid
down in cited authority.
In the case of Sarjerao Dhondiba Sarode it is laid down that,
“in order to ascertain whether there is real cause of action for filing of the
suit or not, there has to be meaningful and not formal reading of the
plaint. The Court has to further see, whether the plaint discloses a clear
right to sue or the cleaver drafting of the plaint merely created the illusion
of cause of action”. There is no dispute about ratio laid down in cited
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authority. Now, I consider the respective contention of parties in light
of above legal position.
7. I have carefully gone through the plaint in present matter. It is
clear that plaintiffs have filed suit seeking declaration that alleged
writing dated 06.09.2007 is forged and fabricated document and
defendant has no right over suit premises and also sought declaration
that defendant is rank trespasser in respect of suit premises. Plaintiffs
have also claimed that defendant be directed to remove himself from
suit premises or not to remain on suit premises. If second prayer of
plaintiffs is considered in its true sense then plaintiffs are seeking
possession of the suit premises from the defendant. It also seems on
meaningful reading of plaint that plaintiffs have based their claim on
previous possession over suit premises. So, even if considering their
dispossession from suit premises on the basis of writing dated
06.09.2007, the suit is filed well within the period of 12 years of their
dispossession from suit premises so it cannot be said that in view of
Article 64 of Limitation Act suit is barred by limitation. Mere reference
of contention of earlier suit filed by defendant herein is not of much
significance to hold that plaintiffs have no cause of action to file present
suit. Plaint is to be considered in whole and has to be read
meaningfully.
8. Plaintiffs have specifically stated in plaint para 11 that
defendant has succeeded in breaking open the lock of suit premises and
entered upon forcibly although defendant has no right in respect of suit
premises. Plaintiffs are left with no other option but to approach this
court by filing present suit. Thus, plaintiffs have specifically mentioned
about the cause of action which accrued to them for filing present suit.
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Therefore, it cannot be said that plaintiffs have got no cause of action to
file present suit.
In light of discussion made above I am of the view that notice of
motion is devoid of substance and liable to be dismissed. Hence, pass
following order.
ORDER
Notice of Motion No.10 of 2019 stands dismissed and disposed off
accordingly.
(M. T. Asim)
Judge
Date : 25.03.2019 Gr. Bombay
Typed on : 25.03.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
26.03.2019, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
25.03.2019
JUDGMENT/ORDER signed by P.O.
on
26.03.2019
JUDGMENT/ORDER uploaded on 26.03.2019
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