1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. NOTICE OF MOTION NO.1408 OF 2008 IN SUIT NO.3179 OF 2002 Mr.Rudhabhai Bhimji .... Plaintiff vs M/s.Veera Industrial Estate & Ors. ... Defendants Mr. Arshad Haindaday for the plaintiff. Mr. E. P. Bharucha, Sr.Counsel with Mr. Birendra Saraf i/by M/s.M.K. Ambalal & Co. for defendant no.4. CORAM: ANOOP V. MOHTA, J. DATE : 6th August, 2009 P.C.: 1 This motion is taken out by defendant no.4 for rejection of plaint filed by the plaintiff under Order VII, Order 11 of Code of Civil Procedure, 1908 (CPC). 2 The plaintiff has interest in the property and claiming to be the owner. The defendants denying the same in view of the public notices and Consent Terms in Suit No.784/1981 between defendant no.1 and defendant no.2, based upon the Agreement dated 7.12.1973. Defendant no.2 brought the property in the partnership firm/defendant no.3 which, subsequently, became defendant no.4 in 1993, as averred. The Tax Recovery Officer, some time in the year 1986 held auction for sale of the suit property which was attached in view of the tax dues 2 from the plaintiff. The plaintiff lodged objection to the public notice issued by defendant no.4 as the owner of the property some time in the year 1994. The plaintiff filed Suit Stamp No.4449/2001 (first suit) in the City Civil Court for declaration and injunction against the defendants with regard to the property in question. The plaintiff filed the present Suit and challenged specifically the Consent Terms dated 28.04.1981. Such declaration was not sought in the first Suit. The first suit filed by the plaintiff was dismissed on 6.1.2004 for default. It is not restored yet. 3 Admittedly, the plaintiff was not party to the Consent Term dated 28.04.1981 filed by the defendants in Suit No.784/1981. Admittedly, when Suit No.784/1981 was filed by the respective respondents, the property in question was under attachment of Income Tax Department towards the respective tax dues of the plaintiff. 4 Admittedly, even when Public Notice dated 13.09.1994 issued by the defendants with regard to the said property there was no specific mention about the Consent Terms in question. 5 The plaintiff, as averred and contended to have raised objection about the title of the said property. 6 As averred, the plaintiff came to know about this Consent Terms only when he received a notice from the Income Tax Department some time in May, 2002 in connection with the attachment of the said suit property. As defendants 3 and 4, based upon the Consent Terms, were ready and willing to clear of the dues payable by the plaintiff. The notice given by the Income Tax Department, even in such circumstances, inspite of the so-called Consent Terms to the plaintiff, further 3 establishes at this stage that there is interest of the plaintiff in the suit property throughout since 1963/1964. 7 The contra contention revolving around the title/interest of the plaintiff, therefore, cannot be accepted at the instance of the defendants at this stage of the proceedings. 8 The date of knowledge basically in view of 1994 public notice, as contended by the learned senior counsel for the defendants, in the present facts, is unacceptable. The fact that the property was under attachment and the Consent Decree was never signed by the plaintiff, the public notice so referred also no- where mentioned about the Consent Terms, therefore, I am not inclined to accept that when the Suit was filed in the year 2002, after receipt of the notice from the Income Tax Department referring to the Consent Terms between defendants 3 and 4, is beyond limitation, on the face of the averments so made and as contemplated under Orders VII, Rule 11 (d) of CPC. 9 Admittedly, Suit (Stamp) No.4449 of 2001 was filed by the plaintiff and the following prayers were made: “a) This Hon’ble Court be pleased to declare that the alleged sale by defendant no.1 in favour of defendant no.2 and the transfer of rights thereafter by the defendant 2 in favour of defendants 3 and 4 in respect of plot No.A 8 Veera Desai Rd, Oshiwara, Taluka Borivali, Andheri (W) Mumbai is illegal unlawful, bad in law, void and not binding upon the plaintiff and is liable to be set aside. b) That the Defendant Nos. 1 to 4, their servants, agents or any person claiming on their behalf be restrained by an order and permanent injunction of this Hon’ble Court from entering into the suit premises, i.e. Plot No. “A-8”, Veera Desai Road, Oshiwara Village, Tal: Borivali, Andheri (W), Mumbai and/or putting up any construction or development and/or forcibly dispossessing the plaintiff therefrom and/or disturbing the plainti9ff’s possession in respect thereof. c) Pending the hearing and final disposal of the suit, interim and ad interim orders in terms of prayer clause “b” above be granted. 4 d) Cost of the suit be provided for. e) For such further and other reliefs as this Hon’ble Court may deem fit and proper in the matter.” 10 Now, a statement is made at the bar that the first suit filed in the City Civil Court was dismissed for want of prosecution. Therefore, only the present Suit is pending. 11 Once the Consent Decree is passed by the High Court in a Suit between the defendants, the challenge to the said Consent Terms from the date of knowledge in the High Court just cannot be overlooked, at this stage of the proceedings. Such Suit, at the instance of the plaintiff, as filed on 16.09.2002 as stands today, is maintainable. Even otherwise the issues and the submission about the limitation, resjudicata/estoppal, Section 11 of CPC, Order 2, Rule 2 of CPC, Order 7,Rule 11 of CPC, read with Order 23, Rule 1 and 3A of CPC, in view of above facts, are also not sufficient to reject the plaint also for the following reasons:- (a) Order 23, Rule 1 or Rule 3A cannot be read in isolation, specially when admittedly the plaintiff was not party to the Consent Terms. The Third person affected by such Consent Terms is entitled to challenge the same, within the limitation from the date of knowledge of the Consent Terms. The date of knowledge, in the present case itself is in dispute which, in my view, needs the full trial. (b) The principle of resjudicata revolve around Section 11 of CPC itself 5 makes provision very clear that issue should be between the parties and there should be adjudication or decision on the same by the Competent Court. Admittedly, in the present case, there is no such decision and/or determination of such issues. Explanation 4 of Section 11 of CPC just cannot be read again in isolation. Section 11 itself provides various elements which need to be considered while passing any Order on the principle of resjudicata or estoppal and/or constructive resjudicata. In the present case, these basic elements are missing. Therefore, I am not inclined to deny the right of the plaintiff to contest the matter on merits in the above circumstances. (c) The submission that the grounds which were available at the relevant time, it ought to have been raised including the challenge to the Consent Terms, in the City Civil Court, is also not acceptable. The power and jurisdiction of City Civil Court is quite limited, specially when we refer to the Consent Terms/Decree passed by the High Court in a Suit. The prayer clauses so referred above, itself show that challenge was raised with regard to the right and title of defendants with reference to this property, but there was no such declaration sought in that Suit. In view of this, the submission revolving around Order 2, Rule 2 of CPC and revolving around Explanation 4 of Section 11 of CPC are also unacceptable. (d) The fact that the first Suit is dismissed for want of prosecution cannot be overlooked. It also means that there is no final determination of 6 any issue by any other Court. The Court was not in a position to grant basic relief in First Suit, the second Suit, as filed and as this Court has jurisdiction to pass grant reliefs, as prayed, therefore, there is no question to consider even the submissions revolving around Section 11, Order 2, Rule 2 or Order 23, Rule 3-A of CPC. 12 In view of plain reading of the averments and in view of above reasoning, there is no case to reject the plaint as contemplated under Order VII, Rule 11(a) (d). [P.K.Palanisamy v. N. Arumugham & anr., JT 2009 (10) SC 79]. The averments made in support of the Notice of Motion, by the defendants are not sufficient to reject the plaint by overlooking the averments made by the plaintiffs. 13 Resultantly, Notice of Motion is dismissed. No costs. (ANOOP V. MOHTA, J.)