Karnataka High Court
Mr Anwar Ibrahim Khan vs Sri Shireen Iqbal Sayed W/O Iqbal Sayed on 2 September, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2024:KHC-D:12578
CRP No. 100108 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 2ND DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CIVIL REVISION PETITION NO.100108 OF 2024
BETWEEN:
1. MR. ANWAR IBRAHIM KHAN,
AGE: 61 YEARS, OCC: PENSIONER,
LUXURIA APARTMENT, KESHAV SHET ROAD,
SONARWADA, KARWAR - 581 304.
2. MR. ASHFAQ IBRAHIM KHAN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O: 1ST FLOOR, FLAT NO. 109,
ROYAL EMBASSY APARTMENT COMPLEX,
OPP. DURGA BAKERY, KAJUBHAG,
KARWAR - 581 301.
Digitally signed by
CHANDRASHEKAR 3. MRS. SAYEEDA IBRAHIM KHAN,
LAXMAN
KATTIMANI
Location: High
C/O: ASHFAQ IBRAHIM KHAN,
Court of Karnataka
AGE: 85 YEARS, OCC: HOUSEHOLD WORK,
R/O:1STFLOOR, FLAT NO.109,
ROYAL EMBASSY APARTMENT COMPLEX,
OPP. DURGA BAKERY, KAJUBHAG,
KARWAR - 581 301.
4. MRS. SHAKEELA MUNAF SHAIKH,
R/O: BEHIND ARJUN TALKIES,
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
UNITY HIGH SCHOOL COLONY,
KODIBHAG, KARWAR - 581 303.
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NC: 2024:KHC-D:12578
CRP No. 100108 of 2024
5. MRS. SHABANA SALIM MOMIN
C/O: SALIM MOMIN,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
AYODHIYA APARTMENT, DHOBIGHAT ROAD,
KARWAR - 581 301.
...PETITIONERS
(BY SRI M. L. VANTI, ADVOCATE)
AND:
1. SRI SHIREEN IQBAL SAYED W/O. IQBAL SAYED,
AGED ABOUT: 68 YEARS,
R/O: NEAR COVENANT SCHOOL,
DANDELI, UTTAR KANNADA,
PRESENTLY, R/O: SADIQ SHAIKH,
RETIRED PRINCIPAL UNITY HIGH SCHOOL,
NEW KHB COLONY, KARWAR - 581 301.
2. ABHIJIT RAMDAS PAWSKAR,
AGED ABOUT 40 YEARS,
OCC: BUILDER, R/O: SONARWADA,
KARWAR - 581 301.
...RESPONDENTS
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF CPC, PRAYING TO, CALL FOR THE RECORDS,
ALLOW THIS REVISION PETITION AND SET ASIDE THE ORDER
25.07.2024 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS, KARWAR, UTTARA
KANNADA IN O.S NO. 42/2023 PASSED ON I.A. NO.III, IN THE
INTEREST OF JUSTICE AND EQUITY AND ETC.,
THIS CIVIL REVISION PETITION, COMING ON FOR
ADMISSION, THIS DAY, ORDER WAS MADE THEREIN
AS UNDER:
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NC: 2024:KHC-D:12578
CRP No. 100108 of 2024
ORAL ORDER
Challenging order dated 25.07.2024, passed by Addl. Senior Civil Judge and JMFC, Karwar, in O.S.no.42/2023 on I.A.no.III, this petition is filed.
2. Sri M.L.Vanti, learned counsel for petitioners submitted that petitioners were legal representatives of defendant no.1. It was submitted that, respondent no.1 had filed suit for specific performance of agreement of sale, for damages and for permanent injunction in respect of shop premises measuring 10 x 20 feet in property bearing Sy.no.217/F, situated at Baada - I village, Karwar taluk. It was submitted, in plaint, plaintiff had stated that, in year 1996, father of petitioners herein had proposed to construct shopping complex in suit property and offered plaintiff to purchase one of shops in said complex. In that regard, an agreement of sale was executed on 25.01.1996, whereunder plaintiff had paid advance amount of Rs.1,00,000/-.
3. As per agreement, plaintiff was required to pay balance consideration amount after plaintiff was put in possession at time of execution of sale deed. It was -4- NC: 2024:KHC-D:12578 CRP No. 100108 of 2024 submitted, though building was constructed in 1997 and plaintiff was put in possession, sale deed could not be executed as property was joint family property. Thereafter, plaintiff had stated that on 01.05.2021, defendant had vacated tenant, dispossessed plaintiff and demolish building. It was submitted, there were absolutely no averments about exercise of rights of tenant by plaintiff. Therefore, there was no proper depiction of cause of action in plaint.
4. It was further submitted, since suit was filed for specific performance of an agreement of sale dated 25.01.1996, suit filed in year 2023 was hopelessly barred by limitation. Therefore, petitioners herein had filed I.A.no.3 under Order VII Rule 11(a) and (d) of CPC. It was submitted under impugned order, Trial Court had wholly on untenable grounds rejected application. Same amounted to refusal to exercise jurisdiction vested and therefore, sought for allowing petition.
5. It was submitted, period of limitation for suit for specific performance of agreement of sale under Article 54 of Limitation Act, 1963, was three years. Said provision -5- NC: 2024:KHC-D:12578 CRP No. 100108 of 2024 stipulated that time would begin to run from date fixed for specific performance and if no such date was fixed, from date when plaintiff had notice that such performance was refused. It was submitted, since as per plaintiff, sale deed was to be executed after putting plaintiff in possession upon completion of construction and said event had occurred in 1997, suit filed in year 2023 would be barred by limitation. Said aspect was not properly appreciated by Trial Court. On said grounds, sought for allowing revision petition.
6. Heard learned counsel and perused records.
7. From above, it is seen petitioners herein are challenging rejection of their application filed under Order VII Rule 11(d) of CPC. It is settled legal principle that while considering application filed under order VII Rule 11 of CPC, Trial Court would require to consider averments in plaint only. It is also settled law that while considering such application, Trial Court has to proceed as if averments in plaint are correct. Insofar as cause of action, plaintiff has succinctly stated that after execution of agreement of sale, it was agreed to execute sale deed after completion of -6- NC: 2024:KHC-D:12578 CRP No. 100108 of 2024 construction of shop premises and handing over of possession.
8. It is also stated that building was completed in year 1997 and as execution of sale deed was delayed on account of property being joint family property, plaintiff was put in possession. Plaintiff had also stated that after being put in possession, he had exercised right of ownership by letting out said premises to tenants at various stages until date on which petitioners herein and respondent no.2 had proceeded to demolish building, with intention to construct new shopping complex.
9. In paragraph no.13, plaintiff has stated that cause of action to file suit arose on 01.05.2021, when defendants dispossessed and vacated tenants of plaintiff and demolished premises. It is also stated, cause of action arose on 07.06.2023, when defendants replied to legal notice got issued by plaintiff denying agreement of sale. Insofar as cause of action, as per plaint, in part performance of agreement of sale, plaintiff was put in possession. While he was in possession, he was dispossessed. On said cause of -7- NC: 2024:KHC-D:12578 CRP No. 100108 of 2024 action, suit is filed with prayer for putting plaintiff back in possession.
10. Other ground for rejection of plaint was suit being barred by limitation prescribed under Article 54 of Limitation Act. Admittedly, as per plaintiff, there is no date fixed for execution of sale deed. In such case, later part of Article 54, which prescribes period of limitation to run from date when plaintiff had notice of refusal would come into play.
11. As per plaint, defendants replied to legal notice got issued by plaintiff on 07.06.2023. Therefore, both from date of dispossession i.e. from 01.05.2021 and gaining knowledge about refusal when defendants replied to legal notice on 07.06.2023, suit filed on 09.09.2023 would be within period of limitation of three years. It is seen that learned Trail Judge had not only meticulously but voluminously discussed legal principles, facts and circumstance of the case while passing impugned order. Impugned order cannot be faulted on ground of failure to exercise jurisdiction vested.
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12. No ground to interfere, revision petition stands dismissed.
In view of dismissal, I.A.no.1/2024 also stands rejected.
Sd/-
(RAVI V.HOSMANI) JUDGE VB CT-ASC/List No.: 1 Sl No.: 27