k 1/3 911 cra 128.21 as.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.128 OF 2021 Genu Jayram Kamble & Ors. ....Applicants V/S Kadeeja Shamshuddin ....Respondent _________ Mr. Pankaj D. Purway with Mr. Shubham Yadav for the Applicants. Mr. Sumanth Anchan for Respondent. __________ CORAM : SANDEEP V. MARNE, J. DATE : 14 NOVEMBER 2025. P.C.: 1. The challenge in the Revision Application is to the order dated 12 March 2020 passed by 13th Joint Civil Judge Senior Divison, Pune rejecting the Application preferred by the Applicants/Defendant Nos.2 to 5 seeking rejection of Plaint under Order VII, Rule 11 of the Code of the Civil Procedure, 1908 (the Code). 2. I have heard Mr. Purway, the learned counsel appearing for the Applicant and Mr. Anchan, the learned counsel appearing for the Respondent/Plaintiff. 3. Special Civil Suit No.120 of 2019 is instituted by the Respondent/Plaintiff seeking specific performance of Visaar Pavati dated 9 September 1993 and Agreement 9 October 1995. According to Plaintiff, the cause of action for filing the Suit arose on 18 April 2019 when Defendants by their conduct refused to perform their part of contract by attempting to create third party interest in respect of the suit katkam Page No. 1 of 3 k 2/3 911 cra 128.21 as.doc property. However, it appears that Plaintiff had previously instituted Regular Civil Suit No.1958 of 2004 seeking a mere declaration that the Agreement dated 9 October 1995 is valid and subsisting and seeking injunction against several Defendants from creating third party rights in the suit property. 4. One of the grounds raised for rejection of Plaint in Special Civil Suit No.120 of 2019 was disposal of previous Suit bearing Regular Civil Suit No.1958 of 2004 relating to the same property. In my view however, the objection of res judicata cannot be upheld as there was no prayer for specific performance in Regular Civil Suit No.1958 of 2004. 5. Coming to the objection of limitation, the Plaintiff has specifically admitted in paragraph 20 of the Plaint filed in Special Civil Suit No.120 of 2019 that the act of the Defendants in attempting to create third party rights in the suit property constitutes the cause of action. The said act is treated as notice of refusal to perform their part of contract by the Defendants. However, in paragraph 8 of the Plaint in Regular Civil Suit No.1958 of 2004, Plaintiff had averred as under: “8. The Plaintiff submits that the Defendants and Kamble family in the mean time started delaying the matter and Plaintiff came across a Public Notice and Advertising by a third party claiming that they are negotiating with the third party for purchase of the said land, and therefore, the Plaintiff constrained to file the suit for Declaration and Injunction against the present Defendants and Kamble family before the Civil Court and the said Civil Suit No. was 1958/2004. The said finality disposed in view of part compromised on 1/9/2014.” 6. Thus in paragraph 8 of the Plaint in Regular Civil Suit No.1958 of 2004, Plaintiff had specifically admits that she came to know of public notice and advertisement issued by third party who was negotiating with katkam Page No. 2 of 3 k 3/3 911 cra 128.21 as.doc the Defendants for sale of the suit property. Thus the act on the part of the Defendants in attempting to create third party rights was noticed by the Plaintiff in the year 2004 itself. Though she filed Regular Civil Suit No.1958 of 2004, she did not pray for specific performance of the Agreement dated 9 October 1995 in that Suit. Now the Suit for specific performance has been filed in the year 2019. The cause of action for filing Special Civil Suit No.120 of 2019 arose in the year 2004. Under Article 54 of the Limitation Act, 1963, the Suit for specific performance needs to be filed within three years from the date fixed for performance and if no date is fixed for performance, within three years of acquisition of notice by the Plaintiff of refusal of performance by the Defendants. In the present case Plaintiff clearly acquired notice of refusal of performance by the Defendants in the year 2004. The Suit is thus hopelessly barred by limitation. The Plaint in the Suit therefore deserves to be rejected for having recourse to the provisions of Order VII, Rule 11 of the Code. 7. The Civil Revision Application accordingly succeeds and I proceed to pass the following order: i) Order dated 12 March 2020 passed by the Trial Court on Application at Exhibit-27 filed in Special Civil Suit No.771 of 2019 is set aside and Application at Exhibit-27 is allowed. ii) Consequently Plaint in Special Civil Suit No.771 of 2019 is rejected and the Suit is dismissed. 8. Civil Revision Application is allowed in above terms. There shall be no order as to costs. (SANDEEP V. MARNE, J.) katkam Page No. 3 of 3 SUDARSHAN RAJALINGAM KATKAM Digitally signed by SUDARSHAN RAJALINGAM KATKAM Date: 2025.11.15 18:44:22 +0530