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IN THE HIGH COURT OF BOMBAY
S.M. Daud, J.
Bomi Munchershaw Mistry..... Plaintiff.
Versus
The Kesharwani Co-operative Housing Society Ltd. and others .. ..Defendants.
Long Cause Suit No. 942 of 1973, decided on 3-12-1992.
Advocates appeared :
F.S. Nariman with R.A. Dada, B.R. Zaiwala, K.D. Mehta and P.N. Mehta i/b Payne Co., for plaintiff.
D.S. Parekh i/b Parimal Shroff Co., for defendant No. 1.
E.P. Bharucha with G.R. Gowanikar i/b Daphtary Ferreira Divan, for defendant No. 2.
F.E. Devitre with S.R. Tejpal i/b Gargrat Co., for defendants Nos. 5 and 6.
This power of taking a plaint off the record of the Court as well as the allied power of punishing for contempt which are the attributes of a Court of record, will have to be exercised with utmost caution and only when the court is absolutely sure that the plaintiff does not have an arguable case at all. The exercise of the power though arising in Civil Procedure, can be said to being to the realm of criminal jurisprudence and any benefit of the doubt must go to the alleged contemnor or the plaintiff whose plaint is to be branded as an abuse of the process of the Court.
LIMITATION ACT, 1963
Section 14-Good faith defined-Whether mistaken advise of counsel is excusable subject to host of decisions-Due care and attention can not cover a plea of negligence to cover up total intention to the matter brought by a client on joining hands with a litigant actuated by dubious motivations.
This non-consideration eliminated the facet of good faith which facet was of vital significance vide Section 14, Limitation Act. Good faith is negatively defined in Section 2 (h) of the Limitation Act and the positive side thereof is that any act to merit the seal of good faith must be that which is done with due care and attention. Defendant I goes further and contends that the suit was deliberately lodged in the City Court so as to seek its transfer to this Court and then get it tried before the 1970 suit. Plaintiff did move an application to get the suit transferred from the City Court to this Court and also a direction that it be heard prior in point of time vis-a-vis the 1970 suit. Strategy in the conduct of litigation has been made into a fine art. Using courts to attain all manner of dubious ends is a menace of long standing. In recent years, this menace has attained alarming proportions. We cannot close our eyes to the dubious and go on repeating the old cliché of people flocking in courts to obtain relief, only for genuine grievances. At the same time one has to beaware of the tendency to suspect conspiracies and dubious designs in every nook and corner. The answer to the theory of hidden designs behind filing the suit initially in the City Court lies in asking the simple question as to why that forum could have been chosen, assuming that plaintiff had the object ascribed to him? Defendant I does not allege that plaintiff chose the City Court as he wanted to avoid paying the Court-fees payable, had a proper valuation been made at the very inception. Next, filing the 1973 suit in this Court and seeking precedence therefore over the 1970 suit, was not something that could not be done here also. If such a prayer could be made to a Judge of this Court taking up applications under Section 24 CPC, the same prayer could be also addressed to a Judge taking up long causes on the Original Side of this Court. The only explanation surviving is mistaken advice of Counsel. Whether such advice in the initial choice of forum is excusable having regard to the requirements of Section 14 Limitation Act is the subject of a host of decisions and the conflict therein makes it another of the vexed questions that have arisen in this suit. Apart from plaintiff having examined the Senior Counsel responsible for steering the suit in the initial sfages, the choice of the City Court met with the provisional approval of Judge Guttal (as he then was). Hajarnavis, J., did not consider the choice of the City Court so obviously flawed as to obviate a decision by the trial Court on this aspect of the matter. Thirdly, Judge Suresh (as he then was) did not consider the choice of the City Court as being inspired by oblique motives of patently flawed. The original valuation clause would have passed muster, but for the insertion of Section 6 (iv) (ha) in the Bombay Court Fees Act, 1959 vide Mah. Act 9 of 1970. This indeed is the finding of Judge Suresh. Ignorance of law is no excuse in, of course, trite law; but not fully correct. Section 14 Limitation Act is the realisation of even law having to recognise human fallibility. The definition of good faith in the Limitation Act has departed from the arid nary connotation equates it to honesty of purpose. But the due care and attention contemplated by the Limitation Act definition cannot be given too sharp an edge. For if that were the expectation, Section 14 would be redundant.
Section 9-Filing of suit-Delay in filing suit under the Act-Effect on grant of specific performance-Discretion-Considerations by Court.
Held, Court to consider balance of justice. In order that delay will bar the suit it must be shown that it was unreasonable and it would render unjust grant of relief.
The role of discretion in the law of specific relief is crucial. It is not however so one-sided that defendant I can get away with all sorts of raw work and plaintiff penalized at the slightest remissness. Delay and its consequences have to be viewed in a broader canvas which takes in its sweep the acts and omissions of both parties.
Section 20 (2)-Suit under Act-Grant of specific relief-Defence being taken on principle of public policy-Applicability of such doctrine.
Held, doctrine to be applied when grant of specific relief would cause grave incontestable harm to public.
Section 54-Immovable property-Sale of-Presentation of a deed for registration which completes a transfer of title and not mere execution.
INDIAN TRUSTS ACT, 1882
Sections 3 and 63-Civil Procedure Code, 1908, Order 31, Rule 1-Representation of beneficiaries in suit relating to trust property-Several beneficiaries-unit by only one-Maintainability of suit.
Held, beneficiaries being in nature of tenants in common suit by even one beneficiary is maintainable.
Section 63-Right to sue third party-Beneficiary- Trustee unwilling to sue third party for injuries to trust property-Held, beneficiary can sue third party.
The position emerging from the above may be summarised thus:
(a) A beneficiary can, in certain circumstances, sue a third party for an injury or threatened injury to trust property.
(b) In certain suits depending on circumstances the beneficiaries need not establish collusion between trustee and third party.
(c) The beneficiary definitely has the capacity to sue a third party when the trustee is unwilling, re fuses or has precluded himself from suing.
(d) Whether the trustee, collude, whether overtly or covertly, with the third party a beneficiary can obviously sue.
(e) The beneficiary suing need not ask for displacement of the trustee and his replacement by a new trustee in a suit to recover alienated or adversely affected property in the hands of a third party.
(f) A reversioner or the remainder man can sue even if he be a beneficiary at the date of suing.
(g) Section 40 of the T. P. Act aids plaintiff as a reversioner to enforce his rights against defendant I under Section 40 of the T. P. Act.
S.M. DAUD, J.:---This is a suit for a declaration and cancellation vide conveyance marked Ex. J admitted for registration on 30-11-1967 and passed in favour of defendant 1 by defendant 2 in his capacity as the Court appointed Receiver of the estate of his brother, the late Ratanchand Hirachand.
2. Ratanchand, the father of defendants 3A and 3B, was the owner of a large piece of land measuring near about 6000 to 7000 sq.yds of land with a bungalow, outhouse, guesthouse, servants quarters and garages thereon on the Nepean Sea Road in Bombay. Out of the vacant portion to the south-coast, an area of less than 600 sq.yds. was sold by Ratanchand to a trust on 20-3-1951--the conveyance being at Ex. B. The settlers of the trust incorporated in a deed of 17-3-1951 were plaintiff's father Munchershaw, his uncle Kekobad and grandmother Dinbai. The deed vested a certain sum in trustees-Munchershaw, Kekobad, Maneckji and Khurshed--the last two, being the full brother and that brother's wife of the first two. The trustees used this money and more to acquire the vacant land hereinafter to be referred to as 'Maneckabad'. Under Ex.B certain convenants were given over the remaining property to be now known as 'Ratan Villa' for convenience. Two of these convenants were a restriction of the vertical expansion on what was described as "the remaining land of the vender"--the permissible limit being that of the "present existing garages". Next was a convenant to keep free the central passage connecting the properties with the Nepean Sea Road and that portion of the garden which faced the main bungalow etc. Munchershaw, in 1959 for and on behalf of himself and the other trustees, had sought to construct a structure in excess of the F.S.I. apportionable to Maneckabad on the plea that Ratan Villa was to remain unbuilt upon pursuant to the first convenant aforementioned, which covenant entitled the owners of Maneckabad to appropriate the F.S.I. of Ratan Villa to their proposed structure. The Bombay Municipal Corporation (B.M.C.) to whom the letter was addressed declined to so view the proposal and there the matter rested. Munchershaw passed away in 1962. Plaintiff from that year onwards made it clear to Ratanchand, Maneckji and the authorities that the entire Ratan Villa was deemed to sterility consequent to the height covenant. Quite a few of those who had offered to purchase Ratan Villa backed out on learning of this convenant and other restrictions on developing the property. In a suit instituted by Ratanchand against his children for partition and separate possession, defendant 2 Lalchand was appointed the Receiver of the estate. Deceased defendant 4, Zaveri, a real-estate broker, got defendant 1 interested in the property. Zaveri, defendant 1 and Lalchand through their respective Solicitors entered into a protracted correspondence which went on even after Ex. J had been admitted to registration on 30-11-1967.Ex. J. made no reference to the restrictive convenants recorded in Ex.B. The conveyance does however make a reference, and prominently at that, to agreements dated 2-7-1966 (Ex.A--111) and 23-7-1966 (Ex.A--112).
3. In 1968, plaintiff filed a petition under Article 226 of the Constitution questioning the grant of F.S.I. 2' to defendant 1 in relation to the structure, this defendant was erecting to replace the demolished main bungalow. The petition was numbered as Misc. Petition No. 501 of 1968. That petition succeeded and the appeal Court dismissed the appeal has having become infructuous. Special leave to appeal has been granted by the Supreme Court and the appeal is pending. In the meantime on 5-12-1970 plaintiff filed Suit No. 891 of 1970 to enforce rights arising under Ex.B and allegedly contravened by defendant 1. The plaint therein avers the alleged antedating of Ex. J to evade payment of tax payable on capital gains. Zaveri and Lalchand are not parties to the 1970 suit and that non-joinder has been pleaded to be a fatal flaw by defe
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