Bombay High Court
KAMAL KUMAR BAJORIAversusBIMAL KUMAR BAJORIA
- Decided
- Disposal
- DISPOSED OFF
Holding
The suit is not barred by limitation; the notice of motion is dismissed and the interim application is disposed.
Summary
The defendants moved to dismiss the plaint on the ground that the partition suit was time‑barred under the Limitation Act, arguing that the cause of action arose in 2009‑10 and the suit filed in 2016 exceeded the three‑year period. The plaintiffs contended that subsequent incidents from 2013 to 2015 constituted a fresh cause of action, invoking Article 110 of the Limitation Act. The court examined the averments in the plaint, the distinction between ouster and exclusion, and the jurisprudence on when the right to sue accrues under Article 113. It held that the later incidents gave rise to a cause of action within the limitation period and therefore the suit could not be dismissed at this stage. The notice of motion seeking dismissal was rejected, and the interim application for amendment and jurisdiction over a Kolkata property was disposed, with the court finding the defendants had waived any territorial objection.
Issues considered
- The suit is barred by limitation under Article 113 of the Limitation Act, 1963.
- Whether the incidents from 2013‑2015 constitute a fresh cause of action under Article 110 of the Limitation Act.
- Whether the defendants have waived the objection to territorial jurisdiction over the Kolkata property.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order II Rule 2, Order VII Rule 11(d), Order XXIII Rule 1(3), Section 21
- Limitation Act, 1963 — s. Article 110, Article 113, Article 120
Subjects
- Limitation Act
- Article 113
- Article 110
- Civil Procedure Code
- Partition suit
- Cause of action
- Joint ownership
- Territorial jurisdiction
- Interim application
- Notice of motion
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1 OF 2019
IN
SUIT NO.245 OF 2017
Bimal Kumar Badriprasad Bajoria and Anr. ...Applicants
In the matter between:-
Kamal Kumar Badriprasad Bajoria and Anr. ...Plaintiffs
Versus
Bimal Kumar Badriprasad Bajoria and Anr. ...Defendants
WITH
SUIT NO.245 OF 2017
WITH
CHAMBER SUMMONS NO.1095 OF 2017
WITH
NOTICE OF MOTION NO.1618 OF 2017
WITH
NOTICE OF MOTION NO.1 OF 2019
WITH
INTERIM APPLICATION NO.2725 OF 2026
WITH
NOTICE OF MOTION NO.1618 OF 2017
IN
SUIT NO.245 OF 2017
*****
Mr.Akshay R. Pai a/w Ms.Siddhi Advocate for the Plaintiffs
Bhosale, Mr.Sahash Sakhare and
Mr.Omkar Kalondhrekar i/b. Bina R.
Pai
Dr.Abhinav Chandrachud a/w Advocates for Defendants.
Ms.Kavisha Shah, Mr.Prathmesh
Bhosale and Ms.Janhavi Jain i/b. India
Digitally signed
SEEMA KSHITIJ
by SEEMA
KSHITIJ YELKAR
Date:
YELKAR 2026.08.24
19:09:04 +0530
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Law Alliance
*****
CORAM : S. M. MODAK, J.
DATE : 24th AUGUST 2026
P. C. :-
NOTICE OF MOTION NO. 1 OF 2019
1. Heard leaned Advocate Dr. Shri Chandrachud for the defendants
and learned Advocate Shri Pai for the Plaintiffs.
2. By this Notice of Motion, the Defendants are praying for
rejection of plaint as per the provisions of Order VII Rule 11(d) of the
Civil Procedure Code, 1908 on the ground that suit is barred by law of
limitation. My attention is invited to the averment in para no. 1 of the
plaint. It says “however in the year 2009-10 differences arose between
them owing to which the Defendant No. 1 made all possible attempts
to throw the Plaintiff No. 1 out of the business as well as the joint
properties thereby depriving the Plaintiff No. 1 of all his legal rights
and dues”.
3. Dr. Shri Chandrachud submitted that if such an attempt is made
in the year 2009-10, the suit which is filed in the year 2017 is beyond
the period of limitation. He read over the provisions of Article 113 of
the Limitation Act.
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4. Whereas according to Mr. Pai, there was only an attempt and
other averments in the plaint also needs to be considered. If they are
considered, the suit is not beyond limitation and he read over the
provisions of Article 110 of the Limitation Act.
5. Both of them relied upon certain judgments. It is settled law that
such an application has to be decided on the basis of averments in the
Plaint and supporting documents and there is no need to refer to the
averments in the Written Statement.
Averments in the plaint
6. It will be material to consider the averments in the plaint. They
are as follows:-
(a) In the year 2009-10, there was difference and all the possible
attempts were made by Defendant No. 1 to throw away the
Plaintiff.
(b) Defendants have deprived the Plaintiff No. 1 of all the rights
and joint properties which Defendants have admitted.
(c) There was attempt to amicably settle the dispute in or
around September 2013. Draft of the family settlement was
also exchanged. The defendants have tried to overpower the
Plaintiff, and hence he has withdrawn from the settlement
talks.
(d) Defendants have adopted all unethical means to deprive the
Plaintiffs from their rightful share. Plaintiff No. 2 has filed
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complaint with the Amboli Police Station in respect of
breaking lock of Unit No. 114 at Kuber Compex, Near Link
Road, Andheri (W) by Defendant No. 1. He took away
important business and personal documents. It took place on
03.03.2013.
(e) On 19.04.2013, the defendant no. 1 was arrested on the basis
of CCTV footage from the Society.
(f) On 02.03.2013, the Defendant No. 1 met Plaintiff No. 2 at
office premises at Morya Landmark and threatened her with
dire consequences, if she refused to handover the possession.
(g) On 04.03.2013 (page no. 386) Plaintiff No. 2 reported the
matter to Amboli Police Station and NC complaint was
lodged.
(h) On 02.03.2013, Defendant No. 1 attempted the entry in the
house of the Plaintiffs. The daughter of the Plaintiff has not
opened the door. Defendant No. 1 abused the Plaintiff. It
was reported to Oshiwara Police Station by Plaintiff No. 2 on
04.03.2013. (page no. 387)
(i) On 25.06.2015, Plaintiff No. 2 has complained at Mahim
Police Station against Defendant No. 1 for illegal transfer of
an amount of Rs. 11,00,000/- from her account.
(j) On 22.04.2013, Plaintiff No. 1 has complained to Pydhonie
Police Station for theft and usurping Unit No. 407, Bharat
Chambers belonging to Plaintiff No. 1.
7. On the basis of the above averments, Plaintiffs have pleaded in
para no. 12 that they were having serious disputes in between co-
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owners and they have apprehension that defendants will not allow
them to take peaceful possession of the suit property and its lawful
enjoyment.
8. In para no. 5 and in para no. 13, the description of the properties
are given. It is also pleaded those premises stand in whose name and
who are using it.
9. On the above said facts, the suit is filed asking for following
reliefs:-
a) To partition the suit property by metes and bounds.
b) the Appropriate order and directions be passed.
c) Pending suit, interim reliefs and injunction are sought.
Notice of Motion
10. On this background, the Notice of Motion is filed. Following are
the material averments:-
a) Difference arose since 2009-10. However, suit is filed on
13.07.2016. The period of limitation is three years from the
date of cause of action, the suit is time-barred.
b) Except averring “no part of the suit is barred by limitation”.
No further details are given in para no. 19.
11. By way of reply the prayer is opposed. There is serious dispute
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about which Article of the limitation Act is applicable, Whether it is
Article 113 or 110. The issue needs to be decided at an interim stage
and not after pleadings are over and suit is put to trial.
12. For deciding this issue, the relevant personal law governing the
parties also needs to be considered. From the averments in the plaint, it
is clear that from the business income, the Plaintiff and the Defendants
have purchased several commercial as well as residential premises.
Either they are in their individual name or joint names. The properties
are situated in Mumbai except property described at Exhibit A-8 at
Kolkata. There is a separate notice of motion which is filed. This is
what is stated from the averments in the plaint.
Submissions
13. When Mr. Pai has referred to the provisions of Article 110 of the
Limitation Act, Dr. Shri Chandrachud submitted that it will not be
applicable because the word used in Article 110 is joint family property
and this will be applicable only when the case is put up to that effect.
When property is inherited from the earlier generation, it is called as
joint family property.
14. In this case, the Plaintiff No. 1 and Defendant No. 1 by their
business income have purchased these properties. So my prima- facie
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opinion that Article 110 will not be applicable. At the most, both of
them can be termed as co-owners instead of joint owners.
Judgments cited
15. In case of Krishna Pillai Rajasekharan Nair (Dead) By Lrs. Vs.
Padmanabha Pillai (Dead) by LRS and Others 1, the Hon’ble Supreme
Court opined that limitation for the partition suit will be governed by
Article 120 of the Limitation Act, 1908 old. The starting point of
limitation is when right to sue accrues that is when Plaintiff has noticed
all his entitlement to partition being denied. It is true the
corresponding Article as per Limitation Act, 1963 is Article 113. The
cause of action as per both the articles is “ when the right to sue
accrues”. Earlier, the period of limitation was six years, now it is
restricted for three years.
16. Dr. Mr. Chandrachud is fair enough to quote the observations in
case of Syed Shah Ghulam Ghouse Mohiuddin and Ors. Vs. Syed Shah
Ahmed Mohiuddin Kamisul Quadri (Died) and Ors. 2. In para no. 20,
it is observed ‘“the cause of action for partition of properties is said to
be a “perpetually recurring one”’. The shares of heirs under
Mohammedan law are definite and known before actual partition. Dr.
1 (2004) 12 SCC 754
2 (1971) 1 SCC 597
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Mr. Chandrachud, also relied upon the observations in case of
Dattatraya Digambar Panchwadkar and Others Vs. Prabhakar
Ramkrishna Panchwadkar and Anr.3. The observation are, “it is true
that it was alleged in the earlier suit that a demand for partition was
made in 1915 and was met with a refusal. But if the conclusion to
which we have come on the evidence is correct, then it must follow
that for long afterwards the status of the family was joint and the
property continued to be a joint family property, and there is no
evidence of any exclusion or ouster to the knowledge of the plaintiffs as
regards their share in the family properties”. The submission is that
even if the incident of 2009–10 is not considered a cause of action, for
bringing the suit for limitation, the Plaintiff has to plead that he was
excluded from or ousted from joint properties.
17. In order to differentiate in between ouster and exclusion, he
relied upon observations in case of Chandra Kishore Chakravarty Vs.
Biseswar Par and Anr.4. It is observed that to exclude is to “keep out”
and oust is to “put out” of possession. Lastly, he relied upon the
observations in case of Ashabai wd/o Rambhau Awachat and Others
Vs. Madhusudan s/o Rajaram Chourasia5. The issue is when first suit
3 (1963) SCC Online Bom 104
4 XXXII Calcutta Weekly notes 291, in Appeal No. 489 of 1925, decided on 28.07.1927.
5 2017 (5) Mh.L.J.
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for partition is dismissed, whether second suit is maintainable. He
relied upon observations in para no. 9. The submission is when first
incident happened in the year 2009-10, the Plaintiff must be aver that
after this incident, even property has remained joint.
18. As against this, Mr. Pai has relied upon the observations in case
of Vidya Devi Alias Vidya Vati (Dead) by LRS Vs. Prem Prakash and
Others6 wherein the provisions of Delhi Land Reforms Act were
involved. There is schedule attached to the said Act which also contains
period of limitation. No period of limitation is prescribed for filing a
suit for partition of joint holding by co-bhumidhar. The contention of
Mr. Pai is where no specific period of limitation is fixed for the
partition suit as per Limitation Act, the period of limitation will not
start. Dr. Mr. Chandrachud tried to submit that it was under the
Special Act and facts are different and there is a residuary Article as per
Limitation Act.
19. Mr. Pai also relied upon observations in case of Daya Singh and
Another Vs. Gurdev Singh (Dead) By LRS and Others 7, wherein there
was compromise for sharing of the suit property and it was not
considered as cause of action on filing partition suit. The entries in the
6 (1995) 4 SCC 496
7 (2010) 2 SCC 194
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revenue record coming to the knowledge of the Plaintiff is considered
as a cause of action for filing of the suit. In para number 14, it is
observed that :-
“No right to sue until there is an accrual of the right asserted
in the suit and its infringement or at least a clear and
unequivocal threat to infringe that right by the defendant
against whom suit is instituted”.
It will be material to consider meaning of cause of action, because as
per Article 113 of the new Act, the period will start when right to sue
accrues. It accrues when there is a cause of action. It is not defined
anywhere.
20. Order II of the Civil Procedure Code only says about joinder of
the cause of action but the Courts have interpreted it as a bundle of
facts which gives right to Plaintiff to approach a court of law. There was
an occasion for the Hon’ble Supreme Court to interpret the wordings
of Article 113 of present Limitation Act in case of Shakti Bhog Food
Industries Ltd. Vs. Central Bank of India 8. The suit for rendition of
accounts filed against the Bank was dismissed as per provisions of
Order VII Rule 11(d) being barred. It was confirmed by the High
8 2020 (17) SCC 260
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Court. However, Hon’ble Supreme Court reversed the same order. The
Supreme Court interpreted the meaning of words “right to sue accrues”.
While doing that exercise, the Supreme Court compared those
provisions with provisions of Article 58, 59 and Article 104. In all
these Articles, the legislatures have put emphasis on word “FIRST”.
21. While doing comparison, in para no. 17 the Supreme Court
observed :-
“The expression used in Article 113 of the 1963 Act is
“when the right to sue accrues”, which is markedly
distinct from the expression used in other Articles in
First Division of the Schedule dealing with suits,
which unambiguously refer to the happening of a
specified event. Whereas, Article 113 being a
residuary clause and which has been invoked by all
the three Courts in this case, does not specify
happening of particular event as such, but merely
refers to the accrual of cause of action on the basis of
which the right to sue would accrue.”
22. The word ‘first’ is not used in Article 113. The Supreme Court
observed :-
“Concededly, the expression used in Article 113 is distinct
from the expressions used in other Articles in the First
Division dealing with suits such as Article 58 (when the
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right to sue “first” accrues), Article 59 (when the facts
entitling the plaintiff to have the instrument or decree
cancelled or set aside or the contract rescinded “first”
become known to him) and Article 104 (when the plaintiff
is “first” refused the enjoyment of the right). The view taken
by the trial Court, which commended to the first appellate
Court and the High Court in second appeal, would
inevitably entail in reading the expression in Article 113 as –
when the right to sue (first) accrues. This would be
re−writing of that provision and doing violence to the
legislative intent. We must assume that the Parliament was
conscious of the distinction between the provisions referred
to above and had advisedly used generic expression “when
the right to sue accrues” in Article 113 of the 1963 Act.
Inasmuch as, it would also cover cases falling under Section
22 of the 1963 Act, to wit, continuing breaches and torts.”
23. In para nos. 19 and 20, the observation in earlier judgment were
reproduced. Earlier observations are :-
“the distinction between Article 58 and Article 113
is, thus, apparent inasmuch as the right to sue may
accrue to a suitor in a given case at different points
of time and, thus, whereas in terms of Article 58, the
period of limitation would be reckoned from the
date on which cause of action arose first, in the latter
the period of limitation would be differently
computed depending upon the last day when cause
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of action therefore arose”.
24. Even in para number 21, the comparison done in Article 58 and
Article 120 of the present Act were also referred. The difference is
addition of word “First in Article 58 and it is not there in Article 113 ”.
Even the Supreme Court has considered the expression under Article
113 of the old Act and Article 120 of the new Act and observed that
they are similar except the period of limitation. (Para number 21). It is
observed :-
“Notably the expression used in Article 113 is similar to
that in Article 120 namely when right to sue accrues.
Hence, the principle underlying this dictum must apply
proprio vigore to Article 113.”
25. In the present partition suit, both the Plaintiff No. 1 and
Defendant No. 1 have purchased the properties jointly. Yet the reply of
the Defendant No. 1 has to come on record but if both have purchased
the properties jointly, both are having the right in those properties as
co-owners. Why co-owner will claim partition, when relationship is
cordial. He will seek partition and ask for separation only when
relationship is not cordial and one of the co-owner has denied the right
of another. The question is when it can be said that right is denied or
there is infringement of right. It is held as such infringement should be
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clear and unequivocal.
26. On facts, it is further held “ Moreover, the fact that the appellant
had eventually sent a legal notice on 28.11.2003 and again on 7.1.2005
and then filed the suit on 23.2.2005, is also invoked as giving rise to
cause of action. Whether this plea taken by the appellant is genuine
and legitimate, would be a mixed question of fact and law, depending
on the response of the respondents. (para no. 22).
27. On this background, when the averments in the plaint are
perused, I find that in the year 2009-10, Defendant No. 1 has
attempted to throw the Plaintiff No. 1 out of business and joint
properties. Para No. 1 does not contain the details about any incident
that has happened in the year 2009-10. As against this, in subsequent
paragraphs, Plaintiff has pleaded about various incidents right from
02.03.2013 to 25.06.2015 and on this background, the suit is filed on
13.07.2016. The Plaintiff has approached the Court only when they
have realized that the incidents are sufficient to plead that defendants
are denying their rights to their detriment. I do not find to reject the
plaint at this stage. Let the defendants to file their Written Statement
and then Court can go into this issue after recording evidence.
28. Dr. Mr. Chandrachud also relied upon the observations in case of
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M/s. Sree Surya Developers and Promoters Vs. N. Sailesh Prasad and
Ors.9. It is observed that “clever drafting would not permit the plaintiff
to make the suit maintainable which otherwise would not be
maintainable and/or barred by law. It has been consistently held by this
Court that if clever drafting of the plaint has created the illusion of a
cause of action, the court will nip it in the bud at the earliest so that
bogus litigation will end at the earlier stage”. I do not think considering
the averment in the plaint, it can be said that the incident that are
referred therein are by way of illusion.
29. For the above discussion, I am not inclined to accept the
contention of Dr. Shri Chandrachud that suit is barred by law of
limitation. Article 113 permits the Plaintiff to file suit within three
years from the time of accrual of right to sue. The Plaintiffs are entitled
to file a suit on the basis of last cause of action, if it is within three
years. Hence, there is no merit in the Notice of Motion. Hence, it is
dismissed.
30. I have not made any comments about which Article of
Limitation Act is applicable. It can be decided at the time of the trial.
9 2022 (5) SCC 736
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INTERIM APPLICATION NO.2725 OF 2026
31. On this application, the Plaintiffs are seeking leave to carry out
amendment as per Schedule and seeking leave as per provisions of
Order XXIII Rule 1 (3) read with Order II Rule 2 of the Code of Civil
Procedure, 1908.
32. There is one property situated at Kolkata. It is also described in
the plaint as A-8 and the description is given at Exhibit A-8 (on page
no. 24). The Plaintiffs contend that this Court is not having territorial
jurisdiction to partition this property. About location, there is no
dispute. However, Dr. Chandrachud submitted that as per provisions
of Section 21 of the Civil Procedure Code, objection to the jurisdiction
on account of territory has to be taken at first instance and he has not
filed written statement.
33. In fact on the basis of instructions, he submitted that he is
surrendering to the territorial jurisdiction of this Court in respect of
that property.
34. He relied upon the observation in case of Sneh Lata Goel Vs.
Pushplata and Others10, there is no dispute about this proposition of
law, but the issue is when the Plaintiff himself wants that in respect of
10 (2019) 3 SCC 594
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this property, he does not want assistance of court by way partition, can
we compel the Plaintiff to continue with the suit in respect of that
property. In fact, originally Plaintiffs have filed a suit in respect of the
properties situated in Original Ordinary Jurisdiction of this Court and
also included the property situated at Kolkata. By giving no objection,
defendants are waving their rights to object about territorial
jurisdiction. Even Mr. Pai submitted to pass appropriate orders.
35. In view of that instead of allowing the prayers, I am dismissing it
by observing that defendants have waived the right to take that
objection in that sense the Plaintiff can continue the suit in respect of
the Kolkata property also.
36. With these observations, the Interim Application is disposed of.
[S. M. MODAK, J.]
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