Bombay High Court
Shri Pappaiya Balraj Ponnamwar vs Waman Nanaji Munavat And Another on 7 January, 2020
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVN. APPLN. NO. 58 OF 2019
Pappaiya Balraj Ponnamwar
-Vs.-
Waman Nanaji Manavat and another
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. Aditya Satpute, counsel for the applicant.
Mr. Rohit Joshi, counsel for the respondents.
CORAM : MANISH PITALE, J.
DATE : 07.01.2020 By this revision application, the applicant (original defendant) has challenged order dated 08/03/2019 passed by the Court of Civil Judge, Junior Division Korpana in Regular Civil Suit No.253 of 2018, whereby an application for rejection of plaint (Exhibit-16), filed on behalf of the revision applicant stood rejected.
2. The brief facts leading to filing of the present revision application are that the respondents herein (original plaintiffs) filed a suit for declaration and permanent injunction on 30/08/2018 before the Court below seeking a declaration that registered sale deed dated 19/04/1990 executed by the respondents in favour of the applicant was not binding on them and that they be declared as owners of the suit property. Another prayer made in the suit was to permanently injunct the applicant KHUNTE ::: Uploaded on - 09/01/2020 ::: Downloaded on - 09/01/2020 22:13:57 ::: cra58.19.odt 2/9 from disturbing the peaceful possession of the respondents in the suit property. It was claimed on behalf of the respondents in the plaint that the said sale deed had been executed as a matter of security for a money lending transaction that the parties had entered into. It was claimed that upon return of the loan amount, the said document was expected to be cancelled. It is further claimed that the amount was indeed returned, but the consequent action of cancellation of the sale deed had not taken place.
3. According to the respondents, the cause of action for filing the aforesaid suit accrued to them when some time in July, 2018, the respondents received a notice from the Competent Authority on an application moved by the revision applicant for mutation of his name in respect of the suit property in the record of rights. According to the respondents, due to receipt of the said notice, they became aware about the fact that the revision applicant intended to act upon the said document, triggering the cause of action for filing the aforesaid suit.
4. The revision applicant filed written statement before the Court below, denying the claims made by the respondents in the aforesaid suit. He also filed an application for rejection of plaint on the ground that it was barred by limitation. It was contended that Article 59 of the Limitation Act applied to the facts of the present case and therefore, the period of limitation started from the date KHUNTE ::: Uploaded on - 09/01/2020 ::: Downloaded on - 09/01/2020 22:13:57 ::: cra58.19.odt 3/9 of the very document i.e. 19/04/1990. According to the applicant, since the suit was filed on 30/08/2018, it was clearly barred by limitation and that therefore, the plaint deserved to be rejected.
5. By the impugned order, the Court below has come to the conclusion that pirma facie the period of limitation would not begin to run from the date of the said document and instead it would run from the date when the respondents received notice regarding proceeding initiated by the applicant for mutation of the record of rights in his favour.
6. Mr. Aditya Satpute, learned counsel appearing for the applicant, submitted that the Court below committed a grave error in rejecting the application at Exhibit-16 because a bare perusal of the plaint in the present case, would show that it was cleverly drafted, only to get over the bar of limitation. It was submitted that when effectively the respondents were seeking cancellation of a registered sale deed, the period of limitation started from the date of the document i.e. 19/04/1990 and that therefore, the Court below ought to have allowed the application and rejected the plaint. In support of the contention raised on behalf of the applicant, the learned counsel relied upon a recent judgment of the Hon'ble Supreme Court in the case of Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by LRs, reported in 2019 SCC OnLine 372, wherein as per KHUNTE ::: Uploaded on - 09/01/2020 ::: Downloaded on - 09/01/2020 22:13:57 ::: cra58.19.odt 4/9 the learned counsel, in similar facts and circumstances, the Hon'ble Supreme Court had allowed such an application for rejection of plaint. It was submitted that the said case also concerned a registered document in the form of a gift deed and similar prayers made in the plaint.
7. On the other hand, Mr. Rohit Joshi, learned counsel appearing for the respondents, submitted that for considering an application for rejection of plaint, the Court was required to look at only the contents of the plaint. According to the learned counsel, the averments made in the plaint were sufficient to demonstrate that the respondents claimed that the document in question was not meant to be acted upon so long as the loan amount was returned to the applicant. It was pointed out that it was specifically pleaded in the plaint that the loan amount was indeed returned and that therefore, there was no emergent reason for the respondents to have rushed to the Court. According to the learned counsel appearing for the respondents, the cause of action was specifically pleaded in the plaint as being the point in time when notice regarding application for mutation entry made by the applicant was received and that therefore, in the present case, the Court below was justified in passing the impugned order. The learned counsel for the applicant placed reliance on judgment of the Hon'ble Supreme Court in the case of Johrilal Soni V. Smt. Bhanwari Bai, reported in AIR 1977 SC 2202 as also a judgment of the Allahabad High Court in KHUNTE ::: Uploaded on - 09/01/2020 ::: Downloaded on - 09/01/2020 22:13:57 ::: cra58.19.odt 5/9 the case of Jagardeo Singh v. Phuljhari and another, reported in (1908) 5 ALL LJ 421.
8. Heard the learned counsel for the rival parties. There can be no doubt about the fact that while considering an application for rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, the Court is supposed to look at only the plaint averments, to examine the claim raised on behalf of the defendant that the suit deserved to be terminated at the threshold by rejection of the plaint.
9. In the present case, a perusal of the plaint shows that according to respondents, the registered sale deed dated 19/04/1990 was executed in favour of the applicant in the backdrop of a loan that was advanced by the applicant to the respondents. The loan amount was supposed to be returned by the respondents in lieu of which the said document was not to be acted upon. It is further pleaded in the plaint that the loan amount was indeed returned and when the respondents approached the applicant for return of the said document, they were asked to come later. It is further pleaded that in July 2018 the respondents received a notice issued by the Competent Authority in pursuance of an application filed by the applicant for mutation entry being made in the record of rights in his favour in terms of the aforesaid sale deed dated 19/04/1990. According to the respondents, it was at this stage that the cause of action for filing the suit accrued KHUNTE ::: Uploaded on - 09/01/2020 ::: Downloaded on - 09/01/2020 22:13:57 ::: cra58.19.odt 6/9 to them. It is further pleaded in the plaint that the respondents have all along continued in possession of the suit property and that the sale deed, in fact, was never acted upon. It is in this backdrop that the two fold prayers have been made in the suit, firstly, for declaration that the aforesaid sale deed dated 19/04/1990, is not binding upon them and further for declaration that they are owners of the suit property and secondly, that the applicant needs to be permanently injuncted from disturbing the peaceful possession of the respondents in the suit property.
10. The nature of claims made in the plaint would show that according to the respondents (original plaintiffs), they have all along continued in possession of the suit property. This is an indicator of the fact that according to the respondents, the sale deed dated 19/04/1990 was never acted upon. There are pleadings in the plaint to indicate that the parties have mutually agreed that upon return of the loan amount, the said document would have no effect and further that the loan amount had been indeed returned. Despite the fact that the learned counsel for the applicant vehemently submitted that all such claims are denied in the written statement, at this stage, while considering the application for rejection of plaint, the Court is not required to look at the written statement at all and that only the contents of the plaint would have to be examined for ascertaining whether such an application for rejection of plaint deserves to be granted.
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11. The nature of the pleadings in the plaint filed on behalf of the respondents shows that according to the respondents, the said sale deed dated 19/04/2019 was not meant to be acted upon, as long as the loan amount was returned to the applicant. A specific plea has been raised that loan amount was indeed returned and that therefore, there was no imminent danger to the rights of the respondents in the suit property. The cause of action for filing the suit has been specifically pleaded and if that is to be taken as the trigger point for filing of the suit, it appears prima facie the suit fell within period of limitation. In fact, the Court below has specifically held that on the basis of the averments in the plaint, prima facie the suit could not be said to be barred by limitation. This Court is of the opinion that the finding rendered by the Court below cannot be said to be erroneous.
12. As regards the judgment on which the learned counsel for the applicant has placed reliance i.e. Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by LRs (supra), even though the Hon'ble Supreme Court in the said case was concerned with a registered gift deed and also a prayer indicating that the plaintiff therein claimed to be in possession, in the facts of the said case, it was observed by the Hon'ble Supreme Court that the plaint averments themselves demonstrated that the gift deed had been acted upon. It is in this backdrop that the Hon'ble Supreme Court has come to the conclusion that the plaintiff KHUNTE ::: Uploaded on - 09/01/2020 ::: Downloaded on - 09/01/2020 22:13:57 ::: cra58.19.odt 8/9 therein had indulged in clever drafting to get over the obvious bar of limitation. The facts in the present case and the facts in the reported case appear to be distinguishable, because according to the respondents (original plaintiffs), even in the plaint it is specifically pleaded that the sale deed dated 19/04/1990 was never acted upon since the respondents all along continued in possession of the suit property. It is in this backdrop of such specific pleadings that the prayer for protection of possession has been made on behalf of the respondents herein. Therefore, it cannot be said that the said judgment of the Hon'ble Supreme Court in the case of Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by LRs (supra) would be of any assistance to the applicant.
13. The learned counsel for the respondents is justified in relying on the judgment in the case of Johrilal Soni v. Smt. Bhanwari Bai (supra) and Jagardeo Singh v. Phuljhari and another (supra), as the well known distinction between void and voidable transactions has been recognized and reiterated in the said judgments. In the present case, on the basis of the averments made in the plaint, it becomes clear that the respondents have pleaded that the said sale deed dated 19/04/1990 was a document that was never acted upon in the backdrop of the claim that the loan amount was indeed returned to the applicant. The respondents have not denied the existence of the said sale deed, but they have claimed that the sale deed is not KHUNTE ::: Uploaded on - 09/01/2020 ::: Downloaded on - 09/01/2020 22:13:57 ::: cra58.19.odt 9/9 binding upon them and therefore, a further declaration of title in the suit property has been made. The said judgments clearly cover the position of law in favour of the respondents.
14. Therefore, it is found that there is no merit in the present revision application and accordingly, it is dismissed.
15. It is made clear that the order passed by this Court would not come in the way of the Court below from framing of issue on the question of limitation and permitting the rival parties to lead evidence on such an issue.
JUDGE KHUNTE ::: Uploaded on - 09/01/2020 ::: Downloaded on - 09/01/2020 22:13:57 :::