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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT GOA
Bharat P. Deshpande, J.
Joseph Lobo Alias Jose Santan Lobo & Ors. – Appellants
Versus
Vincent Francis Condillace & Ors. – Respondents
Civil Revision Application No. 22 of 2015
Decided On : 19-01-2023
Limitation - Civil Suit - Order 7 Rule 11 CPC - [DECLARATION, LIMITATION] - [Article 58 of Limitation Act] - The court considered the application under Order 7 Rule 11 CPC and found that the suit for declaration filed beyond three years is barred by law of limitation. The impugned order rejecting the application was quashed and set aside, and the application was allowed, rejecting the plaint as barred by law of limitation.
Fact of the Case:
The Plaintiffs filed a civil suit seeking declaration, cancellation, restoration of possession, recovery of money, and permanent injunction against the Defendants. The Defendants filed an application under Sections 9, 151 and Order 7 Rule 11 CPC claiming that the plaint does not disclose cause of action and that the suit is barred by law of limitation. The Trial Court rejected the application, which was challenged in the present revision application.
Finding of the Court:
The court found that the suit for declaration filed beyond three years is barred by law of limitation. The impugned order rejecting the application was quashed and set aside, and the application was allowed, rejecting the plaint as barred by law of limitation.
Issues: The main issue was whether the suit for declaration filed beyond three years was barred by law of limitation.
Ratio Decidendi: The court held that the suit for declaration filed beyond three years is clearly barred by law of limitation as per Article 58 of the Limitation Act, and not Article 66 as tried to be projected by the Plaintiffs.
Final Decision: The revision was allowed, the impugned order was quashed and set aside, and the application was allowed, rejecting the plaint as barred by law of limitation.
JUDGMENT
Bharat P. Deshpande, J. - Applicants/original Defendants are challenging impugned order dated 16.01.2015 passed below Exh. 16 by the learned Civil Court thereby rejecting application under Order 7 Rule 11 CPC.
2. The matter was admitted on 30.09.2015 and interim stay in terms of prayer clause (b) was granted.
3. Heard learned Counsel Mr A.D. Bhobe appearing along with learned Counsel Ms A. Fernandes and Ms A. Kuvelkar for the Applicant and learned Counsel Mr Gaurish Agni appearing along with learned Counsel Mr Kishan Kavlekar for the Respondents.
4. Respondents filed civil suit i.e. Special Civil Suit No.11/2007 on 18.01.2007 thereby claiming following reliefs:-
(b) That the defendants be ordered to pay to the Plaintiff the sum of Rs. 2,25,000/- which they have received from the deceased Francisco Luis Philip Jose do Piedade de Sa on the pretext that the Defendant no. 1 would construct to him the Flat no. GF-2 in the proposed building to be constructed by the Defendants in the suit property with interest at the rate of 17% per annum from the date of receipt of the money till the date of payment.
(c) That a permanent injunction be granted restraining the defendants, their agents, servants, family members or any other person or persons acting on their behalf from developing, selling, transferring, alienating or creating any third party right over the suit property and/or interfering with the suit property in any manner whatsoever.
(d) That Temporary Injunction be granted in favour of the plaintiffs in terms of prayer (b) above.
(f) Any other relief which this Hon'ble Court deems fit and proper be granted in favour of the plaintiffs."
5. Applicants/original Defendants No.1 and 2 appeared and filed their written statement and subsequently filed an application under Sections 9, 151 and Order 7 Rule 11 CPC vide Exh. 16 thereby claiming that the plaint does not disclose cause of action and that said suit is barred by law of limitation. Learned Trial Court vide its order dated 16.01.2015, rejected such application which is now challenged in the present revision application.
6. Mr Bhobe appearing for the Applicants would submit that from the averments made in the plaint, the suit is clearly barred by law of limitation as the main prayer is for declaration and therefore, Article 58 of Limitation Act stands attracted. He would submit that the prayer for declaration as styled in prayer clause (a) is the main relief and not ancillary relief and only if such relief is granted, the Plaintiff would be able to sustain other reliefs including the claim of possession. He further submitted that the plaint as a whole does not disclose cause of action against the Defendants as there are no specific allegations in connection with fraud and when it was played or exercised. There is a distinction between non-existence of cause of action and failure to state about the particulars of cause of action. Existence of cause of action could be spelt out from bundle of facts disclosed in the plaint. From the reading of the plaint as a whole, it would clearly suggest that so called cause of action tried to be disclosed in the plaint is only imaginary as far as the year of 2005 is concerned and therefore, the plaint itself is barred by law of limitation. In this respect, Mr Bhobe placed reliance on the following decisions:-
b) Shri Capistrano Gomes & Anr. vs. State of Goa & Ors. CRA 16/2015,
c) Selwyn Agnelo Botelho vs. Norton D'Souza
(1) Rejection of plaint – When a document referred to in plaint, forms basis of plaint, it should be treated as a part of plaint – Court cannot look into written statement or documents filed by defen....
The court ruled that the plaintiff's suit was timely as she only discovered the fraudulent sale deed in October 2023, emphasizing that limitation is a mixed question of fact and law.
A perusal of the observations made indicates that the Court while laying down the above proposition has used the word ‘ordinarily’ and has not laid down that even in a case where the issue of limitat....
A suit filed to declare a sale deed null and void is barred by limitation if not filed within three years from the date of registration, and must disclose a valid cause of action.
A plaint can be rejected under Order VII Rule 11 for non-disclosure of cause of action and being barred by limitation if claims are based on prior known events.
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