Allowed

Union of India v. Suresh Thanawala and 3 Ors.

Bombay HC13 Dec 2006APP/784/2006

Case brief

AI extract

What is this about?

High Court allowed plaintiffs to lead additional evidence on limitation. Adjudicated procedure for deciding preliminary objection regarding maintainability of suit under Maharashtra Land Revenue Code, 1966 and Limitation Act, 1965, directing trial judge to decide issue expeditiously.

What did the court decide?

Plaintiffs allowed to lead additional evidence by affidavit and witnesses cross-examined; trial Judge directed to decide preliminary issue by 31.3.2007.

Union of India Vs Suresh Thanawala and 3 Ors. — Property and Title | Bombay HC (2006)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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 APPEAL NO.784 OF 2006

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In

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 NOTICE OF MOTION NO.2428 OF 2006

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In

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 SUIT NO.3226 OF 1997

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 Union of India : Appellants

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 (Orig.Plaintiffs)

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 V/s.

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 Suresh Jayantilal Thanawala & Ors. : Respondents

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 (Orig.Defendants)

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 Mr.B.A.Desai, Additional Solicitor General, with
 Mr.S.R.Rajguru and Mr.A.M.Sethna i/b. Mr.Pankaj Kapoor
 for the appellants.

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 Mr.T.N.Subramaniam, senior counsel, with Mr.S. Kotak
 i/b. Purnanand & Co., for respondent nos.1 & 2.

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 Mr.T.N.Subramaniam, senior counsel, with Mr.Sandeep Aole
 i/b. Udwadia & Udeshi for respondent no.3.

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CORAM : R.M.LODHA & S.A.BOBDE,JJ.

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 DATE : DECEMBER 13, 2006.

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P.C.

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 1. We heard Mr.B.A.Desai, Additional Solicitor General
 for the appellants and Mr.T.N.Subramaniam, senior counsel
 for the respondent nos.1 to 3.

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 -: 2 :-

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 2. Appeal is admitted and disposed of finally at this
 stage.

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 3. It is not necessary to go into the chequered history
 of the case. Suffice it to say that the appellants are
 the plaintiffs in the suit for declaration that they are
 owners of the suit land bearing survey no.139/CTS no.1
 situate at village Trombay, Pestonshah Salt Works, Mumbai,
 admeasuring about 49 acres and 38 gunthas. The plaintiffs
 have also prayed for declaration that the sale of the suit
 land by the defendant nos.1 and 2 is null and void and
 illegal. They have also prayed for declaration that the
 proceedings initiated under section 20 of the Maharashtra
 Land Revenue Code, 1966 and culminated in revision order
 dated 12.6.1996 passed by the Revenue Minister, Government
 of Maharashtra, is void ab initio and are of no legal
 consequence and the defendants are not entitled to claim
 any title over the suit land on the basis of the said
 decision. Few other reliefs have also been prayed for in
 the suit. It is pertinent to notice that the suit was
 filed on 17.7.1997. The present respondent nos.1 to 3 are
 the defendants in the suit. It appears that they took out
 a Notice of Motion purporting to be under Order VII Rule
 11 of the Code of Civil Procedure for rejection of the
 plaint. By order dated 17.1.2000, the plaint was ordered
 to be rejected under Order VII Rule 11(d), being barred by

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 limitation. The order was carried in appeal before the
 Division Bench. The appeal was dismissed on 10.7.2000.
 Against the concurrent orders dated 17.1.2000 and
 10.7.2000, the matter was carried to the Supreme Court.
 The Supreme Court set aside the said orders and restored
 the suit to the file of this Court. The plaintiffs were
 permitted to amend the plaint which they did. Liberty was
 granted to the defendants to make an application raising
 preliminary objections, including objection as to the
 maintainability of the suit on the ground of limitation.
 The Supreme Court observed that if such an application was
 made, the High Court may dispose of the same on merit
 within a period of six months from the date of its filing.

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 4. After the amendment was carried out in the plaint,
 pursuant to the liberty granted by the Supreme Court, the
 defendants took out a Notice of Motion raising preliminary
 objection about the maintainability of the suit, both on
 the count of limitation as well as the suit being barred
 under section 20 of the Maharashtra Land Revenue Code,
 1966.

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 5. It is unfortunate that despite the order of the
 Supreme Court dated 19.9.2001 being categorical and clear,
 the parties continued to agitate the avoidable
 controversy; the case of the defendants being that the

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 plaint be rejected being barred by law, while the case of
 the plaintiffs being that all issues in the suit must be
 tried together as provided under Order XIV Rule 2(1) of
 the C.P.C. It appears that precious time of the Court was
 lost on this controversy.

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 6. By the order dated 28.4.2003, the trial Judge observed
 that the question of limitation has to be decided first
 and, accordingly, directed the plaintiffs to file
 affidavit of evidence, if any, on the issue of limitation.
 Both the parties were also directed to file affidavit of
 documents relevant to that issue. Thereafter, by the
 order dated 15.3.2005, the trial Judge framed the
 following preliminary issue:-

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 "Whether the claim in the suit is barred by
 law of limitation provided under Section 20
 of the Maharashtra Land Revenue Code, 1966,
 and under the Limitation Act 1965, as alleged
 by the defendants".

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 7. In between the orders dated 28.4.2003 and 15.3.2005,
 we are informed by the senior counsel for the defendants
 that the plaintiffs filed affidavits in lieu of
 examination-in-chief of its witnesses; the said
 witnesses were cross-examined and the plaintiffs closed
 their evidence. On the other hand, the Additional
 Solicitor General condends that the issue of limitation
 and the suit being barred under section 20 of the

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 Maharashtra Land Revenue Code, 1966 was framed by the
 order dated 15.3.2005 and, therefore, the evidence led
 earlier is not sufficient to meet the said issue.

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 8. Now by the impugned order dated 28.9.2006, the trial
 Judge has disposed of the Notice of Motion taken out by
 the plaintiffs and held that the Motion taken out by the
 plaintiffs has to be dismissed and that the Notice of
 Motion taken out by the defendants under Order VII Rule
 11 needs to be decided.

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 9. The proceedings reflect confusion worst confounded
 amongst the parties. They have been making applications
 after applications without letting the Court to decide
 the preliminary issue that has been framed on the basis
 of the application made by the defendants pursuant to the
 liberty granted by the Supreme Court that the suit is
 barred by the law of limitation and also under section 20
 of the Maharashtra Land Revenue Code.

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 10. What is important is not the label given to the
 application and the provision of law invoked by the
 defendants. The substance of the matter is that the
 Supreme Court by its order dated 19.9.2001 granted
 liberty to the defendants to raise preliminary objections

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 about the maintainability of the suit, including the
 ground of limitation and the High Court was requested to
 dispose of the said application on merits within a period
 of six months from the date of its filing.

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 11. Having observed the aforesaid position, in our view,
 the interest of justice shall be served by the following

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 order:-

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 (i) The plaintiffs may lead their evidence
 additionally, if they so desire, to meet the
 preliminary objections by filing affidavit on or
 before 31.1.2007.

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 (ii) The plaintiffs shall also make the said witnesses
 available for cross-examination on the dates that
 may be fixed by the learned trial Judge and ensure
 that no adjournment is sought in that regard.

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 (iii) We record and accept the statement of the senior
 counsel for the defendants that they do not intend
 to lead any evidence on the preliminary issue.

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 (iv) We request the learned trial Judge to hear and
 decide the preliminary issue expeditiously and by
 31.3.2007, if possible.

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 (v) Needless to say that by its order dated 19.9.2001,
 the Supreme Court desired that the preliminary
 issue be decided within six months from the date of
 the application by the defendants. More than five
 years have elapsed and the said issue is yet to be
 decided. In the circumstances, the learned trial
 Judge may take up the matter on day-to-day basis,
 if possible, for decision on the preliminary issue.

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 (vi) Order accordingly.

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 R.M. LODHA, J.

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 S.A. BOBDE, J.

Union of India v. Suresh Thanawala and 3 Ors.

Case brief

What is this about?

What did the court decide?

Union of India v. Suresh Thanawala and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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