Case Note & Summary
The appellant, Satish Talakchand Shah, filed a civil suit (Civil Suit No. 1708 of 2010) in the City Civil Court, Mumbai, seeking declaration of ownership and injunction against the respondents, Hirji Bhojraj & Sons Kutchi Oswal Jain Chhatralay Trust and its trustees. The plaintiff claimed to be the transferee, occupant, and owner of Room No. 18, Mahavir Building No. 2, Matunga, based on an agreement of transfer dated 16-10-1981 from the original allottee Dr. Champaklal Shah. The trust had issued a notice on 04-07-1988 seeking to enforce clause 10 of an earlier agreement for sale dated 31-03-1957, offering Rs. 1575/- and monthly tenancy at Rs. 50/- to re-acquire the premises. The plaintiff rejected the offer, disputing the trust's right under clause 10. Subsequently, the trust published a public notice on 28-01-2009 to dispose of the property, to which the plaintiff objected by letter dated 21-02-2009. The trust denied the plaintiff's claims. The trial court rejected the plaint under Order VII Rule 11(d) CPC, holding the suit barred by limitation. The High Court allowed the appeal, setting aside the order, and held that the plaint raises triable issues regarding the plaintiff's transferee rights and the validity of the re-conveyance clause, and that the question of limitation is a mixed question of law and fact requiring trial. The court restored the suit to the file of the City Civil Court for disposal in accordance with law.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11(d) CPC - Limitation - The court considered whether the plaint could be rejected as barred by limitation at the threshold. Held that the question of limitation is a mixed question of law and fact requiring trial, and the plaint cannot be rejected unless it is manifestly barred from the face of the plaint. (Paras 1-5) B) Property Law - Re-conveyance Clause - Agreement of Sale - The plaintiff claimed as transferee under an agreement of transfer dated 16-10-1981 from the original allottee, and disputed the trust's right to enforce a re-conveyance clause (clause 10) in the 1957 agreement. Held that the plaintiff's rights and the validity of the re-conveyance clause are triable issues. (Paras 2-4) C) Limitation Act - Bar of Suit - Order VII Rule 11(d) - The trust's notice dated 04-07-1988 and the plaintiff's objection in 2009 raised factual disputes regarding the starting point of limitation. Held that the suit cannot be dismissed as barred by limitation without evidence. (Paras 3-5)
Issue of Consideration
Whether the plaint was liable to be rejected under Order VII Rule 11(d) CPC on the ground that the suit was barred by limitation or otherwise did not disclose a cause of action.
Final Decision
The appeal is allowed. The impugned order dated 22-10-2011 passed by the City Civil Court, Mumbai, below Ex. 6 in Civil Suit No. 1708 of 2010 is set aside. The suit is restored to the file of the City Civil Court, Mumbai, for disposal in accordance with law. No order as to costs.
Law Points
- Order VII Rule 11 CPC
- Plaint rejection
- Triable issues
- Re-conveyance clause
- Transferee rights
- Agreement of sale
- Charitable trust
- Limitation
