Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 197/2020
MHCC010004862020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 197 OF 2020
IN
SUIT NO. 2431 OF 2018
Smt. Shraddha S. Sawant ...Applicant/
Defendant No.4
In the matter between
Anil Tukaram Waghate ...Plaintiff
V/s.
1. Dhirajlal Maneklal Mehta & Ors. ...Defendants.
Appearance :
Adv Ms. Pallabi Chatterjee I/b. Hemand Ghadigonkar for the plaintiff.
Adv Mr. Ashish Gupta for the defendant No. 2
Adv Mr. Rohan Mahadik I/b. The Juris Partner for defendant No.4
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date : 14/03/2023
O R D E R
This notice of motion is taken out by defendant No.4 under
Order 7 Rule 11 of the Code of Civil Procedure, 1908.
2. It is the contention of defendant No.4 that the plaintiff has
filed Suit No.2431/2018 to declare that the consent terms dated
23.02.1996 executed between the guardian of the plaintiff and
defendant No.3 is obtained by causing misrepresentation, coercion and
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undue influence caused by defendant No.3 and same are not
enforceable and not binding upon the plaintiff. The declaration is
sought that these consent terms dated 23.02.1996 is null and void and
not binding upon the plaintiff.
3. It is further contention of defendant No.4 that one S.C. Suit
No.557/1980 was filed by on Lakhaji Manji Rajput present defendant
No.3 against Shivaji Babu Lambkhede, Tukaram Bapu Waghate, father
of the plaintiff herein and Sambhaji Bhagwant Ambre for mandatory
order of injunction to remove the shed constructed on the plot of land.
During the pendency of the said suit, the plaintiff's father expired. The
plaintiff and his sister Lata were minor. The maternal uncle of the
plaintiff by name Ravindra Yadav was appointed as the guardian of the
plaintiff and his sister Lata. The plaintiff and his sister Lata were
represented through said guardian Ravindra Yadav. During the
pendency of the suit there was settlement between the parties and
consent terms came to be filed on record. Said consent terms were
signed by the plaintiff. S.C.Suit No.557/1980 was decreed in terms of
consent terms dated 23.02.1996. As per the consent terms defendant
No.2(a) and 2(b) being minor represented through guardian Shri
Ravindra Nana Yadav handed over vacant possession of room No.2 to
the present defendant No.3, who was the plaintiff in S.C.Suit
No.557/1980. As per the said consent terms, defendant No.3 (plaintiff
therein) had paid Rs.60,000/ to Ravindra Nana Yadav guardian of the
present plaintiff.
4. It is further contention of defendant No.4 that in the year
2003, the plaintiff took out notice of motion No.515/2003 in the said
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disposed of suit No.557/1980 seeking relief to set aside decree dated
23.02.1996 passed in view of consent terms. It was alleged therein that
defendant No.3 (plaintiff in SC Suit No.557/1980) in collusion with the
guardian of the present plaintiff have executed said consent terms. The
present plaintiff also challenged the locus standi of defendant No.3 as
owner of the plot. It is alleged that the consent terms were executed by
committing fraud. Defendant No.3 who was the plaintiff in that suit
resisted said Notice of Motion No.515/3003. On 17.03.2005 said Notice
of Motion No.515/2003 in S.C. Suit No.557/1980 was dismissed and it
was observed that no particulars of fraud are provided and there are
vague allegations about the fraud.
5. It is further contention of defendant No.4 that the present
plaintiff who had filed Notice of Motion No.515/2003 for the same
relief has filed the present suit. The notice of motion has been dismissed
on merit and therefore, the present plaintiff cannot seek same relief by
the present suit. According to defendant No.4, the principle of
resjudicata is applicable to the present suit and therefore, suit deserves
to be dismissed.
6. It is further contention of the defendant that claim of the
plaintiff is barred by estoppel as the plaintiff's guardian had already
received consideration in consent terms, now, the plaintiff cannot claim
any right in respect of suit premises. It is further contention of
defendant No.4 that the suit is time barred, consent terms were
executed on 23.02.1996 and suit is filed after 22 years. There is no
cause of action to file the present suit and therefore, suit should be
dismissed under Order 7 Rule 11 of the CPC.
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7. The plaintiff vide reply Exh.5 resisted this motion
contending that the present suit is for declaration that consent terms
dated 23.02.1996 is obtained by causing misrepresentation, coercion
and undue influence caused by defendant No.3 and same is not
enforceable and not binding upon the plaintiff. The doctrine of estoppel
would not be applicable to the present suit, as defendant No.3 was not
the owner in respect of said land or premises. The order passed in
notice of motion was not the adjudication on merit. It was without any
evidence in the matter. There is no final conclusion therefore, suit is not
barred by resjudicata. According to the plaintiff, the decree passed by
consent terms cannot be considered for resjudicata. It is a matter of
evidence to verify whether payment is received or not. The plaintiff
denied that the suit is barred by limitation. According to him said aspect
is required to be decided on merit and after leading evidence. With
these contentions, the plaintiff has prayed to dismiss the motion.
8. Defendant No.2 by affidavit in reply stated that the said
judgment is unchallenged and reached to its finality. Defendant No.1
was not party to S.C.No.557/1980 and therefore, consents terms are
not binding on defendant No.1. The suit is barred by principle of res
judicata. It is barred by limitation. The plaintiff is challenging the
decree dated 23.02.1996 after the period of 21 years. With these
contentions, he supports the motion.
9. Heard learned advocates for defendant No.4, plaintiff and
defendant No.2. Gone through the written submissions filed by the
parties.
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10. The Hon'ble Supreme Court in Srihari Hanumandas Totla
vs. Hemant Vithal Kamat and Ors.(2021) 9 SCC 99 held that res
judicata is not the ground to reject a plaint under Order 7 Rule 11(d) of
the CPC. It is further observed that since the adjudication of the plea of
res judicata requires consideration of the pleadings, issues and the
decision in previous suit, such plea will be beyond the scope of Order 7
Rule 11(d).
11. Taking into consideration the observations made in the
above judgment, I proceed to decide the motion. It is the contention of
the defendant No.4 that previous suit No. 557/1980 has been decreed
in terms of consent term dated 23.02.1996. Thereafter, the present
plaintiff took out the Notice of Motion No.515/2003 seeking relief to set
aside the decree. Said motion has been dismissed on 17.03.2005. Now
the plaintiff has filed suit for same relief and same is barred by the
principle of resjudicata. It is also the contention of defendant No.4 that
suit for the reliefs prayed is not within limitation. The defendant No. 4
in support of her contention has relied upon following judgments;
1. K. Gnanasekaran Vs. D. Neelavathi, (S.A. No.1164/2008 and
M.P. No.01/2008 decided by the Hon'ble Madras High Court on
18.12.2015).
2. Rajendra Bajoria and Ors. vs. Hemant Kumar Jalan and Ors.
C.A. No.58195822/2021 decided by Hon'ble Supreme Court on
21.09.2021.
3. Dahiben vs. Arvindbhai Kalyanji Bhanusali, (Gajra) (D) THR.
LRS and Ors. (2020) 7 Supreme Court Cases 366.
4. T. Arivandandam vs. T. V. Satyapal and Anr. (1977) 4
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Supreme Court Cases 467.
12. It is the case of the plaintiff that suit is maintainable. Plaint
can not be rejected on the ground of resjudicata. Suit is within
limitation. The plaintiff relied on following judgments :
1. Pestonji Gariwala vs. Union Bank of India and Ors. (1992) 1
Supreme Court Cases 31.
2. Compack Enterprises India (P) Ltd. vs. Beant Singh, Special
Leave Petition Nos.22242225/2021 decided by Hon'ble Supreme
Court on 17.02.2021.
13. In K. Gnanasekaran's case, it is held that earlier
compromise decree acts as an estoppel by judgment. In Rajendra
Bajoria's case (supra), it is held that power conferred on the Court to
terminate a civil action is a drastic one, and the conditions enumerated
under Order VII, Rule 11 of C.P.C. are required to be strictly adhere to.
In Dahiben's case (supra), it is held that the plaintiff by clever drafting
of the plaint, attempted to make out an illusory cause of action and
bring the suit within period of limitation. In Arivandandam's case
(supra) it is held that reading the plaint, it is manifestly vexatious and
meritless in the sense of not disclosing a clear right to suit, court should
exercise it's power under Order VII, Rule 11 of C.P.C.
14. In Pestonji Gariwala's case (supra) it is held that
compromise decree if not vitiated by fraud, misrepresentation,
misunderstanding or mistake, it is binding and operates as resjudicated
as also estoppel between the parties. In Compack Enterprises, it is held
that consent decree would not serve as an estoppel where the
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compromise was vitiated by fraud, misrepresentation or mistake.
15. In case before me the plaintiff is challenging the consent
term dated 23.02.1996. It is his contention that consent terms executed
by his guardian and defendant No.3 was obtained by causing
misrepresentation, coercion and under influence. The plaintiff was
joined to the suit No.557/1980 as legal heir. It is admitted fact that the
original suit No.557/1980 has been decreed in terms of consent term.
Thereafter, the plaintiff's by Notice of Motion No.515/2003 prayed for
the relief to set aside the judgment and decree passed in the original
suit No.557/1980. Said Notice of Motion has been dismissed. In the
said Notice of Motion, reliefs to set aside the judgment and decree
dated 23.02.1996 was challenged. Admittedly, the plaintiff in the said
previous suit was represented through his guardian. In view of the
Judgment in Srihari Hanumandas Totla (supra), resjudicata can not be
ground available under Order VII, Rule 11 of C.P.C., therefore, the
defendant's objection with respect to the contention that suit is barred
by resjudicata, can not be accepted. Therefore, judgments relied upon
in support of the contentions on application of resjudicata are not
helpful the defendant.
16. Another objection raised by the defendant is in respect of
limitation. It is the contention of the defendant that for the reliefs
sought in the plaint, suit is not within limitation. It is the contention of
the plaintiff that defendant Nos. 1, 2 and 4 were not the parties to the
earlier suit. The earlier suit No.557/1980 was filed under the pretext
that defendant No.3 is the absolute owner of the properties. From
perusal of the plaint, it appears that the plaintiff is seeking declaration
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that consent term dated 23.02.1996 executed between the plaintiff and
defendant No.3 are not enforceable and binding upon the plaintiff. He
also sought declaration that said consent term are null and void and the
plaintiff is entitled for permanent alternate accommodation.
17. In para No.27 of the plaint, it is the contention of the
plaintiff that the he has obtained various certified copies of orders of
revenue authority and confirmed that the defendant No.3 is not the
owner but the defendant Nos. 1 and 2 are the owners of the said
properties. It is further contention of the plaintiff that in view of these
documents, the defendant No. 3 is not entitled to receive possession of
the suit property from the plaintiff and therefore, according to the
plaintiff, the consent terms is obtained by committing fraud. In para
No.31 it is the contention of the plaintiff that in view of order passed by
BMC and order of Hon'ble High Court, said consent terms are invalid. In
para No.48 of the plaint, it is the contention of the plaintiff that the
cause of action is continued. The plaintiffs acquired knowledge on
04.05.2018 whereby the corporation has confirmed that the demolition
carried out by it was incorrect and also confirmed that original
occupants are entitled to relocate on the property being redeveloped. It
is also his contention that the Hon'ble High Court by order dated
12.01.2016, granted liberty to the plaintiff to file the proceeding for
appropriate relief. With all these contentions, the plaintiff states that
the suit is within limitation.
18. Limitation is mixed question of law and fact. Admittedly,
the consent terms on behalf of the plaintiff was filed by his maternal
uncle as guardian. The plaintiff alleges that there is collusion between
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his maternal uncle and the defendant No.3. The plaintiff has filed this
suit not only against defendant No.3 but also against the defendant Nos.
1, 2 and 4. According to the plaintiff, these defendants were not party
to the previous suit. Therefore, it is required to consider the whole
cause of action and the limitation in respect of challenge to the consent
terms as well as cause of action against defendant Nos. 1, 2 and 4.
Therefore, aspect of limitation can not be decided technically without
giving an opportunity for evidence. As aforesaid it is mixed question of
law and fact, therefore, at threshold, plaint can not be rejected on the
ground the limitation. For these reasons, the judgments including
judgment of Dahiben's case (supra) relied upon in support of issue of
limitation are not helpful to the defendant.
19. In view of aforesaid observation, I am of the view that, the
plaint is not liable to be rejected under Order VII, Rule 11 of C.P.C. For
these reasons, the Notice of Motion is liable to be dismissed. In the
result, I pass the following order :
ORDER
1. Notice of Motion No.197 of 2020 is dismissed.
2. Costs shall follow the event.
Date:14/03/2023 Rajesh A. Sasne
Dictated on : 14.03.2023. Judge, C.R.No.62,
transcribed on : 17.03.2023. City Civil Court,
Signed on : 20.03.2023. Mumbai
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
20.03.2023 at 5.35 p.m. Manisha Hirole
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(uploaded Samruddhi Jadhav)
Name of the Judge(with CR
No.)
HHJ SHRI. R.A. SASNE
(C.R.No.62)
Date of pronouncement of Order 14.03.2023
Order signed by P.O. on 20.03.2023
Order uploaded on 20.03.2023
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