M/S. AMAR TRADERS Vs. FINANCE CO. LTD

JUDGEMENT

(1.) The present challenge has been preferred against an order whereby the application of the defendant no. 2/petitioner, under Order VII Rule 11 of the Code of Civil Procedure, was rejected. The learned senior advocate appearing on behalf of the petitioner argues that the suit, as framed, is barred by limitation at least against the present petitioner, since the present petitioner purchased the suit property in the year 1999, during the interregnum when the suit (originally of 1990) had been dismissed for default. However, subsequently the suit was restored and, by way of amendment, a relief of reconveyance was also introduced against the present petitioner. Such amendment application was filed in the year 2005. It is argued on behalf of the petitioner that, since the suit property was admittedly a tenanted property, the same did not admit of physical possession. As such, it is argued that the second limb of the third column of Article 97 of the Limitation Act, 1963 is applicable to the present case. Since the relief of preemption was sought against the present petitioner much more than one year after the registration of the instrument of sale in favour of the petitioner, the suit is palpably time-barred against the present petitioner and the trial judge acted without jurisdiction in rejecting the application under Order VII Rule 11 of the Code of Civil Procedure.

(2.) The learned advocate appearing on behalf of the plaintiffs/opposite parties no. 1 and 2 argues that the suit was originally filed to assert a right of prior purchase which allegedly accrued to the plaintiffs by virtue of a previous partition deed, and for a consequential relief of injunction to restrain transfer of the suit property in violation of such right. Although the transfer in favour of the petitioner was not in violation of any injunction order, it is submitted that the same was in violation of the right of prior purchase conferred upon the plaintiffs/opposite parties no. 1 and 2 by the said partition deed. As such, it is argued that the newly introduced relief of reconveyance by virtue of the relief (bb) in the amended plaint was consequential to the reliefs originally sought. As such, it is submitted by the plaintiffs that the provisions of Article 97 of the Limitation Act, 1963 cannot apply to the present case.

(3.) A discussion of the reliefs sought in the suit will be relevant in the present context. The original reliefs, as sought in the year 1990, were as follows :-