Mr. Ajay Manharlal Shah vs Mr. Rasesh Bipin Jain And Ors.
- Court
- Bombay High Court
CNR No : HCBM010082002026
2026:BHC-AS:44866
Gitalaxmi 901-CRA-181-2026-J.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 181 OF 2026
MR. AJAY MANHARLAL SHAH,
Aged about 64 years,
Occupation:Self Employed,
nd
Residing at Flat No. 5, 2 Floor,
Adeshwar Mansion, Buddha Mandir Road,
Parel, Mumbai-400 012.
...APPLICANT/
Mobile No. 9920205520
(ORIG. PLAINTIFF)
Versus
1. MR. RASESH BIPIN JAIN,
Aged Adult, Occupation:Not Known.
2. MRS. NILAM BIPIN JAIN,
Aged Adult, Occupation:Not Known.
Both residing at 161-A, Grand Paradi
Apartments, August Kranti Marg, Kemps
Corner, Mumbai – 400 036.
3. MR. ASHOK MANHARLAL SHAH,
Aged 74 years, Occupation-Business,
Residing at 24, Next to American
Consulate, Prabhat Building,
Bhulabhai Desai Road, Breach Candy,
Mumbai-400 026. ...RESPONDENTS/
(ORIG. DEFENDANTS)
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Mr. Rajesh B. Parab, Learned counsel for the Applicant.
Mr. Prajot H. Jaggi a/w Ms. Daksha A. Parmar, Ms. Poonam
Rajbhar & Ms. Pallavi Kulkarni, Learned counsel for
Respondent Nos. 1 & 2.
CORAM : ARUN R. PEDNEKER, J.
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RESERVED ON : 29 SEPTEMBER, 2026.
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PRONOUNCED ON : 3 NOVEMBER, 2026.
JUDGMENT :
1. Rule. Rule made returnable forthwith and by consent heard
Mr. Rajesh Parab, learned counsel appearing for the Applicant and
Mr. Prajot Jaggi, learned counsel appearing for Respondent Nos. 1 &
2 finally.
2. By the present Civil Revision Application, the
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Applicant/Original Plaintiff is challenging the order dated 7 July,
2025 passed below the Application at Exhibit-107 (Exhibit-J of the
paper-book) by the learned Small Causes Court and as confirmed by
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the Appellate Court by judgment and order dated 4 December, 2025
passed in Miscellaneous Appeal No. 83 of 2025 (Exhibit-L of the
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paper-book), rejecting the plaint under Order VII, Rule 11(d) of the
Civil Procedure Code, 1908 (“CPC”). The plaint is rejected at the
stage, when the Plaintiff’s evidence was already over and the
Defendants’ examination-in-chief had commenced.
3. The facts giving rise to the present Civil Revision
Application, in brief, are that the Plaintiff filed a suit for declaration
of tenancy under Section 7(15)(d) of the Maharashtra Rent Control
Act, 1999. He was claiming his tenancy by inheritance, as a family
member of the original tenant viz. Late Manharlal Bhaichand Shah,
father of the Applicant. During pendency of the trial and at the stage
when the Defendants’ evidence had commenced, Defendant No. 1-
Rasesh Bipin Jain filed an Application under Order VII, Rule 11(a)
and (d) of the CPC, for rejection of the plaint. In the said
Application, it was contended that the plaint does not disclose cause
of action and the suit is barred by limitation. It was submitted that
the cause of action to file the suit, arose in the year 1994, when
Defendant Nos. 1 and 2 stopped accepting pay orders/rent from the
Plaintiff in the year 1994. As such the Plaintiff ought to have filed
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the suit for declaration in the year 1997. It was highlighted that the
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Plaintiff’s father-Mr. Manharlal Bhaichand Shah died on 24 June,
1992 and the Plaintiff’s mother-Mrs. Lalita Manharlal Shah died on
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19 February, 1993 and the landlord-Defendant No. 1 stopped
accepting the money orders from the Plaintiff after December 1994
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(as pleaded in the plaint). The suit was instituted on 19 July, 2006
i.e. 14 years from the demise of original tenant. As such, in view of
Article 58 of the Limitation Act, 1963, it is prayed that the plaint be
rejected in view of the clauses (a) or (d) of Order VII, Rule 11 of the
CPC.
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4. The learned Small Causes Court by order dated 7 July,
2025, having considered the pleading in the plaint and the
documents annexed with the plaint, allowed the Application and
thereby, rejected the plaint under Order VII, Rule 11(d) of the CPC
on the ground of limitation. The same was challenged before the
Appellate Court by the Plaintiff and the Appellate Court also upheld
the order of learned Trial Court. The Appellate Court held that
Article 58 of the Limitation Act, 1963 is applicable to the present suit
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and that under Article 58 of the Limitation Act, 1963, a suit for
declaration has to be filed within a period of 3 years from the date
when the right to sue first accrued. In the instant case, the right to
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sue accrued when a letter dated 9 October, 1993 was addressed by
the landlord to Plaintiff and the Plaintiff was called upon to obtain
necessary orders from the Court declaring him to be tenant of the
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suit premises. The letter dated 9 October, 1993 was in response to
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the Plaintiff’s letter dated 20 April, 1993, by which he had
requested the landlord to transfer rent receipt in respect of the suit
premises in his name.
5. In paragraph 3 of the plaint, the Plaintiff has stated that
Defendant No. 1 refused to accept rent from the Plaintiff after
December 1994. It also tantamount to denial of the Plaintiff’s status
as ‘tenant’ and even refused to accept the rental by money orders
from 1994 to 2005 and in view of the first denial by Defendant No.
1, it was sufficient for the Plaintiff to file a suit for declaration of his
tenancy and thus, the right to sue having accrued in the year 1994,
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the suit ought to have been instituted within three years from the
year 1994.
6. The Appellate Court also makes further reference of third
instance where the Plaintiff in paragraph 16 of the plaint has
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mentioned about the police complaint dated 27 March, 2002 about
the threats by Defendants to vacate the suit premises. Even if it is
considered to be the date of accrual of cause of action to seek
declaration of tenancy, the suit ought to have been instituted before
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26 March, 2005. The Appellate Court further observed that in view
of the statements made in the plaint, the suit was barred by law of
limitation. Accordingly, the appeal was dismissed.
7. Challenging the orders passed by the Courts below, learned
counsel for the Applicant submits that the Courts below ought not to
have entertained the Application under Order VII, Rule 11(d) of the
CPC, after the commencement of the trial and more particularly, the
evidence of Plaintiff was over and the Defendants’ evidence had
commenced and that the limitation being a mixed question of fact
and law, should have been dealt in the final judgment. Learned Trial
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Court ought to have passed a final judgment in the matter and not to
entertain an Application under Order VII, Rule 11(d) of the CPC at a
belated stage.
8.
Learned counsel for the Applicant further submits that the
Courts below have erroneously interpreted the letters written by the
landlord to the Plaintiff to mean that there is a denial of right of the
Plaintiff qua the subject property. A bare reading of the letters
would indicate that there is no denial of the Plaintiff’s right. As such,
the right to sue did not accrue in the year 1992-1993, as is pointed
out by the Appellate Court. There is a gross misinterpretation of the
documents to indicate that the plaint is barred by limitation.
9. Learned counsel for the Applicant relied upon the
observations of the Hon’ble Supreme Court made in the following
judgments in the cases of :-
a. Chhotanben and Another v/s. Kiritbhai Jalkrushnabhai
1
Thakkar and Others ;
1
2019(2) Mh.L.J. 17.
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b. Sicily Varghese Kadamthottu v/s. Ramanlal Jayshankar
2
Trivedi (Deceased) by Legal Heir and Another and
c. M/s. Bhagya Estate Ventures Pvt. Ltd. v/s. Narne Estates
3
Pvt. Ltd. and Another .
10. In response to the aforesaid submissions of learned counsel
for the Applicant, learned counsel for the Respondents submits that
exercise of powers under Order VII, Rule 11 of the CPC is mandatory
in nature and once the case is made out, the plaint shall be rejected.
Learned counsel further submits that under Order VII, Rule 11 of the
CPC, the Application can be entertained at any stage of the suit, even
after the issues are framed.
11. Learned counsel for the Respondents relied upon the
judgment in the case of Saleem Bhai and Others v/s. State of
4
Maharashtra and Others , wherein the Hon’ble Supreme Court has
held that in so far as an Application under Order VII, Rule 11(d) of
the CPC, the Trial Court can exercise the power under Order VII,
2
2022(5) Mh.L.J. 570.
3 th
Civil Appeal No. 4570 of 2023 decided on 11 September, 2024.
4
(2003)1 Supreme Court Cases 557.
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Rule 11 of the CPC at any stage of the suit before registering the
plaint or after issuing summons to the Defendant at any time before
the conclusion of the trial. For the purposes of deciding an
Application under clauses (a) and (d) of Order VII, Rule 11 of the
CPC, the averments in the plaint are germane; the pleas taken by the
Defendant in the written statement would be wholly irrelevant at
that stage.
12. Having considered the rival submissions, it is to be noted
that the Hon’ble Supreme Court in a very recent judgment in the case
of M/s. Bhagya Estate Ventures Pvt. Ltd. ( supra ), having considering
the judgment in the case of Saleem Bhai and Others ( supra ) has held
that an Application under Order VII, Rule 11 of the CPC, can be filed
at any stage before registering the plaint or after issuance of the
summons to the Defendant or at any time before conclusion of the
trial and that the position of law is well settled, but considering the
increase in frivolous litigation, it has become necessary for the Court
to delve into and reiterate the purpose of this provision, in order to
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understand and test whether this position of law fulfills the objective
of Order VII, Rule 11 of the CPC and serves the purpose of justice.
13. The Hon’ble Supreme Court in the case of M/s. Bhagya
Estate Ventures Pvt. Ltd. ( supra ), by noticing the judgments in the
5
cases of Azhar Hussain v/s. Rajiv Gandhi and T. Arivandandam v/s.
6
T. V. Satyapal and Another , has observed that
“ The principle underlined the provision for rejection of a
plaint/petition is that the Court must attempt to recognize and
reject the plaint at the outset if it is defective, for any reason
enumerated under Order VII, Rule 11 of the CPC or any similar
provision. The eve while undertaking such an exercise remains
to put a nip in the body to litigation i.e. otherwise lacking the
essential and prevents of a proper plaint. ”
14. The Hon’ble Supreme Court in the case of M/s. Bhagya
Estate Ventures Pvt. Ltd. ( supra ), proceeded to observe that
“ The purpose behind such a provision is to ensure that the
plaints or petitions which are defective for any reason
enumerated, shall not be allowed to proceed further and shall
be put to an end before it progressed to an advanced stage and
5
1986 (Supp) Supreme Court Cases 315.
6
(1977)4 Supreme Court Cases 467.
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then such is a purpose of provision, the Court would observe
that the application for rejection of a plaint cannot be
entertained at a stage when the written statement has already
been filed and evidence has been commenced and the trial has
substantially reached the stage of final argument, as was the
case before them and that it would go rather completely against
the objective of provision and could effectively not serve the
purpose which it was intended to. ”
15. The Hon’ble Supreme Court in the aforesaid judgment, has
also observed that
“ When an application is made under Order VII, Rule 11 of the
CPC, the Court cannot proceed with the trial and when that is a
position of law, the purpose the Court observed that the
Defendant cannot wait far at a belated stage on mere
conclusion of the trial, to raise such an application by allowing
such pleas to be raised when the trial has proceeded so far,
would defeat the intent of the provision, but would go against
the policy of equity and would lead to wastage of the Court
exercises. Further it also allows the Defendant to misuse the
provision. ”
16. The Hon’ble Supreme Court has held that
“ The Court below i.e. the High Court has rightly rejected the
application under Order VII, Rule 11 of the CPC and the matter
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was reached at final hearing stage. In the instant case the suit
is filed in the year 2006, the evidence of Plaintiff is over and the
Defendants’ evidence is already commenced. After nearly 19
years, an application under Order VII, Rule 11 of the CPC was
entertained by the learned Trial Court and upheld the same by
the Appellate Court. ”
17.
Considering the above noted observation of the Hon’ble
Supreme Court in the case of M/s. Bhagya Estate Ventures Pvt. Ltd.
( supra ), in the facts of instant case, the Application under Order VII,
Rule 11 of the CPC, for rejection of the plaint, ought not to have
been entertained by the learned Trial Court or the Appellate Court,
particularly when the Defendants having waited for long time of 19
years to move such an Application, should not have been permitted
to move an Application at such a belated stage.
18. This Court has already answered the first issue that arises
for consideration before this Court, i.e. ‘Whether an Application
under Order VII, Rule 11(d) of the CPC could have been entertained
at the stage when the trial has commenced and the evidence of
Plaintiff has already concluded and the Defendants’ evidence had
commenced?’. However since the learned Trial Court, so also the
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Appellate Court have held that the suit is barred by limitation, this
Court will also examine the next issue, i.e. ‘Whether the suit is barred
by limitation’.
19.
In the instant case, the suit is for declaration of tenancy by
inheritance. The plaint makes a reference to the document, i.e. a
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letter dated 9 October, 1993 addressed by the advocate for landlord
to the Plaintiff. The contents of letter are noted below :-
“ In view of the dispute that appears to be subsisting between
you and Mr. Ashok M. Shah, we have to request you to obtain
the necessary orders from the Court to enable us to ascertain
who the tenant is and in whose name the rent receipt is to be
issued.
”
20. From the said letter, it is apparent that there is a dispute
between the Plaintiff and his brother as regards who would inherit
the tenancy on the demise of their late father. As such, the letter is
written by the landlord that in view of the subsisting dispute between
the Plaintiff and his brother, the landlord has requested them to
obtain the orders from the Court, so as to enable the landlord to
ascertain, who the tenant is and in whose name the rent receipt is to
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be issued. The landlord has not denied the tenancy rights of the
Plaintiff by the said letter.
21. Similarly, another letter is produced on record with the
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plaint at Exhibit-G dated 16 January, 1995, wherein the advocate
for the landlord has written to the Plaintiff that his late father left
behind the lawful heirs and successors viz. the Plaintiff and his
brother and that the Plaintiff has been requesting to transfer the
tenancy of the flat in his name and his brother was also requesting
for the same.
22. In the circumstances, the landlord called upon them (i.e.
the Applicant and his brother) to produce if there is any Will, to
enable the landlord to complete the formalities to be carried out by
the Plaintiff or other members of the family. It is also stated in the
letter that “kindly clarify all the matters so that the advocate for the
landlord would be able to advice the landlord and cause the transfer
of tenancy in the name of one of the two brothers from the late
father on the demise and it is after that the receipts would be issued
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either in the name of Plaintiff or his brother.”. The relevant portion
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of the letter dated 16 January, 1995 is noted below :-
“ If there is no such Will or any writing then the following
formalities are to be carried out by you and other members of
the family as mentioned above.
1) Declaration stating all the facts about the tenancy rights in
respect of the said flat in ‘Ardeshir Mansion’.
2) Death Certificate of your late father and late mother to be
annexed to this said Declaration.
3) Consent of all other members of the family particularly your
brother Mr. Ashok M. Shah by settling the dispute between you
two brothers and coming to terms with some mutual
understanding.
4) The Declaration and Indemnity Bond on the stamp paper to
be signed before an attested by a Notary Public of Bombay.
5) Any other particulars in the matter.
Kindly clarify all these matters; so that we will be able to advise
our clients and cause the transfer of the tenancy in the name of
one of you two brothers from the name of your late father (only
after carrying out the above mentioned requirements). Our
client will then issue a new rent bill and rent receipts in either
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of your name or your brother Mr. Ashok M. Shah’s name, which
please note. ”
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23. Thus, both these letters, i.e. dated 9 October, 1993 and
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16 January, 1995 do not indicate that there is denial of the right of
tenant qua the tenancy of Plaintiff or his brother.
24. The Court further ought to have seen that the statutory
right of tenancy does not end, even if there is a notice calling upon
the Plaintiff/Tenant to get declaration from the Court as to which of
the legal heir of deceased tenant is entitled for inherited tenancy.
25.
In the instant case, there is no rejection of the right of
Plaintiff to claim inherited right qua the tenanted premises, i.e. the
brother of Plaintiff is accepted as the tenant and the Applicant’s
tenancy right is accordingly denied.
26. It is an admitted position that the Plaintiff is a son and legal
heir of the deceased tenant. Merely because the landlord directs that
he can register tenancy only in the name of one of the brothers after
obtaining necessary orders from the Court, it cannot lead to denial of
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the statutory right of one of the legal heirs, if both the brothers have
right qua the tenanted premises being the legal heirs of the original
deceased tenant. The landlord had also not initiated eviction
proceeding of the tenants (Applicant or his brother) under the
Maharashtra Rent Control Act, 1999.
27. On a plain reading of the plaint, it cannot be said that the
suit is barred by limitation. In view of the same, impugned orders
passed by the concerned authorities are quashed and set aside.
28. Criminal Revision Application stands allowed and disposed
of accordingly. Application at Exhibit-107 filed by Defendant No. 1
under Order VII, Rule 11(a) and (d) of the CPC is dismissed. Suit is
restored to its original file.
29. Rule made absolute in the above terms.
30. Learned counsel for the Respondents, at this stage seeks
suspension of the judgment and order passed today.
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31. At the request of learned counsel for the Respondents, the
execution of judgment and order passed today shall stand suspended
for a period of six weeks.
[ ARUN R. PEDNEKER, J.]
Digitally signed
by GITALAXMI
KRISHNA
KOTAWADEKAR
Date:
2026.11.04
10:19:30 +0530
GITALAXMI
KRISHNA
KOTAWADEKAR
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