Final Order 1

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion NO.
2003 of 2018.
MHCC010055642019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.2003/2018.
IN
S. C. SUIT NO.156/2018
The Trustees of the Parsi Panchayat
Funds & Properties Bombay. ...Applicant/
Defendant No.1.
In the matter of :
Mr. Aspi Framroz Langrana and Anr. ...Plaintiffs.
V/s.
1. The Trustees of the Parsi Panchayat
Funds and Properties Bombay and Anr. ....Defendants.
Appearances :
Adv. Frahnak Contractor, for plaintiffs.
Adv. Mangesh Chavan, for defendant No.1.
Coram : Shri. S. B. Pawar.
Judge, C.R No. : 59.
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Order in Notice of Motion NO.
2003 of 2018.
Date : 09/01/2023
ORAL ORDER
This Notice of Motion is taken out by defendant No.1 for
rejection of plaint under Order 7 Rule 11 (a) and (d) of the Code of
Civil Procedure, 1908 (in short 'CPC').
2. CA of the defendant No.1, Vidya Krishnan Iyer @ Vidya M.
Pawal, filed supporting affidavit and contended that there is no cause of
action disclosed against the defendants and the suit is barred by
limitation. Bare perusal of the averments in the plaint reveal that the
suit is manifestly vexatious, meritless and barred by law of limitation.
There are no documents which disclose any cause of action against the
defendants. If it is assumed that there is cause of action, it arose in the
year 1965 when the then trustees of defendant No.1 allotted the flats on
ownership basis and registered Society in 196970. Therefore, the suit is
timebarred. Plaintiffs have no locus standi to file the suit.
3. Plaintiffs contested the Notice of Motion by filing their
affidavit in reply contending that the Notice of Motion is not
maintainable. The suit has been the outcome of the deepseated
grievance of practically every member of the Society and that a proper
interpretation by the competent Court will give relief to a large number
of people. It is denied that the suit is barred by limitation. It is
submitted that a declaratory suit is not subject to time limits. It is
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2003 of 2018.
further contended that even if it is assumed that it is subject to time
limits, the limitation starts from the knowledge of the wrong
committed. By denying the contentions of defendants, it is prayed that
the Notice of Motion be rejected.
4. Ld. Advocate for defendant No.1 submitted that defendant
No.1 is owner of the plot of land as well as buildings standing thereon.
The Society is not party to the suit. Plaintiffs are the nominal members
only. The registration of Society is not disputed. There is no cause of
action to the prayers. There are no averments regarding cause of action.
The conveyance in favour of the Society is not produced. The suit is
barred by limitation. Suit for eviction/cancellation of lease is pending
before Small Causes Court, Mumbai. On the above grounds, he urged
that the plaint be rejected.
5. On the other hand, Ld. Advocate for plaintiffs argued that
the property is developed in the year 196263. Conveyance is granted
by defendant No.1 and thereafter society is formed and registered. In
2006, Chairman of defendant No.1 claimed ownership of the buildings.
The lease deed is in respect of J. E. Kapadia building and the land only.
Building Nos.1 to 4 which are the subject matter of the suit are not
covered in the lease. Defendant No.1 is the member of Society. By
letter dated 17.08.1989, the lease deed is terminated. Defendant No.1 is
relying upon the same lease deed, in the year 2008. The rights need to
be adjudicated. It is the constitutional right of plaintiffs to approach the
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2003 of 2018.
court and the suit cannot be dismissed at this stage. Status quo requires
to be granted till the rights are adjudicated. The chairman of defendant
No.1 has taken the stand that flats cannot be transferred without
consent of defendant No.1 and thus defendant No.1 is claiming
ownership over all the buildings. Therefore, there is cause of action and
suit is within limitation.
6. In the light of the above rival contentions and submissions,
following points arise for my determination to which I record my
findings for the reasons to follow
Sr.No. Points Findings
1. Whether plaint discloses cause of
action?
..No..
2. Whether the suit is barred by law? ..Yes..
3. What order? Notice of Motion is
allowed.
As to Point Nos.1 to 3:
7. It is a settled the proposition of law that prayer under
Order 7 Rule 11 of CPC can be decided only on the basis of averments
made in the plaint. Thus, it is necessary to go through the pleadings in
the plaint. The plaintiffs are claiming to be the members of society of
which defendant No.2 is Managing Committee and that they have been
living there since last over 50 years. They claim that the Society was
registered under the provisions of Maharashtra Cooperative Societies
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2003 of 2018.
Rules, 1961 as a cotenant partnership type housing society in the year
1969. Defendant No.1 trust is also member of the Society. The
defendant No.1 trust executed lease deed dated 08.07.1972 in favour of
the Society. The Society was already registered in the year 1969.
Therefore, the provisions of the Maharashtra Cooperative Societies Act
we prevail over other laws.
8. The plaintiffs are basically claiming that building Nos.1, 2,
3 and 4 which are subject matter of the suit are owned by A. H. Wadia
Baug Cooperative Housing Society Limited and these are not the part
and parcel of the lease deed dated 08.07.1972. It is further contended
that defendant No.1 trust is the lessor of the land on which the
buildings of A. H. Wadia Baug Cooperative Housing Society Ltd.
together with Kapadia Building stand and it is also member of the
Society in respect of flat No.19 in building No.1, Flat No. 31 and 34 in
building No.2, flat No. 34 and 35 in building No. 3 and flat No.3 in
building No.4. It is pleaded that the plaintiff's Society came in existence
in the year 1969 and lease deed came to be executed between the
Society and defendant trust on 08.07.1972. Members of the Managing
Committee of the Society had availed housing loan at concessional rate
from the trust to acquire the flat for themselves and agreed that during
the subsistence of the loan, as and when the occasion arose, first
preference to purchase the flat would be given to the trust. The lien
eventually lapsed and accordingly ceased to operate. Still the trust is
insisting upon obtaining its NOC for transfer of the flats and charging
huge amount under garb of donation. In fact, the Society is the owner
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2003 of 2018.
of the buildings and defendant No.2 is acting in collusion with the trust.
Therefore, the suit has been filed for declaration.
9. So far as the reliefs in the suit are concerned, plaintiffs are
praying for declaration that building Nos. 1 to 4 constituted the A. H.
Wadia Cooperative Society and are rightly registered under the
Maharashtra Cooperative Societies Act, further declaration that only
land on which the said buildings stand together with Kapadia building
and certain flats in the buildings are of defendant No.1trust, further
declaration that by virtue of said arrangement, defendant No.1 became
the member of the Society and for further declaration that all
obligations discharged and undertakings given either to the defendant
No.1 by members/society are null and void.
10. Bare perusal of the prayer clause of the plaint depicts that
the relief of declaration sought by the plaintiff is in respect of the
Society. There is no pleading in the plaint regarding violation of any
personal right of the plaintiffs. It is submitted by the ld. advocate for
the plaintiffs that the plaintiffs have constitutional right to approach the
court for adjudication of the rights. In the supporting affidavit, it is
contended that the reliefs sought are even the outcome of grievances of
every member of the Society and the Court will give relief to large
number of members of the Society. In short, it is tried to contend that
all the members of the society will be benefited by the reliefs in the suit.
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Order in Notice of Motion NO.
2003 of 2018.
11. At the outset, it needs to be noted and this is not a
representative suit filed after taking leave of the court under Order 1
Rule 8 of the CPC, filed for the benefit of all the members of the society.
If plaintiffs have filed the suit in their individual capacity, there has to
be the pleading in the plaint that any of the personal rights of the
plaintiffs are violated by the defendant, because of which plaintiffs are
entitled to institute the suit in their name for any relief from the Court.
However, such pleading which could constitute cause of action for the
plaintiffs in their individual capacity is lacking in the plaint. Therefore,
the suit does not disclose cause of action.
12. Moreover, the claim of the plaintiffs does not get fortified
from the recitals of the lease deed dated 08.07.1972 which is annexed
with the plaint and not disputed by parties. The said lease deed is
executed between the defendant No.1 Parsi Panchayat and the Society,
in respect of the property described in first schedule, which consists of
buildings and land admeasuring 14437 sq. yards. It is evident from the
contents of the lease deed that prior to execution of the lease deed, the
agreement for lease dated 26.02.1965 was executed between the then
trustees of Parsi Panchayat and sponsors on behalf of lessee Society
which was to be formed. It was for construction of buildings and
sponsors were to transfer their interest in the land and buildings to the
lessee. Prior thereto, the Dy. Charity Commissioner had sanctioned
lease of land admeasuring 14437.55 sq. yards by orders dated
28.01.1963 and 14.02.1964. These events reflect that the lease deed
comprises not only of the land beneath the buildings but also the four
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buildings standing thereon. These circumstances further show that
there is no cause of action for the present suit.
13. So far as the issue of limitation is concerned, it is
specifically pleaded in para No.36 of the plaint that cause of action to
the suit arose in the year 2007. The suit is for declaration and it is
lodged on 21.12.2017. Article 58 of the Limitation Act is applicable to
the present suit and as per the said Article, the period of limitation of
three years is prescribed for the suit for declaration from the date right
to sue first accrues. In the reply affidavit it is contended that limitation
is not applicable in declaratory relief. But this contention is not legally
acceptable. Even if one goes by the facts pleaded in the suit, if the cause
of action has arisen, as per the case pleaded in the plaint, in the year
2007, the period of limitation of three years was available to the
plaintiffs to file the suit based upon the said cause of action. Thus, the
issue of limitation in the present case is not a mixed question of law and
fact and even at this stage, conclusive finding on issue on limitation can
be recorded based upon the pleadings in the plaint. The suit, therefore,
is barred by limitation.
14. To conclude the above discussion, the plaint fails to
disclose any cause of action to the suit. The suit is further barred by
limitation. Therefore, the Notice of Motion deserves to be allowed. The
plaint is liable to be rejected under Order 7 Rule 11 (a) and (d) of the
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2003 of 2018.
CPC. Therefore, point No.1 is answered in the negative, point No.2 is
answered in the affirmative and following order is passed :
ORDER
1. Notice of Motion No. 2003 of 2019 is allowed in terms of
prayer clause (a).
2. Plaint is rejected under Order 7 Rule 11 (a) and (d) of
the Code of Civil Procedure, 1908.
3. Notice of Motion No. 2003 of 2019 is disposed off.
(S. B. PAWAR )
Judge
Dt. 09.01.2023. City Civil Court, Gr. Mumbai
Declared on : 09.01.2023.
Direct Typed On : 09.01.2023
Checked on : 16.01.2023
Signed on : 25.01.2023
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
25.01.2023 at 2.30 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF
STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 09.01.2023
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Order in Notice of Motion NO.
2003 of 2018.
Order signed by P.O. on 23.01.2023
order uploaded on 23.01.2023
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