Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M NO.441/20
MHCC010011062020
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 441 OF 2020
IN
SUIT No. 293 OF 2019
1. Mr. Rai Ishwar Chandra and Ors. … Plaintiffs.
VERSUS
1. Mr. Sheeldhar Shaktidhar Pandey and Ors. … Defendants.
Appearance
Ms. Shaila Joshi, learned Advocate for the plaintiffs.
M/s. Markand Gandhi & Co.learned Advocate for defendant No.1
CORAM : HHJ SHRI. R.A. SASNE
(C.R.NO.62)
Date : . 5th August, 2022
O R D E R
This notice of motion is taken out by defendant No.1 under
Order 7 Rule 11 (a) and (d) of the CPC 1908, for rejection of the plaint
as it does not disclose cause of action and the suit is barred by
limitation.
2. It is the contention of defendant No.1 that the plaint does
not disclose cause of action. This suit is for simplicitor injunction.
Admittedly, the plaintiff is not in possession of the suit property. The
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suit property was in possession of this defendant’s father and after his
demise, it is possessed by this defendant as lawful owner thereof. The
suit property is in possession of this defendant since last 54 years
therefore, suit is not within limitation. By virtue of sale deed dated
30.03.1965, the plaintiffs have no right in respect of the suit property.
The plaintiffs, their predecessors have not challenged the sale deed
dated 30.03.1965. The plaintiffs have approached to this Court after
gross delay of 54 years. They are seeking injunction without challenging
the sale deed. The plaintiffs through their Advocate's letter dated
13.01.2016 admitted that they are not in possession of the suit
property. On perusal of paragraph No.12, it can be noticed that the
cause of action was arose in the year 1944. There is no continuous
cause of action. Mr. Rai Govind Chandra and late Mr. Amarnath
Agarwal, in partnership started business of glass industry in the name
and style of M/s. Star Glass Works on the larger property. Mr.
Shaktidhar Mahidhar Pande i.e. deceased father of all the defendants
was appointed as General Manager to look after the said business. On
17.12.1954 Late Rai Govind Chandra by an agreement transferred all
his shares including right, title, interest in the larger property as well as
that of M/s. Star Glass Works to Mr. Amarnath Agrawal. Pursuant to the
said transfer a mutation entry was effected in the revenue record by
entry No.8390 in favour of Amarnath Agrawal, Mr. Amarnath Agrawal
thus became the absolute owner of the entire property.Thereafter, by
sale deed dated 30.03.1965 said Mr.Amarnath Agrawal, sold the entire
property to Mr. Shaktidhar Mahidhar Pandedeceased father of the
defendants. Shaktidhar Mahidhar Pande has expired on 23.01.1996
leaving behind his wife and three sons. Defendant Nos.1 to 3 are the
sons of late Shaktidhar Mahidhar Pande. By family settlement deed
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dated 26.04.2007 larger property was transferred to and vested in
defendant No.1. With these contentions defendant No.1 has prayed to
reject the plaint on the aforesaid grounds
3. This notice of motion is proceeded without reply of the
plaintiffs.
4. Heard learned Advocate for defendant No.1. No argument
of the plaintiffs. The following points arise for my consideration. My
findings thereon with reasons are as follows :
POINTS FINDINGS
(1) Whether there is sufficient ground as
mentioned in the notice of motion to reject the
plaint under Order 7 Rule 11 of Code of Civil
Procedure ?
No
(2) What order ? Notice of Motion is
dismissed
R E A S O N S
AS TO POINT NO.1 and 2 :
5. It is settled position of law that to decide objection under
Order 7, Rule 11 contentions in the plaint alone are material. On
perusal of the plaint, it is noticed that the plaintiffs have filed this suit
for perpetual injunction restraining the defendants to store building
materials, machine, tools etc., on the suit property or to part with the
land on the suit property and to raise the construction or to disturb
plaintiffs peaceful possession or to enter into development agreement
or to lease, mortgage, assign, sale or to charge or encumber the suit
property. Therefore, this is a suit for perpetual injunction.
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6. It is the case of the plaintiff that deceased Rai Govind
Chandra, had five sons. He expired leaving behind heirs Rai Prem
Chandra, Rai Girish Chandra, Rai Vimal Chandra, Rai Dinesh Chandra
and Rai Nakul Chandra. Rai Prem Chandra, has expired leaving behind
Rai Ishwar Chandra, Rai Arun Chandra, Rai Sharad Chandra and
married daughter Pingla Bansal. Rai Arun Chandra, Rai Sharad Chandra
and Pingla have executed power of attorney in favour of plaintiff No.1
and plaintiff No.1 is representing them. Rai Girish Chandra, has
executed power of attorney in favour of plaintiff No.2. Rai Dinesh
Chandra is dead and plaintiff No.2 is the legal heir of said deceased.
Rai Vimal Chandra is also dead. His heirs Anjana Chandra and Tulika
Agarwal have executed power of attorney in favour of plaintiff No.2.
7. According to the plaintiffs, late Shri Rai Govind Chandra to
set up new industry entered into agreement dated 25.03.1944 between
Shirinbai wife of Navasiha Darabji Italia for absolute purchase of piece
and parcel of land and property bearing S. No.19 (part), Hissa No.8
admeasuiring about 3300 sq.yards. S.No.19 Hissa No.9, admeasuring
about 1857 yards and S.No.47 Hissa No.47/12 admeasuring about 412
sq.yards admeasuring 5569 sq. yards bearing corresponding CTS Nos.
S.6/1 to 6/10 thereby total admeasuring 5783.90 sq. meters of village
Kurla and Taluka Kurla, Mumai Suburban district in L/Wards of
Municipal Corporation of Greater Mumbai, same is the suit property. It
is further case of the plaintiffs that late Shri Rai Govind Chandra set up
the industry in the name of M/s. Star Glass Work on the suit property
under the partnership of Rai Amarnath and appointed Shaktidhar
Mahidhar Pandey, as General Manager to look into the business affairs
of the industry. In the year 1965 Rai Amarnath changed his intention
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and sold his interest in the suit property by taking price of his portion of
suit property i.e. 50% to General Manager Shaktidhar Mahidhar Pandey
without making it known to the partner Rai Govind Chandra. After the
death of Shaktidhar Mahidhar Pandey, his legal heirs defendant Nos.1
to 3 agreed to supervise the suit property. The plaintiffs allowed them
to supervise the suit property. In the year 2016, defendant No.1
claiming to be an absolute owner of the entire property entered into
mortgage deed dated 31.12.2013 with Bank of India and availed huge
amount as a loan. Therefore, plaintiff No.2 issued a legal notice dated
13.01.2016 addressed to defendant No.1. Ultimately, Bank of India
cancelled the banking limits and called upon defendant No.1 to repay
the availed amount with interest.
8. It is further case of the plaintiffs that the defendant No.1
under collusion and connivance of defendant Nos.2 and 3 are allowing
unconcerned persons to store building materials in the suit property.
The plaintiffs have come to the knowledge that defendant No.1 entered
into development agreement with third party. The plaintiffs are
descendants of late Shri Rai Govind Chandra and have possessory
ownership right in the suit property.
9. In paragraph 12, it is the contention of the plaintiffs that
the cause of action firstly arose on 25.03.1944 when Late Shri Rai
Govind Chandra, entered into agreement and paid Rs.5000/ as earnest
money and on 13.04.1944, when he paid part of sale consideration and
got executed sale deed and when the factory under name and style of
M/s. Star Glass Works was set up and started and closed when father
of defendant Nos. 1 to 3 was reappointed to look after property and on
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first week of January, 2016 when the plaintiffs learned about the
mortgage deed created in favour of Bank of India. The learned Advocate
for the defendants urged that the plaintiffs in the plaint have admitted
that cause of action arose on 25.03.1944 and therefore suit is not within
limitation.
10. From perusal of the contentions made in para 12 of the
plaint, it appears that several cause of actions are pleaded by the
plaintiffs since the year 1944 till the year 2016. The suit is filed on
11.01.2019 and last cause of action pleaded is of December, 2018. By
reading prayer clause 20, it appears that the plaintiffs are seeking
decree of simplicitor injunction against the defendants restraining them
to store the building materials, machines, tools etc., on the suit property
and to raise construction or to disturb plaintiffs' possession therein or to
enter into agreement creating charge or encumber the property. No
declaration is sought. From the entire reading of the plaint, it appears
that the plaintiffs are claiming relief of injunction as alleged owners of
the suit property. Whereas, according to the defendants, they are the
owners of the suit property. The plaintiffs alleged that the defendants
are creating third party interest or charge or encumber on the suit
property without the plaintiffs' consent. Therefore, to restrain the
defendants, they have filed this suit for simplicitor injunction. The cause
of action is pleaded with respect to the mortgage deed, which is alleged
to have came to the knowledge of the plaintiffs in the year 2016.
Considering the nature of suit for simplicitor injunction there is
recurring cause of action. Therefore, from the pleadings one cannot say
that the cause of action for injunction arose in the year 1944 only. The
defendants by raising objection to this suit have denied the plaintiffs
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right this can also be sconsidered as cause of action for claim of
injunction. The suit is valued at Rs.1,000/ for bare prayer of injunction
as no declaration is sought, the valuation is correct. As aforesaid for the
suit of injunction there is recurring cause of action and therefore, by
reading the plaint as it is, it cannot be held that the suit is out of
limitation. Moreover, the point of limitation is mixed question of law
and fact therefore, at this primary stage it is unable to hold that the suit
is out of limitation. For all these reasons, relief claimed in notice of
motion can not be allowed. It is liable to be dismissed. In the result I
answer point No. 1 in the negative and in answer to point No.2, I pass
the following order :
O R D E R
1. Notice of Motion No. 441 of 2020 is dismissed.
2. Parties to bear their own costs.
(R.A. Sasne)
Date : 05.08.2022 Judge,
Dictated on : 05/08/2022 City Civil Court,
transcribed on : 06/08/2022 Mumbai.
Signed on : 08 /08/2022.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
10.08.2022 at 5.20 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. R.A. SASNE (C.R.No.62)
Date of pronouncement of Order 05/08/2022
Order signed by P.O. on 08/08/2022
Order uploaded on 10/08/2022
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