Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Common Ord. in NM No. 140820 NM &
NM no.139420 in Suit no. 773 of 19
MHCC010043602020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
COMMON ORDER IN NOTICE OF MOTION NO.1408 OF 2020
CNR NO. MHCC010043602020
AND
NOTICE OF MOTION NO. 1394 OF 2020
CNR NO.MHCC010060582020
IN
SUIT NO.773 OF 2019
Syed Muqtar Ali ...Plaintiff
V/s
1. Tata Sons Limited & Anr. ....Defendants.
CORAM : HIS HONOUR JUDGE
SHRI KISHORE M. JAISWAL
(COURT ROOM NO.01)
DATE : 22nd DAY OF APRIL, 2022
Adv. M/s. Wadia Gandhy & Co./Adv. Naziya Khan for deft. no.1
AAK Legal / Adv.Chiraj Balsara for defendant no.2.
ORAL ORDER
Both the notice of motions are taken out by the
defendants under Order 7 Rule 11 of the Civil Procedure Code ( in
short 'CPC') for rejection of the plaint They are supported by an
affidavit. The plaintiff has failed to file reply and it was taken up for
final hearing. Inspite of giving several chances the plaintiff failed to
turned up for hearing. To avoid any delay, it was taken up for
hearing.
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2 Common Ord. in NM No. 140820 NM &
NM no.139420 in Suit no. 773 of 19
2. The plaintiff has instituted the suit for declaration that
the defendants has no right , title or interest in suit property with
relief of injunction in the form that they should not disturb the
possession of the plaintiff over suit property and defendants shall not
create third party right or interest. I have carefully perused the
averments in the plaint. Both the notice of motions states that the
suit is barred by the law of limitation, therefore plaint is to be
rejected as per provisions of Order 7 Rule 11(d) of the CPC.
3. On perusal of the plaint, it is pleaded that the plaintiff is
claiming his alleged rights in respect of the suit property which is
devolved to him through his great great grandfather's Late Syed
Abdul Hak Karmalkar. It is further pleaded in the plaint that the
defendants has trespassed the suit property in the year 1944. The
suit is instituted in the month of March'2019.
4. In para no. 2 the plaintiff has stated that Late John
Hudson Watson being the owner of suit property has entered into a
Lease deed in favour of 1) Sayed Aabdul hak Karmalkar C.I.E, 2)
Sirdar Diler Jung, 3) Sirdar Doolab, 4) Sirdar Dilerul Jung Bahdoor or
Hyderabad in the dominion of his highness the Nizam ( herein after
called Sirdar dilerjung) is the great great grand father of the plaintiff
whereas by amendment Indenture of lease dated the 26/08/1872 for
the term of 999 years at the yearly rent of rupees ninety two and
annas and made between the Secretary of State for Indian council of
the one part of Hannah Maria Watson.
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NM no.139420 in Suit no. 773 of 19
5. In paragraph no.3 of the plaint it is pleaded that the said
John Hudson Watson duly made and executed his last Will in writing
dated 4/10/1876 and thereby appointed the said James Proctor
Watson and Alfred Ralph Watson their heirs Executors,
administrators and assigns and whereas the said John Hudson watson
died on the 06/11/1976 without having revoked or altered his said
will, and whereas on the 14/4/1877 proba of the said will was
granted by the High Court of Judicature at Bombay to the said James
Proctor Watson reserving the right of the said Alfred Ralph Watson to
come in and apply for the same.
6. In paragraph no.4 the plaintiff has stated that James
Proctor Watson as such Executors and trustees as aforesaid have
agreed with the said Sirdar Diler Jung for the sale to him of the here
dismounts and premises comprised in and demised by the
hereinbefore recited indenture of lease for the residue now unexpired
of the said term of 999 years. The plaintiff says that on 4/8/1887 the
indenture witness that in pursuance of the said agreement and in
consideration of the sum of rupees 5 lacs to the said James Proctor
Watson and Alfred Raplh watson as such Executors and trustees as
aforesaid paid by the Sirdar Diler Jung on or before the Execution as
the Great great grand father of the plaintiff copy of the English and
Foreign Language translation of lease deed.
7. It is also contended in para no.5 that the defendant no.1
wrongfully and fraudulently trespass the suit premises in the year
13/10/1944 by Sassoon David J. & Company Limited. They create a
false documents and claim the title in the suit premises. The plaintiff
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NM no.139420 in Suit no. 773 of 19
says that defendant no.1 made a Indenture agreement in the year on
dated 09/03/1976 and entered to defendant no.2. The defendant
no.1 is the wrongfully entered the suit property to defendant no.2, as
the sum of Rs.2 lacs 50 thousands for the development the suit
premises. Now the defendant no.2 is wrongfully claimed the owner of
the suit property and he plans to redevelop the building in
partnership with the tenants.
8. By virtue of these notice of motions it is submitted that
the present suit is filed almost more than 74 years after accrual of
cause of action. It is also submitted that the plaintiff through his
power of attorney holder without any documentary evidence after
almost 145 years have stake in claim on the property of which title
have been passed on from multiple different purchaser/ sellers.
9. On perusal of the plaint, it is an example of clever
drafting to bring the suit within the period of limitation as in para
no.6 of the plaint, the plaintiff has submitted that till 26/2/2016
record of rights entries shows property in name of Late Syed Abdul.
In my considered opinion, merely by pleading those facts the plaintiff
cannot bring the suit within the period of limitation when the plaintiff
infact did not specifically pray to set aside alleged deeds of the year
1872 & 1976. If the plaintiff would have asked for such a relief, in
that case, the suit would automatically be barred by law of limitation.
10. There is no doubt about the fact that the limitation is a
mixed question of law and fact but in the present case, considering
the nature of pleadings and prayer in the suit, the defendants have
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5 Common Ord. in NM No. 140820 NM &
NM no.139420 in Suit no. 773 of 19
rightly relied on the case of T. Arivandandan v. T.V. Satyapal
(1977) 4 SCC 467 wherein it was held that “ We have not the
slighest hesitation in condemning the petitioner for the gross abuse of
the process of the court respeatedly and unrepentently resorted to.
From the statement of the facts found in the Judgment of the High
Court, it is perfectly plain that the suit now pending before the First
Munsifs Court, Bangalore, is a flagrant misuse of the mercies of the
law in receiving plaints. The learned Munsif must remember that if
on a meaningful – not formal – reading of the plaint it is manifestly
vexatious, and meritless, in the sense of not disclosing a clear right to
sue, he should exercise his power under Order 7, Rule 11 CPC taking
care to see that the ground mentioned therein is fulfilled. And, If
clever drafting has created the illusion of a cause of action, nip it in
the bud at the first hearing by examining the party searchingly under
Order 10, CPC. An activist Judge is the answer to irresponsible law
suits”. (emphasis supplied).
11. Thus, relying on the aforesaid ruling as well as alleged
cause of action and character of the relief prayed for by the plaintiff,
the meaningful reading of the plaint, it is manifestly vexatious and
meritless in the sense of not disclosing a clear right to sue and
certainly is barred by the law of limitation. On whole reading of the
plaint on its face value itself it shows the suit is barred by law of
limitation. In the present case, the plaintiff cannot be allowed to
circumvent that provisions by means of clever drafting so as to avoid
mention of those circumstances, by which the suit is barred by law of
limitation.
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NM no.139420 in Suit no. 773 of 19
12. The defendants has rightly placed reliance on the case of
“Raghwendra Sharan Singh V/s Ram Prasanna Singh by LR’s”
the Judgment in Civil Appeal no. 2960/2019, the Judgment dated
13/3/19 wherein Hon’ble Apex Court has held in para no.7 as “
Applying the law laid down by this Court in the aforesaid decisions on
exercise of powers under Order 7 Rule 11 of the CPC to the facts of
the case in hand and the averments in the plaint, we are of the
opinion that both the Courts below have materially erred in not
rejecting the plaint in exercise of powers under Order 7 Rule 11 of
the CPC. It is required to be noted that it is not in dispute that the
gift deed was executed by the original plaintiff himself along with his
brother. The deed of gift was a registered gift deed.
The execution of the gift deed is not disputed by the plaintiff. It is
the case of the plaintiff that the gift deed was a showy deed of gift
and therefore the same is not binding on him. However, it is
required to be noted that for approximately 22 years neither the
plaintiff nor his brother (who died on 15.12.2002) claimed at any
point of time that the gift deed was showy deed of gift. One of the
executants of the gift deed brother of the plaintiff during his lifetime
never claimed that the gift deed was a showy deed of gift. It was the
appellant herein original defendant who filed the suit in the year
2001 for partition and the said suit was filed against his brothers to
which the plaintiff was joined as defendant no.10. It appears that the
summon of the suit filed by the defendant being T.S. (partition) Suit
No. 203 of 2001 was served upon the defendant no.10 plaintiff
herein in the year 2001 itself. Despite the same, he instituted the
present suit in the year 2003. Even from the averments in the plaint,
it appears that during these 22 years i.e. the period from 1981 till
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7 Common Ord. in NM No. 140820 NM &
NM no.139420 in Suit no. 773 of 19
2001/2003, the suit property was mortgaged by the appellant herein
original defendant and the mortgage deed was executed by the
defendant. Therefore, considering the averments in the plaint and
the bundle of facts stated in the plaint, we are of the opinion 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.
Therefore, considering the decisions of this Court in the case of T.
Arivandandam (Supra) and others, as stated above, and as the suit is
clearly barred by law of limitation, the plaint is required to be
rejected in exercise of powers under Order 7 Rule 11 of the CPC. At
this stage, it is required to be noted that, as such, the plaintiff has
never prayed for any declaration to set aside the gift deed We are of
the opinion that such a prayer is not asked cleverly If such a prayer
would have been asked, in that case, the suit can be said to be clearly
barred by limitation considering Article 59 of the Limitation Act and,
therefore, only a declaration is sought to get out of the provisions of
the Limitation Act, more particularly, Article 59 of the Limitation Act.
The aforesaid aspect has also not been considered by the High Court
as well as the learned trial Court.”
The said ruling is squarely applicable to the present case
and I rely on the same as the plaintiff has never prayed for any
declaration of previous deeds or agreement. I am of the opinion that
such a prayer is not asked cleverly. If such a prayer would have been
asked for in that case, the suit can be said to be clearly barred by law
of limitation and therefore, only a declaration is sought to get out of
the provisions of the Limitation Act. Hence in the interest of justice, I
pass the following order:
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8 Common Ord. in NM No. 140820 NM &
NM no.139420 in Suit no. 773 of 19
ORDER
Notice of motion no.1408/20 and Notice of
motion no.1394/20 are allowed and made absolute
in terms of prayer clauses.
The plaint being title suit no.773/19 is hereby
rejected as per the provisions of Order 7 Rule 11(d) of the
CPC.
No order as to costs.
(Kishore M. Jaiswal)
Judge, City Civil & Sessions
Date:.22.04.2022 Court, Gr.Mumbai (C.R.No.1)
Dictated on : 22.04.2022
Transcribed on : 22..04.2022
Signed on : 22. 04.2022
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9 Common Ord. in NM No. 140820 NM &
NM no.139420 in Suit no. 773 of 19
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE:26.04.2022 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Kishore M. Jaiswal.
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 22.04.2022
JUDGMENT/ORDER signed by P.O. on 25.04.2022
JUDGEMENT/ORDER uploaded on 26.04.2022
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