Gujarat High Court
Jaman Shamji Fadadu vs Sadik Mahmad Sidik on 12 January, 2023
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/CRA/345/2018 JUDGMENT DATED: 12/01/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 345 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
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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 ? Yes
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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JAMAN SHAMJI FADADU
Versus
SADIK MAHMAD SIDIK & 3 other(s)
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Appearance:
MR. AADIT R SANJANWALA(9918) for the Applicant(s) No. 1
for the Opponent(s) No. 2,2.3,2.4
JENIL M SHAH(7840) for the Opponent(s) No. 1
NOTICE SERVED BY DS for the Opponent(s) No.
2.1,2.2,2.3.1,2.3.2,2.3.3,2.3.4,2.4.1,2.4.2,2.4.3,2.4.4,2.4.5,2.5,2.6,3,4
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 12/01/2023
ORAL JUDGMENT
1. With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final disposal.
2. Issue Rule, returnable forthwith. Mr Jenil M. Shah, learned advocate waives service of notice of Rule on behalf of respondent no.1. Though served, nobody has entered appearance for rest of the Page 1 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined respondents.
3. The captioned Civil Revision Application has been filed challenging the order dated 25.4.2018 passed below Exh.11 in Regular Civil Suit no.325 of 2013 with a further prayer to allow the application, Exh.11 praying for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code").
4. Tersely stated are the facts, emerging from the record of the captioned application.
4.1. Issue, in the present proceeding, revolves around survey no.1130. Promulgation entry no.447 was posted on 6.2.1953 in the revenue record with respect to survey nos.1129/2, 1130 and 1144/1 wherein, owing to the death of the Musa Pira, names of two sons, namely, Isaa Musa and Siddi Musa were to be shown; however, both of them having passed away, names of Abdulla Siddi and Ishaa Siddi, i.e. the heirs of Siddi Musa were mutated.
4.2. Vide registered sale deed dated 15.11.1964, the land bearing survey no.1130 came to be purchased and entry no.2506 dated 29.3.1965 was posted in the revenue record. Subsequent thereto, Babulal Maganlal Kankhara executed a registered sale deed dated 22.1.1965 in favour of Mahant Ramswarupasji Gurushantidasji Maharaj and entry no.2507 dated 29.3.1965, was posted in the revenue record who, in turn, executed a registered sale deed dated 18.1.1986 for the land bearing survey no.1130 admeasuring acre - 1 - 30 gunthas in favour of Madhubha Devji. The transaction was posted in the revenue record vide entry no.136 and was certified on 7.3.1986. Names of Manubha Devji and Narubha Devji were also shown in the revenue record along with the name of Madhubha Devji which, was vide entry no.170 dated 10.9.1986, certified on Page 2 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined 13.10.1986. Upon death of Manubha Devji, heirship entry was recorded and the names of all the heirs were posted in the revenue record vide entry no.404, followed by certification on 23.2.1998. Madhubha Devji and Narubha Devji waived their right over the land in question which fact, was also posted in the revenue record vide entry no.408 dated 20.3.1999; certified on 24.11.1999. The petitioner, purchased the land bearing survey no.1130 paiki 3 vide registered sale deed dated 18.7.2009, from the heirs of Manubha Devji which transaction was also recorded vide entry no.924 dated 4.9.2009 and was certified on 6.10.2009.
4.3. On 4.9.2013, according to the petitioner after 60 years of the promulgation entry no.447 dated 6.2.1953 and after four years of the execution of the registered sale deed dated 18.7.2009 in favour of the petitioner that the respondent no.1 i.e. the original plaintiff (hereinafter referred to as "the plaintiff") instituted a Regular Civil Suit no.325 of 2013 before the learned Principal Senior Civil Judge, Jamnagar, seeking declaration that the plaintiff has right over the land bearing survey no.1130 being the heir of Musa Pira and to grant his share of land by partitioning the same. Further prayer is also prayed for quashing and setting aside the promulgation entry no.447 with respect to survey no.1130 and to quash and set aside all the subsequent entries. The plaintiff, had also sought declaration that all the transactions pursuant to and on the basis of promulgation entry no.447, are not binding on the plaintiff.
4.4. Discernibly, prior to the filing of the Regular Civil Suit no.325 of 2013, another suit being Regular Civil Suit no.63 of 2013 was filed by the plaintiff with identical averments and similar reliefs against the owner of survey nos.1130 paiki 1 and 1130 paiki 2. An application under Order VII Rule 11 of the Code, was filed which came to be allowed and Regular Civil Suit no.63 of 2013, was Page 3 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined dismissed. Further proceedings are pending before the Court concerned.
4.5. The petitioner, submitted an application, Exh.11 under Order VII Rule 11 of the Code, praying for rejection of the plaint. In response whereof, the plaintiff had filed a reply, Exh.25. The said application, Exh.11 came to be rejected by the learned Judge vide order dated 25.4.2018, which is subject matter of challenge in the present Civil Revision Application.
5. Mr R.S. Sanjanwala, learned Senior Counsel with Mr Aadit R. Sanjanwala, learned advocate appearing for the applicant, while inviting the attention of this Court to the pedigree, submitted that the plaintiff, claims to be the great grandson of Siddi Musa, and on the basis whereof the suit has been filed with multiple reliefs and one of which is claiming his share. It is next submitted that the suit, filed by the plaintiff is barred by law of limitation as it seeks to challenge the promulgation entry no.447 dated 6.2.1953, i.e. after about 60 years of mutation and after 4 years of the registration of the sale deed dated 18.7.2009 in favour of the petitioner.
5.1. It is further submitted that the father and the grandfather of the plaintiff, had never challenged entry no.447. The plaintiff, was not even born when the entry no.447 was posted. Bare reading of the plaint, clearly suggest that it is not the case of the plaintiff that the father or the grandfather, were not aware about the entry no.447, and therefore, paragraph 13 as regards cause of action, is nothing but a clever drafting. It is further submitted that in view of the mutation of entry no.447 and subsequent sale transactions, it is difficult to believe that the person goes to the Court and does not say anything, except the discovery of two documents. When the relevant facts are missing, it cannot be said that in the trial, the issues are required to be proved. It is submitted that the Page 4 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined observations made by the learned Judge in paragraph 8, are erroneous. The learned Judge, has observed that from the averments made in the plaint, it cannot be said that the plaintiff knew about the mutation entry since long and to ascertain such aspect and pleadings, evidence is required to be recorded.
5.2. It is further submitted that as per the observations made in paragraph 9, the learned Judge, while dealing with the contention of cause of action has only discussed the law but has not discussed the element of paragraph 13 inasmuch as, paragraph 13 does not disclose the cause of action, considering the fact that the challenge, is to the entry no.447 which, is after 60 years. Furthermore, if the plaintiff, is claiming his share, he has nowhere stated as to how he is entitled to share. What right he has derived. From the year 1953 till the year 2013, no steps were taken by the plaintiff and only with a view to coming out of the limitation, fraud has been pleaded and when fraud is pleaded, one needs to come out with exact date, the commission of the fraud; however, in the present case, proper disclosure much less the exact date with precision of commission of the fraud is missing. It is submitted that as to why the grandfather and the father have not challenged the entry, more particularly, when the father is still alive and is party to the proceedings, is not coming forth.
5.3. It is submitted that the aspect of cause of action, has been dealt with by the learned Judge in paragraph 11. Except stating that as to whether the averments are factually correct and whether it discloses a cause of action, are the questions to be decided at the stage of trial, nothing has been stated. What has been lost sight is the fact that the suit is filed after 60 years, challenging the promulgation entry no.447 and the subsequent sale deeds. After the year 1953, transactions in succession have taken place and now the Page 5 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined petitioner, is the owner. Given a meaningful reading to the contents of the plaint, it shows that the plaint is vexatious, frivolous and abuse of process; only with a view to creating a litigation over the land for extraneous consideration.
5.4. It is submitted that mentioning of the cause of action, is nothing, but an eye wash. The plaintiff has stated about discovery of the two documents, namely, the Will of Musa Pira and a mortgage deed created by Siddi Musa. It is submitted that those documents, have no relevance for, they at the best, establish that Musa Pira was the plaintiff's ancestor and Siddi Musa, was plaintiff's great grandfather and owned the land bearing survey no.1130 at the relevant point of time. By clever drafting the plaintiff has tried to create an illusion of cause of action by referring to these documents. As the documents are not relevant, there is no cause of action available for filing the suit. Also, the precise date of discovery of the documents; mutation entries and the sale deeds, are deliberately not mentioned, keeping the pleadings vague, only with a view to contending that the triable issues arise in the suit.
5.5. Reliance is placed on the judgment of the Apex Court in the case of C.S. Ramaswamy v. V.K. Senthil reported in 2022 SCC OnLine SC 1330 . In the case before the Apex Court, the plaintiff had filed a suit seeking cancellation of the sale deed, after a period of 10 years from the date of execution of such registration. The Apex Court held that the averments and allegations made in the plaint were too vague as nothing was mentioned on which date and how the plaintiff had the knowledge that the document was obtained by fraud and/or misrepresentation. It has been held and observed that mere stating in the plaint that the fraud has been played, would not be enough and the allegation of fraud must be specifically averred Page 6 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined in the plaint. Merely using the word "fraud", would not be permissible to the plaintiffs to get the suit within the limitation, which otherwise, would be barred by limitation.
5.6. It is further submitted that the plaint is liable to be rejected under Order VII Rule 11(d) of the Code, it being barred by law of limitation. It is submitted that the plaintiff, by clever drafting, has created a cause of action. Such clever drafting, is unacceptable and issue of limitation can be gone into. The Apex Court pointed out that the every fact which is necessary for the plaintiff to prove to enable him to get a decree, should be set out in clear terms and therefore, all the facts were required to be stated as to how the grandfather and the father were not aware about the mutation of entry or that as to why they have not challenged it. It is submitted that the trial Court has to undertake the exercise and to find out that the plaintiff has taken recourse of clever drafting and if answer is in affirmative, the plaint ought to have been rejected.
5.7. It is submitted that the suit, is not maintainable also under the provisions of Order II Rule 2 of the Code as earlier, Regular Civil Suit no.63 of 2013 instituted on the same cause of action, has been dismissed. While inviting the attention of this Court to the plaint of Regular Civil Suit no.63 of 2013 as well as the plaint of Regular Civil Suit no.325 of 2013, it is submitted that the facts set out, so also the prayers, are identical. The averments and the prayers in both the suits, are similar. It is submitted that the earlier suit filed in the year 2013 with identical reliefs, has been rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908. It is submitted that both the suits, refer to survey no.1130 which, is divided into three parts. Two portions, relate to defendant nos.4 and 5 and one to the petitioner. Considering the cause of action mentioned in paragraph Page 7 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined 13 of the plaint vis-a-vis the cause of action mentioned in the earlier suit, both are identical. The plaintiff, chose not to join the petitioner in the first suit, although everything, remained the same.
5.8. It is submitted that Order II Rule 2 of the Code, contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make, if the plaintiff so acts. Order II Rule 2 of the Code, makes it clear that the plaintiff shall not, afterward, be permitted to claim, without the leave of the Court and therefore, the plaint, is not maintainable.
5.9. Moreover, the respondent no.1, while filing the present suit, has not disclosed the factum of the filing of the earlier suit and therefore, there is a suppression, which has not been denied by the plaintiff in his pleadings and/or in oral submissions. Upon application being filed under Order VII Rule 11 of the Code, having been rejected, there was no cause available to the learned Judge to have rejected the application filed by the petitioner under Order VII Rule 11 of the Code. It is submitted that the plaint, is absolutely vexatious and the petitioner, cannot be made to undergo the rigour of the litigation and therefore, it is required to be rejected.
6. On the other hand, Mr Jenil Shah, learned advocate for the plaintiff, submitted that the contention raised that the case of the plaintiff, is based on entry no.447, is erroneous. In fact, the case, is based on discovery of two documents, which are Will and the mortgage deed. It is submitted that as per the Will, the land was given to Siddi Musa and as per the mortgage deed, the names of the heirs of Siddi Musa, were shown, and that is how, it came to the knowledge of the plaintiff that he has the share in the property. The plaintiff, was not aware about the share and when it came to his Page 8 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined knowledge that immediately the suit was filed.
6.1. It is submitted that so far as the entry no.447 is concerned, there is a specific averment made in the plaint that the fraud has been perpetrated in the year 1953, by posting the entry in the revenue record. It is submitted that accepting the contention of the other side that the dates and the facts are not mentioned with precision, at the most the plaintiff, i.e. the respondent, would fail, but the same, cannot be done at the stage of Order VII Rule 11. If the date and the events, are not mentioned, the plaint would be an incomplete or the cause of action, can be said to be a incomplete cause of action. That by itself cannot render the suit liable to be dismissed under Order VII Rule 11 of the Code. It is to be done at the stage of evidence and yet, the stage has not begun.
6.2. Reliance is placed on the judgment in the case of Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar reported in (2018) 6 SCC 422. In similar set of facts, the Apex Court, observed that it has been asserted by the plaintiff that immediately, after getting knowledge about the execution of the fraudulent sale, within two days from the refusal, the suit was filed. The Apex Court, while affirming the view taken by the trial Court, held and observed that the issue of limitation, was a triable issue and the plaint could not have been rejected at the threshold in exercise of the power under Order VII Rule 11(d) of the Code.
6.3. Reliance is also placed on the judgment of the Apex Court in the case of Salim D. Agboatwala v. Shamalji Oddhavji Thakkar reported in AIR 2021 SC 5212. Further reliance is placed on the judgment of this Court in the case of Bahadurbhai Laljibhai Malhotra v. Ambalal Joitaram Heir of Joitaram Ranchhoddas reported in 2015 (3) GLR 2760. It is submitted that the concept of deemed notice, Page 9 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined shall not apply, as the plaintiff, i.e. the respondent is claiming the share over the property and this Court has, while referring to the provisions of Section 3 of the Transfer of Property Act, held and observed that knowledge of a fact is attributed to a person either when he actually knows the fact, or when, but for willful abstention from an inquiry or search, he ought to have made, or gross negligence, he would have known it. It has been held and observed that the provisions of Section 3 of the Transfer of Property Act in the context of deemed notice is applied in case of subsequent purchaser acquiring any immovable property or interest therein of the rights of the existing owner. Analogy flowing from the provision is applied in case of rights and interests subsequently created when the facts and attendant circumstances indicating either negligence, lack of due diligence or willful lack of inquiry or the like.
6.4. It is submitted that so far as the contention that the challenge to entry of the year 1953 in the year 2013, is barred by limitation, cannot be accepted. Reliance is placed on the judgment of the Apex Court in the case of Daya Singh v. Gurdev Singh (Dead) By L.R.s reported in (2010) 2 SCC 194. The issue, was as to whether mere existence of an adverse entry in the revenue record can be said to have given rise to the cause of action as contemplated under Article 58 or it had accrued when the right was infringed or threatened to be infringed. Reference has been made to the judgment in the case of C. Mohammad Yunus v. Syed Unnissa reported in AIR 1961 SC 808 wherein, it has been held and observed that mere existence of an adverse entry into the revenue record cannot give rise to cause of action.
6.5. While adverting to the aspect of fraud, reference is made to the provisions of Section 17 of the Limitation Act. It is submitted that sub-section (1) of Section 17 of the Limitation Act, provides that Page 10 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined the period of limitation shall not begin to run until the plaintiff or applicant, has discovered the fraud or the mistake. In the present case, recently, the plaintiff i.e. respondent no.1 has discovered the fraud and therefore, the limitation shall start from the date of the knowledge. In the averments made in paragraphs 10 and 13, there is a specific reference of fraud. It is submitted that the contention has been raised about the promulgation entry no.447, having been posted in the revenue record by perpetuating the fraud, so also the factum that few days back the plaintiff, had discovered the documents. It is submitted that the plaintiff may fail in proving but what is to be seen is whether the plaintiff, i.e. the respondent has set out the cause of action.
6.6. Reliance is placed on the judgment of the Apex Court in the case of Ningawwa v. Byrappa Shiddappa Hireknrabnar & Others reported in AIR 1968 SC 956. Reliance is also placed on the judgment of this Court in the case of Manish K. Sheth v. State of Gujarat reported in 1985 (1) GLR 202. It has been held and observed that principles underlying Section 17 of the Limitation Act, can be invoked, where on account of fraud mistake or concealment, the other side has remained in dark. In such cases, the limitation, shall be computed from the time when the fraud mistake on concealment has first become known to the person injuriously affected thereby.
6.7. It is submitted that the events which are mentioned are in the written statement and not in the plaint and which, would be the defense of the defendants and therefore, cannot be gone into. What is to be seen, is the averments made in the plaint and the plaintiff, has categorically alleged fraud. The submission that there is no challenge by the father and the grandfather, is misplaced for, it is not necessary that there has to be a challenge by them. The Page 11 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined plaintiff's share, cannot be challenged by the respondent i.e. father and grandfather.
6.8. Mr Jenil M. Shah, learned advocate, submitted that the contention of the suit being hit by the provisions of Order II Rule 2 of the Code, cannot be tested at this stage. Whether there is non- disclosure of filing of the earlier suit, the said aspect cannot be gone into at the stage of deciding the application under Order VII Rule 11 of the Code. Reliance is placed on the judgment of the Apex Court in the case of Soumitra Kumar Sen v. Shyamal Kumar Sen reported in (2018) 5 SCC 644. The Apex Court, has held and observed that the defense in the written statement cannot be gone into and one has to only look into the plaint for the purpose of deciding the application under Order VII Rule 11. It is submitted that alleged omission of mentioning the details of other suit, would be matter for which, the plaintiff, would be guilty of suppression and concealment; however, the defense projected in the written statement cannot be looked into.
6.9. Reliance is placed on the judgment of the Apex Court in the case of Jayantilal Chimanlal Patel v. Vadilal Purshottamdas Patel reported in (2017) 13 SCC 409. It is submitted that the Apex Court referred to the judgment in the case of Gurbux Singh v. Bhooralal reported in AIR 1964 SC 1810 wherein, it has been noted that filing of the plaint of earlier suit and proving it as per law is imperative to sustain the plea of Order 2 Rule 2 of the Code. Unless that is done, the stand would not be entertainable. It is therefore, submitted that assuming that the plaintiff, has suppressed the factum of the filing of the earlier suit, that, cannot be decided at the stage of Order VII Rule 11 of the Code and the same, would be the matter of trial. Thus, the revision application deserves to be dismissed.
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7. Mr R.S. Sanjanwala, learned Senior Counsel in rejoinder submitted that on the basis of the two registered documents, the grandson, in the year 2013, approaches the Court and alleges that the mutation entry no. 447 is fraud, so also, the the subsequent sale transactions in favour of the respective parties. The case put forth by the plaintiff is firstly, that the grandfather Aadam Siddi is entitled to a share; secondly, the mutation entry no. 447 is fraudulently posted to exclude the grandfather and thirdly, transfers which have taken place are inconsequential. The suit is filed with these grounds, however, the plaintiff needs to explain why he has approached the Court in the year 2013.
7.1 It is submitted that, in fact, the averments made in the plaint, do not qualify that the plaintiff was not aware that he is the heir of Siddi Musa. Paragraph 3 of the plaint is the statement of the fact. Paragraph 4 is about the description of heirs and reference of deed of mortgage. In paragraph 5, fraud has been alleged it having been perpetrated in the year 1953 at the time of posting promulgation entry. So far as paragraph 6 is concerned, it is the prayer seeking declaration to the effect that the transactions executed by Isha Siddi and Abdulla Siddi are ab initio null and void. However, there is not a whisper that they had no knowledge or that the administration of the property was not within their knowledge. In paragraph no.7, the plaintiff talks about the transfer and declaration and it being null and void. The averments in paragraph no. 8 is with respect to the documents of the year 1920 i.e. the Will and the land going to the share of Siddi Musa. It is therefore submitted that the plaintiff, is mindful of the subsequent transactions. It is submitted that the claim lodged by the plaintiff is grossly belated and by clever drafting the suit has been brought within limitation. Justification is only two Page 13 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined documents. Similarly, paragraph 9 states about the transactions in succession which are within the knowledge of the plaintiff and the delay in filing the suit has been explained, suggesting that what is being challenged is ab initio void. In paragraph 10, there is reference of promulgation entry no.447 and it having posted by fraud.
8. It is submitted that reliance is placed on section 17 of limitation Act, to contend that the period of limitation shall not begin to run until plaintiff has discovered the fraud or the mistake, however, there is no clear allegation of fraud set out in the plaint. Paragraph no. 13 is relatable to cause of action, which is vague considering the fact that the date is not mentioned, and only the reference of documents are made. Averments are misconceived, vexatious and meritless. Though the documents are source of knowledge, the plaintiff has come for enforcement of his legal right only in the year 2013. The only explanation put forth is that on discovery of two documents, the plaintiff made further inquiry and derived knowledge of fraud etc. It is submitted that Order VI Rule 4 of the Code, provides for particulars to be given where necessary. It contemplates that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars, with dates and items if necessary, shall be stated in the pleading. In the present case the elements of Order VI Rule 4 are missing.
9. Reference is once again made to the judgment in the case of CS Ramaswami v. VK Senthil (supra). It is submitted that the Apex Court has held and observed that while deciding the application Page 14 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined under Order VII Rule 11, the Court must remember that if on a meaningful- not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, that the power should be exercised and if clever drafting has created the illusion of a cause of action, the same should be nipped in the bud. Reference has been made to the judgment of Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust, reported in (2012) 8 SCC 706, wherein it has been held and observed that while scrutinising the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is therefore submitted that if clever drafting has created an illusion of cause of action, giving a holistic reading, the suit or the proceedings should be nipped in the bud.
10. It is submitted that the plaintiff has himself produced the documents namely the first transaction executed in the year 1965; second transaction of the year 1986 and the third transaction of the year 1999. It is submitted that all the transactions are by registered sale deed and the law provides constructive knowledge of the registered sale deed. The suit challenging the sale deeds has been filed in the year 2013 where the limitation is of three years.
11. Reliance is placed on the judgment in the case of Masrur Fatema Jafarali saiyed v. Vishnubhai Ambalal Patel reported in MANU/GJ/2478/2016. In the said case, the learned trial Court has allowed the application under Order VII Rule 11 and rejected the Page 15 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined plaint. This Court, did not interfere and reject the appeal holding that the suit is nothing but an abuse of process of law.
12. Reliance is placed on the judgment in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali reported in MANU/SC/0508/2020. The Apex Court has held and observed that the underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted. Exception has been carved out namely that if on meaningful reading of the plaint it is found that the suit is manifestly vexatious and without any merit, and does not disclose any right to sue, then the plaint shall be rejected, if any ground specified in clauses (a) to (e) are made out. It is therefore submitted that suppression, etc. everything can be seen, it being a permissible exercise.
13. Reliance is placed on the judgment in the case of Charu Kishor Mehta v. Prakash Patel & Ors. rendered in Special Leave Petition No. 11030/2022. It is submitted that the Apex Court, has pointed out that mere recital of fraud is not enough. Once fraud is alleged by a party, fraud is to be tested in terms of Order VI Rule 4. It is submitted that in the present case, nothing has been stated with respect to the fraud as to how the entry no. 447 was fraudulently posted. Reliance is also placed on the judgment in the case of Canara Bank v. P. Selathal reported in (2020) 13 SCC 143. Reliance is also placed on the judgment in the case of Sri Lankappa v. KIDC reported in MANU/SC/1197/2021.
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14. It is next submitted that the fraud, has been pressed in service in a vague manner. The document of 1920, is in support of the explanation that the great grandfather was the person who succeeded the property. 1932, is a deed of mortgage, which substantiates that grandfather along with four brothers, were the heirs; excluding them, that the entry was posted. It is submitted that for all these years, nobody had ever taken any steps and the only interested party is the son who, is filing the suit making the father as the respondent. Cause mentioned is nothing but a clever drafting only with a view to creating litigation for collateral purposes. Thus, the judgments relied upon on behalf of the plaintiff, cannot be made applicable to the facts of the present case.
15. It is submitted that it is a specific case of the petitioner that there was an actual knowledge and not deemed knowledge and the aspect of constructive knowledge can be gone into. It is submitted that section 3 of the Transfer of Properties Act, 1882 (hereinafter referred to as the "Act of 1882") provides that a person is said to have notice of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Section 3 contemplates that if you are vigilant, the law will help you. It is submitted that it is not coming forth as to why the plaintiff's father and grandfather at any stage question the mutation entry or the sale deeds and it is not even the case whether the father and grandfather had no knowledge of the mutation of the entry. Assuming that the plaintiff had no knowledge, there is not a whisper that a due diligence was exercised and in spite of the due diligence, the plaintiff was not aware of the fraud. It is also submitted that the entries in the revenue record so also the sale deeds are the Page 17 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined documents in public domain and for such documents, limitation starts to run from the date of the document and not the date of knowledge and therefore, on conjoint application of the Section 3 of the Act of 1882 and Section 17 of the Limitation Act states the deemed knowledge on the part of the plaintiff as regards the sale deeds of the year 1964, 1965, 1986 and 2009. Thus, the suit instituted in the year 2013, is beyond limitation.
16. While distinguishing the judgment in the case of Chotanben & Others v. Kiritbhai Jalkrushnabhai Thakkar (supra), it is submitted that in the said case, facts, were stated meticulously and with precision. So far as the present case is concerned, the knowledge is established and in absence of any averments, benefit of section 17 of the Limitation Act cannot be extended and section 3 of the Act of 1882, will have to be pressed in service. So far as the contention that the aspect of earlier suit, is not forming part of the plaint but has been produced by the defendant and cannot be relied upon is concerned, it is submitted that in the case of State of Rajasthan v. Union of India reported in 2018 (12) SCC 83, preliminary objection as regards maintainability of the suit, was taken and the suit, came to be rejected under Order VII Rule 11 accepting the objection as regards the maintainability of the preliminary objection and therefore, the inquiry is permissible. Thus, the revision application requires to be allowed.
17. Mr Jenil Shah, learned advocate in the brief rejoinder, submitted that the contention of bar of Order VI Rule 4, would not be permissible, as it has been raised for the first time in the application. It was neither raised before the trial Court nor in the written statement. Reliance is placed on the judgment of the Apex Court in the case of Baldevdas Shivlal v. Filmistan Distributors Page 18 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined (India) Pvt. Ltd. reported in AIR 1970 SC 406. It is submitted that even otherwise, all the particulars in relation to the fraud are clearly set out in the plaint that how the fraud has been perpetrated. Even the provisions, expressly states that the dates are required to be mentioned only if the same is necessary. Reliance is placed on the judgment of the Apex Court in the case of Ramesh B. Desai v. Bipin Vadilal Mehta reported in (2006) 5 SCC 638. It is submitted that so far as the scope of Section 115 is concerned, it is very narrow and only jurisdictional errors can be corrected under the said provision. Even if the order of the trial Court, may be wrong or the different view is permissible, still this Court may not like to interfere with the order in view of scope of Section 115 being limited. While summing up, it is submitted that there is a prima facie discloser of cause of action in the plaint and it cannot be said to be barred by the limitation as, there is assertion about the discovery of two documents.
18. Heard the learned Advocates appearing for the respective parties and perused the material available on record.
19. Center to the issue is the land bearing survey no. 1130 (hereinafter referred to as "the suit property"). At the relevant point of time, Musa Pira was the owner of the suit property. Discernibly, Musa Pira had two sons namely Isa Musa and Siddi Musa. Siddi Musa appears to have six children including the grandfather of the plaintiff. It is further the case of the plaintiff that therefore, at the time of promulgation, the suit property ought to have been entered in the name of all the heirs of Isa Musa and Siddi Musa; however, the names of only Ishaa Siddi and Abdulla Siddi were posted in the revenue record excluding the names of other heirs which, would be illegal, rendering it null and void. It is the case of the plaintiff that Page 19 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined Isa Musa, also had one son who was abroad, however, his name is missing in the promulgation entry no. 447 which fact, is strengthened by contents contained in the Will dated 24.11.1920. It has also been stated that Musa Pira had given away his whole property to Siddi Musa by virtue of Will dated 24.11.1920 canceling the right of Umar Isa the son of Isa Musa.
20. The plaint further proceeds that the entry no. 447, posted in the revenue record is the result of fraud and recently, on the basis of the Will as well as the mortgage registered deed which, have been discovered from the house, the factum of entry and the suit property came to the knowledge of the plaintiff and that the suit has been filed. Therefore, the suit, is not barred by limitation. Paragraph 13 of the plaint, states cause of action, according to which, recently, from the house, the Will as well as the registered mortgage deed have been discovered and further information was gathered and therefore, the cause of action has arisen to file the suit. The plaintiff therefore, has prayed for direction that the plaintiff being the heir has right over the suit property and accordingly has prayed for partition. The plaintiff had also prayed for declaration that entry no. 447 posted in the revenue record be canceled as it takes away the right of the plaintiff and in the very same prayer, it has also been prayed that all the subsequent entries be declared as null and void and not binding upon him.
21. The petitioner, filed an application under the provisions of Order VII Rule 11 of the Code seeking rejection of the plaint on the ground that considering the prayers, entry no. 447 dated 06.02.1959, has been challenged in the year 2013; however, the promulgation entry has been certified after following necessary procedure by the revenue authorities. The said entry, has not been Page 20 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined posted at the instance of the owner or the occupier but, was at the time of promulgation and considering the provisions of Section 9 of the Code read with the provisions of the Gujarat Land Revenue Code, 1879, entry no. 447 could not be challenged before the trial Court. While dealing with the limitation, it is pointed out that entry no. 447 has been challenged almost after a period of 61 years and therefore, it is barred by limitation. It is also contended that the documents in favour of the petitioner i.e. the defendant no. 4 is of the year 2009 and in paragraph 9 of the suit it has been stated that the plaintiff is aware about the transaction in favour of the defendant no. 4, however, there is a non-disclosure of the date of the sale deed and the same has been suppressed. Even in the revenue record there is a reference of the sale deed dated 18.09.2009 in favour of the petitioner, whereas the suit, has been filed in the year 2013 and therefore, on that count the suit is barred by limitation.
22. The case further proceeds that the plaintiff claims to be the great great grandson of Musa Pira, however, the plaintiff has not mentioned as to when Musa Pira, Siddi Musa, Adam Siddi and Siddique Adam have passed away. In paragraph 2, the names of other heirs are mentioned, who have never raised any grievance or dispute or for that matter have taken out any litigation. It is only the plaintiff who has filed the suit. Even the father of the plaintiff Siddique Adam, has not raised any dispute. It is therefore a contention is raised in the application that all the details were required to be mentioned and in absence of any complete details, the suit, can be said to be bereft of any cause of action. Even the details mentioned in the plaint about the Will dated 24.11.1920, do not say as to whether the Will has been acted upon and if it has not Page 21 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined been acted, as to why it has not been done. Similarly, with reference to the registered mortgage deed, no details are mentioned as to when the said registered mortgage has been released. The details are missing in the plaint.
23. The plaintiff though has stated that recently from the house, the copies of the documents namely the Will and the registered mortgage deed have been discovered but, nothing has been mentioned as to on which date both the documents were discovered. Non-disclosure is intentional and with a view to seeing that the suit is brought within limitation. It is also alleged that the plaintiff has failed to state about his staying in the house since how many years. As the plaintiff is the fourth generation heir, it is difficult to believe as to whether all the four generations, have been staying in the same house, such crucial details are missing. With this, the application, has been filed seeking rejection of the plaint.
24. Therefore, the issue which arises for consideration of this Court, is whether the suit is barred by limitation and as to whether the plaint discloses the cause of action. The issue is also as to whether the Court below has committed an error in not accepting the application Order VII Rule 11 of the Code and rejecting the plaint.
25. Before proceeding further, some of the judgments on point are worth referring to. In the judgment in the case of Masrur Fatema Jafarali Saiyed v. Vishnubhai Ambalal Patel(supra), the Apex Court has held and observed that considering the purpose and object of order VII Rule 11(d) of the Code; when it is found that the suit is barred by limitation the Court shall reject the same. The suit was filed by the plaintiff therein seeking declaration that the registered Page 22 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined sale deeds in favour of the defendants are executed by fraud and therefore, illegal and not binding on the plaintiff. The Apex Court, found that the original plaintiffs, have not stated the correct facts and that there was suppression of material facts. The Apex Court also took note of the fact that in the interregnum, various registered sale deeds were executed and certain parcels of land were sold in favour of the defendants therein executing registered sale deeds. The Apex Court was of the opinion that the suit was nothing but an abuse of process of law and the plaintiff, woke up only in the year 2002 challenging the sale deeds, seeking declaration of fraud of the transaction executed in the year 1969 and thereafter, in the year 1985-1993. Relevant paragraphs 10, 10.1 and 11.3 read thus:
"10. It is also required to be noted that even original plaintiff no.6 was a signatory to registered sale deeds executed in the year 1969 and despite the above, the plaintiffs had not disclosed aforesaid facts in the suit. Only when the defendants pointed out the aforesaid, thereafter when the present appeal is preferred the same has been preferred by the original plaintiffs no.1 to 3 only and rest of the plaintiffs including of original plaintiff no.6 who had executed sale deed in the year 1969 are joined as party respondents in the present appeal which shows the conduct on the part of the appellants.
10.1. At this stage, it is required to be noted that even the original plaintiffs have not stated correct facts before the learned trial Court and there are suppression of material facts in the plaint / suit. In the plaint / suit, it is the case on behalf of the plaintiffs that they came to know about the transactions/ registered sale deeds in the year 2005. However nothing has been averred in the plaint with respect to filing of Civil Application No. 11711 of 2005 in Special Civil Application No. 8848 of 2002 and other allied petitions. They did not disclose the fact that the original plaintiff no. 6 also executed sale deed in the year 1969 with respect to land admeasuring 821 acres. As observed herein above, after the registered sale deeds were executed in the year 1969 in favour of original defendants no. 1 to 4 which are challenged by way of filing suit in the year 2008, thereafter approximately 1603 acres of land has been sold in favour of the original defendant no.8 by executing registered sale deeds. Thereafter number of registered sale deeds have been executed in favour of Page 23 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined number of persons including proposed defendants and third parties rights are already created.
11.3. Considering the aforesaid facts and circumstances of the case and the purpose and object of Order VII Rule 11(d) of the Code of Civil Procedure and when it has been found that the suit is barred by limitation, the learned trial Court has rightly rejected the plaint under Order VII Rule 11(d) of the Code of Civil Procedure. We see no reason to interfere with the impugned judgment and order passed by the learned trial Court rejecting the plaint under Order VII Rule 11(d) of the Code of Civil Procedure. We are of the opinion that present suit is nothing but an abuse of process of law and Court and therefore, considering the aforesaid decisions of the Hon'ble Supreme Court plaint is rightly rejected under Order VII Rule 11(d) of the Code of Civil Procedure. At this stage, it is required to be noted that it appears that original plaintiffs wake up only in the year 2000/2002. It appears that the litigation is financed by one Shri Bharat Unadkat with whom the plaintiffs have entered into partnership agreement on 23.1.2002. That the said partnership agreement is produced on record before the learned trial Court. It appears that plaintiffs were aware of the litigation and sale of agriculture land admeasuring 1603 acres before the date of partnership agreement dated 23.01.2002 and thereupon agreed to share/assign 40% land to said Shri Bharat Unadkat for financing litigation and attending the Court. Be that as it may, as observed herein above, the suit and the reliefs prayed in the suit are barred by limitation. The learned trial Court has rightly rejected the plaint under Order VII Rule 11(d) of the Code of Civil Procedure."
26. In yet another decision in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali (supra), the Apex Court, while touching the law applicable for deciding the application under Order VII Rule XI of the Code, has held and observed that remedy under the said provision is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence and conducting the trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in the provision. It has been held and observed that the underlying object of Order VII Rule XI (a) of the Code is that if in a suit, no cause of action is disclosed, Page 24 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined or the suit is barred by limitation under Rule 11 (d), the Court should not permit the plaintiff to unnecessarily protract the proceedings in the suit and in such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted. The Apex Court has referred to the judgment in the case of Azhar Hussain v. Rajiv Gandhi reported in 1986 Supp. SCC 315 wherein, it has been held and observed that "the whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action." The Apex Court has further observed that if on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit and does not disclose a right to sue, the Court would be justified in exercising the powers under Order VII Rule XI of the Code. While discussing the scheme of the provisions of Order VII Rule 11 of the Code and the judgments, in paragraph 13, it has been observed thus:
"13. "Cause of action" means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
In Swamy Atmanand v. Sri Ramakrishna Tapovanam MANU/SC/0287/2005 ; (2005) 10 SCC 51 this Court held :
24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since Page 25 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded.
In T. Arivandandam v. T.V. Satyapal & Anr. MANU/SC/0034/1977 : (1977) 4 SCC 467 this Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words : -
5. ...The learned Munsiff must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11, Code of Civil Procedure taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing ...
Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, MANU/SC/0968/1998 : (1998) 2 SCC 170 this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.
If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal MANU/SC/0485/2017 :
(2017) 13 SCC 174 held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage.
The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court."
27. At this stage, the judgment of the Apex Court in the case of CS Ramaswami v. V. K. Senthil (supra) is also required to be taken note of wherein, it has been held and observed that the averments and allegations in the plaint are required to be considered and if the allegations are found to be vague and only by a clever drafting, the suit is sought to be brought within the period of limitation, the same should be rejected at the threshold. Relevant paragraphs 30 and 31 are reproduced hereinbelow:
Page 26 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined "30. Even the averments and allegations with respect to knowledge of the plaintiffs averred in paragraph 19 can be said to be too vague. Nothing has been mentioned on which date and how the plaintiffs had the knowledge that the document was obtained by fraud and/or misrepresentation. It is averred that the alleged fraudulent sale came to the knowledge of the plaintiffs only when the plaintiffs visited the suit property. Nothing has been mentioned when the plaintiffs visited the suit property. It is not understandable how on visiting the suit property, the plaintiffs could have known the contents of the sale deed and/or the knowledge about the alleged fraudulent sale.
31. Even the averments and allegations in the plaint with respect to fraud are not supported by any further averments and allegations how the fraud has been committed/played.
Mere stating in the plaint that a fraud has been played is not enough and the allegations of fraud must be specifically averred in the plaint, otherwise merely by using the word "fraud", the plaintiffs would try to get the suits within the limitation, which otherwise may be barred by limitation. Therefore, even if the submission on behalf of the respondents
- original plaintiffs that only the averments and allegations in the plaints are required to be considered at the time of deciding the application under Order VII Rule 11 CPC is accepted, in that case also by such vague allegations with respect to the date of knowledge, the plaintiffs cannot be permitted to challenge the documents after a period of 10 years. By such a clever drafting and using the word "fraud", the plaintiffs have tried to bring the suits within the period of limitation invoking Section 17 of the limitation Act. The plaintiffs cannot be permitted to bring the suits within the period of limitation by clever drafting, which otherwise is barred by limitation........."
28. Reference of the judgment in the case of Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) through Lrs. reported in AIR 2019 SC 1430 would be apt, as well. In the said case, the plaintiff and his brother have purchased the suit land in the year 1965 and executed the registered gift deed in favour of the appellant therein in the year 1981 and putting him in possession. The appellant instituted a suit in the year 2001 against his brother, seeking declaration that the gift deed dated 06.03.1981 executed in favour of the appellant, was sham transaction, no title and possession with Page 27 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined respect to the gifted property, was ever passed. Application under Order VII Rule XI was filed, seeking rejection of the plaint on the ground that the suit is clearly barred by the law of limitation, as the gift deed having been executed in the year 1981 and the suit under Article 59 of the Limitation Act ought to have been filed within three years of the deed of execution, the same has been filed after more than 22 years. In the suit, application under Order VII Rule XI was rejected against which, proceedings were initiated before the High Court, which also came to be rejected. The Apex Court, while considering various judgments on the point, allowed the application under Order VII Rule XI and the plaint was directed to be rejected. Paragraph 7 of the judgment is reproduced for ready reference.
"7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed - brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant herein-original defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10-plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein-original defendant and the mortgage deed was executed by the defendant. Therefore, considering the Page 28 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC."
29. Therefore, the principles, which can be culled out from the abovereferred judgments, are that the plaint can be rejected under Order VII Rule XI of the Code, if the conditions enumerated in the said provisions are fulfilled and the powers can be exercised by the Court at any stage of suit. While deciding the application, the averments of the plaint need to be gone into and on meaningful reading of the averments in the plaint, if it is found that the suit is manifestly vexatious and meritless inasmuch as, it does not disclose any right to sue, the powers under Order VII Rule XI can be exercised. Further principle which can be culled out is that when the allegations made in the plaint are taken to be correct as a whole on their face value and if suggest that the suit is barred by any law or does not disclose any cause of action, the application seeking rejection of the plaint can very well be entertained, exercising the powers under Order VII Rule XI of the Code. If by clever drafting of the plaint, illusion of a cause of action is created, the Court shall nipped in the bud, so as to see that the bogus litigation ends at the earlier stage.
30. In the aforesaid backdrop, one needs to examine the averments made in the plaint. The plaintiff, in paragraph 2, has set out the pedigree. Paragraph 3 is a statement of facts, making a reference of the promulgation and mutation of the entry no.447 entering the names of the heirs. Paragraph 4 makes a reference of the registered mortgaged deed as evidence to suggest that Siddi Page 29 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined Musa had 5 sons. In paragraph 5, averment is made as regards the fraud perpetrated in the year 1953. It is stated that Isha Siddi and Abdulla Siddi suppressing the fact of other heirs, got their names mutated in the revenue record to the exclusion of others and deprived them of their rights, committing fraud. On the basis of the averment of fraud, in paragraph 6, it has been urged that the transaction executed by the heirs, whose names were mutated in the revenue record, are ab-initio null and void. In paragraph 7, it has been stated that at the time of promulgation entry no.447, though the heirs were alive, their names have not been entered and the names of only two heirs have been posted in the revenue record, which entry would be illegal, null and void qua the rights of the original plaintiff. It has also been stated that promulgation entry and consequential transactions are illegal and null and void. Paragraph 8 makes a reference of the Will of the year 1920, the contents and the rights of the respective heirs flowing therefrom. Paragraph 9 again makes a reference of entry no.447 and the transactions of sale. It is stated that when entry no.447 is illegal, since inception, the consequential sale transactions, including the transaction in favour of the petitioner, are illegal. In paragraph 10, while making a reference of entry no.447, it is alleged that there is a fraud committed and that, upon discovery of the registered Will and mortgaged deed, the suit has been filed.
31. What comes, is paragraph 13 i.e. the cause of action, free english translation, is that recently, from the house, copies of the original Will of Musa Pira and registered mortgaged deed have been discovered. Relevant documents were obtained and details of the suit property were surfaced and therefore, the suit has been filed. With this prayer, the plaintiff has prayed for declaration. The Page 30 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined plaintiff, in the capacity of the heir, having a right over the property; sought for partition. Another prayer is seeking to challenge the entry no.447 and subsequent entries mutated in the revenue record and that it is not binding. So is the connected prayer clause C of paragraph 15. The averment in the plaint and more particularly paragraph 13, is nothing but a clever drafting so as to bring the suit within the limitation and therefore, it was misconceived on the part of the trial court to have observed that "from the averments made by the plaintiff, it cannot be said that the plaintiff knew about the said mutation entry since long and to ascertain if plaintiff pleaded falsely in this regard, evidence is required to be recorded."
32. Pertinently, the theory put forward by the plaintiff is the discovery of two documents namely, Will of Musa Pira and registered mortgage deed. Thus, the edifice on which the suit has been filed is the two documents and discovery thereof. Theory, propounded, would definitely raise a question in the mind of a person as to how, when and from where the documents were discovered more particularly, when, great- grandfather, grandfather and father during their life time did not raise any objection, although the said documents were very much within their knowledge and in their possession they having been discovered from the house . Next question which then arises is why no steps were taken for almost six decades and why only in the year 2013. It is also not the case of the plaintiff or for that matter his father that they were not possessing the knowledge of the existence of the said two documents. Only on the bare statement that the documents were discovered that the suit is filed, in the opinion of this Court, such ground is vague and without any substance. Such averments are nothing but a clever drafting and only with a view to showing cause of action and Page 31 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined covering the limitation.
33. Pertinently, there is a growing tendency of filing of suits by the descendants on the purported ground of discovery of documents, knowledge acquired through their friends and relatives, so on, and so forth. Possibly the reasons behind either are rise in the price of the land, rivalry, sponsored litigation, to name a few. Although the ancestors for decades don't take any steps and the heirs, waking up from the slumber, files the suit claiming their so called right over the immovable properties more particularly the lands, couching the prayers in such a manner, so as to bring the cause within the limitation. Securing the defence in an application, that may be filed under Order VII Rule 11 of the Code, that the limitation, is a mixed question of facts and law and requires the trial. On the other hand, consider the predicament of the party who purchases the property by the registered transaction and continues to be in possession and enjoyment and all of a sudden, after a decade or so, receives a notice from the court of the suit with respect to the so called rights cropped up of the heirs over the property. Burdening a person with the rigours of litigation in such facts and circumstances would be both harsh and unjustified. Such attempt therefore on the part of the heirs are required to be nipped in the bud. However, it must be borne in mind that these considerations apply to genuine legal transactions and cases.
34. The present is one of such cases, where, the heir of Musa Pira discovers documents from the house, which remained unnoticed by the great grandfather, grandfather and the father. The heir that is the plaintiff without disclosing as to when, from where and how the plaintiff had discovered the document files the suit. As aforestated this raises a question in the mind that if all the family members are Page 32 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined residing in the very same house, since decades, why the documents were not within the knowledge of the other family members, or the ancestors and the plaintiff being the fourth generation was lucky enough to get those documents. The theory put forward to say the least is unbelievable.
35. So far as the contention as regards fraud is concerned, is also misconceived and raised for the sake of raising it and that too without there being any supporting statements. It is but natural that when a party comes with the contention of fraud it is expected of him to state basic averments as to who has committed a fraud when the fraud has been committed and by what means the fraud has been committed. Nothing is mentioned except bare allegation of commission of fraud. In the judgment in the case of Canara Bank v. P. Selathal and Ors. (supra), the Apex Court, has held and observed that when there is an allegation of fraud, specific instances and of the acts of fraud with evidence, have to be pleaded in the plaint. Mere statements are not sufficient, if just fraud is pleaded, to plead the fraud; however, there has to be a material to show that the fraud is committed. The Apex Court took note of the Madras High Court judgment in the case of M/s Cambridge Solutions Limited, Bangalore v. Global Software Limited, Chennai reported in MANU/TN/2388/2016, wherein it has been held and observed that when it is found that the allegations of fraud in the plaint are illusory; it is not sufficient if just fraud is pleaded and there must be material to show that the fraud is committed. Relevant paragraphs 9 and 10 read thus:
"9. Relying upon and following the decision of this Court in the case of O.C. Krishnan and others (supra), thereafter the Division Bench of the Madras High Court in the case of M/s Cambridge Solutions Limited (supra), has rejected the plaint in which the order passed by the DRT was challenged, in Page 33 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined exercise of powers under Order 7 Rule 11 (d) of the CPC. It is required to be noted that in the said case also there were allegations of fraud in the plaint and considering the averments in the plaint, it was found that the allegations of fraud are illusory. It is observed by the Division Bench in the said decision that specific instances and acts of fraud with evidence have to be pleaded in the plaint. It is further observed that mere statements are not enough. It is further observed that it is not sufficient if just fraud is pleaded and there must be material to show that the fraud is committed.
10. Having considered the pleadings and the averments in the suits, more particularly the allegations of fraud, we find that the allegations of fraud are with respect to the partnership deed and there are no allegations at all with respect to mortgage created by the Guarantor - Shri Kallikutty and that too with respect to the deed of guarantee executed by the Guarantor. Much reliance is placed upon the judgment and order passed by the learned Magistrate holding the partners of the firm guilty. However, it is required to be noted that even in the said judgment passed by the learned Magistrate there is no reference to the deed of guarantee and/or the mortgage created by the Guarantor. Even the bank is not a party to the said proceedings. It is reported that against the judgment and order passed by the learned Magistrate, further appeal is pending. Be that as it may, considering the pleadings/averments in the suits and the allegations of fraud, we are of the opinion that the allegations of fraud are illusory and only with a view to get out of the judgment and decree passed by the DRT. We are of the opinion that therefore the suits are vexatious and are filed with a mala fide intention to get out of the judgment and decree passed by the DRT. As observed hereinabove, the plaintiffs are claiming right, title on the basis of the sale deeds dated 30.01.1996 and 10.03.1997 respectively executed by Shri Kallikutty as power of attorney holder of the original owner. However, according to the averments in the plaints, they have purchased the suit property from their vendor which is factually incorrect. On a bare reading of the sale deeds, it appears that the sale deeds are executed by Shri Kallikutty as power of attorney holder of the original vendor. As observed hereinabove, even in the year 2008, when the said Kallikutty filed interlocutory application before the DRT to quash and set aside the exparte judgment and decree passed by the DRT, he did not disclose that he has already sold the property in favour of the original plaintiffs. As observed hereinabove, even the sale consideration is alleged to have been paid in cash. Before the execution of the sale deeds dated 30.01.1996 and 10.03.1997, the lands were already put as a security by way of mortgage with the Appellant-bank by Shri Kallikutty. Thus, considering the Page 34 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined overall facts and circumstances of the case, the suits filed by the original plaintiffs are vexatious, frivolous and nothing but an abuse of process of law and court. Therefore, considering the law laid down by this Court in the aforesaid decisions, more particularly in the case of T. Arivandandam (supra), the suits being vexatious and frivolous, the plaints are required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC. As pointed out by Krishna Iyer, J. in T. Arivandandam (supra), the ritual of repeating a word or creation of an illusion in the plaint can certainly be unravelled and exposed by the court while dealing with an application under Order 7 Rule 11(a). As observed by this Court, such proceedings are required to be nipped in the bud. Even otherwise as observed hereinabove, without exhausting the remedy of appeal provided under the RDDBFI Act, the suits with the basic relief of challenging the decree passed by the DRT were liable to be dismissed, as observed and held by this Court in the case of O.C. Krishnan and others (supra)."
36. From the averments made in the plaint, except stating that the fraud is perpetrated in the year 1953, nothing has been stated, further buttressing the said allegation of fraud. Pertinently, promulgation entry no.447 was posted in the revenue record in the year 1953 and is still in currency. It is the case that as per the registered deed Siddi Musa had 5 sons and suppressing the said fact, the names of only two heirs have been posted. Moreover, as per the Will, the original owner Musa Pira had willed the property in favour of Siddi Musa. Therefore, at the time of posting the entry no.447 though other heirs were alive, their names are not entered, by committing fraud. Except this, there is not a whisper as to who committed the fraud and when the fraud was committed. Also, the grandfather of the plaintiff so also, the father of the plaintiff have never taken any steps against the promulgation entry no.447. Therefore, the fraud alleged, is nothing but imaginary and eye wash, rendering the allegation substance less.
37. It has also been argued that when there is a fraud alleged, as per the provisions of Section 17 of the Limitation Act, limitation Page 35 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined would start to run until the applicant has discovered the fraud or the mistake. This Court is of the opinion that the allegation of fraud is sham and therefore, recourse to Section 17 of the Limitation Act, would be misplaced and misconceived. The judgments in support of such contention would not be applicable as the allegation of fraud is nothing but vague allegation.
38. This takes, the Court to the issue of the cause of action. As discussed hereinabove, the plaintiff-respondent, has set out the cause of action in paragraph 13. The plaintiff-respondent, has averred in vernacular, free english translation would be to the effect that recently, few days back that from the house, he had discovered the Will and the registered mortgage deed; however, except this, no further details have been stated as to where, how and when the copies of the Will and the registered mortgage deed have been discovered, hence, the said averment, is tainted with the element of vagueness. At this stage, the judgment of the Apex Court in the case of T. Arivandandam v. T.V. Satyapal (supra) is worth referring to. In the said case, the Apex Court, in paragraph 5, has held and observed thus:
"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits...."Page 36 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023
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39. Discernibly, the grievance of the respondent-original plaintiff, is against the entry no.447 which was posted in the revenue record in the year 1953. Therefore, when the entry, is of the year 1953, to challenge the same in the year 2013 on the ground that the plaintiff-respondent has discovered the two documents, in the opinion of this Court, would be too far-fetched a theory and cannot be believed. Also, the documents namely, the Will of Musa Pira and Mortgage created of Siddi Musa have no relevance and they at the best, establish that the plaintiff is the heir of Musa Pira and great grandson of Siddi Musa. Couching the cause of action, only on the basis of these two documents, is nothing but a clever drafting creating an illusion. As the documents have no relevance, it cannot be said that there is any cause of action arisen for filing of the suit. Therefore, the court below erred in applying the ratio of the judgment of the Apex Court in the case of Chotanben & Others v. Kiritbhai Jalkrushnabhai Thakkar (supra) to the facts of the present case.
40. The judgment in the case of Chotanben & Others v. Kiritbhai Jalkrushnabhai Thakkar (supra), would not be applicable to the facts of the present case inasmuch as, there was a specific assertion that the appellants therein and the defendants were in joint ownership and possession of the ancestral property inherited by them from their predecessor. So is not the case over here. In paragraph 19, the Apex Court, has categorically held and observed that there was a specific assertion in the suit that the same has been filed immediately after getting the knowledge about the fraudulent sale deed executed by the defendants therein by keeping them in dark about such execution and within two days from the refusal by the original defendants to refrain from obstructing the peaceful Page 37 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined enjoyment of use and possession of the ancestral property. Here, as has been rightly pointed out by Mr Sanjanwala, learned senior counsel appearing for the applicant-petitioner that in whole of the plaint there is not a whisper that neither father nor the grandfather or the plaintiff-respondent were not aware about the Will and the mortgage deed and therefore, the knowledge was very much there. Considering the facts and circumstances of the case on hand, the judgments cited by the learned advocate appearing for the plaintiff- respondent cannot be applied.
41. Besides, there is one more ground raised of suppression which, also leans in favour of the petitioner. In view of the discussion in the preceding paragraph, the suit is nothing but utterly vexatious and abuse of process of Court. Pertinent would be the common oral judgment dated 24.2.2020 passed in Civil Revision Application no.147 of 2016, in the case of Himanshubhai Pannalal Kothari v. Legal Heirs of Decd. Hasubhai Kalubhai Shaikh & Others, wherein this Court has referred to the judgment dated 26.12.2019 passed in Civil Revision Application no.343 of 2019 in the case of Rajhansh Infracon India (Pvt) Ltd. v. Santosh Rameshbhai Rathod. It is held and observed that the plaintiff must make all the averments to his knowledge and information in the plaint and cannot claim a premium for deliberate omission of certain relevant facts. The suppressed facts, if brought to the notice of the court, can always be taken into account for the purpose of Order VII Rule 11 of the C.P.C. Paragraph 4 of the common oral judgment dated 24.2.2020, is reproduced hereinbelow:
"4. It is settled legal position that the averments in the plaint and the document can only be the material to persuade the court to decide the application under Order 7 Rule 11 of CPC. At times however by resorting to clever drafting certain relevant facts would be omitted from the plaint so as Page 38 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined to save the case from the clutches of Order 7 Rule 11 of CPC. This court thus explained the purpose, object and scope of Order 7 Rule 11 of CPC in Rajhansh Infracon India ( Pvt) Ltd. vs. Santosh Rameshbhai Rathod ( Civil Revision Application No. 343 of 2019 decided on 26.12.2019). It was inter alia pointed that the plaintiff must make all the averments to his knowledge and information in the plaint and cannot claim a premium for deliberate omission of certain relevant facts. The suppressed facts, if brought to the notice of the court, can always be taken into account for the purpose of Order 7 Rule 11 of C.P.C."
The Apex Court, in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali (supra), in paragraph 13 has observed thus:
"13.........
The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court."
42. In the case of State Trading Corporation of India Limited and Ors. v. Glencore Grain B.V., reported in MANU/WB/0164/2015, the Apex Court has held and observed that the instance of an abuse of the process of Court would cover matters where there is a suppression of material fact as on the date of institution of the proceeding or in a case where a party is relitigating the same issue which has been tried and decided earlier against him. The re- agitation may or may not be barred under res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of process of the Court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the Court especially where the proceedings are absolutely groundless. The Court then has the power to stop such proceedings summarily and prevent the time of the public and the Court from being wasted. Para 37 reads thus:
Page 39 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined "37.The merits of the instant application are required to be decided within the four corners of the Code of Civil Procedure. The Court has power to reject a plaint under Order 7 Rule 11 and also under Section 151 of the Code of Civil Procedure. Even if the application does not bear the nomenclature of Order 7 Rule 11 and Section 151 of the Code of Civil Procedure, the Court on a meaningful reading of the plaint is required to find out if the grounds stated in the plaint calls for dismissal of the suit. Apart from the aforesaid provision, the Court can also exercise its power in striking out pleadings if it appears to the Court that any part of the pleading is unnecessary, frivolous, vexatious or which is otherwise an abuse of the process of the Court.
The instance of an abuse of the process of Court would cover matters where there is a suppression of material fact as on the date of institution of the proceeding or in a case where a party is relitigating the same issue which has been tried and decided earlier against him. The re-agitation may or may not be barred under res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of the Court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the Court especially where the proceedings are absolutely groundless. The Court then has the power to stop such proceedings summarily and prevent the time of the public and the Court from being wasted. This principle has been enunciated in K.K. Modi Vs. K.N. Modi & Ors. reported at 1998 (3) SCC 573. However, the Hon'ble Supreme Court has sounded a note of caution by observing that it is a matter of Court's discretion whether such proceedings should be stopped or not and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The Court should also be satisfied that there is no chance of the suit succeeding."
43. Suit being Regular Civil Suit no.63 of 2013 for the same land with identical prayers without impleading the petitioner and joining the owners of survey nos.1130/1 and 1130/2, has been rejected, upon filing of an application under Order VII Rule 11 of the CPC on 12.4.2017 and appeal is pending before the District Court. The said fact, was suppressed by the plaintiff and it is not disputed by the Page 40 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023 NEUTRAL CITATION C/CRA/345/2018 JUDGMENT DATED: 12/01/2023 undefined plaintiff, i.e. the respondent. Defence is raised that such issue cannot be decided at this stage. Such defence in view of undisputed fact would not be available to the plaintiff and deserves rejection. The suit is based on suppression of fact and therefore abuse of process of Court and therefore, deserves rejection on this count as well.
44. For the forgoing reasons, the impugned order dated 25.4.2018 is not sustainable and the same deserves to be quashed and set aside and is hereby quashed and set aside. The civil revision application is allowed. The plaint, aforementioned, fails and stands rejected. Rule is made absolute. No order as to costs.
Sd/-
(SANGEETA K. VISHEN,J) Binoy / Sindhu / Ravi / Hitesh Page 41 of 41 Downloaded on : Sun Sep 17 20:45:48 IST 2023