I have considered the submissions advanced on behalf of the
Plaintiff and the Defendants. Admittedly, the Defendant No.1 herein filed a suit
against the Plaintiff herein before the Small Causes Court, Mumbai being T.E. &
R. Suit No. 119/177 of 2008 seeking a decree against the Plaintiff herein for
eviction on the ground that the Plaintiff was not entitled to any protection under
Section 3 (1) (b) of the Maharashtra Rent Control Act, 1999. The Plaintiff
herein, being the Defendant in the suit before the Small Causes Court, has not
filed any counter claim therein. In that suit, the Plaintiff herein has only made a
mention that there was a proposal for the sale of the suit property to the Plaintiff
herein by the predecessor in title of the Plaintiff in the Small Causes Court (i.e.
Defendant Nos. 2, 3 and 4 herein) and hence according to it, the sale of the suit
property to the Defendant No.1 herein by its predecessors to title itself is illegal
and no title passes to it pertaining to the suit building. It also relied on an offer
made by Defendant No.1 herein dated 12th December, 2007.
21) Section 14 of Limitation Act reads thus:
“14. Exclusion of time of proceeding bona fide in Court
without jurisdiction. (1) In computing the period of
limitation for any suit the time during which the plaintiff has
been prosecuting with due diligence another civil proceeding,
whether in a court of first instance or of appeal or revision,
against the defendant shall be excluded, where the proceeding
relates to the same matter in issue and is prosecuted in good
faith in a court which, from defect of jurisdiction or other
cause of a like nature, is unable to entertain it.”
The Hon'ble Supreme Court in the case of Madhavrao Narayanrao
Patwardhan(supra) has in paragraph 6 of its Judgment after quoting clause (1)
of Section 14 of the Act, interpreted the said clause of Section 14 as follows:
“ In order to bring his case within the section quoted above,
the Plaintiff has to show affirmatively:
that he had been prosecuting with due diligence the previous
suit in the court of the Munsif at Miraj,
(1) that the previous suit was founded upon the same cause of
action,
(2) that it had been prosecuted in good faith in that court, and,
(3) that the court was unable to entertain that suit on
account of defect of jurisdiction or other cause of a like nature.”
23) In the case of Somshikharswami Shidlingswami vs. Shivappa Mallappa Hosmani AIR 1924 Bom 39
this Court inter alia held that in the facts of that case, Section 14 of
the Indian Limitation Act did not apply since the Plaintiff was not prosecuting
any civil proceeding but was merely defending the suit brought against him.
Furthermore, this Court in Narayan Jivaji Patel and Anr. V Gurunathgouda
Khandappagouda Patil and Anr. ILR (1939) Bom 173
following the decision in Somshikharswami
Shidlingswami (supra) held that since the appellant in the matter was a defendant in the other suit, he was not prosecuting a suit or a civil proceeding at
the time. Merely defending a suit is not and cannot amount to prosecution of a
suit. The terms “plaintiff” and “defendant” have a well known technical
meaning. The legislature must be deemed to be aware of that meaning when
they chose to allow the benefit of the time occupied by an earlier proceeding
only to the plaintiff as against the defendant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 1234 OF 2012
IN
SUIT NO. 1939 OF 2012
In the matter between:
Bharat Petroleum Corporation Ltd. vs. M/s. Hill Top Consultants Pvt. Ltd. and others
CORAM: S.J. KATHAWALLA, J.
DATE: MAY 10, 2013
1) By this Chamber Summons, the Plaintiff seeks amendment to the
Plaint in terms of ScheduleA annexed to the Chamber Summons.
2) The Plaintiff has only pressed for allowing the Plaint to be
amended in terms of clause (ii) of ScheduleA to the Chamber Summons. The
amendment sought to be introduced by the Plaintiff is therefore to the effect
that in computing the period of limitation, the period during which the suit filed
by the Defendant No.1 in the Small Causes Court at Bombay, being T.E. & R.
Suit No. 119/177 of 2008, was prosecuted i.e. from 1st October 2008 to 30th
September 2010 and the period during which the Appeal was prosecuted from
24th December 2010 to 22nd February 2012, ought to be excluded.
3) Briefly set out the facts in the matter are as under:
4) The Plaintiff – Bharat Petroleum Corporation Limited is a Public
Sector Corporation owned by the Government of India. Defendant No. 1 – M/s.
Hill Top Consultants Pvt. Ltd. has acquired/purchased the suit property from
Defendant Nos. 2 to 4. Defendant Nos. 2 to 4 were the original landlords of the
Plaintiff and were the Trustees of Popatlal Vora Inheritance Trust.
5) In the year 2000, the Plaintiff was admittedly occupying 8 flats
(6765 sq.ft. Carpet area) as tenants in a two storey building known as Vora
Building situated on Plot No. 32, 3rd Road, Khar, Mumbai (“the suit property”).
At that time, in the suit property there were in all 10 flats, and 13 shops
situated on the ground floor. By letters dated 20th June 2000 and 26th February
2001 addressed to the Plaintiff, Defendant Nos. 2 to 4 (the then landlords)
expressed their intention to sell the entire building along with the flats and
shops to the Plaintiff. In the meeting held on 11th January, 2002 between the
Plaintiff and Defendant Nos. 2 to 4, it was agreed as follows:
(i) The then landlords, Defendants Nos. 24 (Voras), shall sell and the
Plaintiff (BPCL) shall purchase all the 10 flats at a total price of Rs. 1.82 crores ;
(ii) BPCL shall also bear the Registration / Stamp Duty charges for the
said purchase, in addition to the purchase price;
(iii) Full payment of the purchase price will be made upon the execution
and registration of the sale deed, in a form drafted by BPCL;
(iv) The said purchase would be subject to (a) a Clear Title being
provided by the Voras to the satisfaction of BPCL and (b) approval of BPCL
Management for the said proposal.
(v) The Voras have also offered to sell the entire suit property i.e.
including the shops on an 'as is where is' basis if the purchase price is increased
to Rs. 1.95 crores;
(vi) Thus BPCL can exercise the choice of either purchasing all the 10
flats minus the shops at Rs. 1.82 crores or the entire suit property (including the
13 shops) at Rs. 1.95 crores.
6) The Voras and BPCL had one more meeting on 6th February 2003
and in the said meeting the Voras and BPCL agreed as follows:
(i) The Voras shall sell and BPCL shall purchase all the 10 flats, the 13
shops and all the rights in the suit property at a total price of Rs. 1.95 crores;
(ii) BPCL shall also bear the Registration / Stamp Duty charges for the
said purchase, in addition to the purchase price;
(iii) Full payment of the purchase price will be made upon the execution
and registration of sale deed, in a form drafted by BPCL;
(iv) The said purchase would be subject to (a) a Clear title being
provided by the Voras to the satisfaction of BPCL and (b) approval of BPCL
Management for the said proposal.
(v) The offer from the Voras was valid for a period of four months
from the date of the meeting i.e. 6th February 2003.
7) The Voras by an Indenture of Conveyance dated 29th September,
2006, sold and conveyed the entire suit property to the Defendant No. 1. The
Plaintiff admittedly started paying rent to the new landlords i.e. Defendant No. 1
in respect of the 8 flats in its possession.
8) By a letter dated 12th December 2007 addressed by the new
landlords (Defendant No.1) to BPCL, Defendant No.1 recorded that BPCL is
occupying 8 flats on tenancy basis in the said Vora Building at Khar. The
condition of the building has deteriorated and therefore Defendant No.1 has
decided to approach the tenants for their cooperation to redevelop the suit
property. By the said letter, Defendant No.1 made an offer to BPCL to provide
80 per cent of the carpet area occupied by them on ownership basis without any
charge in the proposed new building and to further provide 20 per cent of the
usable area in the form of flower bed and dry area, along with ‘A’ class
amenities as per AnnexureA thereto. It was also provided in the said letter
that to make the project viable, Defendant No.1 will look for contribution of Rs.
800/ per sq.ft. of built up area from the tenants, towards construction cost and
the said construction would be completed within 30 to 36 months after getting
permission from BMC and other authorities and all the tenants giving vacant
possession of their premises. It was further clarified that no temporary
alternative accommodation would be provided by the Defendant No.1 to the
tenants during the period of redevelopment. By the said letter, BPCL was called
upon to consider the proposal of the Defendant No.1 and inform their views to
the Defendant No.1.
9) The Advocates for Defendant No.1 ( landlords of Vora Building),
addressed a letter dated 28th August 2008 to BPCL, inter alia recording therein
that as per the provisions of Section 3 (1) (b) of the Maharashtra Rent Control
Act, 1999, BPCL were no longer protected tenants and terminated the monthly
tenancy of BPCL and further called upon BPCL to quit, vacate and hand over
peaceful and vacant possession of the flats occupied by BPCL, upon the expiry
of the month following the month in which the notice was received by BPCL.
10) BPCL by its letter dated 30th September 2008, responded to the
notice received from the Advocates for the Defendant No.1. In its reply letter,
BPCL contended that Defendant Nos. 2, 3 and 4 had sold the flats in favour of
Defendant No.1 vide registered conveyance dated 29th September 2006 without
giving BPCL, as tenant having first right, an opportunity to purchase the
property. Hence the sale of the suit property in favour of Defendant No.1 is
infructuous, null and void and cannot stand the test of law. In the said letter
BPCL has categorically admitted that in the past Defendant Nos. 2 to 4 had
offered BPCL a proposal to redevelop the said Vora Building and the Defendant
No. 1 vide its letter dated 12th December 2007 had offered a proposal to
redevelop the said Vora building on terms and conditions mentioned in the said
letter and that the proposal of Defendant No.1 was under active consideration
of BPCL. BPCL alleged that hence Defendant No.1 could not shirk its
contractual obligation unilaterally and seek eviction of BPCL from the said Vora
Building without any valid grounds whatsoever.
11) The Defendant No.1 by their Advocate's letter dated 28th
November 2008 denied and disputed the contents of BPCL's letter dated 30th
September 2008 and inter alia clarified that the offer made by Defendant No.1
by their letter dated 12th December 2007 was without prejudice to the rights
and contentions of the parties and the same stood revoked/withdrawn. By the
said letter Defendant No. 1 stated that they were proceeding further to enforce
their rights against BPCL.
12) Defendant No.1 thereafter filed T.E. & R. Suit No. 119/177 of
2008 before the Small Causes Court at Bandra, Mumbai seeking eviction of
BPCL on the ground that as per Section 3 (1) (b) of the Maharashtra Rent
Control Act, 1999, BPCL was not entitled to any protection under the Act and
that their tenancy had been terminated by the Defendant No.1 vide their
Advocate’s letter dated 28th November, 2008. The suit was decreed in favour of
Defendant No.1 and against the Plaintiff on 30th September 2010. The Plaintiff
preferred an Appeal against the judgment dated 30th September 2010 on 24th
December 2010 which was dismissed on 22nd February, 2012.
13) The Plaintiff thereafter filed Civil Revision Application before
this Court which has been dismissed by this Court. However, the Plaintiff is
given time to vacate the 8 flats occupied by it upto 30th May 2013.
14) In the meantime, on 10th June 2012, the Plaintiff filed the present
suit against the Defendants for a declaration that the Deed of Conveyance dated
29th June 2006 executed by Defendant Nos. 2,3 and 4 in favour of Defendant
No.1 is illegal, invalid, null and void and be cancelled/determined/quashed and
set aside and that Defendant Nos. 1 and 2 to 4 be directed to specifically
perform the Agreement in terms of the Minutes dated 11th January 2002 and 6th
February 2003 or in the alternative, Defendant No.1 be directed to specifically
perform the contract in terms of the letter dated 12th December 2007.
15) In the Plaint filed by the Plaintiff on 10th June 2012, it is stated
by the Plaintiff that the suit filed is within limitation and is not barred by
limitation. Paragraphs 31 and 32 of the Plaint are relevant and reproduced
hereunder:
“31. The Plaintiffs say and submit that the Suit is filed within
limitation and is not barred by limitation. The Plaintiffs came to
occupy the suit premises since 1952 and thereafter from time to
time the parties executed the Indenture of Leas subsequently. The
Defendant Nos. 2 to 4 as a Trustee of the Popatlal Vora
Inheritance Trust by their letter dated 20.6.2000, inter alia
referred to the discussions regarding outright sale of the entire
building to the Plaintiffs. This was followed by a meeting held on
11.1.2002 wherein the issue regarding purchase of the suit
property was discussed and certain Agreement (s) were arrived
at between the parties. The meeting dated 11.1.2002 was
preceded forwarded by the letter dated 26.2.2001 of the said
Popatlal Vora Inheritance Trust to the Plaintiffs wherein it is
clearly recorded that it was proposed that the entire property be
sold to the Plaintiffs rather than any short term lease
proposition. Subsequent thereto, a further meeting was held on
6.2.2003 wherein there were further discussions between the
parties as regards issue of purchase of suit property and the
Agreement arrived at therein was recorded in the minutes.
Pursuant to that Agreement, the sale of the suit property was to
be completed in favour of the Plaintiffs, however, the Sellers did
not take necessary steps to comply with their obligations, which
had to be met before completion of the sale. The purported
conveyance of the property by the trustees of the said Popatlal
Vora Inheritance Trust in favour of the Defendant No. 1 was
with full knowledge of the aforesaid Agreement arrived at with
the Plaintiffs. The Defendants No.1 being aware of the above
position, in fact by their letter dated 12.12.2007 made an offer
to carry out redevelopment of the property and provide “80 % of
the carpet area presently occupied by you (Plaintiffs) on
ownership basis without any change in the proposed new
building” We Defendant No.1 will additionally provide you “20%
of the usable area in the flower bed and dry area.....”
32. Thereafter, in the proceedings filed by the Defendant No.1
in the Small Causes Court, at Bombay, for eviction of the
Plaintiffs allegedly as tenants/lessees the Defendant No.1 has
lead evidence of the Defendant No. 3 as well as one Apoorva
Pravinkumar Desai, being a Director of the Defendant No.1.
During his cross examination on 3.2.2010, the said Apoorva
Pravinkumar Desai, while admitting to have been made an offer
to the Plaintiffs for providing permanent alternative
accommodation on the ownership basis in the new building
proposed to be developed by them for the first time claimed that
the Defendant No.1 had withdrawn the said offer. Pertinently
there is no letter/correspondence prior trust whereby Defendant
No.1 had withdrawn the said proposal. During the said
evidence, the said witness of the Defendant No.1 also feigned
ignorance as to the Agreement with the said Popatlal Vora
Inheritance Trust to sell the suit property to the Plaintiffs.
Shortly thereafter, i.e. during the course of the evidence in the
said Suit on 28.3.2010, the Defendant No.3 (a trustee of the
said Popatlal Vora Inheritance Trust) in his cross examination
admitted the meetings as also the discussions for purchase of the
suit property. He also admitted that “ I have not written any
letter to the Defendants specifically about cancellation of offer”.
It is thus clear that proper to the evidence/statement made by
the said Apoorva Pravinkumar Desai on 3.2.2010, on behalf of
the Defendant No.1, there was no withdrawal/refusal by the
Defendants of the Agreement to sell the suit property to the
Plaintiffs. In their background, the Plaintiffs are compelled to
file the present suit to seek specific performance of the agreement
in terms of the minutes of meeting held on 11.1.2002 and
6.2.2003. The suit is therefore filed within limitation.
16) In the above suit the Defendant No. 1 on 27th July 2012 took out
Notice of Motion No. 370 of 2013 praying for dismissal of the suit under Order
VII Rule 11 of the Code of Civil Procedure, 1908, on the ground that the Suit is
barred by the law of limitation. The Plaintiff thereafter in September 2012 took
out the present Chamber Summons.
17) By the present Chamber Summons, the Plaintiff wants to carry out
the amendment to the Plaint and submit that the time taken for prosecuting the
suit before the Small Causes Court at Mumbai and thereafter prosecuting the
Appeal from the order of the Trial Court be excluded under Section 14 of the
Limitation Act, 1964 (“the Act”). Mr. Pradeep Sancheti, the Learned Senior
Advocate appearing for the Plaintiff in support of the Chamber Summons,
submits that Defendant No.1 had filed a suit against the Plaintiff in the Small
Causes Court, Mumbai, being T.E. & R. Suit No. 119/177 of 2008 where a
decree of eviction was sought against the Plaintiff. The Plaintiff had appointed
Mr. K.A. Mankad, Advocate and has been prosecuting the suit with due diligence
against the Defendant No.1 herein (Plaintiff therein). In the said proceedings,
the Plaintiff has also filed a written statement annexing the relevant documents
and contended that it had occupied the premises under an Agreement for Sale
as recorded in the minutes of meeting dated 11th January 2002 and 10th April
2003, as a prospective owner and not as monthly tenant and in the alternative
was also willing to accept the proposal for redevelopment made by Defendant
No. 1 hereto, which entitled the Plaintiff to become the owner of part of the suit
property. In the course of oral evidence the Plaintiff has also crossexamined the
Defendants and/or their witnesses on the above aspects. However, the Learned
Judge of the Small Causes Court decreed the suit and dismissed the case of the
Plaintiff, with the observation that the Plaintiff had not filed a suit for specific
performance. The said decree came to be passed on 30th September 2010. The
said decree was challenged before the Appellate Bench of the Small Causes
Court by Appeal No. 6 of 2011 filed on 24th December 2010. In the said Appeal,
the Plaintiff herein referred to the writing (s) executed between the parties and
reiterated its right to acquire the property under those documents, which
according to it amounted to an Agreement for Sale. The Appellate Bench
dismissed the Appeal vide order dated 22nd February 2012 and observed that the
Plaintiff herein not having filed a suit for specific performance cannot take such
a stand. Mr. Sancheti therefore submitted that the Plaintiff was acting bona fide
under legal advice and was prosecuting the earlier civil proceedings with due
diligence on the same subject matter. In the earlier proceedings, the Plaintiff's
plea was not entertained by reason of defect of jurisdiction, or cause of like
nature, and therefore in computing the period of limitation, the said period i.e.
from 1st October 2008 to 30th September 2010 during the pendency of the suit
and from 24th December 2010 to 22nd February 2012 during the pendency of the
Appeal, ought to be excluded.
18) Relying on the decision in Madhavdas Parmanand vs. Jan Mahomed Ghulam Hyder AIR (29) 1942 Sind 37
, Mr. Sancheti submitted that Section 14 of the Act does not
require that the earlier proceedings must have been a suit, nor does it require
that it must have been initiated by the Plaintiff who is subsequently seeking
advantage from this Section. Mr. Sancheti also relied on the decision of the
Hon'ble Supreme Court in Rajesh Kumar Aggarwal and others vs. K.K. Modi and others AIR 2006 SC 1647
, wherein it is held that while considering whether an application for
amendment should or should not be allowed, the Court should not go into the
correctness or falsity of the case in the amendment. Likewise, it should not
record a finding on the merits of the amendment and the merits of the
amendment sought to be incorporated by way of an amendment are not to be
adjudged at the stage of allowing the prayer for amendment. Mr. Sancheti also
relied on Order VII Rule 6 to submit that the proviso in Rule 6 provides that the
Court may permit the Plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the
grounds set out in the plaint. Mr. Sancheti therefore submits that the Chamber
Summons be allowed as prayed.
19) Mr. D.H. Mehta, learned Advocate appearing for the Defendants,
submitted that the Plaintiff was not prosecuting the suit as Plaintiff before the
Small Causes Court in T.E. & R. Suit No. 119/177 of 2008 but was only as a
Defendant therein. He submitted that therefore the question of Section 14 of the
Act being applicable to the Plaintiff in the present suit does not arise. In support
of his submission, Mr. Mehta relied on the decisions of the Hon'ble Supreme
Court in Madhavrao Narayanrao Patwardhan vs. Ram Krishna Govind Bhanu and
others1
, and in Zafar Khan and others vs. Board of Revenue, U.P. and others2
. Mr.
Mehta also relied on the decision in the case of Ganesh Rai and another vs. First
Additional District Judge, Ghazipur and others3
wherein it is held that it is
incumbent upon the Court to see that amendment besides being necessary for
the purpose of determining the real matter in controversy, must not cause
injustice to the other side. Mr. Mehta submitted that apart from the fact that
the application seeking an amendment of the suit is not maintainable on the face
of it, seeking the present amendment is only an afterthought. The Plaintiff has
lost the matter before the trial Court as well as the Appellate Bench in the Small
Causes Court and has also lost the Civil Revision Application before this Court
1 AIR 1958 SC 767
2 AIR 1985 SC 39
3 AIR 1992 Allahabad 25
and has given an undertaking to this Court in the Civil Revision Application that
it shall vacate the premises on or before 30th May 2013, subject to the orders
being passed in this suit. Mr. Mehta submitted that therefore only to delay
giving up possession of the flats occupied by it, the Plaintiff has moved the
present application which will cause grave injustice and prejudice to the
Defendants, if allowed.
20) I have considered the submissions advanced on behalf of the
Plaintiff and the Defendants. Admittedly, the Defendant No.1 herein filed a suit
against the Plaintiff herein before the Small Causes Court, Mumbai being T.E. &
R. Suit No. 119/177 of 2008 seeking a decree against the Plaintiff herein for
eviction on the ground that the Plaintiff was not entitled to any protection under
Section 3 (1) (b) of the Maharashtra Rent Control Act, 1999. The Plaintiff
herein, being the Defendant in the suit before the Small Causes Court, has not
filed any counter claim therein. In that suit, the Plaintiff herein has only made a
mention that there was a proposal for the sale of the suit property to the Plaintiff
herein by the predecessor in title of the Plaintiff in the Small Causes Court (i.e.
Defendant Nos. 2, 3 and 4 herein) and hence according to it, the sale of the suit
property to the Defendant No.1 herein by its predecessors to title itself is illegal
and no title passes to it pertaining to the suit building. It also relied on an offer
made by Defendant No.1 herein dated 12th December, 2007. The Plaintiff
herein also relied on the minutes of the meeting held on 11th January 2002. In this context, the Appellate Bench of the Small Causes Court has, in its order,
observed that the Plaintiff has not filed any suit for specific performance against
the predecessor to title of the Defendant No.1 and therefore in the suit for
eviction filed by the Defendant No.1 herein it cannot take such stand. The stand
taken by the Plaintiff herein pertaining to the purported proposals/agreements
qua the sale of the suit property to the Plaintiff herein cannot be allowed.
21) Section 14 of the Act reads thus:
“14. Exclusion of time of proceeding bona fide in Court
without jurisdiction. (1) In computing the period of
limitation for any suit the time during which the plaintiff has
been prosecuting with due diligence another civil proceeding,
whether in a court of first instance or of appeal or revision,
against the defendant shall be excluded, where the proceeding
relates to the same matter in issue and is prosecuted in good
faith in a court which, from defect of jurisdiction or other
cause of a like nature, is unable to entertain it.”
The Hon'ble Supreme Court in the case of Madhavrao Narayanrao
Patwardhan(supra) has in paragraph 6 of its Judgment after quoting clause (1)
of Section 14 of the Act, interpreted the said clause of Section 14 as follows:
“ In order to bring his case within the section quoted above,
the Plaintiff has to show affirmatively:
that he had been prosecuting with due diligence the previous
suit in the court of the Munsif at Miraj,
(1) that the previous suit was founded upon the same cause of
action,
(2) that it had been prosecuted in good faith in that court, and,
(3) that the court was unable to entertain that suit on
account of defect of jurisdiction or other cause of a like nature.”
22) Again, the Hon'ble Supreme Court in Zafar Khan and others (supra) has,
after reproducing Section 14 (1) of the Act, interpreted the same in paragraph
11 of the judgment as under:
“In order to attract the application of Sec. 14 (1), the parties
seeking its benefit must satisfy the Court that : (i) that the
party as the Plaintiff was prosecuting another civil proceeding
with due diligence; (ii) that the earlier proceeding and the
later proceeding relate to the same matter in issue and (iii)
the former proceeding was being prosecuted in good faith in a
Court which, from defect of jurisdiction or other cause of a like
nature, is unable to entertain it”.
23) In the case of Somshikharswami Shidlingswami vs. Shivappa Mallappa
Hosmani1
this Court inter alia held that in the facts of that case, Section 14 of
the Indian Limitation Act did not apply since the Plaintiff was not prosecuting
any civil proceeding but was merely defending the suit brought against him.
Furthermore, this Court in Narayan Jivaji Patel and Anr. V Gurunathgouda
Khandappagouda Patil and Anr.2
following the decision in Somshikharswami
Shidlingswami (supra) held that since the appellant in the matter was a
1 AIR 1924 Bom 39
2 ILR (1939) Bom 173
defendant in the other suit, he was not prosecuting a suit or a civil proceeding at
the time. Merely defending a suit is not and cannot amount to prosecution of a
suit. The terms “plaintiff” and “defendant” have a well known technical
meaning. The legislature must be deemed to be aware of that meaning when
they chose to allow the benefit of the time occupied by an earlier proceeding
only to the plaintiff as against the defendant.
24) In the instant case, admittedly the Plaintiff herein was not prosecuting
the suit before the Small Causes Court, Mumbai i.e. T.E. & R. Suit No. 119/177
of 2008 as the Plaintiff therein but was only a Defendant in that suit. The suit
filed before the Small Causes Court by the Defendant No.1 herein was for
eviction of the Plaintiff herein on the ground that the Plaintiff was no longer
protected under the provisions of Section 3 (1) (b) of the Maharashtra Rent
Control Act, 1999. In the present suit, the Plaintiff has sought a declaration that
the Deed of Conveyance dated 29th June 2006 executed by and between
Defendant Nos. 2, 3 and 4 and Defendant No.1 is null and void and be set aside
and a decree of specific performance of the Agreement/writing dated 11th
January 2002 and 6th February, 2003 be granted in favour of the Plaintiff and
against the Defendants. Therefore, by no stretch of imagination can it be said
that the earlier proceedings and the latter proceedings relate to the same matter
in issue. The Small Causes Court has entertained T.E. & R. Suit No. 119/177 of
2008 filed by the Defendant No.1 against the Plaintiff herein and has disposed
it of finally by passing a decree in favour of Defendant No.1 herein. The
Appellate Court has confirmed the decree passed by the trial Court. This Court
has dismissed the Civil Revision application filed therefrom. Therefore, it cannot
be accepted that the earlier suit suffers from defect of jurisdiction or other cause
of a like nature and the Court in which the earlier suit was filed was unable to
entertain it. In view thereof, not a single ingredient/requirement of Section 14
(1) of the Act as interpreted by the Hon'ble Supreme Court is applicable to the
present case.
25. I am therefore satisfied that the amendment sought by the Plaintiff herein,
on the face of it, is untenable. Immediately upon filing of the present suit by the
Plaintiff, the Defendant No. 1 took out a Notice of Motion seeking dismissal of
suit under Order VII Rule 11 of the Code of Civil Procedure, 1908, on the ground
that the suit is barred by the law of limitation. In view thereof the Plaintiff
herein thereafter took out the present Chamber Summons seeking to amend the
plaint and contend that the Plaintiff who was admittedly a Defendant in the
eviction suit before the Small Causes Court at Bombay, is entitled to seek
exclusion of the period during which he prosecuted the suit (as a defendant)
and also the period during which he was prosecuting the Appeal. It is true that
the Court should not go into the merits of the amendments sought. However it
cannot be that even if the amendment sought is unstatable and on the face of it
untenable and is nothing but an abuse of the process of the Court, sought with
the intention of delaying Court proceedings causing injustice to the other side,
as in the present case, the same should be allowed. Such an interpretation
would invite absurd consequences. As submitted by Mr. Mehta, the learned
Advocate appearing for the Defendants, the present amendment is sought only as
an afterthought to delay the process of handing over the possession of the suit
flats by the Plaintiff to Defendant No. 1, and apart from the fact that the present
Chamber Summons is on the face of it untenable, if the same is allowed will
cause grave injustice to the Defendants. In view thereof, the case law cited by
Mr. Sancheti and the submissions made by him based on the said decisions do
not render any assistance to the Plaintiff, and the Chamber Summons is
dismissed. Chamber Summons is accordingly disposed of.
(S.J. KATHAWALLA, J.)
Print Page
Plaintiff and the Defendants. Admittedly, the Defendant No.1 herein filed a suit
against the Plaintiff herein before the Small Causes Court, Mumbai being T.E. &
R. Suit No. 119/177 of 2008 seeking a decree against the Plaintiff herein for
eviction on the ground that the Plaintiff was not entitled to any protection under
Section 3 (1) (b) of the Maharashtra Rent Control Act, 1999. The Plaintiff
herein, being the Defendant in the suit before the Small Causes Court, has not
filed any counter claim therein. In that suit, the Plaintiff herein has only made a
mention that there was a proposal for the sale of the suit property to the Plaintiff
herein by the predecessor in title of the Plaintiff in the Small Causes Court (i.e.
Defendant Nos. 2, 3 and 4 herein) and hence according to it, the sale of the suit
property to the Defendant No.1 herein by its predecessors to title itself is illegal
and no title passes to it pertaining to the suit building. It also relied on an offer
made by Defendant No.1 herein dated 12th December, 2007.
21) Section 14 of Limitation Act reads thus:
“14. Exclusion of time of proceeding bona fide in Court
without jurisdiction. (1) In computing the period of
limitation for any suit the time during which the plaintiff has
been prosecuting with due diligence another civil proceeding,
whether in a court of first instance or of appeal or revision,
against the defendant shall be excluded, where the proceeding
relates to the same matter in issue and is prosecuted in good
faith in a court which, from defect of jurisdiction or other
cause of a like nature, is unable to entertain it.”
The Hon'ble Supreme Court in the case of Madhavrao Narayanrao
Patwardhan(supra) has in paragraph 6 of its Judgment after quoting clause (1)
of Section 14 of the Act, interpreted the said clause of Section 14 as follows:
“ In order to bring his case within the section quoted above,
the Plaintiff has to show affirmatively:
that he had been prosecuting with due diligence the previous
suit in the court of the Munsif at Miraj,
(1) that the previous suit was founded upon the same cause of
action,
(2) that it had been prosecuted in good faith in that court, and,
(3) that the court was unable to entertain that suit on
account of defect of jurisdiction or other cause of a like nature.”
23) In the case of Somshikharswami Shidlingswami vs. Shivappa Mallappa Hosmani AIR 1924 Bom 39
this Court inter alia held that in the facts of that case, Section 14 of
the Indian Limitation Act did not apply since the Plaintiff was not prosecuting
any civil proceeding but was merely defending the suit brought against him.
Furthermore, this Court in Narayan Jivaji Patel and Anr. V Gurunathgouda
Khandappagouda Patil and Anr. ILR (1939) Bom 173
following the decision in Somshikharswami
Shidlingswami (supra) held that since the appellant in the matter was a defendant in the other suit, he was not prosecuting a suit or a civil proceeding at
the time. Merely defending a suit is not and cannot amount to prosecution of a
suit. The terms “plaintiff” and “defendant” have a well known technical
meaning. The legislature must be deemed to be aware of that meaning when
they chose to allow the benefit of the time occupied by an earlier proceeding
only to the plaintiff as against the defendant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 1234 OF 2012
IN
SUIT NO. 1939 OF 2012
In the matter between:
Bharat Petroleum Corporation Ltd. vs. M/s. Hill Top Consultants Pvt. Ltd. and others
CORAM: S.J. KATHAWALLA, J.
DATE: MAY 10, 2013
1) By this Chamber Summons, the Plaintiff seeks amendment to the
Plaint in terms of ScheduleA annexed to the Chamber Summons.
2) The Plaintiff has only pressed for allowing the Plaint to be
amended in terms of clause (ii) of ScheduleA to the Chamber Summons. The
amendment sought to be introduced by the Plaintiff is therefore to the effect
that in computing the period of limitation, the period during which the suit filed
by the Defendant No.1 in the Small Causes Court at Bombay, being T.E. & R.
Suit No. 119/177 of 2008, was prosecuted i.e. from 1st October 2008 to 30th
September 2010 and the period during which the Appeal was prosecuted from
24th December 2010 to 22nd February 2012, ought to be excluded.
3) Briefly set out the facts in the matter are as under:
4) The Plaintiff – Bharat Petroleum Corporation Limited is a Public
Sector Corporation owned by the Government of India. Defendant No. 1 – M/s.
Hill Top Consultants Pvt. Ltd. has acquired/purchased the suit property from
Defendant Nos. 2 to 4. Defendant Nos. 2 to 4 were the original landlords of the
Plaintiff and were the Trustees of Popatlal Vora Inheritance Trust.
5) In the year 2000, the Plaintiff was admittedly occupying 8 flats
(6765 sq.ft. Carpet area) as tenants in a two storey building known as Vora
Building situated on Plot No. 32, 3rd Road, Khar, Mumbai (“the suit property”).
At that time, in the suit property there were in all 10 flats, and 13 shops
situated on the ground floor. By letters dated 20th June 2000 and 26th February
2001 addressed to the Plaintiff, Defendant Nos. 2 to 4 (the then landlords)
expressed their intention to sell the entire building along with the flats and
shops to the Plaintiff. In the meeting held on 11th January, 2002 between the
Plaintiff and Defendant Nos. 2 to 4, it was agreed as follows:
(i) The then landlords, Defendants Nos. 24 (Voras), shall sell and the
Plaintiff (BPCL) shall purchase all the 10 flats at a total price of Rs. 1.82 crores ;
(ii) BPCL shall also bear the Registration / Stamp Duty charges for the
said purchase, in addition to the purchase price;
(iii) Full payment of the purchase price will be made upon the execution
and registration of the sale deed, in a form drafted by BPCL;
(iv) The said purchase would be subject to (a) a Clear Title being
provided by the Voras to the satisfaction of BPCL and (b) approval of BPCL
Management for the said proposal.
(v) The Voras have also offered to sell the entire suit property i.e.
including the shops on an 'as is where is' basis if the purchase price is increased
to Rs. 1.95 crores;
(vi) Thus BPCL can exercise the choice of either purchasing all the 10
flats minus the shops at Rs. 1.82 crores or the entire suit property (including the
13 shops) at Rs. 1.95 crores.
6) The Voras and BPCL had one more meeting on 6th February 2003
and in the said meeting the Voras and BPCL agreed as follows:
(i) The Voras shall sell and BPCL shall purchase all the 10 flats, the 13
shops and all the rights in the suit property at a total price of Rs. 1.95 crores;
(ii) BPCL shall also bear the Registration / Stamp Duty charges for the
said purchase, in addition to the purchase price;
(iii) Full payment of the purchase price will be made upon the execution
and registration of sale deed, in a form drafted by BPCL;
(iv) The said purchase would be subject to (a) a Clear title being
provided by the Voras to the satisfaction of BPCL and (b) approval of BPCL
Management for the said proposal.
(v) The offer from the Voras was valid for a period of four months
from the date of the meeting i.e. 6th February 2003.
7) The Voras by an Indenture of Conveyance dated 29th September,
2006, sold and conveyed the entire suit property to the Defendant No. 1. The
Plaintiff admittedly started paying rent to the new landlords i.e. Defendant No. 1
in respect of the 8 flats in its possession.
8) By a letter dated 12th December 2007 addressed by the new
landlords (Defendant No.1) to BPCL, Defendant No.1 recorded that BPCL is
occupying 8 flats on tenancy basis in the said Vora Building at Khar. The
condition of the building has deteriorated and therefore Defendant No.1 has
decided to approach the tenants for their cooperation to redevelop the suit
property. By the said letter, Defendant No.1 made an offer to BPCL to provide
80 per cent of the carpet area occupied by them on ownership basis without any
charge in the proposed new building and to further provide 20 per cent of the
usable area in the form of flower bed and dry area, along with ‘A’ class
amenities as per AnnexureA thereto. It was also provided in the said letter
that to make the project viable, Defendant No.1 will look for contribution of Rs.
800/ per sq.ft. of built up area from the tenants, towards construction cost and
the said construction would be completed within 30 to 36 months after getting
permission from BMC and other authorities and all the tenants giving vacant
possession of their premises. It was further clarified that no temporary
alternative accommodation would be provided by the Defendant No.1 to the
tenants during the period of redevelopment. By the said letter, BPCL was called
upon to consider the proposal of the Defendant No.1 and inform their views to
the Defendant No.1.
9) The Advocates for Defendant No.1 ( landlords of Vora Building),
addressed a letter dated 28th August 2008 to BPCL, inter alia recording therein
that as per the provisions of Section 3 (1) (b) of the Maharashtra Rent Control
Act, 1999, BPCL were no longer protected tenants and terminated the monthly
tenancy of BPCL and further called upon BPCL to quit, vacate and hand over
peaceful and vacant possession of the flats occupied by BPCL, upon the expiry
of the month following the month in which the notice was received by BPCL.
10) BPCL by its letter dated 30th September 2008, responded to the
notice received from the Advocates for the Defendant No.1. In its reply letter,
BPCL contended that Defendant Nos. 2, 3 and 4 had sold the flats in favour of
Defendant No.1 vide registered conveyance dated 29th September 2006 without
giving BPCL, as tenant having first right, an opportunity to purchase the
property. Hence the sale of the suit property in favour of Defendant No.1 is
infructuous, null and void and cannot stand the test of law. In the said letter
BPCL has categorically admitted that in the past Defendant Nos. 2 to 4 had
offered BPCL a proposal to redevelop the said Vora Building and the Defendant
No. 1 vide its letter dated 12th December 2007 had offered a proposal to
redevelop the said Vora building on terms and conditions mentioned in the said
letter and that the proposal of Defendant No.1 was under active consideration
of BPCL. BPCL alleged that hence Defendant No.1 could not shirk its
contractual obligation unilaterally and seek eviction of BPCL from the said Vora
Building without any valid grounds whatsoever.
11) The Defendant No.1 by their Advocate's letter dated 28th
November 2008 denied and disputed the contents of BPCL's letter dated 30th
September 2008 and inter alia clarified that the offer made by Defendant No.1
by their letter dated 12th December 2007 was without prejudice to the rights
and contentions of the parties and the same stood revoked/withdrawn. By the
said letter Defendant No. 1 stated that they were proceeding further to enforce
their rights against BPCL.
12) Defendant No.1 thereafter filed T.E. & R. Suit No. 119/177 of
2008 before the Small Causes Court at Bandra, Mumbai seeking eviction of
BPCL on the ground that as per Section 3 (1) (b) of the Maharashtra Rent
Control Act, 1999, BPCL was not entitled to any protection under the Act and
that their tenancy had been terminated by the Defendant No.1 vide their
Advocate’s letter dated 28th November, 2008. The suit was decreed in favour of
Defendant No.1 and against the Plaintiff on 30th September 2010. The Plaintiff
preferred an Appeal against the judgment dated 30th September 2010 on 24th
December 2010 which was dismissed on 22nd February, 2012.
13) The Plaintiff thereafter filed Civil Revision Application before
this Court which has been dismissed by this Court. However, the Plaintiff is
given time to vacate the 8 flats occupied by it upto 30th May 2013.
14) In the meantime, on 10th June 2012, the Plaintiff filed the present
suit against the Defendants for a declaration that the Deed of Conveyance dated
29th June 2006 executed by Defendant Nos. 2,3 and 4 in favour of Defendant
No.1 is illegal, invalid, null and void and be cancelled/determined/quashed and
set aside and that Defendant Nos. 1 and 2 to 4 be directed to specifically
perform the Agreement in terms of the Minutes dated 11th January 2002 and 6th
February 2003 or in the alternative, Defendant No.1 be directed to specifically
perform the contract in terms of the letter dated 12th December 2007.
15) In the Plaint filed by the Plaintiff on 10th June 2012, it is stated
by the Plaintiff that the suit filed is within limitation and is not barred by
limitation. Paragraphs 31 and 32 of the Plaint are relevant and reproduced
hereunder:
“31. The Plaintiffs say and submit that the Suit is filed within
limitation and is not barred by limitation. The Plaintiffs came to
occupy the suit premises since 1952 and thereafter from time to
time the parties executed the Indenture of Leas subsequently. The
Defendant Nos. 2 to 4 as a Trustee of the Popatlal Vora
Inheritance Trust by their letter dated 20.6.2000, inter alia
referred to the discussions regarding outright sale of the entire
building to the Plaintiffs. This was followed by a meeting held on
11.1.2002 wherein the issue regarding purchase of the suit
property was discussed and certain Agreement (s) were arrived
at between the parties. The meeting dated 11.1.2002 was
preceded forwarded by the letter dated 26.2.2001 of the said
Popatlal Vora Inheritance Trust to the Plaintiffs wherein it is
clearly recorded that it was proposed that the entire property be
sold to the Plaintiffs rather than any short term lease
proposition. Subsequent thereto, a further meeting was held on
6.2.2003 wherein there were further discussions between the
parties as regards issue of purchase of suit property and the
Agreement arrived at therein was recorded in the minutes.
Pursuant to that Agreement, the sale of the suit property was to
be completed in favour of the Plaintiffs, however, the Sellers did
not take necessary steps to comply with their obligations, which
had to be met before completion of the sale. The purported
conveyance of the property by the trustees of the said Popatlal
Vora Inheritance Trust in favour of the Defendant No. 1 was
with full knowledge of the aforesaid Agreement arrived at with
the Plaintiffs. The Defendants No.1 being aware of the above
position, in fact by their letter dated 12.12.2007 made an offer
to carry out redevelopment of the property and provide “80 % of
the carpet area presently occupied by you (Plaintiffs) on
ownership basis without any change in the proposed new
building” We Defendant No.1 will additionally provide you “20%
of the usable area in the flower bed and dry area.....”
32. Thereafter, in the proceedings filed by the Defendant No.1
in the Small Causes Court, at Bombay, for eviction of the
Plaintiffs allegedly as tenants/lessees the Defendant No.1 has
lead evidence of the Defendant No. 3 as well as one Apoorva
Pravinkumar Desai, being a Director of the Defendant No.1.
During his cross examination on 3.2.2010, the said Apoorva
Pravinkumar Desai, while admitting to have been made an offer
to the Plaintiffs for providing permanent alternative
accommodation on the ownership basis in the new building
proposed to be developed by them for the first time claimed that
the Defendant No.1 had withdrawn the said offer. Pertinently
there is no letter/correspondence prior trust whereby Defendant
No.1 had withdrawn the said proposal. During the said
evidence, the said witness of the Defendant No.1 also feigned
ignorance as to the Agreement with the said Popatlal Vora
Inheritance Trust to sell the suit property to the Plaintiffs.
Shortly thereafter, i.e. during the course of the evidence in the
said Suit on 28.3.2010, the Defendant No.3 (a trustee of the
said Popatlal Vora Inheritance Trust) in his cross examination
admitted the meetings as also the discussions for purchase of the
suit property. He also admitted that “ I have not written any
letter to the Defendants specifically about cancellation of offer”.
It is thus clear that proper to the evidence/statement made by
the said Apoorva Pravinkumar Desai on 3.2.2010, on behalf of
the Defendant No.1, there was no withdrawal/refusal by the
Defendants of the Agreement to sell the suit property to the
Plaintiffs. In their background, the Plaintiffs are compelled to
file the present suit to seek specific performance of the agreement
in terms of the minutes of meeting held on 11.1.2002 and
6.2.2003. The suit is therefore filed within limitation.
16) In the above suit the Defendant No. 1 on 27th July 2012 took out
Notice of Motion No. 370 of 2013 praying for dismissal of the suit under Order
VII Rule 11 of the Code of Civil Procedure, 1908, on the ground that the Suit is
barred by the law of limitation. The Plaintiff thereafter in September 2012 took
out the present Chamber Summons.
17) By the present Chamber Summons, the Plaintiff wants to carry out
the amendment to the Plaint and submit that the time taken for prosecuting the
suit before the Small Causes Court at Mumbai and thereafter prosecuting the
Appeal from the order of the Trial Court be excluded under Section 14 of the
Limitation Act, 1964 (“the Act”). Mr. Pradeep Sancheti, the Learned Senior
Advocate appearing for the Plaintiff in support of the Chamber Summons,
submits that Defendant No.1 had filed a suit against the Plaintiff in the Small
Causes Court, Mumbai, being T.E. & R. Suit No. 119/177 of 2008 where a
decree of eviction was sought against the Plaintiff. The Plaintiff had appointed
Mr. K.A. Mankad, Advocate and has been prosecuting the suit with due diligence
against the Defendant No.1 herein (Plaintiff therein). In the said proceedings,
the Plaintiff has also filed a written statement annexing the relevant documents
and contended that it had occupied the premises under an Agreement for Sale
as recorded in the minutes of meeting dated 11th January 2002 and 10th April
2003, as a prospective owner and not as monthly tenant and in the alternative
was also willing to accept the proposal for redevelopment made by Defendant
No. 1 hereto, which entitled the Plaintiff to become the owner of part of the suit
property. In the course of oral evidence the Plaintiff has also crossexamined the
Defendants and/or their witnesses on the above aspects. However, the Learned
Judge of the Small Causes Court decreed the suit and dismissed the case of the
Plaintiff, with the observation that the Plaintiff had not filed a suit for specific
performance. The said decree came to be passed on 30th September 2010. The
said decree was challenged before the Appellate Bench of the Small Causes
Court by Appeal No. 6 of 2011 filed on 24th December 2010. In the said Appeal,
the Plaintiff herein referred to the writing (s) executed between the parties and
reiterated its right to acquire the property under those documents, which
according to it amounted to an Agreement for Sale. The Appellate Bench
dismissed the Appeal vide order dated 22nd February 2012 and observed that the
Plaintiff herein not having filed a suit for specific performance cannot take such
a stand. Mr. Sancheti therefore submitted that the Plaintiff was acting bona fide
under legal advice and was prosecuting the earlier civil proceedings with due
diligence on the same subject matter. In the earlier proceedings, the Plaintiff's
plea was not entertained by reason of defect of jurisdiction, or cause of like
nature, and therefore in computing the period of limitation, the said period i.e.
from 1st October 2008 to 30th September 2010 during the pendency of the suit
and from 24th December 2010 to 22nd February 2012 during the pendency of the
Appeal, ought to be excluded.
18) Relying on the decision in Madhavdas Parmanand vs. Jan Mahomed Ghulam Hyder AIR (29) 1942 Sind 37
, Mr. Sancheti submitted that Section 14 of the Act does not
require that the earlier proceedings must have been a suit, nor does it require
that it must have been initiated by the Plaintiff who is subsequently seeking
advantage from this Section. Mr. Sancheti also relied on the decision of the
Hon'ble Supreme Court in Rajesh Kumar Aggarwal and others vs. K.K. Modi and others AIR 2006 SC 1647
, wherein it is held that while considering whether an application for
amendment should or should not be allowed, the Court should not go into the
correctness or falsity of the case in the amendment. Likewise, it should not
record a finding on the merits of the amendment and the merits of the
amendment sought to be incorporated by way of an amendment are not to be
adjudged at the stage of allowing the prayer for amendment. Mr. Sancheti also
relied on Order VII Rule 6 to submit that the proviso in Rule 6 provides that the
Court may permit the Plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the
grounds set out in the plaint. Mr. Sancheti therefore submits that the Chamber
Summons be allowed as prayed.
19) Mr. D.H. Mehta, learned Advocate appearing for the Defendants,
submitted that the Plaintiff was not prosecuting the suit as Plaintiff before the
Small Causes Court in T.E. & R. Suit No. 119/177 of 2008 but was only as a
Defendant therein. He submitted that therefore the question of Section 14 of the
Act being applicable to the Plaintiff in the present suit does not arise. In support
of his submission, Mr. Mehta relied on the decisions of the Hon'ble Supreme
Court in Madhavrao Narayanrao Patwardhan vs. Ram Krishna Govind Bhanu and
others1
, and in Zafar Khan and others vs. Board of Revenue, U.P. and others2
. Mr.
Mehta also relied on the decision in the case of Ganesh Rai and another vs. First
Additional District Judge, Ghazipur and others3
wherein it is held that it is
incumbent upon the Court to see that amendment besides being necessary for
the purpose of determining the real matter in controversy, must not cause
injustice to the other side. Mr. Mehta submitted that apart from the fact that
the application seeking an amendment of the suit is not maintainable on the face
of it, seeking the present amendment is only an afterthought. The Plaintiff has
lost the matter before the trial Court as well as the Appellate Bench in the Small
Causes Court and has also lost the Civil Revision Application before this Court
1 AIR 1958 SC 767
2 AIR 1985 SC 39
3 AIR 1992 Allahabad 25
and has given an undertaking to this Court in the Civil Revision Application that
it shall vacate the premises on or before 30th May 2013, subject to the orders
being passed in this suit. Mr. Mehta submitted that therefore only to delay
giving up possession of the flats occupied by it, the Plaintiff has moved the
present application which will cause grave injustice and prejudice to the
Defendants, if allowed.
20) I have considered the submissions advanced on behalf of the
Plaintiff and the Defendants. Admittedly, the Defendant No.1 herein filed a suit
against the Plaintiff herein before the Small Causes Court, Mumbai being T.E. &
R. Suit No. 119/177 of 2008 seeking a decree against the Plaintiff herein for
eviction on the ground that the Plaintiff was not entitled to any protection under
Section 3 (1) (b) of the Maharashtra Rent Control Act, 1999. The Plaintiff
herein, being the Defendant in the suit before the Small Causes Court, has not
filed any counter claim therein. In that suit, the Plaintiff herein has only made a
mention that there was a proposal for the sale of the suit property to the Plaintiff
herein by the predecessor in title of the Plaintiff in the Small Causes Court (i.e.
Defendant Nos. 2, 3 and 4 herein) and hence according to it, the sale of the suit
property to the Defendant No.1 herein by its predecessors to title itself is illegal
and no title passes to it pertaining to the suit building. It also relied on an offer
made by Defendant No.1 herein dated 12th December, 2007. The Plaintiff
herein also relied on the minutes of the meeting held on 11th January 2002. In this context, the Appellate Bench of the Small Causes Court has, in its order,
observed that the Plaintiff has not filed any suit for specific performance against
the predecessor to title of the Defendant No.1 and therefore in the suit for
eviction filed by the Defendant No.1 herein it cannot take such stand. The stand
taken by the Plaintiff herein pertaining to the purported proposals/agreements
qua the sale of the suit property to the Plaintiff herein cannot be allowed.
21) Section 14 of the Act reads thus:
“14. Exclusion of time of proceeding bona fide in Court
without jurisdiction. (1) In computing the period of
limitation for any suit the time during which the plaintiff has
been prosecuting with due diligence another civil proceeding,
whether in a court of first instance or of appeal or revision,
against the defendant shall be excluded, where the proceeding
relates to the same matter in issue and is prosecuted in good
faith in a court which, from defect of jurisdiction or other
cause of a like nature, is unable to entertain it.”
The Hon'ble Supreme Court in the case of Madhavrao Narayanrao
Patwardhan(supra) has in paragraph 6 of its Judgment after quoting clause (1)
of Section 14 of the Act, interpreted the said clause of Section 14 as follows:
“ In order to bring his case within the section quoted above,
the Plaintiff has to show affirmatively:
that he had been prosecuting with due diligence the previous
suit in the court of the Munsif at Miraj,
(1) that the previous suit was founded upon the same cause of
action,
(2) that it had been prosecuted in good faith in that court, and,
(3) that the court was unable to entertain that suit on
account of defect of jurisdiction or other cause of a like nature.”
22) Again, the Hon'ble Supreme Court in Zafar Khan and others (supra) has,
after reproducing Section 14 (1) of the Act, interpreted the same in paragraph
11 of the judgment as under:
“In order to attract the application of Sec. 14 (1), the parties
seeking its benefit must satisfy the Court that : (i) that the
party as the Plaintiff was prosecuting another civil proceeding
with due diligence; (ii) that the earlier proceeding and the
later proceeding relate to the same matter in issue and (iii)
the former proceeding was being prosecuted in good faith in a
Court which, from defect of jurisdiction or other cause of a like
nature, is unable to entertain it”.
23) In the case of Somshikharswami Shidlingswami vs. Shivappa Mallappa
Hosmani1
this Court inter alia held that in the facts of that case, Section 14 of
the Indian Limitation Act did not apply since the Plaintiff was not prosecuting
any civil proceeding but was merely defending the suit brought against him.
Furthermore, this Court in Narayan Jivaji Patel and Anr. V Gurunathgouda
Khandappagouda Patil and Anr.2
following the decision in Somshikharswami
Shidlingswami (supra) held that since the appellant in the matter was a
1 AIR 1924 Bom 39
2 ILR (1939) Bom 173
defendant in the other suit, he was not prosecuting a suit or a civil proceeding at
the time. Merely defending a suit is not and cannot amount to prosecution of a
suit. The terms “plaintiff” and “defendant” have a well known technical
meaning. The legislature must be deemed to be aware of that meaning when
they chose to allow the benefit of the time occupied by an earlier proceeding
only to the plaintiff as against the defendant.
24) In the instant case, admittedly the Plaintiff herein was not prosecuting
the suit before the Small Causes Court, Mumbai i.e. T.E. & R. Suit No. 119/177
of 2008 as the Plaintiff therein but was only a Defendant in that suit. The suit
filed before the Small Causes Court by the Defendant No.1 herein was for
eviction of the Plaintiff herein on the ground that the Plaintiff was no longer
protected under the provisions of Section 3 (1) (b) of the Maharashtra Rent
Control Act, 1999. In the present suit, the Plaintiff has sought a declaration that
the Deed of Conveyance dated 29th June 2006 executed by and between
Defendant Nos. 2, 3 and 4 and Defendant No.1 is null and void and be set aside
and a decree of specific performance of the Agreement/writing dated 11th
January 2002 and 6th February, 2003 be granted in favour of the Plaintiff and
against the Defendants. Therefore, by no stretch of imagination can it be said
that the earlier proceedings and the latter proceedings relate to the same matter
in issue. The Small Causes Court has entertained T.E. & R. Suit No. 119/177 of
2008 filed by the Defendant No.1 against the Plaintiff herein and has disposed
it of finally by passing a decree in favour of Defendant No.1 herein. The
Appellate Court has confirmed the decree passed by the trial Court. This Court
has dismissed the Civil Revision application filed therefrom. Therefore, it cannot
be accepted that the earlier suit suffers from defect of jurisdiction or other cause
of a like nature and the Court in which the earlier suit was filed was unable to
entertain it. In view thereof, not a single ingredient/requirement of Section 14
(1) of the Act as interpreted by the Hon'ble Supreme Court is applicable to the
present case.
25. I am therefore satisfied that the amendment sought by the Plaintiff herein,
on the face of it, is untenable. Immediately upon filing of the present suit by the
Plaintiff, the Defendant No. 1 took out a Notice of Motion seeking dismissal of
suit under Order VII Rule 11 of the Code of Civil Procedure, 1908, on the ground
that the suit is barred by the law of limitation. In view thereof the Plaintiff
herein thereafter took out the present Chamber Summons seeking to amend the
plaint and contend that the Plaintiff who was admittedly a Defendant in the
eviction suit before the Small Causes Court at Bombay, is entitled to seek
exclusion of the period during which he prosecuted the suit (as a defendant)
and also the period during which he was prosecuting the Appeal. It is true that
the Court should not go into the merits of the amendments sought. However it
cannot be that even if the amendment sought is unstatable and on the face of it
untenable and is nothing but an abuse of the process of the Court, sought with
the intention of delaying Court proceedings causing injustice to the other side,
as in the present case, the same should be allowed. Such an interpretation
would invite absurd consequences. As submitted by Mr. Mehta, the learned
Advocate appearing for the Defendants, the present amendment is sought only as
an afterthought to delay the process of handing over the possession of the suit
flats by the Plaintiff to Defendant No. 1, and apart from the fact that the present
Chamber Summons is on the face of it untenable, if the same is allowed will
cause grave injustice to the Defendants. In view thereof, the case law cited by
Mr. Sancheti and the submissions made by him based on the said decisions do
not render any assistance to the Plaintiff, and the Chamber Summons is
dismissed. Chamber Summons is accordingly disposed of.
(S.J. KATHAWALLA, J.)
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