Gujarat High Court
Parshottambhai Chhinkumal Chimnani vs Chhotaji Bhagaji Thakor Since Deceased on 4 January, 2022
Author: B.N. Karia
Bench: B.N. Karia
C/FA/2693/2019 JUDGMENT DATED: 04/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2693 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 2693 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PARSHOTTAMBHAI CHHINKUMAL CHIMNANI
Versus
CHHOTAJI BHAGAJI THAKOR SINCE DECEASED
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Appearance:
MR DIPAK H SINDHI(5710) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,4
MR. MEHUL SHAH, SR. COUNSEL WITH MR JV VAGHELA(5809) for the
Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
``
Date : 04/01/2022
ORAL JUDGMENT
Present appellant, who is the original plaintiff before the trial Court, being aggrieved and dissatisfied with the judgement and order dated 12th April, 2019 passed by learned Principal Senior Civil Judge, Gandhinagar below Exh. 56 and 61 in Special Civil Suit No. Page 1 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 1 of 2016 rejecting the plaint (Suit) of the appellant (plaintiff) by allowing the application of the defendants below Exhs. 56 and 61 under Order 7 Rule 11 of Code of Civil Procedure, 1908, has preferred this appeal under Section 96 read with Order XLI of the Code of Civil Procedure, 1908 (for short "the Act") Present appellant herein is the original plaintiff and respondent Nos. 1 to 1/5 herein are the original defendant Nos. 1 to 5 and respondent Nos. 2 to 4 herein are original defendant Nos.6 to 8 in the suit being Special Civil Suit No.1 of 2016.
Brief facts for considering the present controversy are enumerated hereunder:-
1. That 3 agricultural lands situated at District, Sub-
District: Gandhinagar, Moje Village Koteshwar bearing Survey No.1, admeasuring 0-72-14 sq. mtrs., survey No. 142 admeasuring 1-00-16 sq. mtrs and survey No. 146 admeasuring 0-77-90 sq. mtrs, in total admeasuring 2- 50-20 sq. mtrs. i.e. about 10.75 vigha land (hereinafter referred to as "the suit property") was originally owned by Chhotaji Bhagaji in the year 1990 who was the ancestor of respondent No.1/1 to 1/5, i.e. original Page 2 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 defendant Nos. 1 to 5. In the year 1990, the suit property was in the name of Chootaji Bhagaji alone, and out of his free will, Chootaji Bhagaji had agreed to sale the suit property to one builder of Ahmedabad namely Bholabhai Valjibhai Patel by executing one registered Agreement to Sale with Registration No. 509 dated 5.3.1990 at the rate of Rs.75,000/- per vigha i.e. at total sale price of Rs.7,87,500/- wherein, Chhotaji Bhagaji himself and his 4 legal heirs had signed as vendors, and as per condition No. 6 at page 6 of this Agreement to Sale, the sale deed was to be executed either within 12 months or within 3 months after getting necessary permissions for execution of sale deed, however, Bholabhai could not get necessary permissions for execution of sale deed till 1994 and therefore, no sale deed was executed in favour of the purchaser. However, Bholabhai had paid in advanced Rs.3,33,478/- i.e. 42% amount towards the sale price to Chhotaji Bhagaji. In addition to that Chhotaji Bhagaji and his 4 legal heirs executed one notarized irrecoverable Power of Attorney Page 3 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 on 5th March, 1990 in connection with the suit property, in favour of Bholabhai Patel wherein, respondent No.1/1 was also one of the signatory. Thereafter, Bholabhai got permission for execution of sale deed in the year 1995 and was ready for getting sale deed executed in his favour, however, till then the price of the suit property was increased and therefore, Chhotaji Bhagaji had become dishonest and refused to execute the sale deed. Hence, Bholabhai filed Special Civil Suit No. 331 of 1995 before the Court of learned Civil Court at Gandhinagar against Chhotaji Bhagaji. Thereafter, the responsibility of the suit was handed over to the present appellant by Chhotaji Bhagaji. Thereafter, sale deed could not be executed in faovour of the Bholabhai till the year 1995 and price of the suit was increased. Thereafter, Chhotaji Bhagaji i.e. the ancestor of respondent No.1/1 to 1/5 had at new sale price agreed to sale the suit property to the present appellant at lump sum sale price of Rs.10,75,000/- with liability of Chhotaji Bhagaji towards Bholabhai of 42% sale price Page 4 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 taken by him and any compensation and outcome of suit filed by said Bholabhai. Chhotaji Bhagaji executed one registered Agreement to Sale with possession in favour of the present appellant on 13th November, 1995 and appellant paid full stamp duty of Rs.1,37,600/- on the agreement to sale and as per submission of appellant, physical possession of the suit property was handed over on 13th November, 1995 in presence of respondent No. 1/1. Thereafter, because of the inflation in the price of the suit property Chhotaji had become dishonest and did not execute sale deed in favour of Bholabhai and executed Agreement to Sale with possession in favour of the appellant with rights of Bholabhai on 13.11.1995. At the time of execution of the Agreement to Sale with possession in favour of the present appellant, Chhotaji had accepted the Demand Draft No. 000522 of Bank of Baroda of Rs. 2,75,000/- from the present appellant towards advance amount of the sale price of the suit property and the same is mentioned as Rs.8,00,000/- only which were remaining due to be paid towards the Page 5 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 sale price. As agreed between the parties, remaining amount of the sale price was to be paid on or before 31 st January, 1996. Another main condition was imposed in the agreement that out of 3 suit properties the biggest land bearing Survey No. 142 admeasuring 10016 sq. mtrs. which was given on rent to ONGC from 17 th March, 1993 to 16th March, 1996 by Chhotaji Bhagaji and accordingly, he agreed that from 1st January, 1995 onwards, appellant would get the said rent from ONGC. One of the condition in the agreement was that before execution of the sale deed in favour of the appellant, it was duty of the original owner-Chhotaji Bhagaji to get the rent agreement of ONGC cancelled and to get the possession of land of Survey No. 142 vacated from ONGC and vacant possession shall be handed over to the appellant, till the date of filing of the suit in the year 2016, possession of the ONGC over land of Survey No. 142 was not vacated and no amount of rent was paid to the present appellant. Respondent No. 1 to 1/5 failed to fulfill the conditions of the registered Agreement to Sale Page 6 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 in favour of the appellant, rights of the appellant in respect of the suit land with possession have remained alive and in-force till the date of filing of the suit. Original owner namely Chhotaji Bhagaji had executed one notarized Power of Attorney of the suit property in favour of the appellant on 13th November, 1995 authorizing him to get sale deed executed in his favour and taking over the possession of the suit property. The appellant was always ready to get Sale Deed of the suit property executed in his favour, and therefore, the appellant had issued notice to the original owner Chhotaji Bhagaji on 18/01/1996 to send all the papers of the suit property and to get Title Clear Certificate of the suit property. As per the condition of the registered Agreement to Sale, Chhotaji Bhagaji could not get the possession from O.N.G.C. vacated over the land of Survey No. 142, therefore, the appellant had filed Special Civil Suit No. 28 of 1996 before the Civil Court at Gandhinagar against Chhotaji Bhagaji for specific performance of the Agreement to Sale in favour of the Page 7 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 appellant and further prayed for Court Commission and injunction order wherein, Court Commission was done on 25.5.1996 wherein, as per submissions of the appellant, physical and actual possession of the appellant over the three suit property was established. Thereafter, Bholabhai Patel executed one confirmation Agreement (Sahmati Karar ) on 31.5.1996 in favour of the appellant. That, during the subsistence of the doubt rights of the appellant over the suit property and pendency of the Special Civil Suit No. 28 of 1996, possession of the ONGC over the land of Survey No. 142 was not vacated till the year 2003 and therefore, on 1 st December, 2003, respondent No.1/1 who is also the main member and head of his family contacted the appellant with broker of this land transaction namely Kantibhai Aatmaram, told the appellant by giving promise that the possession of the O.N.G.C. will be vacated by 31/12/2003 and request the appellant to give Rs. 22,000/- in cash towards the sale price, so that he can spend the same towards expenditure of getting the Page 8 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 possession of O.N.G.C. vacated from one of the suit property bearing Survey No. 142. The appellant paid the said amount and also gave one cheque No. 033375 of Bank of Baroda dated 05/01/2004 in the name of Ramaji Chhotaji i.e. Respondent No. 1/1 of Rs. 7,78,000/- towards remaining amount of sale price, and that cheque was given with the understanding that the same shall be deposited only after the O.N.G.C. vacates it's possession on 31/03/2003. As sale price of the suit property was paid by the appellant to Respondent No. 1/1 by cheque and cash and as per submission of appellant with his consent and on the basis of Power of Attorney in his favour dated 13/11/1995 executed Sale Deed registered at Sr. No. 9091 on 19/12/2003 in his favour of 2 lands of the suit property bearing Survey No. 1 and 146 at the sale price of Rs. 2,75,000/-. He further executed another Sale Deed registered at Sr. No. 9093 on 19/12/2003 on the basis of Power of Attorney in his favour of 1 land of the suit property bearing Survey No. 142 at the sale price of Rs. 8,00,000/-. Respondent No. 1/1 to 1/5 Page 9 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 dishonestly and without the knowledge of the appellant with the malicious intention, cancelled the registered Agreement to Sale with Possession executed by their ancestor Chhotaji Bhagaji on 13/11/1995 by ex-parte executing registered Cancellation Deed registered at Sr. No. 9096, without signature of the appellant or photo of the appellant. In the said Deed of Cancellation, no address of the appellant of Meghaninagar was given. In the said cancellation deed, Respondent No. 1 to 5 have admitted the receipt of Rs. 2,75,000/- from the appellant by Demand Draft towards the advance money of the sale price, but the said amount is not returned to the appellant, and without taking back the physical possession of the suit property from the appellant, ex- parte cancellation deed was got registered illegally. It was wrongly mentioned in this Deed of Cancellation that the possession of the suit property was with the respondent No.1/1 to 1/5 from the beginning. On the date of execution of this Deed of Cancellation the Special Civil Suit No. 28 of 1996 was pending before Page 10 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 the Court, respondents have not challenged the documents/deeds executed in favour of the appellant before any Court. As per submission of the appellant, copy of the said Deed of Cancellation was received on 26/10/2015. At the time of filing of the present suit, as per submission of the appellant, he had no knowledge about the date of death of Chhotaji Bhagaji. Respondent No. 1/1 to 1/5 further executed 3 completely illegal and fraudulent sale deeds in favour of Respondent No. 2 to 4 (i.e. Defendant No. 6 to 8) in connection with the suit property on 31/12/2003 registered at Sr. No. 698/2004, 699/2004 and 700/2004 for the total lump sum sale price of Rs. 7,00,000/- received by cash. These 3 sale deeds have been executed during the pendency of Special Civil Suit No. 28 of 1996 filed by the appellant. The appellant had got copies of these 3 sale deeds on 26/10/2015. However, possession of the suit property was with the present appellant as it was handed over to him by late Chhotaji Bhagaji in his life time on 13/11/1995 which was also confirmed in the report of the Court Page 11 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 Commission held on 25.5.1996. As such there is no right, title or interest whatsoever is created in favour of respondent Nos. 2 to 4, sale deed were executed in their favour. Present appellant filed Special Civil Suit No. 1 of 2016 with a prayer to pass judgement, order and decree declaring that the appellant is having direct, active and physical possession of the suit property situated at District & Sub-District: Ahmedabad Village:
Koteshwar, and more particularly described by way of registered Agreement to Sale with possession registered upon payment of full stamp duty of sale deed at Sr. No. 5203, executed by original owner in favour of the appellant on 13/11/1995 upon receiving advance money of Rs. 2,75,000/- by Demand Draft towards sale price, and after paying the entire due amount of sale price Rs. 8 lakhs had got executed two sale deeds registered at Sr. No. 9091 and 9093 on 19/12/2003, and on the basis of the same the appellant has become lawful owner of the suit property and however, Respondent No. 1/1 to 1/5 have ex-parte cancelled the appellant's registered Page 12 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 Agreement to Sale with possession by ex-parte executing Cancellation Deed registered at Sr. No. 9096 without any consent or signature of the appellant and without returning the consideration amount to him, prayed to declare such Cancellation Deed as being null-
void and illegal. It was further prayed that three sale deeds executed in favour of Respondent No. 2 to 4 on 31/12/2003 registered at Sr. No. 698/2004, 699/2004 and 700/2004 for the total consideration of Rs.7,00,000/- in cash are completely illegal, null and void, and had prayed for cancellation of such three sale deeds. Further prayer was made in the suit by the appellant to restrain the respondents not to forcefully dispossess the appellant from his direct, active and physical possession over the suit property and declare that the respondents or their servants, agents, representatives have no right to illegally trespass or enter upon the suit property. Application seeking temporary injunction vide Exhibit-5 was also filed by the appellant. Written statement was filed by the respondent 1/1 to 1/5 on 11/07/2016, at Page 13 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 Exhibit No. 17, and the Respondent No. 2 to 4 had also filed their written statement at exh. 20 on 06/08/2016. Amended plaint was also filed by the plaintiff against which respondent No. 1/1 to 1/5 filed their written statement and injunction application of the appellant on 25.2.2019 at Exh 54. Respondent No. 2 to 4 filed written statement to the amended plaint and injunction Application at Exhibit No. 58. Thereafter, Respondent No. 1/1 to 1/5 filed Application for rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908 on 03/10/2016, at Exhibit No. 25, to which the appellant filed his reply on 10/01/2017 vide Exhibit -
28; and the Respondent No. 2 to 4 also filed Application for rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908 on 08/02/2017 at Exhibit No. 29 against which the appellant had filed his reply on 13/06/2017 at Exhibit - 36. However upon amendment of the plaint and injunction Application of the appellant, the respondents withdrew their applications for rejection of plaint vide Exhibit - 25 and Page 14 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 29 vide orders dated 25/02/2019 and 13/03/2019 respectively. Thereafter, respondent No. 1/1 to 1/5 had again filed application for rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908 on 25/02/2019, at Exhibit No. 56, against which, reply was filed by the appellant on 06/03/2019 at Exhibit -
62. Respondent No. 2 to 4 again filed Application for rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908 at Exh. 61 on 05/03/2019 against which the appellant filed adoption note on 06/03/2019 vide Exhibit - 63 and requested to treat as reply of application at Exhibit - 61. After hearing the parties, Ld. Principal Senior Civil Judge, Gandhinagar was pleased to allow the applications of the respondents vide impugned order dated 12/04/2019 passed below Exhibit
- 56 and 61 in Special Civil Suit No. 1 of 2016, whereby the suit/plaint of the appellant was rejected under Order VII, Rule 11 of Code of Civil Procedure, 1908.
Heard learned advocate for the appellant and learned advocate for the respondent.
Page 15 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022
C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 Learned advocate appearing for the appellant submits that previous two applications at Exh. 25 and 29 filed by the respondent under Order 7 Rule 11 of CPC for rejection of plaint were disposed of as withdrawn by order dated 25.2.2019 and 23.3.2019. Thereafter,the respondents once again filed two applications at Exh. 56 and 61 with the same prayer, which were mot maintainable and barred by res judicata under Section 11 of the Code of Civil Procedure, 1908. That, trial Court had committed error in allowing applications at Exh. 56 and 61. That, trial Court has completely adopted technical approach in allowing the applications of the respondents rejecting the plaint of the appellant on the very same grounds, ignoring the averments to the effect that there are triable issues in the suit of the appellant and same can be decided only after holding the trial. That, trial Court has committed gross error by appreciating and considering evidence at the stage of deciding applications under Order 7 Rule 11 of Code of Civil Procedure, 1908 and thereby, wrongly rejected the plaint of the appellant. That, consequently findings recorded by the trial Court in para 4 and 4.2 are erroneous because the previous suit being Special Civil Suit No. 28 of 1996 was filed by the appellant for specific performance and Page 16 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 permanent injunction which was disposed of on 30.12.2010. However, pending proceedings of that suit of 1996, respondent No.1/1 to 1/5 illegally sold the suit property to respondent Nos. 2 to
4. That, the said fact has come to the knowledge of the appellant only after the measurement of suit property by AUDA on 7.10.2015 for T.P.scheme and subsequent quarrel and threats by respondent Nos. 1/1 to forcibly dispossess the appellant and thereafter, upon getting 7/12 abstracts and other necessary documents from 23.10.2015 to 26.10.2015. There was no cause of action between the year 1996 to 2010 for seeking prayers as prayed for in the present suit which was completely different from the previous suit of the year 1996 and hence, the trial Court has committed gross error in holding that the suit of the appellant was barred by res judicata under Section 11 Explanation - 4 of CPC. That, respondent No.1/1 to 1/5 have ex-parte and without the knowledge, consent or signature of the appellant have cancelled the registered Agreement to Sale with possession and that too without returning the consideration amount or without taking back possession from the appellant and by giving wrong address of the appellant illegally registered Cancellation Deed in connivance with the Sub-Registrar and Power of Attorney in Page 17 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 favour of the appellant was for consideration and with interest in the suit property, as they did not come to end upon the death of Principal i.e. original owner. That, trial Court has committed gross error in recording conclusion in para 5.3 of the impugned judgement because the Regular Civil Suit No. 271 of 2007 which was filed on 22.6.2007 in connection with many lands of the appellant village :Koteshwar including the suit properties because of inflation in the market price land of village: Koteshwar the original owners were trying to forcibly dispossess the appellant, and therefore, the appellant had prayed for permanent injunction in that suit and for limited purpose permanent injunction was sought. That, without assigning any reasons and without any discussion as to how the suit of the appellant was barred and under which law it is barred, trial Court has partly allowed the application preferred by the respondent. That, suit of the appellant was not barred by res judicata or provision of the Limitation Act and since because of cause of action had arisen in the year 2015, the suit was instituted in the year 2016, it was within limitation, and therefore, also impugned order passed by the trial Court is required to be quashed and set aside. That, Regular Civil Suit No. 271 of 2007 was on completely different cause of Page 18 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 action and that was in connection with all the lands of the appellant situated at village: Koteshwar including the suit properties, present respondent No. 2 to 4 were not parties in the aforesaid suit. That, cause of action for filing present suit was arisen in October, 2015. There is no question of suit of the appellant being barred by provision of Order 2 Rule 2 of Code of Civil Procedure, 1908. That, cause of action for seeking declaration that the appellant has become lawful owner of the suit property on the basis of two sale deeds registered at Sr. No. 9091 and 9093 executed on 19/12/2003 in favour of the appellant and cause of action was arisen only in October, 2015 when, the Respondent No. 1/1 had threatened to illegally dispossess the appellant from the suit property, and the appellant got copies of fresh 7/12 abstracts and came to know about the Cancellation Deed, and 3 subsequent sale deeds in favour of Respondent No. 2 to 4 only in October, 2015, there is no question of making any averments/prayers by seeking amendment in the suit of 1996, and therefore, the present suit of the appellant was filed well within limitation and the same was not barred by Article 58 of the Limitation Act. That, present suit was filed on 01/01/2016 for the cause of action which was arisen in October, 2015 and cause of Page 19 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 action for instituting the present suit was different from the suit of 2007 wherein, the appellant had prayed for permanent injunction in connection with all his lands at village: Koteshwar. Hence, it was requested by learned advocate for the appellant to quash and set aside the impugned judgement and order passed below Exh. 56 and 61 rejecting the plaint of the appellant by allowing this appeal .
Learned advocate appearing for the respondent has vehemently opposed the submissions made by learned advocate for the appellant and submitted that agreement to sale, registered sale deed was to be executed as per condition on or before 31 st January, 1996 in favour of the appellant. That, under Article 54 of the Limitation Act for specific performance of the agreement, three years limitation period is prescribed. That, under Article 54 of the Limitation Act, suit was required to be filed by the appellant within three years for specific performance from 31 st January, 1996 while suit was filed by the appellant in the year 2016 and was clearly barred by provisions of the Limitation Act. Referring to Notice at mark 3/5 issued by the appellant, it is submitted that this notice was in connection with registered agreement to sale executed on 13 th November, 1995 requesting to forward the relevant documents. That, Page 20 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 on issuance of notice dated 18th January, 1996, father of the respondent namely Chhotaji Bhagaji Thakore refused to supply relevant documents because of cause of action for filing the suit may said to be arisen . That, admittedly, within three years from 1996, no suit was filed by the appellant. Hence, trial Court has rightly rejected the plaint on application submitted by defendant. That, appellant himself executed two registered documents at Sr.No. 9091 marked 3/10 and Sr.No. 9093 dated 20th September, 2004 before the Office of Sub-Registrar Gandhinagar. Thereby, plaintiff in the present suit could have been prayed in Special Civil Suit No. 28 of 1996 but no declaration was sought by the plaintiff that he is owner of the registered sale deed No. 9091 and 9093 dated 19 th December, 2003. In Special Civil Suit No. 28 of 1996 filed by the appellant for specific performance in connection with the agreement to sale and permanent injunction was dismissed by order dated 13 th December, 2010 and no appeal was preferred by the present appellant. That, order dated 13th December, 2010 was binding out to the appellant. That, copy of order passed in Special Civil Suit No. 28 of 1996 was produced by the appellant at mark 3/17 in the suit. That, in Regular Civil Suit No. 271 of 2007 preferred by the appellant, no Page 21 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 relief was sought by the present appellant and therefore, also suit was clearly barred by Article 58 of the Limitation Act. Trial Court has committed no error in rejecting the plaint, on request being made by respondent herein. Hence, it was requested by learned advocate for the respondent to dismiss the present Appeal and confirm the impugned judgenent and order passed by the trial Court.
Having heard learned advocates appearing for the respective parties, perused the entire record of the litigation from the beginning between the parties and perused the impugned order passed by the Court below rejecting the plaint . Application under Order 7 Rule 11 of Code of Civil Procedure, 1908, below Exh. 56 and 61 in Special Civil Suit No. 1 of 2016 , this Court would like to refer Order 7 Rule 11 of the Code of Civil Procedure which reads as follows:-
"11. Rejection of plaint.- The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;Page 22 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022
C/FA/2693/2019 JUDGMENT DATED: 04/01/2022
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp- paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
What is important to remember is that the provision refers to the "plaint" which necessarily means the plaint as a whole. It is only where the plaint as a whole does not disclose a cause of action that Order VII Rule 11 springs into being and interdicts a suit from proceeding.
It is well settled law that the averments in the plaint needs to be looked into for deciding an application under Order 7 Rule 11 of CPC. At the stage of deciding the application under Order 7 Rule 11 of CPC, pleadings have to be construed as they stood without addition or subtraction of words or a change of its apparent grammatical sense. Trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. Page 23 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022
C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 There is no absolute proposition that a plaint can never be rejected under Order 7 Rule 11 of CPC on the basis of the bar of limitation. This will depend upon the facts and circumstances of each case where the issue of limitation is a mixed question of law and fact or where a conclusion is not discernible from the statements in the plaint that the suit is barred by limitation, the plaint cannot be rejected by resort to Order 7 Rule 11 (d) of CPC.
As per the averments made by the appellant in the suit, appellant came into knowledge of the transferring the suit property on 25th April, 2015 by 3 registered sale deed vide Sr. No. 698/2004, 699/2004 and 700/2004 when he received a copy. It is also averred by the appellant in the suit that Special Civil Suit No. 28 of 1996 filed by him was dismissed in absence of his advocate on 30th December, 2010. Copy of the order passed in Special Civil Suit No. 28 of 1996 dated 30thDecember, 2010 was produced on record.
From the record, it appears that appellant was aware with the fact from 2009 that the suit property was transferred to defendant No.6 to 8, no prayer was made by present appellant in previous suit filed by him nor 3 sale deeds executed in favour of the defendant No. 6 to 8 were challenged by the present appellant. Copy of the plaint of Page 24 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 Regular Civil Suit No. 271 of 2007 was produced on record by the appellant at mark 3/15 filed on 22nd June, 2007. It was averred in the aforesaid suit that defendant No.1 had cancelled agreement to sale executed in favour of the appellant on 13.11.1995 and sale deed was executed in favour of third party. It was within the knowledge of the plaintiff that Agreement to Sale dated 13.11.1995 was cancelled and sale deed was executed by defendant No.1 in favour of defendant No.6 to 8 . This fact was known to the plaintiff, when Regular Civil Suit No. 271 of 2007 was filed by the appellant. If we consider the prayer made in para 15 of the present suit, appellant has accepted that at the time of filing present suit i.e. Special Civil Suit No. 1 of 2016, Regular Civil Suit No. 271 of 2007 was pending and next date was fixed on 30 th January, 2016. As per averments made in the plaint, prayer was made by the original owner of the land in respect of the possession and therefore, Regular Civil Suit No. 271 of 2007 was filed by the appellant, cause of action was started as per averments made in the plaint since 2007 and prayer was made against defendant Nos. 1 to 5 restraining them to enter into the suit property illegally. The same prayer could have been made by the appellant by joining respondent Nos. 6 to 8 in the Page 25 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 previous suit i.e. Regular Civil Suit No. 271 of 2007 but no such relief was sought by the appellant in the previous suit. Two documents No. 9091 & 9093 were duly registered by the appellant himself in his favour on the basis of Power of Attorney dated 19.12.2003, at that time, in Special Civil Suit No. 28 of 1996, these two documents were registered at Sr.No. 9091 & 9093. Dispute between appellant and defendant Nos. 1 to 5 was pending. No prayer was sought by the plaintiff declaring him that he is lawful owner of the suit property on the basis of two sale deeds executed in his favour i.e. 9091 and 9093, and therefore, also suit was clearly barred under Article 58 of the Limitation Act. On 31 st December, 2003, defendant Nos. 1 to 5 transferred the suit property in favour of defendant Nos. 6 to 8 by registered sale deed, Sr. no. 698/2004, 699/2004 and 700/2004 which were prayed to be held illegal and cancelled. These three registered sale deed were executed on 31.12.2003 and prayer was made by the appellant by filing subsequent suit in the year 2016. Considering the averments made in the plaint by the present appellant in the suit of 2016, it was clearly barred by Article 58 of the Limitation Act. Another relief prayed for in the present suit by the present appellant could have Page 26 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 been prayed by the appellant in the previous suit filed in the year 2007 also. Only limited prayer was made against defendant Nos. 1 to 5 in Regular Civil Suit No. 271 of 2007. No prayer was made by the appellant for joining defendant Nos. 6 to 8 in the previous suit i.e. Regular Civil Suit No. 271 of 2007. It appears from the record that after framing the issues by the Court and recording the evidence of the plaintiff as well as defendants and hearing of the parties, Special Civil Suit No. 28 of 1996 was dismissed along with the application for interim injunction by the Court on 30 th December, 2010. Appellant has produced decree passed by the Court below in Special Civil Suit No. 28 of 1996 at mark 3/17. Copy of the plaint of Regular Civil Suit No. 271 of 2007 was also produced on record at mark 3/15. Certain observations were made by the trial Court in respect of contentions raised by the respondent Nos. 6 to 8 and were not complied while passing impugned order dated 12 th April, 2019 which was not disturbed by this Court.
Moreover, final conclusion arrived at by the Court below that suit was barred under Article 58 of the Limitation Act and rejecting the plaint under Order 7 Rule 11(d) of CPC, cannot said to be illegal or erroneous. Hence, considering the record of the case and Page 27 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022 C/FA/2693/2019 JUDGMENT DATED: 04/01/2022 submissions, this Court deems it not find any substance in the prayer made by the present appellant to disturb the findings arrived at by the trial Court accepting certain observations of the submissions made by defendant Nos. 6 to 8. Hence, this appeal is hereby ordered to be dismissed. Notice is discharged.
(B.N. KARIA, J) ORDER IN CIVIL APPLICATION NO. 1 of 2019 In view of the order passed in the main matter i.e. First Appeal No. 2693 of 2019, this application does not survive and stands disposed of accordingly.
(B.N. KARIA, J) BEENA SHAH Page 28 of 28 Downloaded on : Sun Apr 24 08:08:35 IST 2022