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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
HON'BLE SHRI JUSTICE S. G. CHAPALGAONKAR
Vikas S/o Ashok Pakhare - Appellant
Versus
Jayashree W/o Vinodchandra Saraf - Respondent
CIVIL REVISION APPLICATION NO. 12 OF 2024
Decided On : 24-02-2025
(A) Code of Civil Procedure, 1908 - Order VII Rule 11 (a) & (d) - Rejection of plaint - Plaintiffs sought partition and injunction against defendants, who contended the suit was barred by limitation and lacked cause of action - Trial Court rejected the application for rejection, stating that these issues require trial - The court emphasized that the remedy under Order VII Rule 11 is drastic and should not be exercised unless the plaint clearly discloses no cause of action or is barred by limitation. (Paras 6, 8, 16, 18)
(B) Cause of Action - Definition and requirements - The court reiterated that a cause of action consists of material facts necessary for the plaintiff to prove their right to judgment, and must not be illusory. (Paras 10, 12)
(C) Limitation - The court noted that the limitation period for seeking partition begins when the plaintiff becomes aware of the exclusion of their rights. (Paras 15, 16)
Facts of the case:
Plaintiffs, descendants of Motilal Saraf, filed a suit for partition after defendants began dealing with properties following the death of Rameshchandra Saraf. Defendants claimed the suit was based on fictitious grounds and barred by limitation.
Findings of Court:
The trial court found that the issues of limitation and cause of action were mixed questions of law and fact that required a trial.
Issues: The main issues were whether the plaint disclosed a cause of action and whether the suit was barred by limitation.
Ratio Decidendi: The court held that the trial court's decision to allow the case to proceed was correct, as the issues raised required examination of evidence.
Result: Both Civil Revision Applications stand rejected.
JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard finally at the stage of admission by consent of parties.
2. Plaintiffs/Original Defendant Nos. 1 to 7 in RCS No. 78 of 2023 pending before Civil Judge, Junior Division, Paithan, impugns order dated 07.10.2023, passed below Exh. 78, rejecting their application seeking rejection of plaint under Order VII Rule 11 (a) & (d) of Code of Civil Procedure, 1908. (Hereinafter, parties are referred as per their original status in the suit for the sake of convenience and brevity.)
3. Respondent Nos. 1 to 3 - Original Plaintiffs instituted RCS No. 78 of 2023 seeking relief of partition, separate possession, permanent injunction and mesne profit against defendants. Plaintiffs contend that suit lands were originally owned by Motilal s/o Dulichand Saraf. He had a son Natvarlal and two daughters from first wife. After death of his first wife he married to Saraswatibai. He got three sons and five daughters from second marriage with Saraswatibai. After death of Motilal suit properties were mutated in the name of Natvarlal. Natvarlal transferred suit properties in name of Saraswatibai by way of partition in the year 1976-77 vide mutation entry No. 08. Saraswatibai resided with her elder son Rameshchandra. Taking benefit of said fact, Rameshchandra mutated names of his sons Jagdish and Mahendra over suit properties by way of family arrangement. Since then properties remained mutated in the name of Jagdish and Mahendra. Eventually, Jagdish and Mahendra mutated properties in name of their wives vide mutation entry Nos. 1044 and 1045 dated 31.03.2008.
4. Rameshchandra Motilal Saraf was providing share of income to his brothers Pramodchandra and Vinodchandra and also taking care of his sisters. Therefore, none asked him about suit properties or raised any claim for partition. However, upon death of Rameshchandra on 07.09.2022, defendant Nos. 1 and 2 and 5 to 7 started dealing with properties with third persons, when plaintiffs asked them, they avoided to provide information. Plaintiffs came to know that defendant Nos. 1 and 2 had a deal of suit land and on search with office of Registrar, came to know about agreement to sale dated 22.12.2022, executed by defendant Nos. 1 and 2 in favour of defendant Nos. 3 and 4. Even defendant Nos. 5 and 6 intending to sale properties. Since defendants started dealing with properties, ignoring rights of plaintiffs, cause of action arose to file suit.
5. Defendants filed Written Statement refuting claim of plaintiffs. Independently, they filed applications below Exh. 23 under Order VII Rule 11 (a) & (d) of CPC seeking rejection of plaint on two grounds, firstly, suit is based on fictitious and illusory cause of action, secondly, suit is hopelessly barred by limitation.
6. Trial Court, after considering rival submissions rejected application filed below Exh. 23 holding that issue as to limitation as well as cause of action can be decided on trial, since both are mixed questions of law and fact.
7. Mr. Karpe, (CRA No. 13/2024) and Mr. Gangakhedkar, (CRA No. 12/2024) learned Advocates appearing for applicants criticized the impugned order contending that trial Court failed to appreciate contents of plaint in proper perspective, so also misapplied law, as such, fell in error while rejecting application. In support of their contentions they relied upon following judgments :
(i) Dahiben Vs. Arvindbhai Kalyanji Bhanus (Gajra) Dead Through Legal Representatives and Others, [(2020) 7 SCC 366]
(ii) Ramisetty Venkatanna and Anr. Vs. Nasyam Jamal Saheb and Ors., [AIR Online 2023 SC 459]
(iii) Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) By Legal Representatives, [(2020) 16 SCC 601]
(iv) Murugan and Others Vs. Kesava Gounder (Dead) Through Legal Representatives and Others, [(2019) 20 SCC 633]
(v) Roop Lal Sathi Vs. Nachhattar Singh, [AIR 1982 SC 1559]
(vi) Avinash Tanu Govekar and Others Vs. Anjani A. Govekar and Others, [2024 SCC OnLine Bom 624]
(vii) V. Huligeppa V. Lingappa S
AI
The court ruled that a plaint cannot be rejected under Order VII Rule 11 unless it clearly discloses no cause of action or is barred by limitation, emphasizing the need for trial to resolve mixed que....
A plaintiff asserting ownership based on historical rights and alleged partition must be permitted to pursue relief through trial when faced with disputed claims and questions of fact.
(1) Plaint which is vexatious, illusory cause of action and barred by limitation, ought to be rejected in exercise of powers under Order VII Rule 11(a) and (d) of CPC.(2) Rejection of plaint – While ....
A cause of action must be assessed holistically, considering all relevant evidence, and cannot be dismissed solely based on preceding legal findings or limitations without a comprehensive examination....
A suit concerning ancestral property cannot be dismissed under Order 7, Rule 11(d) for limitation without considering the factual context and evidence, as mixed questions of law and fact arise.
The main legal point established is that a suit can be rejected under Order 7 Rule 11 if it is time-barred, lacks a cause of action, or seeks to reopen a valid previous partition.
A suit cannot be dismissed at an early stage under Order 7 Rule 11 based solely on time limitation when material factual disputes exist.
The civil court has jurisdiction to hear a suit for cancellation of a sale deed relating to converted land, even if the sale deed was executed before the conversion.
The main legal point established in the judgment is that a plaintiff must clearly establish a valid cause of action, including details of inheritance and right to sue, to maintain a suit for joint ow....
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