With regard to the next contention of Shri Sudin Usgaonkar to
the effect that relief sought by the appellant is barred under Section
41(j) of the Specific Relief Act, I find that the said aspect cannot be a
ground to reject the plaint under Order 7 Rule 11 of the Civil
Procedure Code. The fact as to whether respondent no.1 has any
personal interest in the disputed area is something which will have to
be adjudicated by the learned Judge on merits. Merely on the basis of
such averments it is not open to the Court to reject the plaint under
Order 7 Rule 11 of the Civil Procedure Code as the suit cannot be said
to be barred especially as the respondent no.1 also claims some
interest in the suit property. Though Shri Sudin Usgaonkar may be
justified to contend that the lower appellate Court has not dealt with
the said aspect in view of what has been held herein I find no
justification to interfere in the impugned judgment.
IN THE HIGH COURT OF BOMBAY AT GOA
APPEAL FROM ORDER NO.31 OF 2011
Mr. Joaquim L. Dias,
V/s
Mr. Baptist Coelho,
CORAM : F.M. REIS, J.
DATE : 21
st
JUNE, 20122
CITATION;2012(6)MH.L.J 929
2. The above appeal challenges the order passed by the lower
appellate Court dated 30/10/2010 in Regular Civil Appeal
No.134/2009 whereby the appeal preferred by the respondent no.1
challenging the order passed by the learned trial Judge rejecting the
plaint filed by the said respondent came to be allowed.
3. Shri Sudin M.S. Usgaonkar, the learned Counsel appearing for
the appellants has vehemently argued that according to the appellants
the plaint filed by the respondent no.1 is to be rejected under Order 7
Rule 11 of the Civil Procedure Code on two counts. It is the
contention of the learned Counsel that the plaint does not disclose any
cause of action and further the suit is barred by Section 41(j) of the
Specific Relief Act. The learned Counsel further pointed out that
respondent no.1 is merely a contractor and according to him he has no
personal interest in the suit property. The learned Counsel has taken3
me through the plaint and pointed out that there are no averments
made therein as against the appellants which discloses any cause of
action and, as such, the plaint ought to have been rejected. The
learned Counsel has taken me through the impugned judgment passed
by the lower appellate Court and pointed out that the lower appellate
Court has totally misconstrued the submissions that the suit filed by
respondent no.1 was barred by law of limitation, when no such
contention was raised by the appellant. The learned Counsel further
pointed out that in view of the erroneous finding given by the lower
appellate Court the impugned judgment deserves to be quashed and
set aside.
4. On the other hand, Shri S.D. Lotlikar, the learned Senior
Counsel appearing for respondent no.1 has supported the impugned
judgment. The learned Senior Counsel has taken me through the
specific pleadings in the plaint and pointed out that there are
averments therein to the effect that the appellants were not entitled to
grant any permission to the respondents no.2 & 3 to put up a mobile
tower over the suit building. The learned Senior Counsel further
pointed out that though respondent no.1 was originally a contractor it
is not in dispute that respondent no.1 constructed the suit building and4
as per the terms of agreement some part of the built up area was
allotted to respondent no.1. The learned Senior Counsel has further
pointed out that the appeal has no merits and the same deserves to be
rejected.
5. I have carefully considered the submissions of the learned
Counsel and perused the records. Dealing with the contentions of
Shri Sudin Usgaonkar, the learned Counsel appearing for the
appellants that the plaint does not disclose any cause of action, on
minute examination of the plaint specially paras 10,14,17 and other
averments made in the remaining paras it appears that the case of the
respondent no.1 is that according to the respondent the disputed
permission granted to put up a mobile tower on the terrace of the suit
building is unauthorised. The respondent no.1/plaintiff who claimes
some right thereon, which is otherwise disputed by the appellants is a
matter which will have to be adjudicated in the suit after hearing the
parties in accordance with law.
6. Be that as it may, on bare perusal of the plaint at the said paras,
I find that the contention of Shri Sudin Usgaonkar, that the plaint does
not disclose cause of action against the appellants cannot be accepted.5
The lower appellate Court was as such justified to pass the impugned
order on that count.
7. With regard to the next contention of Shri Sudin Usgaonkar to
the effect that relief sought by the appellant is barred under Section
41(j) of the Specific Relief Act, I find that the said aspect cannot be a
ground to reject the plaint under Order 7 Rule 11 of the Civil
Procedure Code. The fact as to whether respondent no.1 has any
personal interest in the disputed area is something which will have to
be adjudicated by the learned Judge on merits. Merely on the basis of
such averments it is not open to the Court to reject the plaint under
Order 7 Rule 11 of the Civil Procedure Code as the suit cannot be said
to be barred especially as the respondent no.1 also claims some
interest in the suit property. Though Shri Sudin Usgaonkar may be
justified to contend that the lower appellate Court has not dealt with
the said aspect in view of what has been held herein I find no
justification to interfere in the impugned judgment.
8. With regard to the next contention that point of limitation was
not an issue before the lower appellate Court, I find that the said
contention is justified. In any event, merely because such finding has6
been rendered does not in any way call for interference in the
impugned judgment by this Court.
9. Hence, I find no merit in the above appeal and the same
deserves to be rejected . It is made clear that any observation made in
the impugned order as well in the order passed herein shall not
influence the learned Judge while deciding the suit on merits. The
appeal stands dismissed accordingly.
F.M. REIS, J.
NH/-
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