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2025:BHC-AS:56963

15-CRA-329-2023.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

rrpillai

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO. 329 OF 2023

Sudhir Gajanan Vaidya and Others … Applicants

Vs.

Ashok Keshav Vaidya and Others … Respondents

Mr.Indrajeet Kulkarni for the Applicants.

Mr. Aseem Naphade a/w. Mr. Uzair Kazi, Ms. Deepanjali

Mishra i/b. YMK Legal for the Respondents.

CORAM : GAURI GODSE, J.

DATE : 22^nd DECEMBER 2025

ORDER :

1. Heard learned counsel for the parties. The civil revision

application is filed by defendant nos. 1 to 4 to challenge the

order passed by the trial court refusing to reject the plaint at

the threshold on the ground of the same being time barred.

2. Learned counsel for the applicants submits that the

construction was admittedly carried out in 1979. Hence, the

suit filed for declaration in respect of the construction in the

year 2018 is ex-facie barred by limitation. He submits that

from the plain reading of the plaint issue of limitation can be

decided at the threshold as no cause of action arose in 2018

Digitally signed

RAJESHWARI by RAJESHWARI

RAMESH RAMESH PILLAI 1/5

PILLAI D 20a 2te 5: .12.23

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to file the suit for declaration. Hence, the plaint deserves to

be rejected at the threshold.

3. To support his submissions learned counsel for the

applicants relies upon the decision of the Apex Court in the

case of Shakti Bhog Food Industries Limited vs. Central

Bank of India and Another¹. He submits that it is well

established legal principle that it is the court’s duty to

scrutinise the averments in the plaint as a whole on their face

value to ascertain the bar of limitation and if from the

averment in the plaint it is seen that the suit is barred by

limitation, the court can exercise powers under Order VII

Rule 11 of the Code of Civil Procedure, 1908 (“CPC”) to

reject the plaint. He therefore submits that in the present

case on the plain reading of the plaint the issue of limitation

can be decided. As per the averment in the plaint the suit is

seen to be barred by limitation.

4. I have perused the papers of the civil revision

application. The plaintiffs have contended that the cause of

action to file the suit for declaration arose in September

2016, when the plaintiff received the certified copies of the

documents concerning the sanctioned plan. To support their

1 (2020) 17 SCC 260

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contentions regarding the cause of action to file the suit in

2018, the plaintiffs have relied upon the notice issued by the

plaintiffs on 29^th September 2016, when they discovered that

the construction on the first floor was unauthorised. The

plaintiffs therefore contend that they applied for certified

copies of the construction plan dated 11^th January 1979.

5. Based on the sanctioned plan, according to the plaintiff

defendant nos. 1 to 4 in collusion with defendant no. 5 had

carried out illegal and unauthorised construction of ground

floor, first floor and third floor as specifically pleaded in the

plaint. The plaintiffs have therefore prayed that the

construction of portion of the suit building as described in the

plaint paragraph 22 is contrary to the sanctioned plan of 11^th

January 1979. The plaintiffs have prayed for a declaration

that there was no subsequent plan sanctioned and the plan

sanctioned on 11^th January 1979 was the only duly approved

plan for construction of the suit property and thus any

changes or modification is illegal and invalid. The plaintiffs

have therefore relied upon the notice issued and the

reminder sent to the corporation as specifically pleaded in

the plaint. Hence, according to the plaintiffs the cause of

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action to seek a declaration arose when they received

certified copies of the sanctioned plan in 2016. Consid