Case Note & Summary
The matter arose from a Civil Revision Application filed before the High Court of Bombay at Goa by the original defendant no.1 challenging the order dated 08.02.2012 passed by the learned Trial Court, which rejected her application under Order 7 Rule 11(a)(d) of the Code of Civil Procedure, 1908 for rejection of the plaint. The original plaintiffs, respondent nos.1 to 18, had filed a civil suit seeking a declaration that they along with other defendants were entitled to pre-emption rights with regard to a sale deed dated 20.12.2007 and for directions 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. The applicant, original defendant no.1, filed the application on 07.01.2009 contending that the plaint was barred by limitation because the relief claimed was of pre-emption of the suit property, which right had to be exercised within a period of six months as per Article 1566 read with Article 2309 of the Civil Code, 1867. It was specifically claimed that some of the plaintiffs were notified and asked to exercise their right of pre-emption within eight days but failed to do so, and only thereafter the sale deed dated 20.12.2007 was executed between defendant no.1 on one hand and defendants nos.2 and 3 on the other. The learned Trial Court after hearing the parties 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. The applicant before the High Court submitted that the suit as framed in the plaint was not tenable and the prayer clauses (a) and (b) could not be granted in view of the provisions of Article 1566 read with Article 2309 of the Civil Code. The applicant argued 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; 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 was clearly barred by law of limitation. The applicant further submitted that the prayers cannot be allowed or granted in favour of the plaintiffs since there is no mention about the shares of the co-owners as disclosed in the plaint. The High Court reserved judgment on 12 January 2023 and pronounced on 19 January 2023, but the final operative order is not contained in the available excerpt. The procedural history shows that the Civil Revision Application was filed against the trial court's refusal to reject the plaint, and the High Court heard detailed arguments from both sides, with the applicant's counsel being Mr V. R. Tamba and the respondents' counsel being Mr V. A. Lawande.
Headnote
A) Civil Procedure - Rejection of Plaint - Order 7 Rule 11(a) and (d) CPC - Limitation and Pre-emption - Civil Code, 1867, Articles 1566 and 2309 - Applicant contended plaint liable to be rejected as time-barred because pre-emption right must be exercised within six months and sale deed executed on 20.12.2007; Trial Court rejected application observing suit filed within six months from date of cause of action; High Court heard revision but final decision not included in available text (Paras 1-6).
Issue of Consideration
Whether the plaint in a pre-emption suit is barred by limitation under Article 1566 read with Article 2309 of the Civil Code, 1867 and liable to be rejected under Order 7 Rule 11(a) and (d) CPC.
Law Points
- Pre-emption right under Article 1566 read with Article 2309 of Civil Code
- 1867 must be exercised within six months
- Suit filed within six months from date of cause of action not barred by limitation
- Order 7 Rule 11(a) and (d) CPC rejection of plaint requires plaint to disclose no cause of action or barred by law
