Bombay High Court
Prabhav S/O Vijayrao Khawase vs M/S M. K. House Real Estate,Nagpur ... on 28 September, 2018
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
CRA 54/18 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION No. 54/2018
Prabhav S/o Vijayrao Khawase,
aged about 30 years, Occu: Business,
R/o Prashant Nagar, Nagpur. APPLICANT
.....VERSUS.....
1. Messer's M.K. House Real Estate,
through its Proprietor Manikrao
S/o Dayaramji Vaidya (Since deceased
through Legal Heirs).
(a) Smt.Seema Manikrao Vaidya,
aged about 59 years, Occu: Private.
(b) Snehal S/o Manikrao Vaidya,
aged about 34 years, Occu: Housework.
Both R/o Plot No.55A, N.I.T. Garden,
Ring Road, Trimurti Nagar, Tah. and District Nagpur.
2. Laxman S/o Manbha Shendre,
aged about 72 years, Occu: Agriculturist,
R/o Kelzar Near Ganpati Temple,
Tah. Selu, Dist. Wardha.
3. Natthu S/o Manbha Shendre,
aged about 70 years, Occu: Agriculturist,
R/o Bothli, Post Tana, Tahsil Umred,
District Nagpur.
4. Rama S/o Manbha Shendre,
aged about 68 years, Occu: Agriculturist,
R/o Mohegaon, Post Astha, Tahsil
and District Nagpur.
5. Shanabai Wd/o Satrughan Shendre,
aged about 49 years, Occu: Household.
6. Hanuman S/o Satrughan Shendre,
aged about 29 years, Occu: Agriculturist.
Both Non-applicant Nos.5 and 6 R/o Jaitpur,
Post Bela, Tah. Umred, District Nagpur.
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CRA 54/18 2 Judgment
7. Candrabhaga Wd/o Mahadeo Shendre,
aged about 72 years, Occu: Housewife.
8. Govinda S/o Mahadeo Shendre,
aged about 40 years, Occu: Agriculturist.
Non-Applicant Nos.7 and 8 both R/o Chamazari,
Post Borkhedi, Tah. and Dist. Nagpur.
9. Ganpat S/o Mahadeo Shendre,
aged about 54 years, Occu: Agriculturist,
R/o Tembhri, Post Borkhedi, Tah.
and Dist. Nagpur.
10. Indu W/o Akash Nahare,
aged about 44 years, Occu: Housewife,
R/o Bothi, Post Tana, Tah. Umred,
District Nagpur.
11. Sindhu W/o Banudas Aratpayre,
aged about 42 years, Occu: Housewife,
R/o Utti, Post Champa, Tah. Umred,
District Nagpur.
12. Kasabai W/o Dautrao Ambadare,
aged about 74 years, Occu: Housewife,
R/o Kachmeth, Post Matkazari,
Tah. Umred, Dist. Nagpur.
13. Baizabai Wd/o Sadashiv Sonawne,
aged about 82 years, Occu: Housewife,
R/o Junishukrawari, Lambat Tanda,
Sakkardara, Nagpur.
14. Radhabai W/o Vyankesh Sonawne,
aged about 74 years, Occu: Housewife,
R/o Masala, Post Masala, Tah. Umred,
District Nagpur.
15. Chandrakalabai Wd/o Arjun Tarale,
aged about 55 years, Occu: Housewife,
R/o Pannase, Nildoh, Post Choudha Mail,
Tah. Hingna, District Nagpur.
16. Janbha S/o Kishna Shendre,
aged about 66 years, Occu: Retired Servant,
R/o Pandhrabodi, Near Gupta Atta
Chakki, Sanjay Nagar, Nagpur.
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CRA 54/18 3 Judgment
17. Arjun S/o Krishna Shendre,
aged about 60 years, Occu: Service,
R/o Plot No.2, Sai Nagar, Ganatri
Tenament Tracto Company Chowk, Nagpur. NON-APPLICA
NTS
Shri A.A. Naik, counsel for the applicant.
Shri M.N. Ahmed, counsel for the non-applicant nos.2 to 12 and 15 to 17.
CORAM : A.S. CHANDURKAR, J.
DATE : 28 TH SEPTEMBER, 2018.
ORAL JUDGMENT
The Civil Revision Application is ADMITTED and heard finally with consent of learned counsel for the contesting parties.
2. The applicant is the defendant no.16 who is aggrieved by the order passed by the trial Court rejecting the application that was filed below Exhibit 56 seeking rejection of the plaint on the ground that the suit was barred by limitation and that the plaint was incorrectly valued as a result of which the trial Court had no jurisdiction to entertain the suit.
3. In the plaint, it is the case of the original plaintiffs that they have a right in field bearing No.173 admeasuring 4 Hectare 77 R. It is their case that the defendant nos.2 to 15 alienated the said suit field in favour of the defendant no.1 thereby giving a cause of action to the plaintiffs to seek a declaration that they jointly had 1/3rd share in the suit property. A further declaration was sought that the alleged sale-deed in ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:42 ::: CRA 54/18 4 Judgment favour of defendant no.1 was not binding on their share. During pendency of the suit, the suit property was sold in favour of defendant no.16 and by amending the plaint the declaration with regard to the sale-deed in favour of said defendant was also sought. The suit was valued at Rs.1,05,000/- for the purposes of jurisdiction on the ground that the defendant no.1 earned that amount as profit for a period of three years.
4. In that suit, the defendant no.16 filed the application under provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 raising a ground that the suit was barred by limitation as a challenge was raised in the year 2008 to the sale-deed that was executed in the year 2000. It was also stated that the valuation of the claim was not correct in view of the fact that the defendant no.16 had purchased the suit property for an amount of Rs.35,00,000/-. This application was opposed by the plaintiffs and by the impugned order, the trial Court rejected that application.
5. It is submitted by the learned counsel for the applicant that in the light of the plaint averments seeking a declaration that the sale-deed that was executed on 25.04.2000 was not binding on the plaintiffs, the suit as filed in July-2008 was barred by limitation. It was submitted that ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:42 ::: CRA 54/18 5 Judgment on a perusal of the plaint averments this aspect was clear that the plaintiffs got knowledge about the said sale-deed in the year 2002 in view of the mutation entries. It was then submitted that the trial Court failed to consider the question with regard to improper valuation of the suit. There is no finding recorded by the trial Court in that respect. It was thus submitted that considering the admitted fact that the defendant no.16 had purchased the suit property for an amount of Rs.35,00,000/-, the plaint was liable to be rejected as the claim was incorrectly valued.
6. The counsel for the original plaintiffs supported the impugned order. According to him, the question of limitation was a mixed question of law and facts and in the light of plaint averments, the plaint could not be rejected at the threshold. It was submitted that considering the cause of action as pleaded, the trial Court rightly refused to reject the plaint on that count. As regards valuation it was submitted that the plaint had been rightly valued.
7. Perusal of the impugned order reflects that the trial Court has taken into consideration the plaint averments while concluding that the plaint was not liable to be rejected at this stage as ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:42 ::: CRA 54/18 6 Judgment being barred by limitation. The copy of the sale-deed in regard to which a declaration is sought has not been placed on record along with the plaint. Hence, at this stage it is only the plaint averments that would be material to consider the application seeking rejection of the plaint. On perusal of the plaint averments, it is found that the question of limitation is a mixed question of law and facts and it would be appropriate if that aspect is decided after framing an issue in that regard. The impugned order to that extent does not call for any interference.
8. As regards improper valuation of the suit, it is found that the trial Court has not recorded any finding as to whether the plaint was properly valued and thus giving the jurisdiction to the trial Court. The relief as sought includes a declaration that the sale-deed executed in favour of defendant no.1 was not binding on the plaintiffs. A further declaration with regard to the sale-deed in favour of defendant no.16 had also been sought. It is thus found that the trial Court ought to have decided the question of proper valuation of the plaint before proceeding with the suit as such adjudication could have a bearing on the question of its jurisdiction. In absence of such consideration, the impugned order to that extent is liable to be set aside. Accordingly following order is passed.
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CRA 54/18 7 Judgment I) The order passed below Exhibit 86 insofar as it holds that
the plaint is not liable to be rejected under provisions of Order VII Rule 11(d) of the Code is concerned, the same shall stands confirmed.
II) The application below Exhibit 86 shall be reconsidered with regard to the contents of paragraphs 2 and 3 of the said application.
III) The trial Court shall hear the parties on that aspect and pass fresh orders in accordance with law.
IV) It is clarified that observations made in this judgment are only for deciding application at Exhibit 86 and the same shall not influence the trial Court in any manner.
9. The Civil Revision Application is partly allowed and disposed of. No costs.
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