Bombay High Court
WALLACE FLOUR MILLS COMPANY LIMITEDversusLAXMI ESTATE CO-OP. HSG. SOC. LIMITED AND ORS.
- Decided
- Disposal
- Disposed Off
Holding
The High Court held that the plaint does not disclose any cause of action and is manifestly vexatious, therefore it must be rejected under Order VII Rule 11.
Summary
The cooperative housing societies filed a suit seeking joint ownership and conveyance of common amenities (recreation ground and internal road) and FSI benefits, relying on the Maharashtra Ownership Flats Act, 1963 and the Maharashtra Apartment Ownership Act, 1970. The defendants, including Wallace Flour Mills and two charitable trusts, moved to dismiss the plaint under Order VII Rule 11 of the CPC, arguing that the suit disclosed no cause of action, relied on non‑existent provisions of Rule 9 of the MOF Rules, and that the trusts already owned the disputed plots. The trial court rejected the dismissal motions and allowed the suit to proceed. On revision, the High Court held that the plaint was based on fictitious statutory provisions, contained admissions that the trusts owned the land, and that the layout conditions only required maintenance of a recreation ground, not its conveyance. Consequently, the plaint disclosed no cause of action and was manifestly vexatious. The Court set aside the trial court order, allowed the defendants’ motions, rejected the plaint under Order VII Rule 11, and dismissed the suit.
Issues considered
- The plaint discloses a cause of action under Order VII Rule 11 of the CPC.
- Whether the alleged sub‑rules (2) and (3) of Rule 9 of the Maharashtra Ownership Flats Rules, 1964 exist and are applicable.
- Whether the plaintiffs have a statutory right to conveyance of the common recreation ground and internal road.
- Whether the suit is barred by limitation, res judicata, or the Specific Relief Act.
- Whether the admissions in the plaint and the layout conditions negate any claim to the common areas.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order VII Rule 11(a), Order VII Rule 11(c), Order VII Rule 11(d)
- Limitation Act, 1963
- Maharashtra Apartment Ownership Act, 1970 — s. Section 2
- Maharashtra Co-operative Societies Act, 1960
- Maharashtra Public Trusts Act, 1950 — s. Section 50
- Specific Relief Act, 1963 — s. Section 34
Subjects
- Order VII Rule 11
- cause of action
- vexatious litigation
- Maharashtra Co‑operative Societies Act
- Maharashtra Ownership Flats Act 1963
- Maharashtra Apartment Ownership Act 1970
- Specific Relief Act
- Limitation
- res judicata
- common amenities
- recreation ground
- FSI
- civil revision
- high court
Judgment
2026:BHC-AS:36032
Megha cra_18_2020 & 57_2020_fc.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.57 OF 2020
WITH
INTERIM APPLICATION NO.18333 OF 2022
IN
CIVIL REVISION APPLICATION NO.57 OF 2020
1. Laxmi Charitable Trust
2. Samir Chinai
3. Sudhir Mehtra
4. Rohit Adalja
5. Mathuradas Vissanji Femal
Education Trust
6. Smt. Arati H. Vissanki
7. Miss Ameeta A. Parpia
8. Shalin S. Divatia
9. Hemant P. Vissanji (deceased)
...Applicants
10. Arvind Dalal (deceased)
(Orig. Defendant Nos.3 to 13)
V/s.
1. Laxmi Estate Co-op. Housing
Society Ltd.
2. Andheri Varma Nagar Co-op. Hsg.
Soc. Ltd.
3. Amita Mandir Co-op. Hsg. Soc. Ltd.
4. the Wallace Four Mill Company
Ltd.
5. Municipal Corporation of Greater
Mumbai.
6. The Charity Commissioner,
Mumbai.
7. Ajit C. Shah
8. Virendra G. Bhatt ...Respondents
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WITH
CIVIL REVISION APPLICATION NO.18 OF 2020
WITH
INTERIM APPLICATION NO.18332 OF 2022
IN
CIVIL REVISION APPLICATION NO.18 OF 2020
Wallace Flour Mills Company Ltd. ...Applicant
(Orig. Defendant No.1)
V/s.
1. Laxmi Estate Co-op. Housing
Society Ltd.
2. Andheri Varma Nagar Co-op. Hsg.
Soc. Ltd.
3. Amita Mandir Co-op. Hsg. Soc. Ltd.
4. Laxmi Charitable Trust
5. Samir Chinai
6. Sudir Mehta
7. Rohit Adalja
8. Ajit C. Shah
9. Virendra G. Bhatt
10. Sir Mathuradas Vissanji Female
Education Truste
11. Smt. Aarti H. Vissanji
12. Miss. Ameeta A. Parpia
13. Shalin Divatia
14. Municipal Corporation of Greater
Mumbai.
15. The Charity Commissioner,
Mumbai. ...Respondents
________________
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Mr. V.R. Dhond, Senior Advocate with Mr. Akshay Kolse Patil & Mr. Rohit
Vaishya i/b. M/s. YMK Legal for the Applicants in CRA/57/2020 & for
Respondent Nos.4 to 7 and 10 to 13 in CRA/18/2020.
Mr. Akshay Patil with Mr. Rishir Daulat, Mr. Mohanish Patkar, Ms. Ashita
Chhibber, Ms. Riddhi Natekar & Ms. Meenakshi Pajuja i/b. M/s. TRD
Associates for the Applicant in CRA/18/2020 & for Respondent No.4 in
CRA/57/2020.
Mr. Pradeep Thorat with Mr. Vishal Kanade, Ms. Tanaya Patankar & Mr.
Anil R. Mishra for Respondent Nos.1 and 3.
Mr. Suraj Swami for Respondent No.2 -Andheri Varma Nagar Co-op. Hsg.
Soc. Ltd.
Mr. Santosh Mali for Respondent No.14- MCGM.
________________
CORAM: SANDEEP V. MARNE, J.
Judgment reserved on: 21 AUGUST 2026.
Judgment pronounced on: 02 SEPTEMBER 2026.
JUDGMENT:
1) These Revision Applications are filed by the Applicants, who are
original Defendant Nos. 1 and 3 to 13 challenging the order dated 7
October 2019 passed by the learned Judge, City Civil Court, Borivali
Division, Dindoshi, Mumbai, rejecting Notice of Motion Nos.3338 of 2018
and 3346 of 2018 filed for rejection of Plaint under Order VII Rule 11 (a),
(c) and (d) of the Code of Civil Procedure, 1908 (the Code).
2) The Plaintiffs are cooperative housing societies registered under
the provisions of the Maharashtra Co-operative Societies Act, 1960 (MCS
Act) and have filed L.C. Suit No.3712 of 2017 before the City Civil Court
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seeking declaration that they are joint owners of the suit property, which
forms amenity area and facility on the layout and seeking conveyance in
respect of recreation ground (R.G.). The Plaintiffs have also sought a
declaration that they are entitled to all benefits in the suit property
including FSI advantage admeasuring 1936.20 sq.mtrs. being part of
internal access road. The Plaintiffs have also sought consequential
injunctive reliefs against Defendant Nos.1, 3 and 10.
3) Defendant Nos.1 and 3 appeared in the Suit. Defendant No.1 took
out Notice of Motion No.3338 of 2018 and Defendant Nos.3 to 13 took
out Notice of Motion No.3346 of 2018 seeking rejection of the Plaint
under Order VII Rule 11 (a) (c) and (d) of the Code inter-alia on the
grounds viz., that (i) the Plaint does not disclose cause of action, (ii) that
the Court does not have pecuniary jurisdiction to try and entertain the
Suit, (iii) that the Suit is undervalued, (iv) the Suit is barred by principle
of res judicata, (v) that the Suit is barred under the provisions of Section
34 of the Specific Relief Act, 1963 and (vi) that the Suit is barred by
limitation.
4) The Plaintiffs opposed the Motions by filing their affidavits-in-
reply. By a common order dated 7 October 2019, the learned Judge of the
City Civil Court has proceeded to reject both the Motions filed by
Defendant Nos.1 and 3 to 13. Aggrieved by the common order dated 7
October 2019, Defendant No.1 has filed Civil Revision Application No.18
of 2020 and Defendant No.3 and its Trustees (Defendant Nos.4 to 13)
have filed Civil Revision Application No.57 of 2020.
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5) Mr. Dhond, the learned Senior Advocate appearing on behalf of the
Applicants in Civil Revision Application No.57 of 2020 submits that the
City Civil Court has grossly erred in dismissing the Motion filed by
Defendant No.3-Laxmi Charitable Trust seeking rejection of the Plaint.
That the Plaint does not disclose any cause of action. That the alleged
Rule 9 of the Maharashtra Ownership Flats (Regulation of the Promotion
of Construction, Sale, Management and Transfer) Rules, 1964 (MOF
Rules) had never been notified and had not come into effect. That by
registered Conveyance Deed dated 14 September 1962, Plot-E has been
conveyed in favour of Sir Mathuradas Vissaji Female Education Trust
(Defendant No.10), whereas Plot-D is transferred to the Laxmi Charitable
Trust (Defendant No.3) vide registered Conveyance Deed dated 6
November 1963. That both the conveyances are not challenged by the
Plaintiffs in the Suit. That Defendant No.1 (Wallace Flour Mills Co. Ltd.)
did not have any right, title or interest in Plot Nos. E and D, which were
owned by the two Trusts. That Maharashtra Ownership Flats (Regulation
of the Promotion of Construction, Sale, Management and Transfer) Act,
1963 (MOFA) came into force on 12 December 1963 and was made
applicable to Greater Mumbai from 10 February 1964 i.e. after
acquisition of ownership in Plots- D & E by the two Trusts. That the
Trusts are admittedly not promoters and did not have any statutory
obligation to convey land and building in favour of the Plaintiff-
Societies. That therefore the Suit filed by the Plaintiffs purportedly for
enforcement of MOFA rights cannot lie against the two Trusts. That even
if the suit property is treated to be governed by the provisions of MOFA,
the Plaintiffs have no right to seek conveyance thereof since Plot Nos. D
and E are owned by the two Trusts.
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6) Mr. Dhond further submits that the Suit is based on alleged Rule 9
of the MOF Rules, which never came into force and does not exist in the
Rule Book. That therefore no cause of action is disclosed in the Plaint.
That the Plaint lacks necessary averments disclosing any cause of action
in respect of Plots D and E. Thus, upon plain reading of averments in the
Plaint, it is clear that no cause of action is disclosed in the Plaint.
7) Mr. Dhond has submitted that the Plaint contains several
admissions making out a clear case for rejection of the Plaint by reading
averments therein. That the Plaintiffs have admitted title of the
Applicants prior to coming into effect of MOFA. That paragraph 4(e) of
the Plaint contains admissions that ownership of Defendant No.1 was
restricted to land admeasuring 36,742 sq.mtrs., which is a figure
reflected in the first schedule of all the three package deals. That the
Plaint also contains admission of separate ownership and title of each of
the Plots as well as distinct user. That there are admissions about MOFA
agreements being executed with individual societies and rights being
restricted to individual Plots, that the cause of action is based only on
statute and not on the basis of the contract. That there is also admission
that the Applicants are not the promoters. Mr. Dhond has submitted that
stray averments in paragraphs 4(i) and 4(o) in the Plaint are falsified by
sanctioned layout and the sanctioned plans which are annexed to the
Plaint and which are the basis of averments in the Plaint. That a
covenant of maintenance of particular area as R.G. area cannot be
converted into an obligation of conveyance. That obligation to develop
or maintain land as open space is planning obligation, which does not
create right of conveyance. That none of the sanctioned building plans
and IODs of 10 buildings draw any FSI from Plots -D, E and F. That
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therefore, averments in paragraph 4 of the Plaint stand falsified by
documents on which Plaintiffs relied upon. On the other hand, package
deal Agreement confined each society to its own block/plot. In support of
his contention that a vexatious suit can be rejected under Order VII Rule
11, Mr. Dhond relies on judgment of the Apex Court in Dahiben V/s.
Arvindbhai Kalyanji Bhanushali (Gajra) dead through legal
representatives and others 1
8) Mr. Dhond further submits that the Suit is otherwise barred by
provisions of the Limitation Act, 1963 since the Societies were registered
in 1973, 1982, 1987 and have filed Suit in the year 2017 i.e. after 30 years
of date of registration of the Plaintiff-Societies.
9) Mr. Patil, the learned counsel appearing for the Applicant
/Defendant No.1 in Civil Revision Application No.18 of 2020 adopts
submissions of Mr. Dhond. Additionally, he submits that the Suit seeks to
enforce non-existing legal rights and mere clever drafting cannot save
the same from rejection. That the Applicant has already transferred the
suit property to Educational Trusts and therefore there is no question of
application of provisions of MOFA. That having secured deemed
conveyance of their due land, the Plaintiffs cannot maintain a Suit for
same cause of action, which is clearly barred by principles of res judicata.
10) Mr. Thorat, the learned counsel appearing for Respondent Nos.1
and 3/Plaintiff Nos.1 and 3- Societies opposes the Revision Applications
submitting that the City Civil Court has rightly rejected the baseless
Motions filed by Defendant Nos.1 and 3-Trusts. That the Suit is
1 (2020) 7 SCC 366
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essentially for enforcing statutory obligations of promoter under the
MOFA. That the Plaintiffs-Society seek joint enjoyment of common
amenities in the form of recreational ground and roads in the common
layout. That the Suit proceeds on the basis that while sanctioning the
layout, the Municipal Corporation has considered R.G. area as a common
amenity to all Plots A to F. That the Plaint contains necessary averments
in this regard. He therefore, submits that in the light of requisite
averments in the Plaint disclosing clear cause of action, the Plaint
cannot be rejected under Order VII Rule 11 of the Code. In support, he
relies on judgments of the Apex court in Kum. Geetha D/o Late Krishna
and Ors. V/s. Nanjundaswamy and others 2 and P. Kumarakurubaran V/s.
P. Narayanan and Others 3. Mr. Thorat accordingly prays for dismissal of
the Revision Applications.
11) Mr. Swami, the learned counsel appearing for Respondent No.2-
Society submits that Respondent No.2-Society is no longer associated
with Plaintiff Nos.1 and 3 Societies and has already agreed for
arrangement entered into with some of the Defendants.
12) Rival contentions urged on behalf of the parties now fall for my
consideration.
13) The Applicants are aggrieved by rejection of their Motions by the
City Civil Court seeking rejection of the Plaint under Order VII Rule 11 of
the Code. The main ground on which rejection of the Plaint was sought
is that the Plaint does not disclose a cause of action to sue.
2 (2024) 14 SCC 390
3 2025 SCC OnLine SC 975
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14) The Plaintiffs are three cooperative societies whose buildings are
constructed on sub-plots- A, B and C respectively. They have already
secured deemed conveyance of land forming parts of Plot Nos. A, B and C
through orders passed by the Competent Authority on 30 May 2017
conveying Plot Nos. A and B in favour of Plaintiff Nos.1 and 2-Society
respectively and by order dated 27 November 2015 conveying Plot No. C
in favour of Plaintiff No.3-Society. The Plaintiffs now contend that they
are also entitled to jointly own the property described in Exhibits-B and
C. They have also sought conveyance of recreation garden on Plots D and
E of the layout as more particularly shown and described in Exhibits-B
and C to the Plaint. They have also sought FSI advantage admeasuring
1936.20 sq.mtrs being part of internal access road of the layout.
Substantive prayers sought in the Plaint are as under:-
(a) That this Hon'ble Court be pleased to declare that Plaintiffs
Societies are Joint owners of Suit Property that is Common Amenities
area and facilities of Layout as more particularly shown and described
in Exhibit "B" & Exhibit "C" annexed hereto, under MOFA 1963 and
MOF Rules 1964.
(b) That this Hon'ble Court order and direct Defendant no. 1,
Defendant no. 3 trust and its trustees through Defendant no. 2 AND
Defendant no. 10 Trust and its trustees through Defendant no. 2, to
execute conveyance in respect of Recreation Garden on Sub-Plot D
and Sub-Plot E of Layout being part Suit Property and which is part
(a) and (b) of Suit Property being Common amenities and areas and
facilities of Layout as more particularly shown and described in
Exhibit "B" & Exhibit "C" annexed hereto in favour of plaintiffs society
jointly under MOFA 1963 & of MOF Rule 1964.
(c) That in failing to execute the conveyance by Defendant No. 1 and
their Directors, Defendant no. 3 and 10 Trusts and their respective
trustees, than this Hon'ble Court be pleased to order and direct the
Registrar and/or any other fit and proper officers of this Hon'ble Court
to execute the conveyance for common amenities areas and facilities
in layout, being Recreation Garden on Sub-Plot D and Sub-Plot E of
Layout, being part Suit Property and which is part (a) and (b) of Suit
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Property as more particularly shown and described in Exhibit "B" &
Exhibit "C" annexed hereto in favour of plaintiffs society jointly.
(d) That this Hon'ble court be pleased to declare that Plaintiff
Societies are jointly entitled to all and / or any benefits in lieu of Suit
Property including FSI advantage admeasuring 1936.20 Sq. mtrs., in
lieu of CTS no. 104/3b, 104/5b & 104/6b, being part internal access
Road of Layout and being part of Common Amenities and areas and
facilities of Layout Plan SE/LO/26-K.
(e) That this Hon'ble Court be pleased to declare that the act of
Defendant no. 1 of getting issued the Development rights / FSI
admeasuring 1936.20 Sq. mtrs. in lieu of part (c) of the Snit Property
by suppressing and not disclosing to Defendant no. 14 about Plaintiffs
Societies entitlement and taking advantage of Defendant No. 1 name
in property card is contrary to MOFA 1963 and is illegal, unlawful and
not binding on Plaintiffs Societies.
(f) That this Hon'ble Court be pleased to declare that the act of the
Defendant no. 1, Defendant No. 3 Trust & Defendant No. 10 Trust of
creating obstruction in use, occupation and possession of Recreation
Garden on Sub-Plot D and Sub-Plot E being part of Suit property,
being common areas and facilities in Layout by the members of
Plaintiff Societies is illegal, unlawful.
(g) This Hon'ble Court be pleased to permanently restrain defendant
No. 1, Defendant No. 3 & Defendant No. 10 from obstructing and/or
creating any hurdle in peaceful use, occupation & possession of
common area and facilities in layout plan as more particularly shown
and described in Exhibit "B" & Exhibit "C" annexed hereto.
15) Exhibit-B to the Plaint is the schedule of suit property, which is
described as under:-
SCHEDULE OF SUIT PROPERTY
Sr. No. CTS Nos. At Village Gundavali, Description of Properties
Taluka Andheri, MSD
(a) 104/4(Part) Recreation Grounds being part of
CTS 104/4 (Sub-Plot D) admeasuring
5270 squre yards equivalently 4406.4
sq.mtrs.
(b) 104/7(Part) Recreation Garden being part of CTS
104/7 (Sub-Plot E) of Layout
admeasuring 2956 Square yards,
equivalently 2471.60 sq.mtrs.
(c) 104/3b, 104/5b, 104/6b Part internal access road of the said
layout bearing CTS no.104/3b,
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104/5b and 104/6b (Sub-Plot F) of
Layout admeasuring 1936.20
sq.mtrs.
The suit property in respect of which the prayers are sought in the plaint
thus essentially the RG in Sub Plots D and E and part of the internal
access roads forming part of Sub-Plot F. Plaintiffs have also produced at
Exhibit-C to the Plaint a map indicating location of the suit property as
described in Schedule-B.
16) I now proceed to examine the averments in the Plaint to examine
whether the same discloses cause of action in support of the prayers in
the Suit. The broad averments in the Plaint are as under:
(i) In paragraph 4(a), the Plaintiffs have admitted that in the year
1963, Plot No. D was sold to Defendant No.3-Trust and in the
year 1962, Plot No. E was sold to Defendant No.10-Trust. Thus,
there is an admission of acquisition of title in respect of Plot
Nos. D and E by Defendant Nos.3 and 10- Trusts in the years
1962 and 1963. The year of acquisition assumes importance in
the light of the fact that provisions of MOFA were made
applicable to Mumbai on 10 February 1964. Thus, there is
specific admission in paragraph 4(a) of the Plaint that the
Defendant Nos.3 and 10 acquired ownership in respect of Plots
D and E prior to introduction of MOFA.
(ii) In paragraph 4(b) of the Plaint, it is averred that a layout plan
was sanctioned by MCGM on 16 January 1967, which was
amended on 3 July 1967, which was the final plan.
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(iii) It is averred in paragraph 4(c) of the Plaint that based on
sanctioned and approved layout, the amalgamation and sub-
division of the land was made into Sub-Plot Nos. A, B, C, D, E
and F.
(iv) It is further averred in paragraph 4(e) of the Plaint that
Defendant No.1- Wallace Flour Mills Co. Ltd. remained owner
only in respect of 36,742 sq.mts. (43,621.23 sq.yards) forming
part of Sub-Plot Nos. A, B, C and F. It is thus, admitted that
Defendant No.1 was no longer owner in respect of Sub-Plot
Nos. D and E.
(v) The Plaint further contains averments in paragraphs 4(f) and
(g) that separate 7/12 extracts are created in respect of Sub-Plot
No. D (admeasuring 13,745.22 sq.yards equivalent to 11,492.75
sq.mtrs) in the name of Defendant No.3-Trust and Plot E
(admeasuring 6597.33 sq.yards equivalent to 5516.20 sq.mtrs.)
in the name of Defendant No.10-Trust.
(vi) In paragraph 4(i) of the Plaint, the Plaintiffs have averred that
as per the sanctioned layout, the area marked as Plot-F was
maintained as internal access road of the layout and the area
marked in green in the layout plan admeasuring 11,270 sq.yards
was to be maintained as R.G. area of the entire layout.
(vii) It is further averred that R.G. area is spread across entire Sub-
Plot Nos. A, B, C, D and E of the layout.
(viii) It is averred in paragraph 4(j) of the Plaint that sub-plots A, B
and C are for residential purpose, on sub-plot D there is college
building and on sub-plot E there is school building. Thus, there
is an averment of separate and distinct user on Sub-Plot Nos. A,
B and C on one hand and Plots D and E on the other.
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(ix) Paragraph 4(k) of the Plaint contains reproduction of condition
Nos. 5,7 and 11 of the sanctioned layout.
(x) In paragraph 4(l) it is averred that on the basis of the layout
plan and as owner of Sub-Plot Nos. A, B, C and F, Defendant
No.1 sold its entire holding to Mr. Keshavlal K. Verma vide
Agreement for Sale dated 23 November 1971 and that the sale
was with all the available FSI of the layout ( including that of
sub-plot D and sub-plot E).
(xi) It is further averred in paragraph 4(m) that Shri Keshavlal
Verma as the owner of land of Sub-Plot Nos. A, B, C and F,
alongwith development rights of balance FSI of layout, sold
Sub-Plot Nos. A, B and C to Plaintiff Nos.1, 2 and 3-Societies
respectively with all 10 to be constructed buildings as per
approved building plan/ Agreement for Sale commonly known
as Package deal Agreement dated 29 January 1972 (Plaintiff
No.1), 10 July 1972 (Plaintiff No.2) and 10 July 1972 (Plaintiff
No.3). Thus, there are specific averments in paragraph 4(m) of
the Plaint that the land owner sold specific and distinct Sub
Plot Nos. A, B and C to the Plaintiffs-Society possibly indicating
that their rights were restricted to individual plots alone.
(xii) The Plaint further avers in paragraph 4(o) that all
computations, calculations, submissions of already consumed
FSI and balance available FSI were done on the basis of one
whole layout of Plots A, B, C, D and E and internal access road
(Plot F).
(xiii) It is further averred in paragraph 4(p) that on each plan,
portion of RG areas, which is spread across all five sub-plots of
layout A, B, C, D and E, is measured and marked clearly and
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distinctly. The Plaintiffs have accordingly produced at Exhibit-
N collectively copies of building plans and IODs issued by
Building Proposal Department of BMC for all buildings of the
Plaintiffs-Society.
(xiv) In paragraph 5 of the Plaint, Plaintiffs have quoted provisions
of MOFA and MOF Rules and have relied on Rule 9 sub-rules (2)
and (3) of the MOF Rules.
16) On the basis of the above pleadings, the Plaintiffs have sought
declaration of joint ownership in respect of RG forming part of Sub-Plot
Nos. D and E as well as internal access road forming part of Plot-F.
17) It must be observed at once that entire Suit is premised on quoted
provisions of sub-rules (2) and (3) of Rule 9 of MOF Rules, which are
recited in paragraph 5 of the Plaint. It would be apposite to reproduce
the relevant quotations in paragraph 5 which read thus:
5. … Further amended MOF 1964 Rule 9, sub-section 2 & 3 reads thus:
"(2) In case of Layout Plot, the promoter / Land Owner shall convey to
the legal entities within the specified time, the exclusive rights, title
and interest in the building/s and the structure of the promoter,
managed by them and the proportionate undivided share, title and
interest in the Layout Plot, common areas and the facilities provided
or to be provided calculated based on the total FSI permissible on
such Layout Plot as per the prevailing law in force at the time of
approval of plans for constructions of such building/s by the local
authorities or the town planning rules or the Development control
Rules. Notwithstanding the above, on the date of conveying the
properties to the legal entities, if there is any balance FSI available or
any benefits of Development rights in respect of unutilized FSI, the
same shall be available to the promoter for development on such
Layout Plot without any hindrance by the flat purchaser/s and which
has been disclosed at the time of purchase of such flats. The promoter
cannot withheld the conveying the land and the building to the legal
entities for want of further development in unutilized area / FSI or for
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want of formation of Federation or Apex by the legal entities on such
Layout Plot.
(3) Where the legal entities functioning in a Layout Plot have formed
the Apex Body or the Federation, the conveyance, if desired by such
legal entities can be executed in favour of Apex Body or the
Federation. The Apex Body or the Federation also can be formed by
the legal entities on a Layout Plot to manage and administer the
common areas and the facilities without having any legal rights, title
and the interest in the property in such a Layout Plot and all such
legal rights, title and the interest is transferred in the respective legal
entitles as described in sub-rule(2) above.
18) However, there are no such sub-rules (2) and (3) in Rule 9 of MOF
Rules. Rule 9 of MOF Rules provided thus:
9. Period for conveyance of title of promoter to organisation of Flat
purchasers.
If no period for conveying the title of the promoter to the
organisation of the flat purchasers is agreed upon, the promoter
shall (subject to his right to dispose of the remaining flats, if any)
execute the conveyance within four months from the date on which
co-operative Society or the company is registered or, as the case may
be, the association of flat takers is duly constituted.
When a promoter has submitted his property to the
provisions of the Maharashtra Apartment Ownership Act, 1970 by
executing and registered a Declaration as required by Section 2 of
that Act, and no period for conveying the title of the promoter in
respect of an apartment to each apartment-taker is agreed upon, the
promoter shall execute the conveyance or deed of apartment in
favour of each apartment-taker within four months from the date the
apartment-taker has entered into possession of his apartment.
The promoter shall file with the Competent Authority as copy
of the conveyance executed by him under sub-section (1) of section
11 within a period of two months from the date of its execution.
19) Thus, the Plaintiffs have quoted imaginary Rule 9, which does not
exist in the Rule Book. There is no provision in Rule 9 of MOF Rules,
which provides for conveyance of common area and facilities in the
layout plan as sought to be suggested by the Plaintiffs. The Suit is thus
premised on nonexistent provisions of Rule 9 of MOF Rules.
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20) Coming back to the averments in the Plaint, there are express
admissions given in several paragraphs thereby admitting the title of
Defendant Nos.3 and 10-Trusts in respect of Sub-Plot Nos. D and E as
well as specific admissions about restrictive rights of Plaintiffs in respect
of Sub-Plot Nos. A, B and C alone. The entire Plaint claiming rights in RG
located in Sub-Plot Nos.D and E and internal road in Sub-Plot No. F is
premised on:
(i) averment that the sanctioned layout plan mandates
maintenance of RG admeasuring 11,270 sq.yards, which is
spread across sub plots of layout A, B, C, D and E and for use
of entire layout;
(ii) averment that computation of FSI for construction of
buildings on Plots A, B and C is made by taking into
consideration FSI flowing out of Sub-Plot Nos. A to F; and
(iii) Sub-rules (2) and (3) of of Rule 9 of MOF Rules provide for
conveyance of common areas in the layout plot.
21) The averment regarding compulsion to maintain RG admeasuring
11,270 sq. yards for use of the entire layout [ Point No. (i)] is to be found
in paragraph 4(i), which reads thus:-
4(i) As per the conditions levied by BMC while approving the layout
plan bearing file SE/LO/26-K dated 16-01-1967 & as per the Sanction
Order issued by Office of Collector, BSD in response to application
submitted jointly by Defendant No. 1, Defendant no.3 and Defendant
No. 10, Area marked as Plot F of Layout and belonging to Defendant
No. 1. shall be maintained as internal access Road of Layout. Further,
as per condition of approval of Layout, Area marked in Green in
Layout Plan and collectively admeasuring about 11270 Square yards
(equivalent to around 9423.15 square meters) shall be maintained as
Recreation Garden of entire Layout This recreation Garden Area is
spread across all the Sub-Plots of Layout being Sub-Plots A, B, C, D &
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E which were collective holdings of Defendant No. 1, Defendant No. 3
& Defendant No. 10.
Sub-Plot F of Layout was demarked and reserved as internal access
rond of Layout. As per conditions laid down by BMC while approving
the layout plan, the said area admeasuring 11270 Square yards
marked in green as Recreation Garden on layout plot shall be
maintained as Recreation garden for allt he time to come by the
defendant No.1 along with Defendant No.3 & 10 Trusts.
22) Averments about FSI computation being made in respect of entire
layout [Point No. (ii)] are to be found in paragraph 4(o) of the Plaint,
which reads thus:
4(o) Furthermore, all the application to the Building Proposal
department of BMC for construction of 10 Buildings in the Layout,
were made relying and based on the approved and sanctioned layout
plan SE/LO/26-K dated 03-07-1967. All the Applications and Plans
submitted for approval were on the basis approved Building Plan and
Sanctioned layout Plan. All the computations, calculations,
submissions of already consumed Floor Space Index (FSI) and
Balance available FSI were done on the basis of one whole Layout of
Plots A, B, C, D & E AND internal access road F.
23) The averments about Sub-rules (2) and (3) of Rule 9 of MOF Rules
providing for conveyance of common areas in the layout plot [ Point No.
(iii)] are to be found in para 5 of the Plaint which is already reproduced
above.
24) Thus, the above averments in paragraphs 4(i) and 4(o) are the two
pillars, in addition to support in the form of provisions of sub-rules (2)
and (3) of Rule 9 of MOF Rules, on which entire edifice of the Suit is
balanced. The Suit would ordinarily float on the basis of the above
quoted averments in paragraphs 4(i) and 4(o). However, it is well settled
position that while deciding application for rejection of the Plaint under
Order VII, Rule 11 of the Code, the Court must undertake holistic reading
of all the averments in the Plaint as well as documents annexed thereto.
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25) As observed above, the Plaintiffs have annexed the sanctioned
layout at Exhibits F and F1 to the Plaint. The Plaintiffs have reproduced
the relevant conditions of the sanctioned layout in paragraph 4(k) of the
Plaint. Condition No.7 as reproduced in paragraph 4(k) of the Plaint
reads thus:-
7. That the Plots together admeasuring 11,270 sq.Yards and shown in
Green Colour on the Plan shall be developed and maintained as
Recreational Ground.
26) As opposed to the above condition No.7, the Plaintiffs have added
the words ‘of entire layout’ in paragraph 4(i) of the Plaint, which does
not exist in Condition No.7. Condition No.7 merely mandated
development and maintenance of RG admeasuring 11,270 sq.yards and it
nowhere mandated that same should be maintained for entire layout.
This is clear from the following:
Averment in para 4(i) Condition No. 7 of layout
Further, as per condition of approval That the Plots together admeasuring
of Layout, Area marked in Green in 11,270 sq.Yards and shown in Green
Layout Plan and collectively Colour on the Plan shall be
admeasuring about 11270 Square developed and maintained as
yards (equivalent to around 9423.15 Recreational Ground.
square meters) shall be maintained
as Recreation Garden of entire
Layout.
27) Further averment in paragraph 4(i) ‘This recreation Garden Area is
spread across all the Sub-Plots of Layout being Sub-Plots A, B, C, D & E
which were collective holdings of Defendant No. 1, Defendant No. 3 &
Defendant No. 10.’ is also clearly falsified by condition No.7 in addition
to contradictions by Plaintiffs under the admissions in paragraphs 4(a),
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4(e), 4(f), 4(g) as well as 7/12 Exhibit-I colly with Plaint, which do not
indicate any collective holding. There are admissions in the Plaint about
separate and distinct holdings.
28) Furthermore, the Sanctioned Layout No.2182 dated 9 November
1966 produced by the Plaintiff at Exhibit E to the Plaint clearly records
separate plots for school and colleges by Defendant Nos.3 and 10 -Trusts
and Sr. No.6 of MCGM Resolution dated 9 November 1966 (Page No. 52)
records that ‘some of the vacant plots were amalgamated and formed
into one part of college and another school ’. Thus, the layout sanction
plan proceeded on an express footing that Plots -D and E were separately
owned by two Trusts and Plot -F was owned by Defendant No.1 for
internal roads. Thus, averment made in paragraph 4(i) of the Plaint is
contradicted by the documents on record.
29) Coming to the second pillar of the edifice in the form of averments
in paragraph 4(o) of the Plaint, the same is also clearly falsified by the
sanctioned plans. The Plaintiffs have produced at Exhibit-N collectively,
building plans and IODs issued by Building Proposal Department in
respect of buildings of the Plaintiffs-Society. Perusal of the said plans
would indicate that separate plans were submitted and have been
sanctioned in respect of Sub-Plot Nos. A, B and C. This is clear from the
following:
(i) For Sub-Plot No. A, separate IOD is issued in respect of area of
15,380 sq.yards (12,857 sq.mtrs). There is a separate garden
area indicated in respect of Sub-Plot No. A admeasuring 1200
sq.yards /852.72 sq.mtrs and 500 sq.yards /418 sq.mtrs.
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(ii) In respect of Sub-Plot No. B, separate plan is sanctioned on 8
July 1972 for plot area admeasuring 11,005 sq.yards (9218
sq.mtrs.). Two separate gardens are indicated in respect of Sub-
Plot No. B.
(iii) Similarly, a separate and distinct plan was submitted and
sanctioned in respect of plot ‘C’ on 17 September 1974 for plot
admeasuring 7,995 sq.yards (6683.82 sq.mtrs.). Again, in the
said plan a separate garden is indicated for Sub-Plot No. C.
30) Thus, not only lands bearing Plot Nos. A, B and C are distinctively
sub-divided, but plans in respect thereof are also individually, distinctly
and separately sanctioned. The FSI computation is made distinctly for
each Plots A, B and C. This is clear from the following:
(i) For Sub Plot No. A area admeasuring 12,857.68 sq.mtrs, after
deducting RG area of 1270.72 sq.mtrs, the net plot area is
11,586.96 sq. mtrs., for which permissible BUA is sanctioned as
11,586.96 sq. mtrs. There is nothing to indicate that for
sanctioning buildings of Sub Plot No. A, any part of FSI forming
part of Sub Plot Nos. B, C, D, E and F is taken into
consideration.
(ii) Similarly, qua Sub Plot No. B, for area admeasuring 9200.18 sq.
mtrs, 15% RG area of 613.62 sq. mtrs is deducted, internal roads
admeasuring 90.29 sq.mtrs is deducted leaving net plot area of
8456.98 sq.mtrs. for which BUA of 8456.98 sq.mtrs. is
sanctioned. Thus, for sanctioning building plans for Sub Plot
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No. B, no part of FSI of Sub-Plot Nos. A, C, D, E and F is taken
into consideration.
(iii) Lastly, for sanctioning plans for building Sub-Plot No. C from
area admeasuring 6683.82 sq. mtrs, 15% RG area of 668.80 sq.
mtrs. is deducted and for balance plot area, BUA 6015.02
sq.mtrs is sanctioned. Thus, for construction of Sub Plot No. C,
no part of FSI of Sub-Plot Nos. A, B, D, E and F is taken into
consideration.
31) More importantly, while sanctioning plans for construction of
buildings on Plots A, B and C, mandatory 15% RG area corresponding to
size of each plot is separately carved out. Thus 15% RG area is not carved
out in respect of the entire layout land. Such deduction and specification
of RG is individual qua each of the sub-divided plots. Thus the plans
clearly contradict contentions in paragraph 4(p) of the Plaint that ‘ On
each plan the portion of Recreation Ground (R.G.) which is spread across
all the 5 Sub-Plots of Layout A,B. C. D & E is measured and marked
clearly and distinctly.’ As a matter of fact, on the plans, RG carving out is
‘plot specific’. For Sub Plot No. A, 15% RG ( 1270.70 sq.mtrs) is separate,
for Sub-Plot No. B, 15% RG ( 613.62 sq. mtrs) is separate and for Sub-Plot
No. C 15% RG (688.80 sq. mts) is separate.
32) Thus, the two pillars in the form of averments in paragraph 4(i)
[maintaining RG of 11,270 sq.yards for all layout plots] and in paragraphs
4(o) [computations for FSI purposes being done on the basis of one
whole layout of Plots A to F] clearly collapse upon considering the
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condition No.7 of sanctioned layout and individual plans for Sub-Plot
Nos. A, B and C.
33) The third pillar in the form of sub-rules (2) and(3) of Rule 9 of
MOF Rules has no legs to stand since no such Rule exists in the Rule
Book.
34) Thus, on a holistic reading of the entire Plaint, it is more than
apparent that the Suit discloses no cause of action. As aforesaid, the
Plaintiffs have already secured conveyance in respect of Sub-Plot Nos. A,
B and C on 27 November 2015 and 30 May 2017. They are now seeking to
establish rights in respect of what is being operated by Defendant Nos.3
and 10 Trusts as college and Girls’ schools. It is unfortunate that the
playground used by college and Girls’ schools are sought to be claimed by
the Plaintiffs-Society. The suit is thus clearly vexatious. In Dahiben
(supra) the Apex Court has discussed the principles for deciding
application under Order VII Rule 11 of the Code and has held as under:
23.2. The remedy under Order VII Rule 11 is an independent and special
remedy, wherein the Court is empowered to summarily dismiss a suit at
the threshold, without proceeding to record evidence, and conducting a
trial, on the basis of the evidence adduced, if it is satisfied that the ac-
tion should be terminated on any of the grounds contained in this pro-
vision.
23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no
cause of action is disclosed, or the suit is barred by limitation under
Rule 11(d), the court would not permit the plaintiff to unnecessarily
protract the proceedings in the suit. In such a case, it would be neces-
sary to put an end to the sham litigation, so that further judicial time is
not wasted.
23.8. Having regard to Order 7 Rule 14 CPC, the documents filed along
with the plaint, are required to be taken into consideration for deciding
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the application under Order 7 Rule 11(a). When a document referred to
in the plaint, forms the basis of the plaint, it should be treated as a part
of the plaint.
23.9. In exercise of power under this provision, the court would deter-
mine if the assertions made in the plaint are contrary to statutory law,
or judicial dicta, for deciding whether a case for rejecting the plaint at
the threshold is made out.
23.11. The test for exercising the power under Order 7 Rule 11 is that if
the averments made in the plaint are taken in entirety, in conjunction
with the documents relied upon, would the same result in a decree be-
ing passed. This test was laid down in Liverpool & London S.P. & I Assn.
Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I Assn. Ltd. v. M.V.
Sea Success I, (2004) 9 SCC 512] which reads as : (SCC p. 562, para 139)
“139. Whether a plaint discloses a cause of action or not is essen-
tially a question of fact. But whether it does or does not must be
found out from reading the plaint itself. For the said purpose, the
averments made in the plaint in their entirety must be held to be
correct. The test is as to whether if the averments made in the
plaint are taken to be correct in their entirety, a decree would be
passed.”
23.13. If on a meaningful reading of the plaint, it is found that the suit
is manifestly vexatious and without any merit, and does not disclose a
right to sue, the court would be justified in exercising the power under
Order 7 Rule 11 CPC.
23.15. The provision of Order 7 Rule 11 is mandatory in nature. It states
that the plaint “shall” be rejected if any of the grounds specified in
clauses (a) to (e) are made out. If the court finds that the plaint does not
disclose a cause of action, or that the suit is barred by any law, the court
has no option, but to reject the plaint.
24.4. If, however, by clever drafting of the plaint, it has created the illu-
sion of a cause of action, this Court in Madanuri Sri Rama Chandra
Murthy v. Syed Jalal [Madanuri Sri Rama Chandra Murthy v. Syed Jalal,
(2017) 13 SCC 174 : (2017) 5 SCC (Civ) 602] held that it should be
nipped in the bud, so that bogus litigation will end at the earliest stage.
The Court must be vigilant against any camouflage or suppression, and
determine whether the litigation is utterly vexatious, and an abuse of
the process of the court.
24.2. In T. Arivanandam v. T.V. Satyapal this Court held that while con-
sidering an application under Order VII Rule 11 CPC what is required to
be decided is whether the plaint discloses a real cause of action, or
something purely illusory, in the following words: (SCC p. 470, para 5)
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“5. ...The learned Munsif must remember that if on a meaningful
– not formal – reading of the plaint it is manifestly vexatious,
and meritless, in the sense of not disclosing a clear right to sue,
he should exercise his power under Order VII, Rule 11 C.P.C. tak-
ing care to see that the ground mentioned therein is fulfilled.
And, if clever drafting has created the illusion of a cause of ac-
tion, nip it in the bud at the first hearing ...”
24.3. Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal
this Court held that law cannot permit clever drafting which creates il-
lusions of a cause of action. What is required is that a clear right must
be made out in the plaint.
24.4. If, however, by clever drafting of the plaint, it has created the illu-
sion of a cause of action, this Court in Madanuri Sri Ramachandra
Murthy v. Syed Jalal held that it should be nipped in the bud, so that
bogus litigation will end at the earliest stage. The Court must be vigi-
lant against any camouflage or suppression, and determine whether the
litigation is utterly vexatious, and an abuse of the process of the court.
(emphasis and underlining added)
35) Applying the above principles to the facts of the present case, it is
seen that the documents attached with the Plaint are the basis for filing
of the suit. Perusal of the conditions of sanctioned layout and
development permissions granted qua Sub Plot Nos. A, B and C leaves no
manner of doubt that there is no cause to sue. The suit is also based on
non-existent provision of MOF Rules. On a meaningful reading of the
Plaint together with the documents attached therewith indicates that
there is no remote chance of the Plaintiffs succeeding in the Suit. The
entire Plaint is essentially premised on two averments, which are
demonstrably false and are cleverly drafted to make a picture of accrual
of a cause of action, which none actually exists. The Suit is manifestly
vexatious as the same is based on pleadings which are contrary to
documents accompanying Plaint or on non-existent provision of law.
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36) In my view, the Trial Court ought to have rejected the Plaint. The
Trial Court has failed to take into consideration the documents annexed
with the Plaint and has merely reproduced some of the averments in the
Plaint for the purpose of holding that the Plaint discloses right of the
Plaintiffs in respect of the suit property. On the other hand, various
admissions given in the Plaint and clear falsity in averments in
paragraphs 4(i) and 4(o) of the Plaint as demonstrated from the
documents annexed with the Plaint, it is clear that there is absolutely no
cause of action for the Plaintiffs to maintain the Suit. In my view
therefore, the Plaint does not disclose any cause of action. The same is
vexatious to the core and lacks any merits apart from not disclosing right
to sue. The Trial Court ought to have nipped such vexatious Suit in the
bud.
37) Provisions of Order VII Rule 11 of the Code are enacted for the
purpose of bringing to an immediate halt a manifestly vexatious suit,
which disclosed no cause of action. In Dhananjay Shivram Mapare and
Ors. V/s. Vilas Eknath Kapre and Ors. 4 this Court has held in paragraph
11 as under:-
11. The issue of consideration is if the Court notices that the suit
is gross abuse of process of law and is filing for oblique purpose of
forcing the Defendants for settlement in absence of any real cause of
action, whether the Court would remain a mute spectator and allow
the judicial process to be misused by a vexatious litigant. The Court is
not supposed to blindly accept the averment in the Plaint about
accrual of cause of action. It must also necessarily enquire whether
there is any cause of action for filing the suit. The concept of ‘cause of
action’ serves as the cornerstone upon which a suit is built. The term
‘cause of action’ refers to the set of facts or circumstances that give
rise to a legal claim, forming the basis for initiating the suit. The
Court therefore must enquire whether the bundle of facts pleaded in
the plaint make out Plaintiff’s right to sue. For that purpose, reading
4 CRA No.87 of 2019, decided on 11 November 2025
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of the plaint cannot be ‘formal’. It needs to be ‘meaningful’. This is
because Plaint drafted by a lawyer is most likely to have an averment
of accrual of cause of action. Such averment is not to be plainly
accepted by formal reading of the plaint. The Court must satisfy itself
that the cause of action pleaded is not a creation of fiction. If the
Court makes a meaningful reading of the Plaint and comes to the
conclusion that the suit is manifestly vexatious without exhibiting
Plaintiff’s real right to sue, such suit needs to be nipped in the bud
instead of making the Defendants undergo the ordeal of the lengthy
trial. These legal principles have been stated in various judgments of
the Apex Court. It would be apposite to refer to few of them. ...
(emphasis added)
38) In M/s. Kumar Beharay Properties LLP through its authorised
signatory V/s. Shri Rajesh Chandrakant Shinde and Others 5 this Court
has followed the judgments in Dahiben and Dhananjay Shivram Mapare
(supra) and has held in paragraphs 15, 16, 25 and 26 as under:
15. It is well settled legal position that while deciding application under
Order VII Rule 11 of the Code, the Court has to consider only the plead-
ings in the Plaint and documents produced therewith. However me-
chanical reading of the averments in the plaint is not sufficient and
what the Courts need to undertake is an exercise of meaningful reading
of the averments in the entire Plaint. If after meaningful reading of the
averments in the entire plaint, it can be gathered that there is real
cause of action for filing the suit, as contradistinct from a mere illusion
of cause of action and that the suit prima facie appears to be not barred
by limitation or by any express provisions of law, the Court can proceed
to reject the application under Order VII Rule 11 of the Code. The pro-
vision for rejection of the plaint under Order VII Rule 11 of the Code is
made with the objective of throwing out vexatious litigation at the
threshold rather than making the Defendant undergo the ordeal of a
lengthy trial. Particularly when the Courts encounter a clever pleading
in the plaint, about Plaintiff acquiring knowledge of an event on the
pleaded date or about accrual of cause of action on the pleaded day,
aimed essentially at saving the plaint from being rejected, the court is
not bound to accept that statement as a gospel truth and retain the suit
on its file. To paraphrase, mechanical reading of averment about cause
of action is not expected for ruling in favour of retention of the plaint.
If the suit is instituted after long delay, but the plaint therein is at-
tempted to be saved by lawyer's drafting ingenuity, the court is not ex-
pected to accept the clever pleading on the face and to take the suit for
5 CRA No.27 of 2017 decided on 8 December 2025
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trial. In such cases, where the suit appears to be vexatious, court needs
to be cautious and must read the entire plaint meaningfully to find out
whether the pleadings make the cleverly pleaded case of acquisition of
knowledge even believable. If it can be gathered from reading of the
averments in the entire plaint, and documents produced therewith, that
the cause of action had arisen much earlier than the cleverly pleaded
date, Court is not bound to accept the pleaded date and send parties to
the ordeal of long trial. If accrual of cause of action can be gathered
from pleadings, leading of evidence becomes unnecessary and in such
cases, plaint cannot be retained by invoking the general principle of
limitation being a mixed question of law and facts.
16. At the same time, causally filed applications seeking rejection of
plaint under Order VII Rule 11, aimed essentially at delaying the deci-
sion of the suit, equally need to be rejected in an expeditious manner
once the Court is satisfied on a meaningful reading of the averments in
the plaint, together with the documents produced therewith, that there
is some cause of action for taking the suit to trial or that the suit is not
barred by express provision of law or that the ground of limitation
raised by Defendant is either baseless or requires leading of evidence.
xxx
25) Recently in Dhananjay Shivram Mapare and Ors. Versus. Vilas
Eknath Mapare and Ors., I have highlighted the need for nipping in the
bud vexatious litigation. This Court has directed rejection of plaint by
having recourse to the provisos of Order VII Rule 11 after noticing that
the real intention behind filing of the suit was to bring the Defendants
to settlement table. This Court considered the judgment of the Apex
Court in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) dead through
legal representative K. Akbar Ali Vs. Umar Khan9 and Shree Mukund
Bhavan Trust (supra) and held in para-11 as under :-
xxx
26) In the present case also, it is abundantly clear that the suit
instituted by the Plaintiff is a vexatious litigation initiated under the
hope of bringing Defendants to settlement as they had already
commenced construction of 11 storey buildings on the land. Court's
jurisdiction cannot be permitted to be abused for the purpose of filing
of such a vexatious litigation which is ex-facie barred by limitation.
The trial court has erred in not appreciating this position. In every
case, the issue of limitation cannot be brushed aside holding that the
same is a mixed question of law and fact. In the present case, it is
difficult to comprehend as to how the issue of limitation would depend
on leading of evidence. Plaintiff's father did not take any steps for
specific performance of MOU dated 15 January 1982 during his lifetime
for over 31 long years. After his death, the Plaintiff has instituted the
suit which is hopelessly barred by limitation as Plaintiff's father must
have secured notice of execution of several registered instruments
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during his lifetime. The prayer for cancellation of instruments of 11
May 1989 and 28 January 2009 is also barred by limitation. The prayer
for cancellation of sale-deed dated 26 March 2013 is premised on
challenge to the main instrument of 11 May 1989. If prayer for
challenging Development Agreement dated 11 May 1989 is barred by
limitation even the prayer for challenge to sale-deed dated 26 March
2013 would not survive.
39) In the present case as well, one cannot blindly accept the
averments in the plaint which are demonstrably contrary to the
documents annexed therewith. Once it becomes clear that the averments
in the plaint about RG being carved out in respect of entire layout and
the entire layout land being considered for sanction of development
permission for construction of buildings on Plots A, B and C are found to
be contrary to the documents attached to the plaint and once it is found
that Rule 9 quoted in the plaint is not a part of MOF Rules, the very
cause for which the suit is sought to be filed evaporates and what
remains is a document aimed at merely vexing the Defendants and
burdening the judicial system. In my view, therefore, it is the duty of the
Court to nip in the bud the present vexatious piece of litigation initiated
by the Plaintiffs, which has absolutely no merit and which does not
disclose any cause of action.
40) Since the Plaint can be rejected on the ground of absence of cause
of action, I am not inclined to go into the issue of limitation, especially,
in view of the fact that MOFA obligations give rise to a continuous cause
of action [SEE: Samruddhi Coop. Housing Society Ltd. v. Mumbai
Mahalaxmi Construction (P) Ltd.6 and Sushma Tulsidas Adhav V/s.
Pradeep D. Shah7]. Since the plaint is manifestly vexatious and does not
6 (2022) 4 SCC 103
7 First Appeal No.1278 of 2012 decided on 20 September 2024 Bombay High Court.
Page No.28 of 29
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disclose any cause of action, it is not necessary to go into other
contentions raised in the Motions about Respondents judicata, bar under
Section 50 of the Maharashtra Public Trusts Act, 1950 etc.
41) In view of the above discussion, I am of the view that the Trial
Court has egregiously erred in rejecting the Motions filed by Defendant
Nos.1 and 3 to 13 seeking rejection of the Plaint. The impugned order
passed by the City Civil Court is indefensible and liable to be set aside.
42) I accordingly, proceed to pass the following order:
(i) Order dated 7 October 2019 passed by the learned Judge,
City Civil Court, Borivali Division, Dindoshi, Mumbai,
rejecting Notice of Motion Nos. 3338 of 2018 and 3346 of
2018 is set aside and both the Motions are allowed.
(ii) The Plaint in L.C. Suit No.3712 of 2017 is rejected under
Order VII Rule 11 of the Code.
(iii) Consequently, L.C. Suit No.3712 of 2017 is dismissed.
43) Civil Revision Applications are allowed and disposed of in above
terms. Considering the facts and circumstances of the case, there shall be
no order as to costs.
44) In view of disposal of the Civil Revision Applications, the Interim
Applications do not survive and hence stand disposed of.
[SANDEEP V. MARNE, J.]
Signed by: Megha S. Parab Page No.29 of 29
Designation: PA To Honourable Judge 2 September 2026
Date: 02/09/2026 17:55:19
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