Case Note & Summary
The petitioner, Bharat Mulji Khona, was the defendant in a suit for specific performance filed by M/s. Fiza Construction Company (respondent no.1) seeking enforcement of an agreement dated 5 February 2006 for sale of a plot. The petitioner claimed that he had obtained a consent decree in his favour on 27 September 2005 in an earlier suit (SCS No.85 of 2005) against the same vendors. The petitioner filed an application under Order VII Rule 11 CPC for rejection of the plaint on grounds of limitation and absence of cause of action, which was rejected by the trial court. The petitioner also challenged the trial court's order allowing amendment of the plaint. The High Court held that the question of limitation is a mixed question of fact and law and cannot be decided at the stage of rejection of plaint unless the plaint is ex facie barred. The plaint disclosed a cause of action and the suit was not manifestly barred by limitation. Regarding amendment, the court held that amendments necessary for determination of real controversy should be allowed liberally. The court also observed that a consent decree is binding only on the parties to the suit and not on third parties. Accordingly, the writ petitions were dismissed.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11 CPC - Limitation - The court held that the question of limitation is a mixed question of fact and law and cannot be decided at the stage of rejection of plaint unless the plaint is ex facie barred. The plaint disclosed a cause of action and the suit was not manifestly barred by limitation. (Paras 10-15)
B) Specific Relief - Amendment of Plaint - Order VI Rule 17 CPC - The court held that amendments necessary for determination of real controversy between parties should be allowed liberally, especially when no prejudice is caused to the opposite party. The trial court's order allowing amendment was upheld. (Paras 16-20)
C) Consent Decree - Binding Nature - The court observed that a consent decree is binding only on the parties to the suit and not on third parties. The plaintiff, not being a party to the earlier suit, could challenge the consent decree. (Paras 8-9)
Issue of Consideration
Whether the plaint in a suit for specific performance is liable to be rejected under Order VII Rule 11 CPC on grounds of limitation and absence of cause of action, and whether the trial court's order allowing amendment of plaint was proper.
Final Decision
The High Court dismissed all three writ petitions, upholding the trial court's orders rejecting the application under Order VII Rule 11 CPC and allowing the amendment of the plaint.
Law Points
- Order VII Rule 11 CPC
- Limitation Act 1963
- Specific Relief Act 1963
- Amendment of Plaint
- Cause of Action
- Bar of Limitation
- Consent Decree
- Binding Nature
Case Details
Writ Petition No.2457 of 2026, Writ Petition No.2458 of 2026, Writ Petition No.2505 of 2026
Mr. Mayur Khandeparkar with Mr. Nishant Tripathi, Mr. Pranav Vaidya i/by M. Tripathi and Co., for Petitioner. Dr. Uday Warunjikar with Mr. Siddhesh Pilankar, for Respondent No.1.
M/s. Fiza Construction Company and Ors.
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Nature of Litigation
Civil writ petitions challenging orders of the trial court rejecting application under Order VII Rule 11 CPC and allowing amendment of plaint in a suit for specific performance.
Remedy Sought
Petitioner sought rejection of plaint in Special Civil Suit No.140 of 2008 and setting aside of order allowing amendment of plaint.
Filing Reason
Petitioner claimed that the suit for specific performance was barred by limitation and lacked cause of action, and that the amendment was improper.
Previous Decisions
The trial court rejected the petitioner's application under Order VII Rule 11 CPC and allowed the plaintiff's application for amendment of plaint. A revision against the rejection was disposed of keeping contentions open.
Issues
Whether the plaint in Special Civil Suit No.140 of 2008 is liable to be rejected under Order VII Rule 11 CPC on grounds of limitation and absence of cause of action.
Whether the trial court's order allowing amendment of the plaint was proper.
Submissions/Arguments
Petitioner argued that the suit was barred by limitation as the agreement was dated 5 February 2006 and the suit was filed beyond three years, and that the plaint did not disclose a cause of action.
Respondent No.1 argued that the question of limitation is a mixed question of fact and law, and the plaint disclosed a cause of action. The amendment was necessary for proper adjudication.
Ratio Decidendi
The court held that the question of limitation is a mixed question of fact and law and cannot be decided at the stage of rejection of plaint unless the plaint is ex facie barred. The plaint disclosed a cause of action. Amendments necessary for determination of real controversy should be allowed liberally. A consent decree is binding only on the parties to the suit and not on third parties.
Judgment Excerpts
The question of limitation is a mixed question of fact and law and cannot be decided at the stage of rejection of plaint unless the plaint is ex facie barred.
Amendments necessary for determination of real controversy between parties should be allowed liberally, especially when no prejudice is caused to the opposite party.
A consent decree is binding only on the parties to the suit and not on third parties.
Procedural History
The petitioner filed an application under Order VII Rule 11 CPC in Special Civil Suit No.140 of 2008, which was rejected by the trial court. The petitioner also challenged the trial court's order allowing amendment of the plaint. A revision against the rejection was disposed of by this Court on 23 April 2024 keeping contentions open. The present writ petitions were filed against both orders.
Acts & Sections
- Code of Civil Procedure, 1908: Order VII Rule 11, Order VI Rule 17
- Limitation Act, 1963:
- Specific Relief Act, 1963:
