Gujarat High Court
Rameshbhai Bababhai Patel vs Maniben W/O Keshavlal Patel And D/O ... on 5 March, 2021
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
C/CRA/106/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 106 of 2021
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RAMESHBHAI BABABHAI PATEL
Versus
MANIBEN W/O KESHAVLAL PATEL AND D/O BABABHAI PATEL
DECD
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Appearance:
MR MAYUR RAJGURU(1198) for the Applicant(s) No. 1,2,3,4,5
VEDANT J RAJGURU(9375) for the Applicant(s) No. 1,2,3,4,5
for the Respondent (s) No. 10,2,3,4,5,6,7,8,9
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 05/03/2021
ORAL ORDER
[1.0] Shri Mayur Rajguru, learned advocate for the applicants, submitted that this Revision Application is filed challenging rejection of the application, Exh.51 in Regular Civil Suit No.1336 0f 2015, by the learned 3rd Additional Civil Judge, Ahmedabad (Rural) dated 21.01.2021 rejecting the prayer for rejection of the plaint submitted under Order VII Rule 11(d) of the Code of Civil Procedure (hereinafter referred to as 'the Code'). He has submitted that while rejecting the application, Exh.51 filed by the applicants original defendants nos.1 to 3, 5 and 6, learned Judge has overlooked that the plaint is an outcome of a clever drafting and it does not reflect any particulars about the starting point of limitation. He has further submitted that the cause of action mentioned in the suit, at page 37, paragraph 4, is also silent about the exact date on which the cause of action arose, and Page 1 of 6 Downloaded on : Mon Mar 08 22:34:20 IST 2021 C/CRA/106/2021 ORDER therefore, claiming partition of the suit property in question, the right, which is relinquished by plaintiff herself way back in the year 2006 and execution of the registered document giving kabulat about the very same fact, could not have been entertained and since the suit is not filed within the period of limitation from the date of execution of the relinquishment of the right of the plaintiff and pursuant thereto mutation of entry in the revenue record for the same, the plaint was required to be rejected under Order VII Rule 11(d) of 'the Code'.
[1.1] Shri Rajguru, learned advocate, further submitted that in the cause of action stated in the suit, no exact date, time is reflected and on the contrary the plaint is silent about the exact date on which the cause of action arose. Since averments made in the plaint is vague enough to ascertain the exact date when the cause of action has arisen, the suit could have been filed within three years from the date of relinquishment of the right of the plaintiff and /or from the date of mutation in the revenue record, based on such relinquishment. Shri Rajguru, learned advocate, has further submitted that pursuant to the relinquishment of right, mutation proceedings carried the name of real son of the plaintiff as also he identified the thumb impression of the plaintiff herself, and therefore, claim made in the plaint that the thumb impression of the plaintiff was obtained in the year 20052006 is on misrepresentation to get the land converted from old tenure into new tenure land, is not correct.
[1.2] Shri Rajguru, learned advocate, has further submitted that in the entire suit there is no averment giving details of what actually happened and there is no mention with regard to the particular date and events for the cause of action, and therefore, he Page 2 of 6 Downloaded on : Mon Mar 08 22:34:20 IST 2021 C/CRA/106/2021 ORDER has submitted that the application, Exh.51, tendered by the applicants - defendants nos.1 to 3, 5 and 6 under Order VII Rule 11(d) of 'the Code' be allowed.
[1.3] Assailing the reasons assigned by the learned Judge, he has submitted that the reliance placed on the decision of the Supreme Court in the case of Chhotanben and Another Vs. Kiritbhai Jalkrushnabhai Thakkar and Others reported in (2018) 6 SCC 422 is incorrect as in the said case a specific date is mentioned in the suit when cause of action arose, and therefore, the said decision could not have been relied on for rejection of the application, Exh.51 filed by the applicants.
[1.4] He has further relied on a decision in the case of Kanjibhai Bhagwanjibhai Patel Vs. Shamjibhai Sorathiya Through P.O.A. Dharmesh P. Trivedi and Others reported in 2013 (1) GLR 51 to submit that if on the averment made in the plaint or undisputed facts, suit is time barred, plaint can be rejected under Order VII Rule 11(d) of the Code.
[1.5] Shri Rajguru, learned advocate for the applicants, has relied on the decision in the case of Becharbhai Zaverbhai Patel & Anr Vs. Shivabhai Patel & Ors. reported in (2013) 1 GLR 398 in support of his submission that the suit is clearly time barred, and therefore, the application, Exh.51 filed under Order VII Rule 11(d) of the Code is required to be granted.
[2.0] As against that, Ms. Trusha Patel, learned advocate for respondent no.1 - original plaintiff on caveat, submitted that the date on which relinquishment of right is pleaded, by the defendants i.e. 25.01.2006, respondent no.1 - original plaintiff was Page 3 of 6 Downloaded on : Mon Mar 08 22:34:20 IST 2021 C/CRA/106/2021 ORDER hospitalized in civil hospital as averred in the plaint itself, more particularly, at page 32 paragraph 2 thereof producing report card of the Civil Hospital itself.
[2.1] She has further submitted that the claim made by the applicants - defendants nos.1 to 3, 5 and 6 that the thumb impression of respondent no.1 - original plaintiff is identified by her own son is again not correct as the said signature and the thumb impression is forged one. It is further submitted that the son of the original plaintiff - Jagdishbhai K. Patel, has already filed FIR for the forged identification of thumb impression of his mother wherein after conclusion of the investigation the Investigating authority has submitted chargesheet. Not only that, according to her submission, even the quashing petition filed by the applicants also came to be withdrawn. She has further submitted that when kabulat agreement claimed to have been executed in the year 2010 was also under a misrepresentation by the applicants when plaintiff had gone to attend tonsure ceremony of grandson of applicant no.1
- original defendant no.1, the thumb impression was also obtained on some paper and photograph was also clicked. As soon as plaintiff came to know about the same and on verification found that the revenue record did not reflect her name as coowner and on inquiry it is found that she is claimed to have relinquished her right in the property since 2006, she immediately filed the suit in the month of August, 2011.
[2.2] According to her submission, the plaint is very clear about the cause of action and the starting point of limitation also, and therefore, it cannot be rejected on the ground of limitation as claimed by the applicants.
Page 4 of 6 Downloaded on : Mon Mar 08 22:34:20 IST 2021 C/CRA/106/2021 ORDER[3.0] Having heard the learned advocates for the appearing parties and on going through the documents, it is clear that the suit is filed in the year 2011, though renumbered in the year 2015. As claimed by the applicants in their application, Exh.51, based on certain documents like relinquishment of share of the plaintiff in the property in the year 2006, cannot be taken cognizance of as the execution of the same is disputed by the plaintiff.
[3.1] The plaintiff has very categorically averred in the plaint that in the year 2005 - 06 her thumb impression was obtained under a misrepresentation, that being claimed by the applicants as her relinquishment of right in the property, pursuant to which notice under Section 135(d) of the Gujarat Land Revenue Rules, 1972 came to be issued, not only to the plaintiff but other sisters also. For the decision of the application filed under Order VII Rule 11 of the Code, only the averments made in the plaint and the documents annexed with it are required to be looked into. However, if the defendants produced any documents and there is no dispute by the plaintiff with those documents they can also be considered in view of the decision relied on by the learned advocate for the applicants in the case of Kanjibhai Bhagwanjibhai Patel (Supra). However, in the plaint itself the plaintiff has averred that thumb impression of the plaintiff is taken on some documents under a wrong pretext. Those documents applicants claim to be relinquishment of the right of the plaintiff, which is disputed by the plaintiff in the plaint, and therefore, reliance placed on the decision in the case of Kanjibhai Bhagwanjibhai Patel (Supra) by the applicants would not be of any help to him as in that case Court came to the conclusion that on the averment and undisputed facts, Court found the suit to be time barred, and therefore, the Court held that the plaint can be Page 5 of 6 Downloaded on : Mon Mar 08 22:34:20 IST 2021 C/CRA/106/2021 ORDER rejected under Order VII Rule 11 of the Code. However, in the present case, the so called relinquishment of right in the property by the plaintiff is disputed in the plaint itself. The starting point of limitation for praying for setting aside of the sale deed executed so far as it relates to share of the plaintiff is concerned, would be from the date of knowledge about the same. As averred in the suit itself, the knowledge of the same and denying the right in the joint property was a reason for filing of the suit itself and it can safely be concluded that the suit was filed within the period of limitation, and therefore, the findings recorded by the trial Court while rejecting the application, Exh.51 filed under Order VII Rule 11(d) of 'the Code' is legal and valid. It is rightly held by the trial Court that considering the decision of the Supreme Court in the case of Chhotanben and Another (Supra) suit involves triable issues and the claim of the applicants is disputed about the relinquishment of right.
[3.2] So far as the ratio relied on, by the learned advocate for the applicant, in the case of Becharbhai Zaverbhai Patel (Supra), there cannot be any quarrel on it as it is held in the said judgment that the averments in the plaint and the supporting documents produced alongwith the plaint, if suit is clearly barred by law of limitation plaint can be rejected under Order VII Rule 11(d) of the Code. In the present case, there is no such situation found reading the whole plaint or even the document annexed with the plaint. On the contrary reading from the plaint, it can be clearly said that it is not barred by law of limitation, and therefore, reliance on the said decision is misplaced, and therefore, this petition having no substance is hereby rejected.
(UMESH A. TRIVEDI, J.) siji Page 6 of 6 Downloaded on : Mon Mar 08 22:34:20 IST 2021