Samarthmal Hajarimal Mehta v. Shri Pirchand Misrimal Bhanali

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION CIVIL REVN. APPLICATION NO. 436 OF 2016 Samarthmal Hajarimal Mehta, R/at Tulsi Bldg., 112, 2nd floor, Khetwadi, Mumbai - 400 004.

... Applicant v/s Shri Pirchand Misrimal Bhanali, R/at 6th flr., Prabhat Co-op. Hsg. Society, 9th Khetwadi Lane, Mumbai - 400 004.

... Respondent Mr.P.S.Dani, senior advocate along with Himanshu Kode and Abhishekh Deshmukh i/by S.A.Sawant for the applicant. Mr.G.S.Hegde along with Ms.Pinky Bhansali and Ms.Rajlaxmi i/by Ritesh Jain for the respondent.

Coram: N.M. Jamdar, J.

Dated: 19 August 2016 ORAL ORDER:

By this revision application, the Applicant challenges the order passed by the learned Principal Judge, City Civil Court, Mumbai, dated 30 June 2016, allowing the notice of motion taken out by the Respondent/Defendant, for rejection of plaint on the ground that it is barred in view of Section 6(2)(a) of the Specific Relief Act.

bsb 2 20.CRA436.16.doc Suit No.66 of 2004 was filed by the Applicant in this Court which was subsequently transferred to the City Civil Court. According to the Applicant, he was doing the business of dealership from the suit premises. The building where this suit premises/room was situated was purchased by one Bankim Dalal and the Applicant was paying rent to him. According to the Applicant, thereafter the building where the suit premises were situated underwent reconstruction, however, the tenancy rights of the Applicant were not being recognized and on 27 March 2003 he found that the lock of the suit room was broken and some other lock was placed and on that day he was dispossessed from the property. The suit was filed with a prayer that the possession of the suit room be restored to the Applicant. In this suit, Notice of Motion No.

157 of 2004 was taken out, in which an order was passed on 12 February 2004 granting adinterim relief till further orders. Thereafter the notice of motion came up before the learned Single Judge on 13 December 2004 and the learned Single Judge appointed a Receiver over the suit property and directed that the Applicant be appointed as an agent of the Receiver without security or royalty. An appeal was preferred by the Respondent/Defendant bearing No.16 of 2005, which was dismissed. The Special Leave Petition filed by the Respondent/Defendant was dismissed, however, liberty was granted to the Respondent/Defendant for seeking a direction to fix a royalty. Thereafter the Respondent filed Notice of Motion No.1723 of 2005 for fixing royalty.

bsb 3 20.CRA436.16.doc order dated 30 June 2006, the learned single Judge fixed the royalty and directed the Applicant to pay the royalty as fixed. The suit was thereafter transferred to the City Civil Court. An application was filed by the Respondent/Defendant in March 2015 to reject the plaint under Order 7 Rule 11 of the Civil Procedure Code, on the ground that it was filed beyond the period of limitation. It was stated in the application that the cause of action specified in the suit was 27 March 2003, however, the suit was filed after a period of six months i.e. on 8 October 2003, which was beyond the period of limitation, specified in Section 6(2)(a) of the Specific Relief Act. The Applicant filed reply to the said notice of motion and contended that the suit was filed under Section 6, however, it was filed on 26 September 2003 i.e. on last day of a period of limitation and, therefore, the notice of motion be rejected.

The learned Principal Judge, after considering the Court record, found that the suit was filed on 8 October 2003 which, on the face of it, was beyond the period of limitation, and accordingly allowed the notice of motion, rejected the plaint and discharged the Receiver. Against this order the present revision has been filed. Mr.Dani, learned senior advocate for the Applicant submitted that though the statement has been made in the reply that the suit is filed under Section 6, what will have to be seen for the purpose of Order 7 Rule 11, is the plaint and there is no statement made in the

bsb 4 20.CRA436.16.doc plaint that the suit is filed under Section 6 of the Specific Relief Act. He submitted that the court fee is also is paid as if the regular civil suit is filed. He submitted that it is not the position of law that the suit filed complaining dispossession cannot be filed after a period of six months and if that is the position, the suit could not have been dismissed by invoking provisions of Order 7 Rule 11. He submitted that, even though the orders have been passed by this Court referring to Section 6, at the time of rejection of the plaint only the plaint will have to be looked into and nothing else. It is his contention that once a suit under the general law for dispossession was permitted, and if filed after a period of six months, then without holding a trial the plaint could not have been rejected. Mr.Dani relied upon the following decisions of the Apex Court: Somnath Berman v/s Dr.S.P.Raju & anr.1, Nair Service Society Ltd. v/s K.C.Alexander & ors.2, and Bhau Ram v/s Janak Singh & ors.3.

Mr.Hegde, learned counsel for the Respondent, on the other hand, supported the impugned order and submitted that throughout the litigation a clear stand has been taken by the Applicant that the suit is filed under Section 6 of the Specific Relief Act and which is further explained by him in the reply filed to the notice of motion. Even the Applicant has taken advantage of various orders passed on the premises that the suit is filed under Section 6 of the Act. AIR 1970 SC 846 AIR 1968 SC 1165 2012 AIR SC 3023

bsb 5 20.CRA436.16.doc In the plaint, grievance made by the Applicant is regarding his dispossession. The relief that is sought refers to restoration of possession of the Applicant. There is no other relief sought in the suit. There is no declaration of title nor there is any dispute raised regarding the same. The orders passed by the Court in the suit from time to time need to be noted. The first order is passed on 12 February 2014 at the ad-interim stage. The order reads thus - 'P.C.:

1. In a suit filed under Section 6 of the Specific Relief Act, the Plaintiff has taken out this motion restraining the defendants from alienating, transferring or creating third party rights in their room as well as appointment of a receiver in respect of the suit premises.

2. In the affidavit in reply, the defendant has denied the truth of the plaintiff's case and has further pointed out that on the plaintiff's own allegations, the alleged incident of dispossession took place on 27 March 2003 and the suit has been on 26th September 2003 on the last day of expiry of the period of six months from the date of dispossession. Application for ad-interim relief was pressed before the Court for the first time in January 2004. Since more than 10 months have passed, I do not think it would be proper to pass an ad-interim order for appointment of a receiver. However, the ad-interim relief in terms against alienation can be granted to protect the interest of the plaintiff. Hence, there shall be ad-interim relief in terms of prayer (a) till further orders. Let the motion come up for hearing in regular course.' From this ad-interim order it is clear that all the parties proceeded on the basis that the suit is filed under Section 6 of the Specific Relief

bsb 6 20.CRA436.16.doc Act.

Thereafter, when a notice of motion came up for final disposal, the learned single Judge, by an order dated 13 December 2004 appointed a Receiver. In the first paragraph of the order itself, the learned Judge referred to the suit being filed under Section 6 of the Specific Relief Act. Thereafter, the learned Judge noted rival contentions and observed that - '3.

I have heard learned counsel for both the sides. Perusal of the consent terms and the decree passed by the Court show that there is definitely a decree passed by the Competent Court in favour of the Plaintiff. There is also a possession note executed by the landlord in favour of the Plaintiff. The Plaintiff has also produced the electricity bill which shows that the Plaintiff was in possession of the premises. On the contrary, if one goes through the affidavit filed by the Defendant, he claims to be in possession of three parking spaces since 1q996. He nowhere states that these parking spaces were enclosed by him and that he was in possession of enclosed parking spaces.

Thus, apart from the question as to how the parking spaces were enclosed by the Defendant, there does not appear to be clear statement made by the Defendant that he was in possession of this room. He does not show as to who put him in possession of this room.

bsb 7 20.CRA436.16.doc Plaintiff was in possession of the suit room. On the contrary, the Defendant has not been able to produce a single document. Really speaking, there is no statement made by the Defendant that he was in possession of the suit room at any point of time. His only claim is that he was in possession of three parking spaces. As the Defendant does not claim even to be in possession of the suit room and as the Plaintiff appears to have got possession of the room as an erstwhile tenant. In my opinion, the balance of convenience is also in favour of the Plaintiff. The Defendant appears to be person having no title and considering that the Plaintiff was in erstwhile tenant, in my opinion, it would be appropriate to appoint the Receiver on the suit property. The notice of motion is therefore granted in terms of prayer clause (b).'

The learned Single Judge therefore proceeded on the basis that the suit is under Section 6 of the Specific Relief Act and that being the position, the Court will have to concentrate on the possessory aspect of the controversy. Keeping that in mind, the learned Judge appointed a Receiver. This order has been confirmed in appeal and by the Apex Court. At no point of time any submission was made by the Applicant that the suit is filed under the general law. The Applicant proceeded on the basis that the suit is filed under Section 6 of the Specific Relief Act, restricted the enquiry at the interim stage only to the aspect of possession and benefitted from the order of Receiver appointed with Applicant as an agent passed on the basis that the suit being under Section 6 of the Specific Relief Act.

bsb 8 20.CRA436.16.doc If that is not enough, when a motion was taken out by the Respondent/Defendant on the ground that the plaint is barred by limitation, in the first paragraph of the reply, the Applicant on oath has stated as under:

'1. I say that I have filed City Civil Suit No.107853 of 2004 (High Court Suit No.66 of 2004) against the Defendant Pirchand Misrimal Bhansali under Section 6 of the Specific Relief Act, for possession.' In the reply, the Applicant has not stated that the suit is filed under general law, but has proceeded to contest the application on the ground that the suit under Section 6 was filed within a period of limitation. In paragraph 10 of the reply, the Applicant has stated as under:

'10. I therefore say that the Defendant and his Advocate were both aware of the fact that the said suit was filed on 26.09.2003 and was thus filed within the period of limitation.'

Therefore, the Applicant's case in the reply was that, since the suit was filed on 26 September 2003, it was within a period of limitation. The limitation being of six months, as provided under the Specific Relief Act. Even before the learned Principal Judge, City Civil Court, the argument was not that the suit is filed under the general law but having filed under Section 6 of the Act, it was within limitation. Thus, from the date of institution of the suit in the year 2004 till the

bsb 9 20.CRA436.16.doc impugned order was passed in June 2016, the consistent stand of the Applicant that the suit is filed under Section 6 of the Act. It is now, after the impugned order is passed for the first time stand is taken that the suit is not filed under Section 6 of the Act but general law. This conduct is dishonest.

As regard the decisions in the case of Somnath Berman (supra) and Nair Service Society Ltd. (supra) are concerned, the Apex Court has clarified that if a suit is filed complaining of dispossession under general law, it is not barred if it is filed after a period of six months. The difference between the suit filed under Section 6 and the general law is that, under the general law, the question of title is not removed from consideration. There cannot be any dispute regarding the proposition that the suit under general law can be filed after a period of six months complaining of dispossession, what is not permitted, however, is to contend at the same time that the suit is filed under general law as well as Section 6 of the Act.

No such position of law shows that the contradictory stands of such nature at different stages in the same suit can be taken. None of the decisions cited arise from factual matrix where the Plaintiff asserts that the suit is filed under Section 6 of the Act and takes benefit and at subsequent stage when question of limitation arises, contends that the suit is under general law.

Section 6 of the Act provides a speedy remedy to a person who

bsb 10 20.CRA436.16.doc has been dispossessed and the enquiry is restricted to find out whether the person was in possession at the time of dispossession and has been wrongfully dispossessed. This speedy remedy is provided with certain restrictions. No appeal is provided against the order passed and the suit has to be filed within six months of dispossession. Therefore, once such a speedy remedy is invoked, the Plaintiff is bound by the restrictions that come with this remedy. It was contended by Mr.Dani that, at the stage of Order 7 Rule 11 of the Code of Civil Procedure, only the plaint has to be looked at. Firstly, this argument was never made before the City Civil Court. Even going by the averments made in the plaint, the prayer is clearly for restoration of possession.

There is no averment that the suit is not filed under Section 6 of the Act. Normally there may not be but it is relevant in view of subsequent conduct of the Applicant and the argument of Mr.Dani. Therefore, once there is no negative statement that the suit is not filed under Section 6 of the Act, then how the Applicant has interpreted his own plaint is of importance. While construing the plaint, the best guidance is as to how a Plaintiff himself has understood it. The prayer in the suit is restricted to restoration of possession. Throughout the proceedings, the Applicant has treated the suit as being one under Section 6 of the Act including in the reply, when this aspect was put into issue.

bsb 11 20.CRA436.16.doc importance. This being the position, the suit will have to be treated as the one filed under Section 6 of the Act.

Proceeding on this basis, the question of limitation will have to be considered. The plaint can be rejected under Order 7 Rule 11 if it is barred by any law. Section 6(2) provides that no suit shall be brought after expiry of six months from the date of dispossession. This condition is couched in negative manner and the suit under Section 6 of the Act is not maintainable after a period of six months of dispossession. The date of dispossession is specified in the plaint as 27 March 2003 and the plaint was lodged on 8 October 2003. Nothing is shown as to how the conclusion of the learned Principal Judge that the plaint was lodged on 8 October 2003 and not on 26 September 2003, is wrong. No arguments were advanced against this contention.

Therefore, the suit complaining of dispossession on 27 March 2003 filed on 8 October 2003 was clearly beyond the period of limitation provided under Section 6 of the Act which is a subject period of limitation. Therefore, in view of the mandate of Section 6(2) of the Act the suit was barred and the plaint was rightly rejected by the learned Principal Judge. The learned Principal Judge has not committed any error and has given effect to the provisions of law. No case is made out for the interference in the revisional jurisdiction. The revision application is rejected.

bsb 12 20.CRA436.16.doc At this stage, learned counsel for the Applicant seeks continuation of the interim protection. The Receiver has been appointed by the order dated 13 December 2004 with the Applicant as his agent, same arrangement will continue for a period of eight weeks from today.

(N. M. Jamdar, J.)