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2015 Supreme(Bom) 1684
IN THE HIGH COURT OF BOMBAY AT GOA
C.V. BHADANG, J.
M/s Boshan Developers Pvt. Ltd., a Private Limited Company, registered under the Indian Companies Act, 1956 – Petitioner
Vs.
Communidade of Bordem, Through its Special Attorney – Respondent
CR Application Nos.21 and 23 of 2015
Decided on : 16.9.2015
Shri Shivan Dessai, Shri V. P. Thali, Advocate for the petitioner.
Shri A. D. Bhobe and Shri S. Kamat, Advocates for the respondent no.1.
Shri V. P. Thali, Shri Shivan Dessai, Advocate for the respondent no.2.
Shri A. V. Halarnkar holding for Shri S. D. Padiyar, Advocate for the respondent no.3.
The court's decision emphasized that the suit cannot be dismissed at the threshold as being barred by limitation and rejected the plaint as against the defendant no.3, Bicholim Municipal Council, but not against the defendant no.4, Town and Country Planning Department.
Headnote:
Order VII, Rule 11(d) - Civil Suit - Code of Comunidades, Goa Municipalities Act, Goa Town and Country Planning Act - The court dismissed the applications filed by the defendant nos.1 and 2 under Order VII, Rule 11(d) of C.P.C., challenging the order dated 18/06/2015 passed by the learned Adhoc District Judge at Mapusa in Civil Suit No.6/2015. The subject matter of dispute is a landed property situated at village Bordem, Bicholim Taluka. The Comunidade sought a declaration that the Agreement for Sale dated 06/10/2009 executed by the Devasthan in favor of M/s. Boshan Developers is null and void and for consequent permanent injunction. The defendant nos.1 and 2 sought rejection of the plaint under Order VII, Rule 11(d) of the Code, contending that the suit is barred by limitation and under Section 289 of the Goa Municipalities Act. The Devasthan contended that the suit is barred by the provisions of the Code of Comunidades. The court found that the suit cannot be dismissed at the threshold as being barred by limitation and rejected the plaint as against the defendant no.3, Bicholim Municipal Council, but not against the defendant no.4, Town and Country Planning Department.
Fact of the Case:
The Comunidade sought a declaration that the Agreement for Sale dated 06/10/2009 executed by the Devasthan in favor of M/s. Boshan Developers is null and void and for consequent permanent injunction. The defendant nos.1 and 2 sought rejection of the plaint under Order VII, Rule 11(d) of the Code, contending that the suit is barred by limitation and under Section 289 of the Goa Municipalities Act.
Finding of the Court:
The court found that the suit cannot be dismissed at the threshold as being barred by limitation and rejected the plaint as against the defendant no.3, Bicholim Municipal Council, but not against the defendant no.4, Town and Country Planning Department.
Issues: The issues were whether the plaint is liable to be rejected under Order VII, Rule 11(d) of C.P.C. as being barred by limitation, whether the plaint is liable to be rejected under Order VII, Rule 11(d) of C.P.C. as against respondent no.3/defendant no.3 for want of notice under Section 289 of the Goa Municipalities Act, and whether the plaint is liable to be rejected under Order VII Rule 11(d) of Civil Procedure Code, as against respondent no.4/defendant no.4 by virtue of Sections 121 & 129 of the Goa Town and Country Planning Act, 1974.
Ratio Decidendi: The court held that the suit cannot be dismissed at the threshold as being barred by limitation and rejected the plaint as against the defendant no.3, Bicholim Municipal Council, but not against the defendant no.4, Town and Country Planning Department.
Final Decision: The court partly allowed the Civil Revision Applications, set aside the impugned order to the extent refusing to reject the plaint against the defendant no.3, Bicholim Municipal Council, and rejected the plaint as against the defendant no.3. Rest of the order stands confirmed. In the circumstances, there shall be no order as to costs.
Heard.
Admit. The learned Counsel for the respondent waives service. Heard finally, by consent.
2. Both these Civil Revision Applications challenge the order dated 18/06/2015 passed by the learned Adhoc District Judge at Mapusa in Civil Suit No.6/2015. By the impugned order, the applications filed by the defendant nos.1 and 2 under Order VII, Rule 11(d) of C.P.C., have been dismissed. As the Civil Revision Applications arise out of the same order and involve common and connected questions of law and fact, they are being disposed of by this common judgment.
3. The first respondent Comunidade of Bordem is the original plaintiff while Shri Shantadurga Sangordekarin Devasthan (Devasthan, for short) and M/s. Boshan Developers Pvt. Ltd, the petitioners in these Revision Applications are respectively the defendant nos.1 and 2 before the Trial Court. Bicholim Municipal Council and the Town and Country Planning Department are respectively the defendant nos.3 and 4 while State of Goa is the original defendant no.5.
4. The Comunidade is seeking a declaration that the Agreement for Sale dated 06/10/2009 executed by the Devasthan in favour of M/s. Boshan Developers is null and void and for consequent permanent injunction, restraining them or anybody on their behalf from carrying on any construction activity in the suit property and/or changing its user. Permanent injunction restraining them from creating any third party interest as also mandatory injunction directing the petitioners herein to restore the suit property to its original pristine condition is also sought for. The subject matter of dispute is a landed property situated at village Bordem, Bicholim Taluka, more specifically described in para 5 of the plaint. The case made out in the plaint is that the suit property is leased out to the Devasthan on a permanent basis. The Devasthan is not permitted to change the user of the said property. It is contended that the Devasthan can enjoy the suit property in a restricted and controlled manner, in view of the terms and conditions of the lease and the provisions contained in the Code of Comunidades. It is contended that the Comunidade continues to be the owner of the property. The Devasthan is governed by the 'Regulamento das Mazania', better known as Devasthan Regulations and the property cannot be put to any use, which may be inconsistent with the object of the Devasthan or which may be in breach of the Devasthan Regulations. The defendant nos.1 and 2 sought rejection of the plaint under Order VII, Rule 11(d) of the Code, by filing separate applications. It is contended that the suit is barred by limitation. Reliance in this regard is placed on para 13 of the plaint, in order to contend that on its own saying since the order 2010, villagers/ residents of Gaonkarwada had noticed construction activities in the suit property and complaints/ representations were lodged in respect thereof to various authorities. It is contended that thus, the villagers/residents of Gaonkarwada were having knowledge of construction activities since the year 2010. It is contended that the villagers/ residents of Gaonkarwada, being the members/constituents of the Comunidade, a corresponding knowledge has to be attributed to the Comunidade also. Thus, the suit having been filed in the year 2015, is barred by limitation. It is contended that the suit is barred under Section 289 of the Goa Municipalities Act (the Municipalities Act, for short) since no notice as contemplated under Section 289(1)(b) of the said Act is issued.
5. The Devasthan has contended that under Article 9 of the Code of Comunidades, the Comunidade is not entitled to file a suit without permission of the Administrative Tribunal. The Comunidade has neither obtained nor produced any such permission nor there is any statement to that effect in the plaint. Thus, the suit is barred b
