Bombay High Court
Shri Maheshwar Narayan Nagrale And ... vs Shri. Sandeep Ishwarrao Ghangale on 28 July, 2023
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
1 936.CRA.36-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CIVIL REVISION APPLICATION (CRA) NO. 36 OF 2023
( Shri Maheshwar Narayan Nagrale & Ors.
Vs.
Shri Sandeep Ishwarrao Ghangale )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. Y.S. Kshirsagar, Advocate for the Applicants.
Mr. T. Rahul, Advocate for the Non-applicant.
CORAM: AVINASH G. GHAROTE, J.
DATED : 28th JULY, 2023 Heard Mr. Kshirsagar, learned counsel for the applicants and Mr. Rahul, learned counsel for the non-applicant.
2. The revision questions the order dated 05.11.2022 below Exh.13, by which the application under Order VII Rule 11 (d) of the Code of Civil Procedure, for rejection of the plaint filed by the applicants, has been rejected (page 47).
3. It is contended, that on the averment of the plaint, since the relief for specific performance was barred by limitation, the plaint ought to have been rejected.
4. Mr. Kshirsagar, learned counsel for the applicants, for this purpose invites my attention to the ::: Uploaded on - 28/07/2023 ::: Downloaded on - 29/07/2023 08:07:19 ::: 2 936.CRA.36-2023.odt plaint averments which indicate, that the agreement in question is dated 30.01.2000 and was dependent upon the conversion of the holding of the land from Class-II to Class-I, which came to be converted and recorded in the 7/12 extract on 08.04.2013. A notice thereafter was issued on 23.03.2014 seeking specific performance, which came to be replied to on 04.06.2014 refusing to execute the sale deed. The suit has been filed on 06.08.2021 with two basic reliefs (i) for specific performance and (ii) for permanent injunction restraining the defendants/applicants from disturbing the peaceful possession of the non-applicant/plaintiff on the land in question.
5. It is contended by Mr. Kshirsagar, learned counsel for the applicants, that considering the date of refusal as given in para 9 of the plaint which is stated to be 04.06.2014, even if part 2 of Article 54 of the Limitation Act, is taken into consideration, the claim for specific performance would be barred by limitation, the suit having been filed on 06.08.2021. No doubt, that this would be the position, considering the plaint averments, however, that would be something restricted only to the plea of specific performance.
6. The plaint also seeks a decree for a permanent injunction on the basis of the claim that the plaintiff/non-applicant was in possession in part performance of the agreement, which possession needs to be protected, which is the claim relatable to Section 53A of the Transfer of Property Act, and thus, is a claim ::: Uploaded on - 28/07/2023 ::: Downloaded on - 29/07/2023 08:07:19 ::: 3 936.CRA.36-2023.odt which can be independently enforced. Though reliance is placed upon Padhiyar Prahladji Chenaji (Deceased), Through Legal Representatives Vs. Maniben Jagmalbhai (Deceased), Through Legal Representatives And Others, (2022) 12 SCC 128 para 24, to contend that a relief for permanent injunction is a consequential relief, that was held to be so in light of the fact, that the suit therein was a suit for cancellation of the sale deed and declaration and the consequent prayer of permanent injunction seeking to restrain the defendant No. 1 therein from disturbing the possession of the plaintiff.
7. In the instant case as indicated above, a decree for permanent injunction as claimed in prayer clause 2 (page 21) of the plaint would be a right relatable to Section 53A of the Transfer of Property Act, which can be independently enforced even if the relief of specific performance is not granted. Nothing has been brought to my notice to take a view, that the plaint can be rejected in part for some of the reliefs. In that view of the matter, I do not find any reason to interfere in the impugned order.
8. The Revision is therefore dismissed. No costs.
JUDGE SD. Bhimte ::: Uploaded on - 28/07/2023 ::: Downloaded on - 29/07/2023 08:07:19 :::