JUDGMENT

Bharat P. Deshpande, J. - Applicant/original Defendant No.1 preferred the present revision thereby challenging order dated 08.02.2012 passed by the learned Trial Court thereby rejecting application filed under Order 7 Rule 11 (a)(d) CPC.

2. Heard learned Counsel Mr V.R. Tamba along with learned Counsel Mr Paresh Sawant for the Applicant and learned Counsel Mr V.A. Lawande along with learned Counsel Mr Akshay Shirodkar for the Respondents.

3. Respondent Nos.1 to 18/original Plaintiffs filed a civil suit for declaration that they along with other Defendants are entitled to pre-emption right with regard to the sale deed dated 20.12.2007 and for direction to the Defendant to specify the day on or before which the purchase money shall be paid and to deliver possession of the suit property.

4. Applicant along with original Defendant Nos.2 and 3 filed separate applications for rejection of plaint under Order 7 Rule 11 CPC. Applicant/Defendant No.1 filed her application on 07.01.2009 claiming therein that from the averments in the plaint, which discloses that the said plaint is barred by law of limitation since the relief claimed is of pre-emption of the suit property. It is specifically claimed that the right of pre-emption has to be exercised within a period of six months as per Article 1566 read with Article 2309 of the Civil Code, 1867 and since such right was not exercised, the suit as it stands on the basis of averments made in the plaint, is time-barred. Some of the Plaintiffs were notified and were asked to exercise their right of pre-emption within eight days but they failed to do so and only thereafter, sale deed dated 20.12.2007 was executed between Defendant No.1 on one hand and Defendant Nos.2 and 3 on the other side.

5. The learned Trial Court after hearing the parties clearly observed that the suit cannot be dismissed on the aspect of limitation as the suit is filed within a period of six months from the date of cause of action.

6. Mr V.R. Tamba submitted that the suit as framed in the plaint is not tenable and the prayer clause (a) and (b) cannot be granted in view of the provisions of Article 1566 read with Article 2309 of the Civil Code. He would submit that some of the Plaintiffs were notified by a legal notice asking their option to exercise right of pre-emption, however, they simply sought time without disclosing their intention. Thereafter, a notice was published in the newspaper by the prospective buyer. Sale deed was executed on 20.12.2007 and hence, the suit filed before the Trial Court is clearly barred by law of limitation. He then submitted that the prayers cannot be allowed or granted in favour of the Plaintiff since there is no mention about the shares of the co-owners as disclosed in the plaint. He then submitted that the said co-owners failed to deposit money in order to exercise their right of pre-emption. Similarly, the sale deed is not challenged. He would submit that mere declaration as framed in prayer clause

(a) is not sufficient enough. He, therefore, would submit that there is no cause of action to launch prosecution against Defendants and hence the plaint ought to have been rejected.

7. Per contra, learned Counsel Mr V.A. Lawande first of all submitted that grounds raised before the Trial Court are totally different than the one argued before this Court. He submitted that new grounds raised for the first time in this revision cannot be permitted to be entertained. He would submit that the suit has been filed within a period of six months and therefore, cause of action as mentioned in the plaint would survive and the provisions cited by the learned Counsel for the Applicant nowhere show any specific bar in filing the suit.

8. Mr Tamba referred to the following decisions:-

a) Rajendra Bajoria and Ors. vs. Hemant Kumar Jalan and Ors. 2021 STPL 10048 SC, and

b) Smt. Cynthia Shahid Dhar vs. Shri Carlos Wilfredo Roque de Sequeira Nazareth 1991(2) Goa L.T. 304.

9. Mr Lawande referred to the following dec