Welcome Co-operative Housing Society vs Mr. Sheeraz Ahmed & Ors.

Heard finally with consent of learned counsel for the respective parties.

The applicant, which is a Co-operative Housing Society, has challenged the order dated 15.03.2024 passed by the learned 7^th Joint Civil Judge Senior Division, below Exh.23 in Special Civil Suit No.382/2018. Vide the said impugned order, the learned Trial Court rejected the application at Exh.23 filed by the applicant under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short “CPC”). In support of its case, the applicant has narrated the detailed history of the dispute between the parties. The dispute pertains to the Survey Nos.16/2, and 39 situated at Mouza : Nara, Tahsil and District Nagpur. Out of the said lands, some portion of the land bearing Kh. No.16/2 was acquired by National Highway Authority of India (NHAI). The applicant-Society had purchased the lands vide Sale Deed dated 12.04.1988 from various persons, as described hereinbelow :-Survey No.14 From (i) Gendasingh Thakur; (ii) Abdul Aziz Abdul Latiff; Survey No.16/2 From (i) Gendasingh Thakur; (ii) Sheikh Usman Abdul Latiff; Survey No.16/7 From (i) Gendasingh Thakur; (ii) Abdul Aziz Abdul Latiff;

Apart from the aforesaid sale deed, the applicant-Society had also purchased the Survey No.39 vide another Sale Deed dated 15.06.1990 from one Gendasingh Thakur, Sarfaraz Ahmad and Sheikh Usman Abdul Aziz. All these three persons are the predecessors of the respondents herein. In view of certain disputes, respondent nos.5 to 7 being legal representatives of Mr. Gendasingh Thakur, had filed three civil suits i.e. Special Civil Suit Nos.956/2003, 957/2003 and 596/2004.

Special Civil Suit No.956/2003 was filed by Suryakant Gendasingh Thakur (i.e.) respondent no.5 herein against the applicant-Society and Sarfaraz Ahmed i.e. Predecessor of Respondent Nos.1 to 4 and Sheikh Usman Abdul Aziz (i.e. respondent no.8 herein) for declaring the Sale Deed dated 15.06.1990 concerning Survey No.39 as illegal. However, on 12.07.2006, respondent Nos.5 and 8 and the applicant-Society arrived at compromise thereby, acknowledging the ownership of applicant-Society over land bearing Survey Nos.39, 14, 16/2 and 16/7. Before entering into compromise, the name of Sarfaraz Ahmed i.e. Predecessor of Respondent Nos.1 to 4 came to be deleted on 11.07.2006. However, on the next date 12.07.2006, Sarfaraz Ahmed i.e. Predecessor of Respondent Nos.1 to 4 raised an objection to the compromise. According to the applicant, Sarfaraz Ahmed had knowledge about the compromise dated 12.07.2006, wherein contents of both the Sale Deeds dated 12.04.1988 and 15.06.1990 were specifically mentioned.

Another suit, being Special Civil Suit No.957/2003, was filed by Suryakant Gendasingh Thakur (i.e. respondent no.5 herein) against applicant-Society as well as Beena Pratapsingh Rana (i.e. respondent No.6 herein) challenging the Sale Deed dated 15.06.1990 pertaining to survey Nos.122/2 and 122/3. The said suit was also compromised on 12.07.2006 by respondent Nos.5 and 6 with applicant-Society thereby, admitting the ownership and title of the applicant-Society over the survey Nos.14, 16/2, 16/7 and 39.

Another suit, being Special Civil Suit No.596/2004 was filed by Anuja Harish Kewlani (i.e. respondent No.7 herein) against respondent Nos.5 and 6 and Sarfaraz Ahmed (i.e. predecessor respondent Nos.1 to 4) seeking partition and separate possession by claiming the 1/3^rd share in various properties, including survey Nos.39, 14 and 16/2. In the said suit, the applicant-society had filed an application on 29.11.2004 for deleting its name from the suit stating that the Survey Nos.14, 16/2, 16/7, and 39 had already been sold to it by Gendasingh Thakur and others. However, on 13.06.2005, the applicant-Society filed a pursis in the said suit and gave details of the Sale Deeds dated 12.04.1988 and 15.06.1990. Thereafter, on 27.07.2006, Sarfaraz Ahmed (i.e. predecessor respondent Nos.1 to 4) had filed his vakalatnama in the said suit. The suit was compromised on 19.10.2006 by respondent No.7 herein with applicant-Society. Thus, Sarfaraz Ahmed (i.e. predecessor respondent Nos.1 to 4) was aware of the Sale Deeds dated 12.04.1988 and 15.06.1990.

However, Sarfaraz Ahmed whose name was deleted as party respondent in Special Civil Suit No.956/2003, subsequently challenged the said compromise decree dated 12.07.2006 by filing another separate Special Civil Suit No.303/2007 on 12.03.2007 (re-numbered as Regular Civil Suit No.1200/2012) against respondent Nos.5 and 8 and the applicant-society seeking declaration that the compromise decree dated 12.07.2006 is a nullity. Thereafter, the father of respondent No.1 Sarfaraz Ahmed passed away on 04.01.2012 and the names of respondent Nos.1 to 4 were brought on record being his legal heirs. The said suit is pending before the learned 5^th Joint Civil Judge Senior Division, Nagpur.

According to the applicant-Society, the predecessor of respondent Nos.1 to 4 were very much aware about the compromise decree as well as Sale Deeds dated 12.04.1988 and 15.06.1990 and he had never challenged the same. Therefore, the applicant-Society has carved out a layout on Survey Nos.14, 16/2, 16/7 and 39 by allotting plots to its members and also to deliver its possession.

Thereafter, respondent No.9-Authority, acquired portions of the lands bearing Survey Nos.14, 16/2 and 16/7. However, a dispute arose between applicant and respondent Nos.1 to 7, as regards the apportionment of the compensation, which led the Competent Authority to refer the matter to Civil Court for apportionment. The said reference was challenged by the applicant-Society by filing Writ Petition No.151/2018 (Welcome Cooperative Society Nagpur through President Vs. The Competent Authority and Deputy Collector, Land Acquisition, Nagpur and Others) before the Hon’ble High Court on 05.01.2018. Thereafter, respondent Nos.1 to 4 herein filed Special Civil Suit No.382/2018 for declaration, partition, separate possession and permanent injunction with numerous prayers thereby, challenging the Sale Deeds dated 12.04.1988 and 15.06.1990 as well as claiming 1/3^rd share in land bearing Survey No.16/2 and proportional compensation amount in respect of the acquired land. There are also prayers as regards permanent injunction restraining the applicant–Society from creating any third party interest as well as disbursing the compensation amount to the extent of 1/3^rd share to anybody.

After receipt of suit summons, the applicant–Society filed an application below Exh.23 under Order VII Rule 11 of CPC, praying for rejection of plaint on the grounds that there is no cause of action for institution of the suit and the said suit was also not properly valued. Further, the same was expressly as well as impliedly barred under the provisions of law including the law of limitation. On the same date, respondent Nos.1 to 4 (plaintiffs therein) filed documents on record. The learned Trial Court vide impugned order dated 15.03.2024 rejected the application vide Exh.23.

Being aggrieved, the applicant–Society has approached to this Court to quash and set-aside the order dated 15.03.2024 passed below Exh.23 by the learned 7^th Joint Civil Judge Senior Division, Nagpur.

Mr. Nikhil Padhye, learned counsel for the applicant submitted that respondent Nos.1 to 4 firstly stated that they have become aware of the Sale Deeds dated 12.04.1988 and 15.06.1990 only when they were served in the last week of the January, 2018 with the copy of Writ Petition No.151/2018 along with documents. On the contrary they were very much aware of the same in the year 2005. It is further contended that the learned Trial Court failed to consider that the suit was hopelessly barred by limitation. The main contention of the applicant–Society is that in the previous suit instituted between the parties their predecessors as well as plaintiffs were very much aware about the Sale Deeds dated 12.04.1988 and 15.06.1990. Therefore, by clever drafting, respondent Nos.1 to 4/plaintiffs have deliberately brought the cause of action within the prescribed period of limitation, in order to maintain the suit against the applicant-Society.

Mr. Nikhil Padhye, learned counsel for the applicant further submitted that the learned Trial Court committed an error in not considering the application under Order VII Rule 11 of the CPC in proper perspective. According to him, despite pointing out the material and relevant facts, the learned Trial Court failed to appreciate the same correctly. He therefore, submitted that the impugned order deserves to be set-aside by rejecting the plaint and the plaint be rejected under Order VII Rule 11 of the CPC.

In support of his submissions, Mr. Padhye, learned counsel for the applicant, has relied upon various judgements which are as follows :-

Represented by Its Chairman Vs. Ponniamman Educational Trust Represented by Its Chairperson/Managing Trustee

The aforesaid authorities were relied upon to claim that the Court has to determine whether the plaint prima-facie discloses a cause of action and whether any grounds specified in clauses (a) to (e) of Order VII Rule 11 of the CPC are made out, then the Court is bound to reject the plaint. It was further contended that the aforesaid authorities are also on the point that the plaint shall be rejected when the averments in the plaint or the suit appears to be barred by the law. According to the applicant, the aforesaid authorities also point out the issue that on the plain reading of the plaint, if it is found that the suit is barred by the law of limitation, the Court is bound to exercise its powers under Order VII Rule 11(d) of the CPC, and reject the plaint.

Per contra, Mr. Akshay Naik, learned Senior Counsel, assisted by Mr. Dhoble, learned counsel for the respondent Nos.1 and 2, vehemently opposed the present application. He submitted that though the applicant had filed an application for rejection of plaint on the ground of limitation on the basis of statement that the respondent Nos.1 and 2 had a knowledge in the year 2006, and predecessor had filed a suit bearing Regular Civil Suit No.956/2003 for setting-aside the decree obtained by playing fraud. However, pleadings in the instant suit discloses that cause of action for respondent Nos.1 to 4 arose in January-2018, only when they discovered the fraud committed by the applicant–Society and respondent No.5 with their predecessor, Sarfaraz Ahmad, after receiving copy of the Writ Petition No.151/2018. According to learned Senior Counsel, such specific pleadings in the plaint discloses the cause of action and also raise multiple issues including the issue of limitation as claimed by the applicant –society. Therefore, the issue of limitation as raised by the applicant-Society, is a triable issue and it cannot be concluded that the plaint is liable to be rejected at its threshold under Order VII Rule 11 of the CPC.

Learned Senior Advocate further submitted that the issue of limitation is a mixed question of law and facts. The applicant–Society is also challenging the order on the ground that the notices under Section 164 of the Maharashtra Co-operative Societies Act, 1960 as well as under section 80 of CPC, were not issued. However, according to him, the instant suit has nothing to do with the business of the Society and respondent Nos.1 and 2 are not members of the applicant-Society. He further submitted that the learned Trial Court has properly appreciated the application filed by the applicant-Society and by giving specific findings on every ground raised by the applicant-Society, had rejected the application under Order VII Rule 11 of the CPC. According to him, the order passed by the learned Trial Court is well within the parameters of its jurisdiction and it does not suffer from any defect and therefore, it requires to be maintained.

Mr. Naik, learned Senior Counsel further submitted that respondent Nos.1 to 4 have specifically pleaded in para No.18 of the plaint that the execution of illegal Sale Deed is not touching the business of the applicant-Society and hence, the issuance of notice under Section 164 of the Act, is not mandatory. He further submitted that respondent Nos.1 to 4 i.e. original plaintiffs had issued a notice and therefore, there is no legal defect on that count. He further submitted that the issue between the parties is purely of civil nature therefore, the matter does not fall within the purview of Section 91 of the Act. Further, Mr. Naik, learned Senior Counsel submitted that the plaintiffs i.e. respondent Nos.1 to 4 are seeking relief of declaration of their extent of share and for a declaration that the Sale deeds dated 12.04.1988 and 15.06.1990 were executed illegally by the parties without the consent or the authority of predecessor of respondent Nos.1 to 4. He submitted that the respondents have properly valued the suit property and the deficit Court Fees is paid therewith. Therefore, on this count there is no ground available for the applicant-Society to challenge the plaint.

Mr. Naik, learned Senior Counsel further submitted that while considering the application under Order VII Rule 11 of the CPC, only the plaint averments are germane. The defence raised by the defendant cannot be considered and appreciated while deciding the application for rejection of the plaint. He further submitted that the plaint cannot be rejected in part and as there are various issues, the same requires to be decided on its own merits and after the full fledged trial.

In support of his submissions, learned Senior Counsel relied upon the judgment passed by the Hon’ble Apex Court in the matter of Kum. Geetha D/o. Late Krishna and Others Vs. Nanjundaswamy and Others reported in 2024 (14) Supreme Court Cases 390, wherein it has been held that in an application under Order VII Rule 11 of the CPC, the plaint cannot be rejected in part. The true test is first to read the plaint meaningfully and as a whole by taking it to be true. Upon such a reading, if the plaint discloses a cause of action, then the application under Order VII Rule 11 must fail.

Learned Senior Advocate further relied upon the judgment in the matter of Civil Revision Application No.71 of 2024 Smt. Nalini W/o. Laxman Rokde Vs. Smt. Madhuri W/o. Murlidhar Patil and Others, decided on 14.08.2025 passed by the Coordinate Bench of this Court, wherein, while relying upon the judgment passed by the Hon’ble Apex Court in the matter of Sejal Glass Limited Vs. Navilan Merchants Pvt. Ltd., and Madhav Prasad Aggarwal and another Vs. Axis Bank Limited and Another, on the ground that the plaint cannot be rejected partly. Even if, the ground for rejection of plaint is made out by the applicant, the application cannot be rejected partially, vis-a-vis the suit for cancellation and declaration.

Learned Senior Counsel further submitted that the basic pleading with regard to prayer for injunction, still persists and suit will have to be tried. The aforesaid authorities of the Hon’ble Apex Court also disclose that when it appears that the plaint cannot proceed for some part, but it can proceed with some other part then Order VII Rule 11 of the CPC, has no application. Mr. Naik, learned Senior Counsel therefore, strongly opposed the instant application and prayed for its dismissal.

After considering the rival submissions made by the learned counsels for the respective parties, to decide an application under Order VII Rule 11 of the CPC, the Court has to peruse the averments made in the plaint and also to consider the documents annexed thereto by the plaintiffs. It is well settled that the defence of the defendants cannot be considered at the time of deciding such an application. In the present case, the plaintiffs have filed the suit for declaration, partition, separate possession and permanent injunction. In the plaint, the plaintiffs have sought as many as ten reliefs, out of which prayer clauses 1 to 8, reads as follows :-

The main contention of the applicant in the application under Order VII Rule 11 of the CPC, is that the suit is not tenable in law and the same is barred under the provisions of the Limitation Act, 1963 and the Maharashtra Cooperative Societies Act, 1960 and Bombay Court Fees Act, 1959.

According to the applicant, the plaintiffs are the legal heirs of the deceased Sarfaraz Ahmed, who died on 04.01.2012 and the instant suit is filed by the plaintiffs in March, 2018. By way of a clever drafting, the plaintiffs are attempting to show that the alleged cause of action for filing the suit arose in the last week of January, 2018, when the plaintiff No.1 received the copy of Writ Petition No.151/2018 along with documents. The plaintiffs have made reference to several civil suits pending between the parties in all of which their predecessor Sarfaraz Ahmed, was a party.

The plaintiffs have also averred that the Special Civil Suit No.303/2007 was filed by the predecessor Sarfaraz Ahmed, against the applicant-Society and others, challenging the compromise decree dated 12.07.2006 passed in Special Civil Suit No.956/2003. It is further pleaded that after the death of Sarfaraz Ahmed, on 04.01.2012, the plaintiffs came to be impleaded in the said Special Civil Suit No.303/2007.

The main contention of the applicant-Society is that despite making reference to the aforesaid suits and despite having the knowledge about the suits, they are trying to show that they were not aware about the aforesaid Sale Deeds dated 12.04.1988 and 15.06.1990, only to bring the suit within the prescribed period of limitation. Their further submission is that the Special Civil Suit No.596/2004, Sarfaraz Ahmed, had appeared and had also filed his written statement on record. Thus, their predecessor was very much aware of the Special Civil Suit No.596/2004 and the compromise came to be recorded between the parties. Therefore, during the lifetime of Sarfaraz Ahmed, though he was very much aware about the Sale Deeds dated 12.04.1988 and 15.06.1990, the same were never questioned by him.

The name of Sarfaraz Ahmed, was deleted and the compromise came to be recorded, of which Sarfaraz Ahmed, himself was very much aware. Thereafter, he himself had raised an objection to the compromise dated 12.07.2006 by filing an application Exh.23 on 15.03.2019, the same came to be rejected by the Court vide order dated 15.03.2024, which is under challenge. This goes to show that Sarfaraz Ahmed, was fully and completely aware about the Sale Deeds in question in the Special Civil Suit No.956/2003. Sarfaraz Ahmed, had himself also filed a Special Civil Suit No.303/2007 on 12.03.2007 challenging the compromise decree passed on 12.07.2006 in Special Civil Suit No.956/2003. In view of aforesaid circumstances, the averments made in the plaint are required to be closely scrutinised. In para No.3 of the plaint it is specifically pleaded that plaintiff No.1 was respondent No.6 in Writ Petition No.151/2018 and that after the receipt of notice and entire bunch of the documents attached with the petition, they were surprised to know that defendant Nos.1 to 4 (i.e. respondent Nos.5 to 8) in collusion with defendant No.5 therein (i.e. applicant herein) have played a fraud upon the father of the plaintiff No.1. Similarly, in para No.19 of the plaint, it is specifically stated that the cause of action for filing the suit was firstly arose in the last week of January, 2018 when plaintiff No.1 received the notice along with documents in Writ Petition No.151/2018 and that the plaintiffs came to know about the execution of false, bogus and fraudulent Sale Deeds.

According to plaintiffs, the plaint has been filed within the prescribed period of limitation. After considering the various judgements delivered by Hon’ble Apex Court, it is settled position that the ground of limitation, when raised in an application under Order VII rule 11 of CPC, is a mixed question of facts and law. Therefore, such a suit can be decided only after adducing the evidence of the parties and the same cannot be rejected at the threshold in exercise of powers under Order VII rule 11 of CPC.

In para 19 of the plaint, the plaintiffs have tried to show that the cause of action for filing the suit firstly arose in the last week of January, 2018, when they received the notice and documents in Writ Petition No.151/2018. Thereafter, they have tried to explain how the cause of action is continued till 10.07.2019, when the plaintiff No.1 submitted his detailed objection to notice dated 01.07.2019 received from defendant No.6. It is well settled that once the period of limitation runs continuously till end and therefore, without adducing the evidence of both the parties, the facts as claimed in the plaint cannot be denied. Merely on the question raised in the pleadings of the plaintiff it is not possible to decide the issue of limitation without adducing the evidence of the parties.

In this regard, the order dated 05.03.2019 passed by this Court in Writ Petition No.151/2018 is also important to note that this Court has observed that the Competent Civil Court, would have to determine the question of title of rival parties in respect of the land in question, in order to determine the controversy that arose between the parties.

As regards the contention of the applicant-Society that no notice under Section 164 of the Act, was served to him prior to filing of the suit, it is to be observed that the notice under Section 164 of the Act, is necessary when dispute falls within the scope of Section 91 of the Act. The dispute must be the dispute touching the business of the Society. However, in the present case, the dispute between the parties is as regards the execution of false Sale Deeds. Therefore, the aforesaid provision is not applicable in the present suits, particularly, when it is not the dispute between the Society and its members, which is touching the business of the Society.

As regards, another objection that the suit is not properly valued, it is made clear that if the Court finds that the plaintiffs have not deposited the deficit Court Fees, then it is always open to this Court to direct them to deposit the deficit Court Fees within the prescribed period by law. Similarly, another objection regarding the non-issuance of the notice under Section 80 of the CPC, i.e. prior to filing of the instant suit, it is pointed out by the plaintiff that they had issued notices under Section 80 of CPC to the defendant No.6 on 28.03.2018, prior to filing of the suit. Therefore, the said objection is also not maintainable.

In view of the objections raised by the applicant that the suit is barred under the provisions of Order II Rule 2 of CPC. It is clear that the said objections can be decided only after adducing the evidence of both the parties.

Thus, on the basis of the averments made in the plaint, particularly in para Nos.3 and 19 of the plaint, to point out that the plaintiff No.1 who was respondent No.6 in Writ Petition No.151/2018 got knowledge about the fraud played upon his father and therefore, they are constrained to file the present suit for declaration, partition, separate possession and permanent injunction. Thereafter, more particularly in para No.19, they have also stated that the cause of action arose for filing the suit firstly arose in the last week of January, 2018 when they received notice along with the documents in Writ Petition No.151/2018. The law of limitation is a triable issue and it can be decided only after taking the evidence. The plaint cannot be rejected at its threshold in exercise of powers under Order VII Rule 11(d) of the CPC, even as regards, Section 164 of the Act. Even if, it is considered that the relief claimed by the plaintiffs touches the business of the Society, the said issue can be decided only after proving the bylaws of the Society regarding the evidence. Without adducing the evidence to that effect, the Trial Court cannot come to the conclusion that the suit is barred by the provisions of the Act. Since para 3 and para 19 of the plaint specifically plead first knowledge in January 2018, and fraud is alleged, the Court cannot hold at the stage of Order VII Rule 11 that those pleadings are false.

Even otherwise, in para No.5 of the plaint, the plaintiffs have pleaded that after the receipt of copy of Writ Petition, they got to know that Annexure-3, the copy of plaint in Special Civil Suit No.956/2003, which was filed by the defendant no.1 against defendant No.5-Society, in which Dr. Sarfaraz Ahmed was a party defendant No.2. The said suit was filed for cancellation of the Sale Deed dated 15.06.1990.

Further, in para No.9 they have also pleaded that they were unaware of the exact controversy involved in the matter and only after filing of the Writ Petition No.151/2018 by defendant No.5-Society and after the receipt of notice and bunch of documents attached to it, have come to know that two Sale Deeds dated 12.04.1988 and 15.06.1990 were fraudulent documents and the fraud had been played upon the father of plaintiff No.1.

They have further made reference in para Nos.10 and 11 of the plaint that their predecessor Sarfaraz Ahmed had never authorized anybody to execute the Sale Deeds dated 12.04.1988 and 15.06.1990 on his behalf. Therefore, on that basis they claim that the said Sale Deeds are fraudulent, forged and not binding upon them. Apart from the above reliefs, the plaintiffs have also claimed a 1/3^rd share in the compensation amount from the defendant No.6. It is a well settled provision of law that a plaint cannot be rejected in part.

It is well settled that while exercising jurisdiction under Order VII Rule 11 of the Code of Civil Procedure, the Court is required to confine itself to the averments made in the plaint and the documents relied upon by the plaintiffs. The defence sought to be raised by the defendants cannot be taken into consideration. In the present case, the plaintiffs have specifically pleaded that they acquired knowledge of the alleged fraudulent execution of the Sale Deeds only upon receipt of the documents annexed to Writ Petition No.151 of 2018 and, on that basis, have asserted that the suit is within limitation. Whether such pleadings are truthful, whether the plaintiffs or their predecessor had prior knowledge of the transactions, and whether the plea of fraud has been raised merely to overcome the bar of limitation, are all disputed questions requiring adjudication on the basis of evidence. These issues cannot be conclusively determined at the threshold while considering an application under Order VII Rule 11 of the Code. Unless it is apparent from meaningful reading of the plaint itself that the suit is barred by law, rejection of the plaint under Order VII Rule 11(d) is not warranted. Consequently, I find no jurisdictional error or material irregularity in the order passed by the learned Trial Court refusing to reject the plaint.

In view of the aforesaid discussions, I find that the impugned order passed by the learned Trial Court, is absolutely correct, just and proper. Accordingly, I am of the view that the present application is devoid of merit and requires no interference from this Court and the same deserves to be dismissed.

In that view of the matter, the Civil Revision Application is dismissed. No order as to costs.