Case Note & Summary
The appellant, Kishorbhai Premchand Shah, filed a civil suit in the City Civil Court, Mumbai, seeking a declaration of ownership and permanent injunction in respect of Room No. 3, Mahavir Building, Matunga, Mumbai. The plaintiff claimed to be a transferee and occupant of the premises based on an agreement for sale dated 31-03-1957 entered into between his predecessor and the defendant Trust (Hirji Bhojraj & Sons Kutchi Oswal Jain Chhatralay Trust). The agreement contained clause 10 which provided for re-conveyance of the premises to the Trust upon payment of a specified sum. On 04-07-1988, the Trust issued a notice to the plaintiff offering to re-acquire the suit premises under clause 10 by tendering a cheque of Rs. 1575/- and offering monthly tenancy at Rs. 50/-. The plaintiff rejected the offer, disputing the Trust's right under clause 10. Subsequently, in 2009, the Trust issued a public notice to dispose of its property, prompting the plaintiff to file the suit in 2010. The defendants filed an application under Order 7 Rule 11(d) CPC seeking rejection of the plaint on the ground that the suit was barred by limitation. The trial court allowed the application and rejected the plaint. The plaintiff appealed to the Bombay High Court. The High Court held that clause 10 of the agreement was a right of re-conveyance and not a contract for sale. The cause of action for the suit arose in 1988 when the Trust issued the notice to enforce clause 10, and the suit filed in 2010 was clearly beyond the period of limitation. The court found no merit in the appeal and dismissed it, affirming the trial court's order.
Headnote
A) Civil Procedure - Rejection of Plaint - Order 7 Rule 11(d) CPC - Limitation - Suit based on clause 10 of agreement for sale dated 31-03-1957 seeking declaration of ownership and injunction - Clause 10 was a right of re-conveyance, not a contract for sale - Cause of action arose in 1988 when Trust issued notice to enforce clause 10 - Suit filed in 2010 was clearly barred by limitation - Held that the trial court correctly rejected the plaint as barred by limitation (Paras 1-5).
Issue of Consideration
Whether the plaint was liable to be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 as barred by limitation.
Final Decision
The appeal is dismissed. The order dated 22-10-2011 passed by the City Civil Court, Mumbai rejecting the plaint under Order 7 Rule 11(d) CPC is confirmed.
Law Points
- Order 7 Rule 11(d) CPC
- Limitation Act
- 1963
- Contract for Sale
- Re-conveyance
- Plaint Rejection
Case Details
2013 LawText (BOM) (09) 111
First Appeal No. 729 of 2013
Mr. Yatin Rasiklal Shah for appellant; Mr. Prantik Majumdar i/b M/S. M. P. Savla & Co. for respondents
Kishorbhai Premchand Shah
Hirji Bhojraj & Sons Kutchi Oswal Jain Chhatralay Trust and Others
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Nature of Litigation
Civil appeal against rejection of plaint under Order 7 Rule 11(d) CPC.
Remedy Sought
Appellant sought to set aside the order rejecting the plaint and to allow the suit to proceed.
Filing Reason
The trial court rejected the plaint as barred by limitation.
Previous Decisions
The trial court (City Civil Court, Mumbai) rejected the plaint in Civil Suit No. 1711 of 2010 by order dated 22-10-2011 below Ex. 6.
Issues
Whether the plaint was barred by limitation and liable to be rejected under Order 7 Rule 11(d) CPC.
Submissions/Arguments
Appellant argued that the suit was not barred by limitation as the cause of action arose in 2009 when the Trust issued a public notice to dispose of property.
Respondents argued that the cause of action arose in 1988 when the Trust issued notice to enforce clause 10, and the suit filed in 2010 was beyond limitation.
Ratio Decidendi
Clause 10 of the agreement for sale dated 31-03-1957 was a right of re-conveyance, not a contract for sale. The cause of action for the suit arose in 1988 when the Trust issued notice to enforce clause 10. The suit filed in 2010 was clearly barred by limitation, and the plaint was rightly rejected under Order 7 Rule 11(d) CPC.
Judgment Excerpts
The appeal is directed against the order dated 22-10-2011 passed in Civil Suit No. 1711 of 2010 below Ex. 6 passed by the Learned City Civil judge , City Civil Court Mumbai rejecting the plaint under order 7 Rule 11 (d) of the Code of Civil Procedure.
According to the Plaintiff there was a clause 10 of re-conveyance in earlier written agreement for Sale dated 31-03-1957 between Occupant Kishorbhai Premchand Shah and charitable Trust (Defendant no. 1).
The Trust issued notice to the Plaintiff on 04-07-1988 to enforce clause 10 of the agreement offering sum of Rs 1575/- by cheque and sought re-acquisition of the suit premises on the basis of clause 10 and offered monthly tenancy of the suit premises at the rate of Rs 50/- to the Plaintiff.
The Plaintiff rejected the offer of tenancy, disputing the right of the Trust under clause 10 of the Agreement dated 31-03-1957 to re-conveyance of suit premises.
It is case of the Plaintiff that plaintiff took objection after the Trust decided to dispose off it’s property by a Public notice dated 28-01-2009.
Procedural History
The appellant (original plaintiff) filed Civil Suit No. 1711 of 2010 in the City Civil Court, Mumbai seeking declaration of ownership and injunction. The defendants filed an application below Ex. 6 under Order 7 Rule 11(d) CPC for rejection of the plaint. The trial court allowed the application and rejected the plaint by order dated 22-10-2011. The plaintiff appealed to the Bombay High Court by filing First Appeal No. 729 of 2013.
Acts & Sections
- Code of Civil Procedure, 1908: Order 7 Rule 11(d)
