Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 2173/21 in Suit No. 1516/2020. 1 Order.
MHCC010074142021
Presented on : 22-09-2021
Registered on : 22-09-2021
Decided on : 08-12-2022
Duration : 1 years, 2 months, 16 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2173 OF 2021
IN
SUIT NO. 1516 OF 2020
Rita Gupta )...Plaintiff
Versus
Dileep Gupta and others )...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 08th DECEMBER, 2022.
Shri Jugal Haria, Advocate for the defendants.
Shri Ashok M. Saraogi, Advocate for the plaintiff.
ORDER
1. Defendant no.3 has taken out the notice of motion for
rejection of the plaint under Order VII Rule 11(a) and 11(d) of the CPC
r/w Section 151 of the CPC and Order XIV Rule 2 of the CPC. Perused
notice of motion, affidavit in reply and the suit proceeding. Heard
learned counsel Shri Jugal Haria for the defendants and learned counsel
Shri Ashok M. Saraogi for the plaintiff.
2. Defendant no.3 has come up with the following case in
affidavit in support :
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N/m No. 2173/21 in Suit No. 1516/2020. 2 Order.
The plaintiff has filed the suit for declaration in respect of
the documents in the custody of the defendants allegedly surrendering
share of the plaintiff in favour of the defendants in respect of the suit
property. Alleged documents were signed and executed in the year
2001, 2008 and in August, 2009. The plaintiff had filed N.C. Complaint
against defendants no.1 and 3 on 06/08/2009. The plaintiff had
knowledge of the purported documents since August, 2009 and
limitation period commences from that day. Therefore, the plaintiff has
filed the suit after expiry of limitation period in the year 2020. The
plaintiff has not sought relief of cancellation of the documents. The
plaintiff has relied upon affidavitcumdeclaration issued and signed by
Sangeeta Gupta who is sister of the plaintiff and defendant no.1. The
suit is not filed by Sangeeta Gupta. Present plaintiff has no locus standi
to file the present suit. By raising these contentions, defendant no.3
prayed for rejection of the plaint.
3. The plaintiff filed affidavit in reply in which she has
raised following contentions :
The plaintiff denied contention of the defendant that the
suit is barred by limitation. Three connected suits are pending before
Court Room No.4 and she has filed Transfer Application before Hon'ble
Principal Judge for transferring the present suit to C.R.No.4. Averments
made in the plaint can be seen for considering prayer for rejection of
the plaint. Contents in the plaint shows that cause of action and the
reason why the present plaint has been filed. There is no delay in filing
the present suit. Affidavit in support of notice of motion is false to the
knowledge of defendant no.3. There is no substance in present notice of
motion and it is abuse of process of law and it deserves to be dismissed.
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N/m No. 2173/21 in Suit No. 1516/2020. 3 Order.
4. Learned counsel Shri Jugal Haria for the defendants
advanced argument as under :
He referred paras 3, 4 and 6 of the plaint and submitted
that signatures of the plaintiff were obtained in the year 2008 and she
lodged N.C. complaint on 06/08/2009 with V.P.Road Police Station. He
further submitted that it is mentioned in para 6 of the plaint that right
from 2009 no writing had been shown by the brother of the plaintiff i.e.
defendant no.1. He read out para 21 of the plaint and submitted that
the plaintiff tried to canvass that cause of action to file the present suit
accrued on 10/09/2020 when the defendant terrorized her to utilize the
said documents. According to him, cause of action had actually arisen
on 06/08/2009 when the plaintiff lodged N.C. report challenging the
alleged documents. He read out Article 58 and 59 in Schedule to the
Limitation Act and submitted that limitation to file suit for declaration is
three years from the date of knowledge. He further relied upon paras
29.1, 29.10, 29.11, 29.16 and 29.18 in the case of Dahiben V/s.
Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through LRs and
Others (2020) 7 Supreme Court Cases 366 and submitted that the
sale deed was challenged in the case of Dahiben on the ground of non
payment of consideration amount and the plaintiff had relied upon the
date of obtaining certified copy of IndexII in the year 2014 for
reckoning the limitation period. Hon’ble Supreme Court had observed
in para 29.12 that the cause of action arose on the nonpayment of the
bulk of the sale consideration in the year 2009. It is further observed in
29.16 that the present case is a classic case, where the plaintiffs by
clever drafting of the plaint, attempted to make out an illusory cause of
action, and bring the suit within the period of limitation. By relying
upon observations in Dahiben’s case (referred above), he submitted that
the suit is barred by limitation and it is not maintainable on the basis of
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illusory cause of action.
5. He also relied upon the citation of Raghwendra Sharan
Singh V/s. Ram Prasanna Singh (Dead) By LRs (2020) 16 Supreme
Court Cases 601. He read out para 7 in this citation and explained facts
in the citation by stating that the Gift Deed was executed by the original
plaintiff alongwith his brother in favour of the defendant in the year
1981 and the plaintiff challenged the said Gift Deed after death of his
brother in the year 2012. Meanwhile, the defendant had filed suit for
partition in the year 2000 and the plaintiff was duly served with
summons with copy of the plaint in the year 2001. Gifted property was
already mortgaged by the defendant. In the backdrop of this brief
factual aspect, Hon’ble Supreme Court observed in para 7 that as the
suit is clearly barred by law of limitation, the plaint is required to be
rejected in exercise of powers under Order VII Rule 11 of the CPC. By
considering apparent delay, the plaint was rejected in the said matter.
By relying upon observations in para 7 in Raghwendra’s case, he prayed
for rejection of the plaint.
6. Learned counsel Shri Ashok Saraogi for the plaintiff
argued as under :
He submitted that writing of the document is not shown to
the plaintiff. Defendant no.1 had approached other sisters. Documents
were obtained in the year 2001. There is no signature on document
Exh.D annexed with the plaint. Signed documents have not come
forward. The plaintiff and her sister Sangeeta had filed written
statement in S.C.Suit No. 4019/2020 in which their brother Devdutta is
the plaintiff. According to him, question of limitation would arise only
after production of documents. The plaintiff is unaware of contents of
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the documents. When documents are illegal, question of limitation does
not arise. Rights in the immovable property are not transferred without
registration of the instrument. He relied upon para 9 in the case of Smt.
Falguni Dinesh Shah V/s. Mr. Deepak P. Shah & ors. (Appeal No.
375 of 2010 In Notice Of Motion No. 4292 Of 2008 In Suit No. 3281
Of 2008 Order dated 22/11/2010) decided by Hon’ble Bombay High
Court and submitted that the plaintiff has rights in the properties of the
father and relinquishment of rights is not established. He read out para
24 in Dahiben's case (cited supra) and submitted that cause of action is
bundle of facts and rights of the plaintiff are sought to be infringed in
the year 2020 as pleaded in para 21 of the plaint. According to him, Gift
Deed was challenged in Raghwendra's case (cited supra) and there is
difference in factual aspect in the said citation and the case in hand. He
relied upon observations of Hon’ble Supreme Court in the case of
Shakti Bhog Food Industries Ltd. V/s. The Central Bank of India &
Anr. [Civil Appeal No. 2515/2020 (Arising out of SLP (C) No.
30210/2017) – Order dated 05/06/2020]. By reading out paras 3, 5
to 11, 13, 14 and 20, he submitted that the plaint is to be read as a
whole and note of particular discrepancy in the plaint cannot be taken
for rejecting the plaint. The defendants have not filed written
statement. He prayed for rejection of the notice of motion.
REASONS
7. Considering rival submissions and material on record, it is
clear that the plaintiff has specifically pleaded in para 3 of the plaint
that in the year 2008 one brother of the plaintiff had obtained
signatures of the plaintiff on some documents without knowing the
contents thereof by playing fraud upon her. She has further pleaded in
para 4 of the plaint that she lodged N.C. complaint (Exh.A annexed
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N/m No. 2173/21 in Suit No. 1516/2020. 6 Order.
with the plaint) with V.P.Road Police Station on 06/08/2009. Contents
in para 5 of the plaint show that the police had called brother of the
plaintiff and he had confessed that he shall not use the said writing for
any other purpose. In short, the plaintiff had knowledge in the year
2008 itself that her signatures were obtained on documents by fraud.
The plaintiff had proceeded to take action by approaching the police
authority in the year 2009. The plaintiff had apprehension in the year
2009 itself that her brother may misuse the documents over which her
signatures were obtained. Very act of obtaining signatures on the
documents in fraudulent manner had provided cause of action to the
plaintiff. In para 20 in the case of Shakti (cited supra) Hon'ble Supreme
Court has considered the date of knowledge regarding the facts entitling
the plaintiff to have the instrument or contract rescinded as relevant.
The plaintiff has not placed on record any document which can be said
to have signed by her. Similarly, there is reference of documents
obtained from the plaintiff in the year 2001 in para 11 of the plaint.
Article 58 in Schedule to the Limitation Act, 1963 provides three years
limitation to obtain declaration from the date when the right to sue first
accrues. Right to sue first accrued to the plaintiff when she got the
knowledge regarding the fact that her signatures were obtained by
fraud in the year 2008. Now, the plaintiff has stated in para 21 that on
10/09/2020 the defendants terrorized her to utilize the said documents,
but date of accrual of right to sue is relevant. Apparently, the suit is
barred by limitation. When cause of action is illusory and facts pleaded
in the plaint are disclosing that the suit is barred by limitation,
continuation of the suit proceeding would result into harassment of the
parties to the suit. In this context, Hon'ble Supreme Court relied upon
para no.23 in Dahiben’s case (referred above) and made following
observations in para no.20 in the case of Rajendra Bajoria And Others
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N/m No. 2173/21 in Suit No. 1516/2020. 7 Order.
V/s. Hemant Kumar Jalan And Others (Civil Appeal Nos. 58195822
Of 2021 [Arising out of SLP (C) Nos. 27792782 of 2019] Judgment
dated 21/09/2021) :
“20. It could thus be seen that this Court has held
that the power conferred on the court to terminate a
civil action is a drastic one, and the conditions
enumerated under Order VII Rule 11 of CPC are
required to be strictly adhered to. However, under
Order VII Rule 11 of CPC, the duty is cast upon the
court to determine whether the plaint discloses a
cause of action, by scrutinizing the averments in the
plaint, read in conjunction with the documents relied
upon, or whether the suit is barred by any law. This
Court has held that the underlying object of Order
VII Rule 11 of CPC is that when a plaint does not
disclose a cause of action, the court would not permit
the plaintiff to unnecessarily protract the
proceedings. It has been held that in such a case, it
will be necessary to put an end to the sham litigation
so that further judicial time is not wasted.”
8. In the light of above discussion, I pass the following order :
ORDER
1. Notice of Motion No. 2173/2021 is made absolute in terms
of prayer clause (b).
2. The plaint is rejected under Order VII Rule 11(d) of the
Civil Procedure Code.
3. Proceeding of N/m No. 2173/2021 is closed.
(R.R.BHAGWAT)
Judge, City Civil Court,
(Court Room No.66)
Date : 08/12/2022. Mumbai.
1. Dictated on : 08/12/2022.
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N/m No. 2173/21 in Suit No. 1516/2020. 8 Order.
2. Transcribed on : 09/12/2022.
3. Signed on : 10/12/2022.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10/12/2022. 5.50 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 08/12/2022.
Judgment/Order signed by P.O. on 10/12/2022.
Judgment/Order uploaded on 10/12/2022.
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