AGYARANI DUA Vs. VIDYAGAURI J TRIPATI

JUDGEMENT

(1.) BY this Notice of Motion taken out by the defendants it is prayed that plaint be rejected under Order VII, Rule 11, C. P. C. being barred by law of limitation.

(2.) THE plaintiff in the suit has prayed for declaration that the agreement dated 24-11-1984 be declared to have been abdicated and/or given up or in the alternative it be declared that the said agreement for sale dated 24-11-1984 is void/voidable for want of consideration and for not abiding by the material terms thereof and therefore illegal, bad in law and not binding on the plaintiff. The plaintiff has also sought the relief that the defendants being trespassers be ordered and decreed to hand over quiet, vacant and peaceful possession of the suit premises i. e. flat No. 12, Building No. 24, Ashish Co-operative Housing Society, Guru Nagar, J. P. Road. , Andheri (West), Bombay. In the alternative, the plaintiff has prayed for decree of Rs. 3,71,000/- together with interest on the said principal sum at the rate of 18% per annum and damages to the tune of Rs. 30,00,000/ -.

(3.) THE brief facts which have been highlighted in the plaint are that on 1-9-1972 the said suit premises were given on the leave and license basis to one Jethalal Damodar Tripathi. The agreement for sale of the suit premises took place between the plaintiff and the present defendant No. 1, who is the wife of Jethalal Damodar Tripati. The terms of the agreement for sale were not complied with by the defendant No. 1 and agreement for sale of said suit premises was revoked on 12-2-1984. Thereafter on 11-5-1988 the plaintiff issued notice to quit and notice of demand of arrears from 1-1-1985 to 30-4-1988 amounting to Rs. 20,000/- since the said premises were let out to the husband of the defendant No. 1. On 1-8-1988 the plaintiff filed a suit for eviction against Jethalal Damodar Tripati for recovery of possession and arrears of rent. The plaintiff obtained ex parte decree for possession and for recovery of arrears of rent from Small Causes Court on 18-3-1991. The plaintiff then levied execution of the ex parte decree and in the said proceedings the defendants puts obstruction to warrant of possession and accordingly the plaintiff took out Obst. Notice on 3-8-1992. The defendant No. 1 filed reply to the Obst. Notice on various pleas and it was also brought to the notice of the Court that Jethalal Damodar Tripati had died in the year 1986 and filing of the suit against the dead person by the plaintiff and decree obtained thereon was a nullity. Ultimately on 19-7-1995 the Obst. Notice taken out by the plaintiff was dismissed by the Executing Court. An appeal came to be filed by the decree holder before the Appellate Bench of the Court of Small Causes but without any success. Writ Petition was then filed by the plaintiff challenging the orders of the Small Causes Court and the writ petition too was dismissed. Thereafter the present suit has been filed by the plaintiff seeking aforesaid reliefs on 9-7-1996.