Thursday 27 December 2012

Plaint can not be rejected on the ground that plaintif has no personal interes in disputed area


With regard to the next contention of Shri Sudin Usgaonkar to
the effect that relief sought by the appellant is barred under Section
41(j) of the Specific Relief Act, I find that the said aspect cannot be a
ground  to  reject  the  plaint  under  Order  7  Rule  11  of  the  Civil
Procedure Code.  The fact as to whether respondent no.1 has any
personal interest in the disputed area is something which will have to
be adjudicated by the learned Judge on merits.  Merely on the basis of
such averments it is not open to the Court to reject the plaint under
Order 7 Rule 11 of the Civil Procedure Code as the suit cannot be said
to  be  barred  especially  as  the  respondent  no.1  also  claims  some
interest in the suit property.  Though Shri Sudin Usgaonkar may be
justified to contend that the lower appellate Court has not dealt with
the  said  aspect  in  view  of  what  has  been  held  herein  I  find  no
justification to interfere in the impugned judgment.


IN THE HIGH COURT OF BOMBAY AT GOA
APPEAL FROM ORDER NO.31 OF 2011
  Mr. Joaquim L. Dias, 

V/s
  Mr. Baptist Coelho, 
    
CORAM : F.M. REIS, J.
DATE : 21
st
 JUNE, 20122
CITATION;2012(6)MH.L.J 929

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

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