Friday, 19 April 2019

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Whether plaint can be rejected considering defence plea that suit is barred by limitation?

 What is relevant for answering the matter in issue in the context of the application Under Order VII Rule 11(d), is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the Defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application Under Order VII Rule 11(d). Only the averments in the plaint are germane. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the Appellants (Plaintiffs) is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers-original Defendant Nos. 1 & 2, in favour of Jaikrishnabhai Prabhudas Thakkar or Defendant Nos. 3 to 6. They acquired that knowledge on 26.12.2012 and immediately took steps to obtain a certified copy of the registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original Defendant Nos. 1 & 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half (1/2) portion of the land so designated towards their share. However, when they realized that the original Defendant Nos. 1 & 2 would not pay any heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. According to the Appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the Trial Court opined that it was a triable issue and declined to accept the application filed by Respondent No. 1 (Defendant No. 5) for rejection of the plaint Under Order VII Rule 11(d). That view commends to us.
 In the present case, we find that the Appellants (Plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original Defendant Nos. 1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original Defendant Nos. 1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the Appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power Under Order VII Rule 11(d).

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3500 of 2018 (Arising out of SLP (Civil) No. 26401 of 2017)

Decided On: 10.04.2018

 Chhotanben  Vs.  Kiritbhai Jalkrushnabhai Thakkar and Ors.

Hon'ble Judges/Coram:
Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.
Citation: 2019(2) MHLJ 17
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When court should reject application for amendment of plaint at the stage of final argument?

 In so far as the application for amendment under Order VI Rule 17 of the said Code filed by the petitioner is concerned, it is not in dispute that the original prayer is for mandatory injunction for removal of the suit structure. The respondents had filed a detailed written statement opposing the said relief. The learned trial Judge had accordingly framed the issues considering the pleadings filed by both the parties. The parties thereafter led oral evidence. The witness examined by both the parties were extensively cross-examined by the opponents. It is not in dispute that by the said application for seeking amendment under Order VI Rule 17 of the said Code, the petitioner had prayed for inclusion of prayer for possession of the said property.

13. A perusal of the order passed by the learned trial Judge clearly indicates that the learned trial Judge has after considering the record and after considering several judgments relied upon by both the parties has rejected the said application for amendment on the ground that there was no due diligence either pleaded or proved by the petitioner in the application filed by the petitioner under Order VI Rule 17 of the said Code for seeking amendment to the plaint. The said application has been also rejected on the ground that there would be a change of cause of action. The matter has already been placed for final argument. In my view, the learned trial Judge has rightly rejected the application for seeking amendment at the stage of final argument and that also the amendment by which the original cause of action would be changed.
IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8717 of 2018

Decided On: 10.09.2018

 Archana Ashok Amburle Vs. Arpana Shankar Dudham and Ors.

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Whether application for recasting of issues is maintainable after six years of framing of issues at stage of final argument?

 In so far as the impugned order dated 10th July 2018 passed by the learned trial Judge rejecting the application for recast of the issue no. 1 is concerned, it is not in dispute that the issues were already framed by the learned trial Judge on 15th September 2012. After framing of five issues including the said issue no. 1 which was sought to be recast by the petitioner, the petitioner had already filed an affidavit of evidence as far back as on 2nd August 2012. The said application for recast of issue no. 1 was filed after rejection of the application filed by the petitioner for seeking amendment of the plaint i.e. by an order dated 25th April 2018. Both the parties have already led evidence based on the issues framed by both the parties. The matter is now placed for final argument. Learned counsel for the respondent nos. 1 to 5 submits that he has no objection if the issue no. 1 is partly modified in so far as the issue of possession is concerned. Statement made by the learned counsel for the respondent nos. 1 to 5 is accepted.

18. A perusal of the order passed by the learned trial Judge clearly indicates that the said application below Exhibit-77 has been rejected by a reasoned order. The suit was already posted for final argument and has been adjourned from time to time on one or the other grounds. The learned trial Judge has also considered the pleadings filed by both the parties in this regard and has held that the said issue no. 1 was framed after considering the pleadings. The petitioner never raised any objection when the said issue no. 1 was framed by the trial Court as far back as on 15th September 2012 till filing of an application on 5th June 2018.

19. In so far as the submission of the learned counsel for the petitioner that the issue could be recast at any stage prior to the decree passed by the learned trial Judge under Order XIV Rule 5 is concerned, in my view, since the issue was framed properly after considering the pleadings filed by both the parties which was not challenged by the petitioner for last 6 years, the petitioner could not be allowed to file such application and after the order passed by the learned trial Judge placing the matter on board for final argument. The entire evidence is already led by both the parties based on the original issue no. 1. In these circumstances, no interference is warranted with the orders passed by the learned trial Judge in this petition under Article 227 of the Constitution of India.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8717 of 2018

Decided On: 10.09.2018

 Archana Ashok Amburle Vs. Arpana Shankar Dudham and Ors.

Hon'ble Judges/Coram:
R.D. Dhanuka, J.

Citation: 2019(2) MHLJ 67
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