Insofar as the rejection of plaint on the ground of limitation is concerned, it is needless to emphasis that limitation is a mixed question of fact and law. It is the case of the appellants/plaintiffs that only after making inspection of the records in connection with the suit land available in the office of defendant No.3 (Court Receiver) that they came across the correspondence and documents relating to the transactions and that the proceedings before the ALT were collusive, fraudulent and null and void. The appellants/plaintiffs have even questioned the authority of the Court Receiver to represent them in the tenancy proceedings.
{Para 10}
11. The above averments may or may not be true. But if the plaintiffs succeed in establishing the above averments, the issue of limitation cannot be put against the plaintiffs. Generally a party, who never had any notice of a particular proceeding before a quasi-judicial authority, is entitled to approach the Court upon gaining knowledge of the proceedings. Limitation cannot be put against such a party.
12. We are not dealing here with a case where notices were ordered to be issued, but were not or could not, be served on necessary and proper parties. We are dealing with a case where the plaintiffs assert in no uncertain terms that notices were never ordered to them nor served on them. Therefore, the answer to the issue regarding limitation, will depend upon the evidence with regard to the issuance and service of notice and the knowledge of the plaintiffs. Hence, the Trial Court as well as the High Court were not right in rejecting the plaint on the ground of limitation, especially in the facts and circumstances of this case.
13. As observed by this Court in P.V. Guru Raj Reddy vs. P.
Neeradha Reddy And Others (2015) 8 SCC 331, the rejection of plaint under Order VII Rule 11 is a drastic power conferred on the Court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order VII Rule 11.
14. Again as pointed out by a three member bench of this Court in Chhotanben vs. Kiritbhai Jalkrushnabhai Thakkar (2018)6 SCC 422, the plea regarding the date on which the plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5641 OF 2021
SALIM D. AGBOATWALA AND ORS. Vs SHAMALJI ODDHAVJI THAKKAR AND ORS
Author: V. Ramasubramanian, J.
Dated: SEPTEMBER 17, 2021
1. Leave was granted on 07.09.2021.
2. Their plaint having been rejected by the trial court under Order VII
Rule 11 (d) of the Code of Civil Procedure, 1908, and the said rejection
having been confirmed by the High Court in a first appeal, the plaintiffs
have come up with the above appeal.
3. We have heard Mr. Kevic Setalvad, learned senior advocate
appearing for the appellants and Mr. Shekhar Naphade, learned Senior
Advocate and Mr. Aniruddha Joshi, learned Advocate appearing for the
contesting respondents.
4. A group of 13 persons, claiming to be the legal representatives and
successors in title to the estate of one Haji Ali Mohammed Hajee Kassam
Agboatwala, filed a civil suit in S.C. Suit No.2343 of 1987 on the file of
the City Civil Court at Bombay. The reliefs prayed for in this suit are as
follows:“
The Plaintiffs, therefore, pray that:
(a) It be declared that the judgment and order dated 28th November 1963
passed by A.L.T. Borivali, Bombay Suburban District, in Tenancy Case
No.32G/
6563
Dahisar, Part of Exhibit ‘F’ hereto, holding Defendant No. 1
to be ‘deemed Purchaser’ of the suit land bearing Survey No.216, Hissa
No.4A
bearing C.t.S. No.1879, of village Dahisar Taluka Borivali, Bombay
suburban District is null and void, inoperative in law and not binding upon
the plaintiffs;
(b) It be declared that Certificate issued by A.L.T. Borivaly, under Section 32M
of the Tenancy Act, part of Exhibit ‘F’ to this Plaint, declaring Defendant
No.1 as ‘deemed purchaser’ of the suit land bearing Survey No.216, Hissa
No.4A,
bearing C.T.S No.1879 of village Dahisar Taluka Borivali, Bombay
Suburban District is null and void inoperative in law and not binding upon
the Plaintiffs;
(c) It be further declared that Defendant Nos. 1 and 2 and person claiming
through and under the said Defendants are trespassers on the suit land
bearing Survey No.216, Hissa No.4A,
bearing C.T.S No.1879 of Village
Dahisar Taluka Borivali, Bombay suburban District;
(d) The Defendant Nos. 1 and 2 be jointly and severally ordered and decreed
to hand over to the Plaintiffs and/or to Defendant No.3 the Court Receiver,
Vacant and peaceful possession o the Suit land Viz., Survey No.216, Hissa No.4A
bearing C.T.S No.1879 of village Dahisar, Taluka Borivali, Bombay
suburban district;
(e) The Defendant Nos. 1 and 2 be ordered and decreed to pay to the
Plaintiffs and/or Defendant No.3, the Court Receiver, such mesne profits
as may be determined upon inquiry under Order 20 Rule 12 of the Civil
Procedure Code from the date of the suit till the date of delivery of
possession of the suit land, bearing Survey No.216 Hissa No.4A,
bearing
C.T.S. No.1879 of Dahisar, Village Taluka, Borivali.
(f) That pending the hearing and disposal of the suit, Court Receiver, High
Court, Bombay or some other fit and proper person be appointed as the
Receiver of the suit land including the structure standing thereon under
Order 40 Rule 1 of the Civil Procedure Code with all powers under the said
Rule and he be directed to take possession of the suit land being Survey
No.216, Hissa No.4A,
bearing C.T.S.No.1879 of Dahisar, Village Taluka,
Borivali.
(g) That pending the hearing and disposal of the suit, the Defendant Nos. 1
and 2 their servants, agents, contractors, builders and/or developers and
all persons claiming through or under the said Defendants be restrained
by an order and induction of this Honourable Court from disposing of
alienating, parting with possession of, encumbering by creating third party
interest in any manner whatsoever, and/or carrying on construction work
of any nature whatsoever upon the suit land or part thereof or any
structure or part of the structure standing on the suit land i.e. Survey
No.216, Hissas No.4A,
bearing C.T.S. No.1879 of village Dahisar, Taluka
Borivali in Bombay Suburban District.”
5. In brief, the claim of the plaintiffs in the aforesaid suit was that the
person, to whom they claimed to have succeeded, died in the year 1946,
leading to some of his heirs filing a suit for the administration of the
estate left behind by him. The said suit being suit No.3415 of 1947 was
filed on the original side of the High Court of Bombay. By a Judgment
dated 30.06.1950, the High Court appointed a Receiver and he took over
possession and management of the properties. According to the
plaintiffs, certain sales through Agricultural Lands Tribunal and
mutation in the revenue records were effected thereafter without the
knowledge and behind the back of the heirs and legal representatives
and that the plaintiffs came to know about the same, when they made
an inspection of the records available with the Court Receiver.
Therefore, the suit was filed primarily for setting aside an order passed
by the Agricultural Lands Tribunal (for short “ALT”) in a tenancy case
under Section 32G of the Maharashtra Tenancy and Agricultural Lands
Act, 1948 (for short “the Act”) and for setting aside a sale certificate
issued under Section 32M of the Act.
6. Since the order of the ALT passed under Section 32G of the Act
was dated 28.11.1963 and the sale certificate issued under Section 32M
was dated 23.07.1954, but the suit being S.C. suit No.2343 of 1987 was
filed in March1987,
the second defendant in the suit which is a
Cooperative Society, took out a notice of motion for the rejection of the
plaint under Order VII Rule 11(d) CPC. It is relevant to note that this
notice of motion was taken out, by the second defendant, only in the
year 2003, that is after 16 years of the institution of the suit.
7. The rejection of plaint was sought primarily on two grounds,
namely, (a) that the suit filed in the year 1987 challenging the action of
the competent authorities under the Act carried out way back in 1963
and 1964 was hopelessly barred by limitation; and (b) that in any case
Section 85 of the Act bars the jurisdiction of Civil Court.
8. The City Civil Court Bombay, by an Order dated 16.04.2012
allowed the notice of motion and rejected the plaint on both the grounds
raised by the second defendant.
9. Aggrieved by the said order, the plaintiffs filed a regular appeal in
First appeal No. 948 of 2012. The appeal was dismissed by the High
Court of Judicature at Bombay by a Judgment and decree date
26.02.2014. It is against the said judgment that the original plaintiffs 3,
4, 5, 6, 8, 9, 11, 12 and 13 have come up with the above appeal.
10. Insofar as the rejection of plaint on the ground of limitation is
concerned, it is needless to emphasis that limitation is a mixed question
of fact and law. It is the case of the appellants/plaintiffs that only after
making inspection of the records in connection with the suit land
available in the office of defendant No.3 (Court Receiver) that they came
across the correspondence and documents relating to the transactions
and that the proceedings before the ALT were collusive, fraudulent and
null and void. The appellants/plaintiffs have even questioned the
authority of the Court Receiver to represent them in the tenancy
proceedings.
11. The above averments may or may not be true. But if the plaintiffs
succeed in establishing the above averments, the issue of limitation
cannot be put against the plaintiffs. Generally a party, who never had
any notice of a particular proceeding before a quasijudicial
authority, is entitled to approach the Court upon gaining knowledge of the proceedings. Limitation cannot be put against such a party.
12. We are not dealing here with a case where notices were ordered to
be issued, but were not or could not, be served on necessary and proper
parties. We are dealing with a case where the plaintiffs assert in no
uncertain terms that notices were never ordered to them nor served on
them. Therefore, the answer to the issue regarding limitation, will
depend upon the evidence with regard to the issuance and service of
notice and the knowledge of the plaintiffs. Hence, the Trial Court as well
as the High Court were not right in rejecting the plaint on the ground of
limitation, especially in the facts and circumstances of this case.
13. As observed by this Court in P.V. Guru Raj Reddy vs. P.
Neeradha Reddy And Others (2015) 8 SCC 331, the rejection of plaint under Order VII Rule 11 is a drastic power conferred on the Court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order VII Rule 11.
14. Again as pointed out by a three member bench of this Court in
Chhotanben vs. Kiritbhai Jalkrushnabhai Thakkar (2018)6 SCC 422, the plea regarding the date on which the plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold.
15. Referring to a few averments contained in the plaint, it is
contended by the learned counsel for the respondents that the
appellants had constructive notice of the proceedings under Section
32G
and the sale certificate issued under Section 32M.
In support of
such a plea, the learned counsel relies upon the following decisions,
Ram Niwas (Dead) vs. Bano (Smt.) & Ors.3; Rajasthan Housing
Board vs. New Pink City Nirman Sahakari Samiti Limited & Anr.4;
Murlidhar Bapuji Valve vs. Yallappa Lalu Chaugule5;
Parvathathammal vs. Sivasankara Bhattar And Others.6.
16. But a defendant in a suit cannot pick up a few sentences here and
there from the plaint and contend that the plaintiffs had constructive
notice of the proceedings and that therefore limitation started running
from the date of constructive notice. In fact, the plea of constructive
notice is raised by the respondents, after asserting positively that the
plaintiffs had real knowledge as well as actual notice of the proceedings.
3 (2000) 6 SCC 685
4 (2015) 7 SCC 601
5 (1994) SCC Online Bom 72
6 1951 SCC Online Mad 23
In any case, the plea of constructive notice appears to be a subsequent
invention.
17. The decision in Ram Niwas (supra) which revolved around
Explanation II under Section 3 of the Transfer of Property Act, 1882,
cannot go to the rescue of the respondents. Section 3 of the Transfer of
Property Act, 1882, provides that a person is said to have notice of a
fact, (i) either when he actually knows that fact; or (ii) when, but for
willful abstention from an enquiry or search which he ought to have
made, or gross negligence, he would have known it. The relevant part of
Section 3 together with Explanation II thereunder reads as follows:
“a person is said to have notice” of a fact when he actually knows that
fact, or when, but for wilful abstention from an enquiry or search which he
ought to have made, or gross negligence, he would have known it
Explanation II.—Any person acquiring any immovable property or any
share or interest in any such property shall be deemed to have notice of
the title, if any, of any person who is for the time being in actual
possession thereof.”
18. The 2 ingredients of the relevant part of Section 3 providing as to
when “a person is said to have notice”, are matters of fact to be
established through evidence. The respondents in this case cannot even
fall back upon Explanation II which holds that a person acquiring an
immovable property will be deemed to have notice of the title of a person
in actual possession thereof. In this case, it was the Court Receiver who
was in possession and management of the entire Estate at the time of
the impugned proceedings and hence Explanation II cannot be used by
the defendants.
19. The decision in Rajasthan Housing Board (supra) also reiterates
the two ingredients of Section 3 of the Transfer of Property Act, 1882,
and hence the same cannot be raised in an application under Order VII
Rule 11. It should be pointed out at this stage that Section 32 (G) (1) of
the Act contemplates a public notice in the prescribed form to be
published in each village. It is not the case of respondents that the
plaintiffs had real or constructive notice of the proceedings by virtue of
such a public notice. It is not even known whether a public notice was
ever published. Therefore, the plea of constructive notice raised with a
view to sustain the plea of limitation cannot be accepted at the stage of
dealing with an application for rejection of plaint.
20. Insofar as the bar of the jurisdiction under Section 85 is
concerned, the Act contains a very strange provision, in section 85A,
the like of which is not found in many other statutes which contain
provisions barring the jurisdiction of Civil Courts. It may be useful to
extract Section 85 and 85A of the Act as follows:
“85. Bar of jurisdiction
(1) No Civil Court shall have jurisdiction to settle, decide or deal
with any question [(including a question, whether a person is or was at
any time in the past a tenant and whether any such tenant is or should be
deemed to have purchased from his landlord the land held by him)] which
is by or under this Act required to be settled, decided or dealt with by the
Mamlatdar or Tribunal, a Manager, the Collector or the [Maharashtra
Revenue Tribunal] in appeal or revision or the [Maharashtra Revenue
Tribunal] in appeal or revision or the [State] Government in exercise of their
powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the
[Maharashtra Revenue Tribunal] or the [State] Government made under
this Act shall be questioned in any Civil or Criminal Court.
Explanation.–– For the purposes of this section a Civil Court shall
include a Mamlatdar’s Court constituted under the Mamlatdar’s Courts
Act, 1906.
85A. Suits involving issues required to be decided under this Act
(1) If any suit instituted in any Civil Court involves any issues
which are required to be settled, decided or dealt with by any authority
competent to settle, decide or deal with such issues under this Act
(hereinafter referred to as the “competent authority”), the Civil Court shall
stay the suit and refer such issues to such competent authority for
determination.
(2) On receipt of such reference from the Civil Court, the
competent authority shall deal with and decide such issues in accordance
with the provisions of this Act and shall communicate its decision to the
Civil Court and such Court shall thereupon dispose of the suit in
accordance with the procedure applicable thereto.
Explanation.–– For the purpose of this section a Civil Court shall include a
Mamlatdar’s Court constituted under the Mamlatdar’s Courts Act, 1906.”
21. Though Section 85(2) mandates that no order of the Mamlatdar,
the Tribunal, the Collector or the State Government passed under the
Act shall be questioned in any Civil or Criminal Court, the bar contained
therein stands diluted to some extent under Section 85A.
22. Section 85A inserted by Bombay Act 13 of 1956 prescribes a two
stage procedure for the Civil Court to follow, whenever a suit is
instituted, despite the bar contained in Section 85. In the first stage, the
Civil Court should stay the suit and refer the issues to the competent
authority under the Act for determination. In the second stage, the Civil
Court should dispose of the suit in accordance with the procedure
applicable thereto, after receipt of the decision of the competent
authority, to whom the issues were referred for a decision under the Act.
23. If the bar under Section 85(2) was absolute, the Civil Court would
have no option except to dismiss the suit. If the bar of jurisdiction is
absolute, the question of the Civil Court staying further proceedings in
the suit, referring the issues for the adjudication of the competent
authority under the Act and disposing of the suit after receipt of a
decision from the competent authority, would not arise.
24. The City Civil Court as well as the High Court refused to follow the
procedure prescribed by Section 85A
of the Act, on the short ground
that the same could be invoked only in cases where the issues covered
by the Act have not already been settled, decided or dealt with by an
authority competent under the Act to do so. Supporting the view taken
by the Trial Court and the High Court, it is contended by Mr. Aniruddha
Joshi, learned counsel for some of the contesting respondents that as
against the orders passed under Section 32G
and 32M,
an alternative
remedy of appeal is provided under Clauses (mb) and (n) of Subsection
(1) of Section 74 of the Act. The Collector is the appellate authority
under Section 74. Under Section 76A,
the Collector even has suo motu
power of revision, even in cases where no appeal has been filed. Section
79 of the Act prescribes a period of 60 days as the limitation for filing an
appeal or revision. Therefore, it is contended by Mr. Aniruddha Joshi,
learned counsel that a party who suffered an order from the ALT and
who chose not to challenge the same by way of an appeal or revision for
a period of more than two decades, cannot resurrect his right to avail
statutory remedies, first by filing a suit and then seeking recourse to
Section 85A.
Reliance is placed in this regard by the learned counsel for
the respondent, on the decision of the Bombay High Court in Vithoba
Rama Randive vs. Dhairyasinhrao Bhayasaheb Ghatge and Ors.7
25. But the above contention of Shri Joshi overlooks an important
facet of the case set up by the plaintiffs. According to the plaintiffs, the
Estate was in the administration of the Court Receiver and that in
collusion between the Court Receiver and the Revenue authorities, the
sale as well as mutation took place without any notice to any of the
interested parties. Collusion and fraud are the main planks on which
the plaintiffs have built up their case. The question whether the order of
the ALT and the sale certificate issued thereafter are the product of
fraud and collusion, cannot be determined by the appellate or revisional
authority under the Act. In any case it is contended by the learned
counsel for the appellants that by virtue of Section 88B(
1)(d) of the Act,
none of the provisions of the Act, except a few, are applicable, “to lands
taken under management temporarily by the Civil, Revenue or
Criminal Courts by themselves, or through receivers appointed by
them, till the decision of the title of the rightful owners”. The
7 AIR 1972 Bombay 122
veracity of such argument has not been tested before the Trial Court or
the High Court. We do not know whether the exemption under Section
88B
was raised at all by the appellants/plaintiffs. But it is a legal issue
which goes to the root of the matter. Therefore, the Civil Court’s
jurisdiction cannot be said to have been ousted completely. The Civil
Court was obliged to see at least whether the appointment of a Receiver
for the administration of the Estate of a deceased person would actually
fall within the mandate of Clause(d) of Subsection(
1) of Section 88B.
26. Therefore, we are of the considered view that the Trial Court as well
as the High Court were clearly in error in rejecting the plaint under
Order VII Rule 11(d). Hence, the appeal is allowed, the judgment and
decree of the Trial Court as well as the High Court are set aside and the
suit is restored to file. There will be no order as to costs.
…..…………....................J.
(Hemant Gupta)
.…..………......................J.
(V. Ramasubramanian)
NEW DELHI
SEPTEMBER 17, 2021
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