Case Note & Summary
The appellant, Mrs. Sicily Varghese Kadamthottu, filed a suit for specific performance against the respondents, who were promoters under the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management & Transfer) Act, 1963 (MOFA). The suit concerned Flat No.25 in Building No.2, Radha-krishna Nagar, Andheri (East), Bombay. The trial court rejected the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 (CPC) on the ground that the suit was barred by limitation, and passed a deemed decree. The appellant challenged this order in the High Court. The High Court held that the trial court erred in rejecting the plaint after framing issues, as the power under Order 7 Rule 11(d) must be exercised based solely on the averments in the plaint, not on the defence or after issues are framed. The court further held that the question of limitation is a mixed question of law and fact and cannot be decided at the stage of rejection of the plaint. The appeal was allowed, the deemed decree was quashed, and the suit was restored to the file of the trial court for disposal in accordance with law.
Headnote
A) Civil Procedure - Rejection of Plaint - Order 7 Rule 11(d) CPC - Plaint cannot be rejected after framing of issues - The trial court fell in error by rejecting the plaint after framing issues, as the power under Order 7 Rule 11(d) must be exercised based solely on plaint averments, not on defence or after issues are framed - Held that the deemed decree is liable to be set aside (Paras 2, 4). B) Limitation - Specific Performance - Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management & Transfer) Act, 1963 - Suit for specific performance of agreement to sell flat - The question of limitation is a mixed question of law and fact and cannot be decided at the stage of rejection of plaint under Order 7 Rule 11(d) - Held that the suit is not barred by limitation based on plaint averments (Paras 5-6).
Issue of Consideration
Whether the trial court could reject the plaint under Order 7 Rule 11(d) CPC after framing issues, and whether the suit for specific performance was barred by limitation under the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management & Transfer) Act, 1963
Final Decision
Appeal allowed. The deemed decree dated 22nd December, 2005 passed in Suit No.3049 of 1995 is quashed and set aside. The suit is restored to the file of the trial court for disposal in accordance with law.
Law Points
- Order 7 Rule 11(d) CPC
- rejection of plaint after framing issues is impermissible
- limitation for specific performance under MOFA
- plaint averments alone to be considered
