Specific performance suit based on agreement hit by Section 43 Tenancy Act is liable for rejection.

The Appellants (original plaintiffs) filed a suit for specific performance of an agreement to sale dated 08.02.2001 and for the cancellation of a subsequent sale deed dated 31.08.2015 executed by Respondents 1-6 in favor of Respondent 7

The Appellants claimed to have paid part consideration and held possession

Respondents 1-6 filed an application under Order VII Rule 11(d) of the CPC (Exh. 42), arguing the suit was barred by Section 43 of the Bombay Tenancy and Agriculture Lands Act, 1948, as the suit property was "new tenure" land sold without prior collector permission

The trial court rejected the plaint

The Appellants challenged this, noting a previous Rule 11 application by Respondent 7 (Exh. 17) on similar grounds had been rejected in 2017

The Court applied Order VII Rule 11(d) of the CPC regarding the rejection of a plaint barred by law

Section 43 of the Bombay Tenancy and Agriculture Lands Act, 1948, which restricts the transfer of "new tenure" land without sanction

The Court followed the Full Bench precedent in Decd Shaikh Ismailbhai Hushainbhai Through Lh v. Vankar Ambalal Dhanabhai [2024 (1) GLH 222], which holds that agreements hit by Section 43 are invalid and cannot support a cause of action for specific performance

Regarding res judicata, the Court applied the principle from Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy [(1970) 1 SCC 613], stating that an earlier decision does not operate as res judicata if the law has been altered or interpreted differently since that decision

The Court observed that the Appellants engaged in "clever drafting" by suppressing the "new tenure" status of the land in the plaint to create an illusory cause of action

Although the agreement didn't explicitly label the land as new tenure, its conditions requiring permissions before the sale deed indicated restricted tenure

Under the law settled by the Full Bench in Shaikh Ismailbhai, the Civil Court has the jurisdiction to reject a plaint at the threshold if the underlying agreement is illegal under Section 43 of the Tenancy Act

Regarding the res judicata contention, the Court held that because the Full Bench decision in 2024 altered the legal landscape after the 2017 rejection of Respondent 7’s application, the trial court was not barred from entertaining the subsequent application (Exh. 42) filed by Respondents 1-6

It held that the suit was hit by Section 43 of the Tenancy Act and that the principle of res judicata did not apply due to the shift in legal interpretation

The trial court’s judgment rejecting the plaint under Order VII Rule 11(d) of the CPC was upheld