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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Anuja Prabhudessai, J.
Manu Babu Patel – Appellant
Versus
Prakash Mohanlal Desai S/o. Mohanlal L. Desai and ors. – Respondents
First Appeal No. 170 of 2022 With Interim Application No. 1023 of 2022
Decided On : 28-07-2022
CPC - Rejection of Plaint - Order VII Rule 11(d) - Section 12F of Regulation 1962 - Summary of Acts and Sections: Order VII Rule 11 CPC, Section 12F of Regulation 1962 - The court discussed the rejection of the plaint under Order VII Rule 11(d) of CPC and the applicability of Section 12F of Regulation 1962. The court highlighted the legal provisions and their interpretations, emphasizing that the jurisdiction of the Civil Court is not barred when the fundamental principles of judicial procedure are not followed.
Fact of the Case:
The Plaintiffs claimed ownership and possession of a property, challenging orders passed by the Mamlatdar and the Collector. The Defendant filed an application under Order VII Rule 11(d) of CPC, claiming that the suit was barred by Section 12F of Regulation 1962 and was also barred by limitation. The trial court rejected the application, but a subsequent application by the Defendant was granted, leading to the Plaintiffs' appeal.
Finding of the Court:
The court found that the rejection of the previous application under Order VII Rule 11(d) had attained finality and operated as res judicata. The subsequent application on the same ground was an abuse of process. The court also held that the suit was not barred by Section 12F of Regulation 1962 and that the rejection on the ground of limitation was unjustified.
Issues: The issues involved the rejection of the plaint under Order VII Rule 11(d) of CPC, the applicability of Section 12F of Regulation 1962, and the plea of limitation.
Ratio Decidendi: The court's decision was based on the principles of res judicata, the interpretation of Section 12F of Regulation 1962, and the application of the limitation plea. The court emphasized that the rejection of the plaint under Order VII Rule 11(d) should be stringent and that the plea of limitation should be adjudicated on the merits of the matter.
Final Decision: The appeal was allowed, the impugned order was quashed and set aside, and the suit was restored to file for the trial court to decide on its own merits.
JUDGMENT. :
The Appellant has challenged the order dated 25/08/2021 whereby the learned Civil Judge, Senior Division, Daman has allowed the Application filed by Respondent No.5 (original defendant no.5) under Order VII Rule 11(d) of the Code of Civil Procedure (for short
‘CPC’ and rejected the plaint.
2. The plaint can be rejected under Order VII Rule 11(d) of CPC only on the basis of the averments in the plaint. It is therefore necessary to reproduce the averments in the plaint in order to determine whether the suit is barred by any law.
3. The Appellant and Respondent No.7 were the Plaintiffs and Respondent Nos.1 to 6 were the Defendants in the suit, and shall be hereinafter referred to as the Plaintiffs and Defendants respectively. The Plaintiffs claimed that their grand parents Gopal Chaggan and Kashiben Gopal were occupants of the property under Survey No.189 admeasuring 2250 sq. meters, Survey No.210/1 admeasuring 4200 sq. meters, Survey No.215 admeasuring 100 sq. meters and Survey No.216 admeasuring 31600 sq. meters. The said property shall be hereinafter referred to as ‘the suit property’. The plaintiffs claim that they have their residential house in the suit property. The grand parents of the plaintiffs were in possession of the suit property as on 20.12.1961.
4. Sometime in the year 1974, Mohanbhai Desai, predecessor of Defendant Nos.1 to 4 forcibly took possession of the suit property which resulted in filing of the proceedings being DAPVR Case No.9/1974 before the learned Mamlatdar, Daman under the Daman Abolition of Proprietorship of Villages Regulation, 1962. (hereinafter referred to as “Regulation 1962”.) The plaintiffs have averred that by order dated 05.03.1982, learned Mamlatdar declared Gopal Chaggan and Kashiben Gopal, as the occupants and restored possession of the suit land. Being aggrieved by the said order, said Mohanbhai Desai filed an Appeal before the Collector. The Collector by order dated 19.02.1985 dismissed the Appeal and confirmed the order of the Mamlatdar. The plaintiffs have averred that on the basis of the said order, the name of Kashiben Gopal was entered and recorded in the survey records and in the record of rights vide mutation entry no.29 dated 09.03.1985.
5. The order of the Collector was challenged before the Administrative Tribunal at Panaji, Goa being Revision No.1/APV/Daman/85. The said Revision Application was partly allowed and the matter was remanded to the Collector, Daman and renumbered as Appeal No.5/1992. It is stated that Gopal Chaggan had expired on 01.10.1976 during the pendency of the proceedings before the learned Mamlatdar, whereas Kashiben Gopal expired on 18.12.1996 during the pendency of the Appeal No.5/1992. The averments in the plaint indicate that the legal representatives of Kashiben Gopal were not brought on record. By order dated 30.03.1999, the Collector held that the legal representatives of the deceased had failed to intimate the death of Kashiben Gopal within 90 days and as such the proceedings abated against deceased Kashiben Gopal. The Collector further observed that the claim of Mohanbhai Desai has gone unchallenged and hence, allowed the Appeal.
6. In 2003, Defendant Nos.1 to 4 applied to mutate their names in the properties of deceased Mohanlal Desai. The Mamlatdar proceeded with the said Application vide mutation entry no.840 and certified the same on 07.04.2003 whereunder the names of legal representatives of Mohanlal Desai were ordered to be mutated. One Navinchandra Desai, claiming to be one of the legal representatives of the deceased Mohanlal Desai applied for mutation on 09.03.2007 stating that the proceedings in respect of the suit property which were pending at the time of recording mutation entry no. 840, were concluded and to mutate their names in respect of the suit property. It is averred that without hearing the legal representatives of Kashiben Gopal, the Mamlatdar by order dated 15.03.2007 and vide mutation entry no.1033 deleted the name of
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