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2023 Supreme(Online)(Bom) 1225
HIGH COURT OF BOMBAY
MILIND N. JADHAV, J
Mr. Ali Akbar Jafari – Appellant
Versus
Shri. Hiraman Tukaram Khandave – Respondent
CIVIL REVISION APPLICATION NO. 535 OF 2022 | CIVIL REVISION APPLICATION NO. 545 OF 2022
For the Appellants/Petitioners: Mr. S.C. Wakankar
For the Respondents: Mr. Sachin Gite
Plaintiffs' claims for cancellation of a sale deed were valid under law, as the suit did not seek specific performance, thus not barred by the Specific Relief Act.
Headnote:(A) Code of Civil Procedure, 1908 - Order VII Rule 11 - Specific Relief Act, 1963 - Plaint rejection - Application filed after significant delay claiming the present Plaintiffs cannot maintain their claims - The court concluded that the plaint inherently disclosed a cause of action, seeking cancellation of a sale deed, thus provisions barring such claims were not applicable (Paras 8, 10-12).
(B) Application under Order VII Rule 11 - Conditions for maintenance noted - Previous order rejecting similar plea weighed heavily on current determination - Application frivolous and merely delaying proceedings. (Paras 9, 10).
Facts of the case:
The applicants contend the suit is barred due to previous assignments of rights in property and delay in filings; however, the plaintiffs assert their rights based on transfer documents.
Findings of Court:
Dismissed applications due to failure to convince the court of any merit in claims of barring the present action under the Specific Relief Act.
Issues: Whether the suit as framed and the nature of relief sought barred under specific laws.
Ratio Decidendi: The court found the plaintiffs’ claims justified, and the previous bar not applicable, affirming the trial court's ruling.
Result: Both Civil Revision Applications are dismissed.
| Table of Content |
|---|
| 1. application for plaint rejection based on assignment disputes. (Para 1 , 2 , 3) |
| 2. defendants argue claims are barred by law due to previous assignments. (Para 4 , 6) |
| 3. court confirms validity of plaintiffs' cause of action—no specific performance needed. (Para 7 , 8 , 9) |
| 4. plaintiffs’ aims for cancellation do not fall under specific relief act's restrictions. (Para 10 , 11 , 12) |
| 5. court upholds trial orders—applications dismissed. (Para 13 , 14) |
1. Civil Revision Application No.535 of 2022 takes exception to the order dated 05.05.2022 passed by the 2nd Additional Judge, Small Causes Court, Civil Judge, Senior Division, Pune (for short “the Trial Court”) below Exhibit 131 in Special Civil Suit No.1296 of 2012. Exhibit 131 is an Application filed by Defendant No.1 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short “CPC”) seeking rejection of plaint. This Application is filed on 13.10.2018. The only ground for filing this Application after 6 years of filing the Suit is that during pendency of the Suit the original Plaintiff assigned its right in the suit property to the present Plaintiffs and consequently the present Plaintiffs (Respondent Nos.1 to 4 herein) stood impleaded in place of Original Plaintiff (Hiranandani Properties Private Limited) pursuant to the order dated 06.11.2015 passed below Exhibit 65 by the learned Trial Court.
2. Civil Revision Application No.545 of 2022 takes exception to the order dated 05.05.2022 passed below Exhibit 160 in Special Civil Suit No.1450 of 2012.
3. Facts are identical in both the Suits. Impugned orders are also almost identical.
4. Mr. Wakankar, learned Advocate appearing for the Applicant (Original Defendant No.1) would contend that the Application below Order VII Rule 11 of the CPC dated 12.11.2018 is filed by Defendant No.1, inter alia, contending that as a consequence of assignment by the Original Plaintiff in favour of the present Plaintiffs, it is seen that the present Plaintiff has stepped into the shoes of the Original Plaintiff and therefore their claims cannot be set to be in excess of the claims of the Original Plaintiffs. He would contend that in that view of the matter, the present Suit is not tenable as it is barred by the provisions of Section 34 of the Specific Relief Act, 1963 and more specifically the proviso thereunder. He would next contend that by virtue of impleadment of the present Plaintiffs into the shoes of the Original Plaintiff, the present Plaintiffs have failed to seek and pray for the consequential relief contemplated by proviso to Section 34 of the Specific Relief Act as the bar expressed thereunder is evident from the contents of the plaint itself. He would submit that the Suit filed by the Plaintiff is not for specific performance of the Development Agreement and the learned Trial Court has failed to consider the effect of notice of termination / revocation of the Development Agreement and Power of Attorney issued by Defendant No.1 to the Original Plaintiff. He would submit that the Original Plaintiff was aware that the Development Agreement and Power of Attorney were infact terminated and revoked by Defendant No.2 who is the original owner of the suit lands. He would submit that in that view of the matter, the Original Plaintiff did not seek the relief of specific performance of the Development Agreement to ascertain its rights. He would submit that in view of the proviso to Section 34 of the Specific Relief Act once the assignee of the Original Plaintiff chooses not to seek the relief of specific performance of the Development Agreement, the Suit in the present form is not maintainable considering that there is a sale deed executed by the original owner in favour of Defendant No.1 (Applicant herein) on 30.07.2012 in respect of the very same suit land. He would submit that since the Original Plaintiff has failed to seek the relief of specific performance of the Agreement, though the same was available t
