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SUPREME COURT OF INDIA
HEMANT GUPTA, V. RAMASUBRAMANIAN, JJ.
Salim D. Agboatwala and Others – Appellants
Versus
Shamalji Oddhavji Thakkar and Others – Respondents
Civil Appeal No. 5641 of 2021, Special Leave Petition (C) No. 26441 of 2014
Decided On : 17-09-2021
(A) Civil Procedure Code, 1908 – Order VII Rule 11 (d) – Transfer of Property Act, 1882 – Section 3 – Rejection of plaint – Rejection of plaint under Order VII Rule 11 is a drastic power conferred on Court to terminate a civil action at threshold – Conditions precedent to exercise of power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation – When a plaintiff claims that he gained knowledge of essential facts giving rise to cause of action only at a particular point of time, same has to be accepted at stage of considering application under Order VII Rule 11 – Plea regarding date on which plaintiffs gained knowledge of essential facts, is crucial for deciding question whether suit is barred by limitation or not – It becomes a triable issue and suit cannot be thrown out at threshold – Defendant in a suit cannot pick up a few sentences here and there from plaint and contend that plaintiffs had constructive notice of proceedings and that limitation started running from date of constructive notice – Plea of constructive notice appears to be a subsequent invention – Plea of constructive notice raised with a view to sustain plea of limitation cannot be accepted at the stage of dealing with an application for rejection of plaint. (Paras 13, 14, 16 and 19)
(B) Civil Procedure Code, 1908 – Order VII Rule 11 (d) – Maharashtra Tenancy and Agricultural Lands Act, 1948 – Section 88-B(1) – Rejection of plaint – According to plaintiffs,
Estate was in administration of Court Receiver and that in collusion between Court Receiver and Revenue authorities, sale as well as mutation took place without any notice to any of interested parties – Veracity of such argument has not been tested before Trial Court or High Court – It is a legal issue which goes to root of matter – Civil Court’s jurisdiction cannot be said to have been ousted completely – Civil Court was obliged to see at least whether appointment of a Receiver for administration of Estate of a deceased person would actually fall within mandate of Clause(d) of Sub-section (1) of Section 88B – Trial Court as well as High Court were clearly in error in rejecting plaint under Order VII Rule 11(d) – Judgment and decree of Trial Court as well as High Court set aside and suit restored to file. (Paras 25 and 26)
Facts of the case:
Their plaint having been rejected by the trial court under Order VII Rule 11 (d) of the Code of Civil Procedure, 1908, and said rejection having been confirmed by High Court in a first appeal, plaintiffs have come up with instant appeal.
Findings of Court:
Collusion and fraud are the main planks on which plaintiffs have built up their case. The question whether the order of ALT and the sale certificate issued thereafter are the product of fraud and collusion, cannot be determined by the appellate or revisional authority under the Act.
Result : Appeal allowed.
JUDGMENT :
V. RAMASUBRAMANIAN, J.
1. Leave was granted on 07.09.2021.
2. Their plaint having been rejected by the trial court under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 and the said rejection having been confirmed by the High Court in a first appeal, the plaintiffs have come up with the above appeal.
3. We have heard Mr. Kevic Setalvad, learned senior advocate appearing for the appellants and Mr. Shekhar Naphade, learned Senior Advocate and Mr. Aniruddha Joshi, learned Advocate appearing for the contesting respondents.
4. A group of 13 persons, claiming to be the legal representatives and successors in title to the estate of one Haji Ali Mohammed Hajee Kassam Agboatwala, filed a civil suit in S.C. Suit No. 2343 of 1987 on the file of the City Civil Court at Bombay. The reliefs prayed for in this suit are as follows:
(a) It be declared that the judgment and order dated 28th November 1963 passed by A.L.T. Borivali, Bombay Suburban District, in Tenancy Case No. 32G/6563 Dahisar, Part of Exhibit ‘F’ hereto, holding Defendant No. 1 to be ‘Deemed Purchaser’ of the suit land bearing Survey No. 216, Hissa No. 4A bearing C.T.S. No. 1879, of village Dahisar Taluka Borivali, Bombay suburban District is null and void, inoperative in law and not binding upon the plaintiffs.
(b) It be declared that Certificate issued by A.L.T. Borivaly, under Section 32M of the Tenancy Act, part of Exhibit ‘F’ to this Plaint, declaring Defendant No. 1 as ‘deemed purchaser’ of the suit land bearing Survey No. 216, Hissa No. 4A, bearing C.T.S No. 1879 of village Dahisar Taluka Borivali, Bombay Suburban District is null and void inoperative in law and not binding upon the Plaintiffs.
(c) It be further declared that Defendant Nos. 1 and 2 and person claiming through and under the said Defendants are trespassers on the suit land bearing Survey No. 216, Hissa No. 4A, bearing C.T.S No. 1879 of Village Dahisar Taluka Borivali, Bombay suburban District.
(d) The Defendant Nos. 1 and 2 be jointly and severally ordered and decreed to hand over to the Plaintiffs and/or to Defendant No. 3 the Court Receiver, Vacant and peaceful possession o the Suit land viz. Survey No. 216, Hissa No. 4A bearing C.T.S No. 1879 of village Dahisar, Taluka Borivali, Bombay suburban district.
(e) The Defendant Nos. 1 and 2 be ordered and decreed to pay to the Plaintiffs and/or Defendant No. 3, the Court Receiver, such mesne profits as may be determined upon inquiry under Order 20 Rule 12 of the Civil Procedure Code from the date of the suit till the date of delivery of possession of the suit land, bearing Survey No. 216 Hissa No. 4A, bearing C.T.S. No. 1879 of Dahisar, Village Taluka, Borivali.
(f) That pending the hearing and disposal of the suit, Court Receiver, High Court, Bombay or some other fit and proper person be appointed as the Receiver of the suit land including the structure standing thereon under Order 40 Rule 1 of the Civil Procedure Code with all powers under the said Rule and he be directed to take possession of the suit land being Survey No. 216, Hissa No. 4A, bearing C.T.S. No. 1879 of Dahisar, Village Taluka, Borivali.
(g) That pending the hearing and disposal of the suit, the Defendant Nos. 1 and 2 their servants, agents, contractors, builders and/or developers and all persons claiming through or under the said Defendants be restrained by an order and induction of this Honourable Court from disposing of alienating, parting with possession of, encumbering by creating third party interest in any manner whatsoever and/or carrying on construction work of any nature whatsoever upon the suit land or part thereof or any structure or part of the structure standing on the suit land i.e. Survey No. 216, Hissas No. 4A, bearing C.T.S. No. 1879 of village Dahisar, Taluka Borivali in Bombay Suburban District.”
5. In brief, the claim of the plaintiffs in the aforesaid suit was that the person, to whom they claimed to have succeeded, died in
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