Gujarat High Court
Fakirbhai Bhekabhai Patel vs Dhirubhai Gulabbhai Solanki on 2 May, 2024
NEUTRAL CITATION
C/SA/70/2022 ORDER DATED: 02/05/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 70 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/SECOND APPEAL NO. 70 of 2022
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FAKIRBHAI BHEKABHAI PATEL
Versus
DHIRUBHAI GULABBHAI SOLANKI & ORS.
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Appearance:
MR VIJAY H NANGESH(3981) for the Appellant(s) No. 1
MR SALIL M THAKORE(5821) for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 02/05/2024
ORAL ORDER
1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908, by being aggrieved and dissatisfied with the order dated 20.08.2015 passed by the learned Principal Civil Judge, Chikhli in Regular Civil Suit No.74 of 2014 and the same came to be confirmed vide order dated 29.07.2019 passed by learned 2 nd (Ad-hoc) Additional District Judge, Navsari in Regular Civil Appeal No.47 of 2015.
2. Brief facts of the case are as under:
2.1 The property in question is land bearing Survev No.1087 of Village Aachhavani, Taluka Khergam, District Navsari is hereinafter referred as "suit property". The total Page 1 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined land of the Block No. 1087 is H 06-92-25 Sq. Mtr., out of the H-01-19-04 was agreed to sell by the owner late Natwarsinh Gulabsinh Solanki to the plaintiff appellant on 16-01-1985 and sale consideration was decided in tune of Rs.
12,701/-, the agreement to sale was done on 16-01-1985 in presence of the witnesses and owner Natwarsinh Gulabsinh Solanki, sale consideration was paid entirely on the same day and possession of the suit property was handed over to the appellant herein. In the agreement to sale no time was fixed for the execution of the sale deed and possession was given to the appellant herein. The defendants are also aware about the possession and agreement to sale. After the death of Natwarsinh Gulabsinh, the appellant contacted the defendant no.2 namely Rajendrasinh Natubhai Solanki on 26-11-2014 personally and made a request to execute the sale deed, on that time, the defendant no.2 told the appellant that after consulting the other co-owners, he would reply within a five days. Thereafter the defendants not gave any specific answer or reply with regard to the sale deed and therefore, on 01- 12-2014, the appellant herein issued legal notice through his advocate by stating that the agreement to sale was executed on 16-01-1985, entire sale consideration was paid, the present appellant is in possession of the land, in agreement to sale, there was no time was fixed for the execution of the sale deed and therefore made a request to execute a sale deed.
Page 2 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined 2.2 The notice of the appellant was received to the
defendants and thereafter the defendants gave the answer to the notice through their advocate on 12-12-2014 by denying the notice and stating that the entire story of the agreement to sale was created one and after the death of the Natwarsinh, the name of the heirs are mentioned and the agreement to sale is false and created one, thereby refusing to execute a sale deed. Thereafter the appellant - plaintiff filed Civil Suit before the Ld. Principal Civil Judge at Chikhli on 29-12-2014 with a prayer to execute a sale deed and also prayer to declare the appellant as owner and also prayer that the defendant may not create hindrance or obstruct in the possession of the plaintiff and not to transfer in any manner the suit property, the suit of the appellant is registered as Regular Civil Suit No. 74 of 2014. In the above suit the defendants-respondents filed an application under Order 7 Rule 11 (a) and (d) of Civil Procedure Code for rejection of the plaint mainly on the ground that the suit is barred by the law of the limitation of a period of 28 years and in revenue record from 1981 to 2004, the name of the defendants are continued.
2.3 The present appellant filed the reply to the application of the respondents by Exhibit 24, contending that the suit of the plaintiff is well within the time, limitation is mixed question of law and therefore, after evidence, it will be Page 3 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined decided, and the possession of the plaintiff appellant is from the date of the agreement to sale and the defendant suppressed the real fact. The suit of the appellant was rejected by the Ld. Trial Court mainly on the ground that Article-54 of the Limitation Act prescribe a time for a period of 3 years and the suit is filed after a period of 28 years and therefore, on the ground of delay the suit of the plaintiff is rejected.
2.4 Being aggrieved and dissatisfied with the impugned order dated 20-08-2015, the present appellant preferred the appeal under Section 96 of the Civil Procedure Code before the Ld. Principal District Judge, Navsari on the ground that the impugned order is without considering the agreement to sale, the plaintiff is in the possession of the above land for more than 28 years. Before filing the suit, the plaintiff issued legal notice to the defendants and the defendant gave vague and evasive reply and therefore, the suit for the specific performance is well within the time. In the appeal the Ld. 2nd (Ad-hoc) Additional District Judge, Navsari dismissed the appeal of the appellant by confirmed the order passed by the Ld. Principal Civil Judge, Chikhli mainly on the ground that the agreement to sale was of the year 1985 and plaintiff remained silent till 2014 and there was not a single averment when and where the cause of action has arisen and therefore, law of limitation for specific performance Page 4 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined of the contract is for a period of 3 years and if date fixed for the performance or if no date is fixed, when the plaintiff noticed that the performance is refused and therefore, there is no evidence to suggest that the defendants have refused to perform the contract, though the plaintiff categorically stated in the plaint that notice was issued on 01-12-2014 and the same was replied by the defendants through his advocate on 12-12-2014 for refusing to sale deed and suit is filed on 29- 12-2014, that also not considered by the First Appellate Court.
2.5 Being aggrieved and dissatisfied with the orders passed by both the Courts below, the present appellant has preferred the present second appeal before this Court.
3. Heard learned advocate Mr. Vijay H. Nangesh for the appellant and learned advocate Mr. Salil M. Thakore for the respondents.
4. Learned advocate Mr. Vijay Nangesh for the appellant submitted that both the Courts below have committed gross error in law by resorting to Article 54 of the Limitation Act, 1963, though in the agreement to sell which is executed in the year 1985, there is no time limit stipulated and the suit is filed on 29.12.2014. He has further submitted that looking to the agreement, it clearly transpires that no period is Page 5 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined mentioned there within which the sale deed is required to be executed as essentially the agreement is executed by paying the sale consideration and possession of the land in question is also handed over to the present appellant and therefore, the sale deed may not be executed in favour of the appellant, at the relevant point of time, by the father of the present respondents. He has further submitted that the suit is filed in the year 2014, when the present respondents have asked the present appellant to vacate the land in question which is possessed by him and therefore, the suit is required to be filed. He has drawn my attention towards the assertion made in the plaint and has submitted that from the plaint also there is specific averments that when the suit is required to be filed and when the appellant has approached respondents for execution of sale deed, at that time, the respondents have denied to do so and therefore, he has to issue notice through the advocate. In reply to notice, respondents have denied the performance of the said agreement and therefore, he had no option but to file the suit and therefore, trial Court has wrongly rejected the application under the provisions of Order VII Rule 11 (a) &
(d) of the Code of Civil Procedure (C.P.C.), 1908. He has submitted that the trial Court has erred in believing that no cause of action has arisen nor suit is filed within a prescribed period of limitation and thereby the trial Court Page 6 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined has wrongly considered Article 54 of the Limitation Act, whereby, the period of three years from the date of refusal of the performance and in the present case, refusal should be considered in the year 2014, but, the trial Court has considered that from the year 1985 to 2014, no attempt was made by the plaintiff for performance of the contract, plaintiff has remained silent for 28 years and thereafter, the Court has wrongly relied on the judgment of this Hon'ble Court in the case of Becharbhai Zaverbhai Patel vs. Jashbhai Shivabhai Patel reported in 2013 (1) GLR 398 and therefore, he has submitted that the judgment of trial Court is erroneous and expressly bad in eye of law.
4.1 He has further submitted that, thereafter, the Lower Appellate Court has also considered the judgment in the same line of the trial Court without properly appreciating the entire material available on the record and keeping in mind the provisions of Article 54 of the Limitation Act read with Order VII Rule 11 (a) & (d) of the C.P.C. and therefore, he prays to admit the present appeal. In support of his submissions, he has relied on the judgments of the Hon'ble Apex Court in the case of Janardhanam Prasad vs. Ramdas reported in (2007) 15 SCC 174 and in the case of Gunwantbhai Mulchand Shah and Others Vs. Anton Elis Farel and Ors. reported in (2006) 3 SCC 634 as well as the Page 7 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined judgment of this Hon'ble Court in the case of Krishnakant Manuprasad Trivedi Vs. Urvashiben W/o Chaitaniyabhai Chandulal Patel reported in 2018 (0) AIJEL-HC 239318.
5. Per contra, learned advocate Mr. Salil Thakore appearing for the respondents has contested the contentions raised by the learned advocate for the present appellant and has submitted that the first thing is that both the Courts below have concurrently found that the suit is required to be dismissed as no cause of action has arisen for filing of suit and also on the ground of limitation as the suit is essentially filed after 28 years. He has submitted that even the documents which is claimed as agreement to sell is never executed by the father of the present respondents. The said document is also barred by the provisions of the Registration Act, 1908 and other provisions available under the law, as the said document is executed on plain paper without registering such document, neither it is executed before the Notary and therefore, the genuineness of such document is also suspicious. He has further submitted that even looking to the document, the present appellant who claims that he has purchased the land by paying the sale consideration and has possession with him, but the signature of the present appellant is never found on that agreement and therefore, the said document seems to be concocted document, which is Page 8 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined fraudulently created by the present appellant with a view to take undue advantage of the situation by filing the suit when the father of the present respondents has expired and by allegedly contending that the father of the present respondents has executed the said agreement in favour of the the appellant.
5.1 It is not the case of the present respondents that they have ever entered into such agreement or any contract with the present appellant and they have denied execution of such document in toto and therefore, he has submitted that both the Courts below have given concurrent findings that no cause has arisen looking to the averments made in the plaint, though the plaint is cleverly drafted and the Courts below have concurrently found against the present appellant and therefore, on the basis of concurrent findings as well as on the aspect of huge delay of 28 years in filing of the suit, where the Court has rightly resorted to Article 54 of the Limitation Act and therefore, the judgments passed by both the Courts below are just and proper as well as there is no perversity in the findings of the Courts below and more particularly, no substantial question of law has arisen for consideration of this Court, therefore, this Court should not interfere with the judgment passed by both the Courts below.
He has cited the judgment of the Hon'ble Apex Court Page 9 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined
rendered in the case Sree Surya Developers and Promoters Vs. N. Sailesh Prasad and Others reported in (2022) 5 SCC 736, more particularly, para 11 of that judgment and for pointing out the conduct of the plaintiff, he has cited the judgment of this Hon'ble Court rendered in the case of Manglaben Maganlal Modi Vs. Jitendrabhai Bhikhabhai Patel reported in 2021 SCC OnLine Guj 1228, more particularly, para 24, wherein, this Hon'ble Court has considered the conduct of the plaintiff in detail and therefore, he prays that the present appeal may be dismissed.
6. In view of the submissions made by the respective parties, the suggested substantial questions of law, as framed in the present appeal, are as under:
(A) Whether the Ld. both the courts below considered Article 54 of the Limitation Act, more particularly 2 nd part of the Article?
(B) Whether both the Courts have not erred in considering that suit is barred by the limitation? (C) Whether it is not the obligation of the Trial Court to examine only question of limitation when suit for specific performance with possession and the other reliefs of are filed ?
(D) Whether both the Courts below erred in holding that suit is time barred, though plaintiff made specific Page 10 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined averment in Para- 5, 8 to 12?
(E) Whether both the Ld. Courts have failed to appreciate the documents as well as oral evidence produced by the appellant herein ?
(F) Whether both the Ld. Courts have failed to consider the issue and record the findings without any evidence on record?
(G) Whether the Ld. First Appellate Court is required to frame the various questions for its determination.
based upon facts and circumstances of the case and evidence adduced on record or whether a solitary question for its determination that the judgment of the Lower Court require any interference or not? (H) Whether the First Appellate Court is not expected to re-appreciate entire evidence as afresh and to give its own findings based upon the facts and circumstances of the case and evidence on record?
(I) Whether findings recorded by both the Ld. Courts are perverse and misled and misunderstood the evidence on record ?
7. I have considered the rival submissions made at the bar and also perused the material available on the record, more particularly, the plaint as well as the agreement to sell. It transpires that the agreement to sell came to be executed on plain paper which is not signed by the present appellant, Page 11 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined even the factum that amount of Rs.12,701/- which is allegedly paid by the present appellant to one Natwarsinh Gulabsinh Solanki for the land in question of Block No.1087 H-01-90-04 Sq. Mtr. The said document is executed allegedly on 16.01.1985, thereafter, it transpires that Natwarsinh Gulabsinh expired. Thereafter, it seems that no further action has been taken by the parties. It is also relevant to note that in the said agreement, the possession of the land in question is mentioned as handed over to the purchaser and the entire amount is paid in cash. The execution and genuineness of such document creates suspicion. Moreover, no action is taken by either of the parties pursuant to such agreement till 2014 and in the year 2014, when Natwarsinh Gulabsinh Solanki expired, though notice is issued by the one advocate Ramanlal Patel on behalf of the heirs of the so- called agreement holder - Bhekabhai Patel, who has claimed that the said agreement is executed and to execute the sale deed in his favour, as now the party to that agreement expired and heirs are required to execute the same. The said notice is responded on 12.12.2014 by the advocate on behalf of the respondents Jayantilal N. Patel, whereby, it is specifically contended that there is no such agreement which is executed by Natwarsinh Gulabsinh Solanki, the entries are also in the name of the Natwarsinh Gulabsinh Solanki which was continued in the revenue record and thereafter, the Page 12 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined names of the present respondents are included, after the death of Natwarsinh Gulabsinh Solanki and they are actually enjoying the possession of the land in question and therefore, the claim of the present appellant that the possession is handed over, is disputed by the defendants from the very inception, that means from the reply to the notice. Thereafter, the suit is filed before the Civil Court, Chikhli by way of Regular Civil Suit No.74 of 2014, whereby, after the service of notice, the defendants have appeared and they have contested the suit and also filed application under the provisions of Order VII Rule 11 (a) and (d) of the C.P.C., whereby, the Court has considered the submissions made by the respective parties.
8. Therefore, considering the factual background that the agreement is executed in the year 1985, suit is filed in the year 2014, there is no material or averments in the plaint that between 1985 to 2014, appellant has ever approached the respondents for execution of sale deed in his favour. Even from the assertion made in the plaint, it clearly transpires that no cause of action has arisen for the plaintiff to file the suit. Moreover, it is apt to consider the provisions of Order VII Rule 11 (a) to (d) of the C.P.C., which are reproduced as under:
"11. Rejection of plaint.-- The plaint shall be rejected in Page 13 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined 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 returned 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;
(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 from 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.]"
9. In view of the above facts, it is apt to refer to the provisions of Article 54 of the Limitation Act, 1963, which is reproduced as under:
Page 14 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024
NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined "54. For specific performance of a contract. Three years. The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused."
10. In view of the above, the Courts below have discussed all the aspects in detail. It also transpires that the present respondents have relied on the judgment before the trial Court while filing application under Order VII Rule 11 that is the judgment of the Hon'ble Apex Court rendered in the case of Pemmada Prabhakar Vs. Youngmen's Vysya Association reported in (2014) SCCR 895. It also transpires that the trial Court has considered various judgments including the judgment of the Hon'ble Apex Court rendered in the case of T. Arivandandam Vs. T.V.Satyapal reported in AIR 1977 SC 2421, by referring to para 5 of that judgment, wherein, it is observed that 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, C.P.C. taking care to see that the ground mentioned therein is fulfilled and if clear drafting has created the illusion of cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits.
11. The trial Court has also referred to the judgment in Page 15 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined the case of Kanjibhai Bhagwanjibhai Patel Vs. Nanduben Shamjibhai Sorathiya reported in 2013 (1) GLR 51, wherein, this Hon'ble Court held that if on averment in plaint or undisputed facts suit is time-barred, plaint can be rejected under Order VII Rule 11(d) of the C.P.C. The trial Court has also discussed the judgment in the case of Becharbhai Zaverbhai Patel Vs. Jashbhai Shivabhai Patel reported in 2013 (1) GLR 398, whereby, this Hon'ble Court has clearly held that considering averments in the plaint and supporting documents produced alongwith the plaint if suit is clearly barred by law of limitation, plaint require to be rejected under Order VII Rule 11(d) of C.P.C. and by clever drafting and vague averments in the suit which is otherwise barred by law of limitation cannot be brought within limitation. Thereafter, the Lower Appellate Court has also examined the judgment of the trial Court in detail. Lower Appellate Court has dealt with all the relevant aspects of the matter and has also concurred with the reasonings given by the trial Court and also further examined the position of law, more particularly, the Lower Appellate Court has considered the aspect that in the para 12 of the plaint, the plaintiff has averred regarding the delay caused in the filing of the suit by referring to the agreement dated 16.01.1985, the Lower Appellate Court has considered this aspect and has found that the suit is barred by limitation and looking to the Page 16 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined averments made in the plaint, it transpires that when transaction had taken place in 1985 and plaintiff remained silent so many years till 2014 and looking to the plaint, the cause of action has also not arisen and there is not a single averments when and where the cause of action has arisen, therefore, in that circumstances, the Court has rightly exercised the powers under Order VII Rule 11(a) of the C.P.C.
12. The Lower Appellate Court has also considered the aspect that the limitation period is of three years for filing suit for specific performance of the contract, if the date is fixed for the performance or if no such date is fixed when the plaintiff noticed that the performance is refused. The Lower Appellate Court has also found that there is not a single evidence to suggest that the defendants have refused to perform the contract. The Lower Appellate Court has also referred to the judgment of the Hon'ble Apex Court in the case of Fatehji & Company and Anr. Vs. L.M.Nagpal and Ors. reported in 2015 SCCR 574, also the judgment in the case of Poonambhai Shanabhai Valand Decd. And Ors. Vs. Haskukbhai Bachubhai Parsana reported in 2017 (2) GLH
765. Lower Appellate Court has also relied on the judgment in the cases of Becharbhai Zaverbhai Patel (supra) and T. Arivandandam Vs. T.V.Satyapal (supra) and Pemmada Page 17 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined Prabhakar (supra). Lower Appellate Court has found that the trial Court has not committed any error and the Lower Appellate Court, after re-appreciating evidence in totality, also dismissed the appeal and therefore, the concurrent findings of facts came to be recorded.
13. Now, the judgments which are cited at the bar by learned advocate Mr. Nangesh for the appellant, the judgment in the case of Krishnakant Manuprasad Trivedi Vs. Urvashiben W/o Chaitaniyabhai Chandulal Patel reported in 2018 (0) AIJEL-HC 239318, more particularly, paras 14 and 15, read as under:
"14. Going on by the plain averments in the suit, it cannot be stated that the same was barred by limitation. The agreement does refer it to as a sale deed giving full rights to the purchaser upon full consideration having been paid. This agreement still however, records that plaintiff would have a right to have the suit land registered in his name for which whatever signatures and declarations needed, the seller would give. Under this agreement, at least, therefore, the final execution of a registered deed remained and it was within the power of the plaintiff to demand such performance from the seller, from which, no time limit or date was fixed. Article 54 of the Limitation Act, 1963 provides that specific performance of a contract, the period of limitation is three years and the limitation would begin from the date fixed for performance and if no such date is fixed when the plaintiff has noticed that the performance is refused. Neither the defendants nor the Court below could specifically target the plaint on the basis of this clause for limitation. It is entirely different thing to state that the plaintiff's averments go grossly against the natural human conduct. That the version putforth by the plaintiff is highly improbable and for all we know, in the eventual analysis may prove to be incorrect. It is entirely different thing to state that going by the averments in the plant, the suit was barred by limitation. Both are vastly different concepts.
15. Equally on the ground of either vagueness or bringing cause of action through clever drafting when none exists, the defendants cannot succeed. Here again, their main thrust was on the plaintiff's conduct Page 18 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined of having paid the full consideration without insisting on the execution of sale deed and of having waited for 25 years before filing the suit. The defendants coupled these aspects with the allegations that the very document was forged. They tried to establish this allegation, primafacie by pointing out that the early investigation suggests that no such document was executed before the Executive Magistrate as alleged. These are once again issues in the realm of facts based on evidence that may be brought on record. More importantly, these are defenses raised by the defendants in their written statement and documents attached to it. Such references are not referred at this stage and at any rate, cannot form the basis of an order rejecting the plaint. However, if we accept the pleadings in the plaint as it is, it is not possible to state that the suit does not disclose a cause of action. Once again, the disclosure of a cause of action on the face of the plaint and the probability of the averments made in the plaint being established during the trial are two different aspects. Learned counsel for the defendants vehemently contended that allowing such a suit to proceed could give rise to frivolous suits where the plaintiffs by making false documents and averments could prolong the litigation. Mere possibility of misuse would not permit us to expand the scope of proceedings under Order 7 Rule 11 of Civil Procedure Code. In exercise of such powers, the suit gets rejected at the very threshold without any trial. If frivolous suits are instituted and prolonged for long time, sometimes with a hope of making some killing out of litigation, the remedy of such an evil may lie somewhere else, may be in awarding punitive or exemplary costs at the end of the litigation if found to be frivolous or malicious but not under exercise of powers under Order 7 Rule 11 of Civil Procedure Code within the four corners of the grounds specified by the legislature and as interpreted and sometimes expanded by the Courts. One more way to deal with vexatious litigation would be to fast track the trials of cases where it appears to the Court that the plaintiff might take undue advantage of long pendency of the proceedings and prolonging the litigation can be his only purpose. The frivolity of the suit and creation of illusion through a clever drafting must appear on the face of it in order to enable the Court to strike at very threshold and reject the plaint without any further trial."
14. Another judgment which is cited at the bar rendered in the case of Janardhanam Prasad vs. Ramdas reported in (2007) 15 SCC 174, more particularly, paras 14 to 16, read Page 19 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined as under:
"14. The 1st Defendant was a friend of the 2nd Defendant. Admittedly, the usual stipulations were knowingly not made in the agreement of sale dated 11.4.1983. The 1st Defendant may or may not be aware about the agreement entered by and between the respondent herein. But he cannot raise a plea of absence of notice of the deed of sale dated 4.9.1985, which was a registered document. Possession of the suit land by the appellant also stands admitted. Registration of a document as well as possession would constitute notice, as is evident from Section 3 of the Transfer of Property Act, 1882, which is in the following terms :
"...."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. Explanaion I. Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub- section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:
Provided that (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under Section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.
Explanation II. Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. Explanation III. A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material :
Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud."
15.Admittedly, father-in-law and wife of the Respondent No.1 had been looking after his affairs. They were, therefore, acting as his agents. They would be deemed to have notice of the registration of the document as also the possession of the appellant herein. If they had the requisite notice, in Page 20 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined our opinion, the Respondent No.1., having regard thereto, should have filed a suit for specific performance of contract within the prescribed period. In fact they should have done so expeditiously having regard to the discretionary nature of relief he may obtain in the suit. They did not do so. They waited for more than two years from the date of execution of deed of sale. Even if the suit was not barred by limitation on that account, it was a fit case, where the Court should have refused to exercise its discretionary jurisdiction under Section 20 of the Specific Relief Act, 1963.
16. But before we advert to the said question, we may consider the effect of refusal on the part of the 2nd Defendant to execute the deed of sale within 20 days from the date of entering into the said agreement for sale. We have noticed hereinbefore that father-in-law of the Respondent No.1 categorically stated that he, at all material times, he was aware that the 2nd Defendant was refusing to execute the agreement of sale. They had, therefore, the notice, that the defendant no. 1 had refused to perform his part of contract. The suit should have, in the aforementioned situation, been filed within three years from the said date. We are not oblivious of the fact that performance of a contract may be dependent upon several factors. The conduct of the parties in this behalf is also relevant. The parties by their conduct or otherwise may also extend the time for performance of contract from time to time, as was noticed by this Court in Panchanan Dhara & Ors. v. Monmatha Nath Maity (Dead) through LRs. & Anr. [(2006) 5 SCC 340]."
15. Another judgment which is cited at the bar rendered in the case of Gunwantbhai Mulchand Shah and Others Vs. Anton Elis Farel and Ors. reported in (2006) 3 SCC 634, more particularly, paras 12 and 13, which read as under:
"12. The question as to how long a plaintiff, even if he had performed the whole of his obligations under an agreement for sale, in which a time for performance is not fixed, could keep alive his right to specific performance and to come to court after 29 years seeking to enforce the agreement, may have also to be considered by the court especially in the context of the fact that the relief of specific performance is discretionary and is governed by the relevant provisions of the Specific Relief Act. But again, these questions cannot be decided as preliminary issues and they are not questions on the basis of which the suit could be dismissed as barred by Page 21 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined limitation. The question of limitation has to be decided only on the basis of Article 54 of the Limitation Act and when the case is not covered by the first limb of that Article, normally, the question of limitation could be dealt with only after evidence is taken and not as a preliminary issue unless, of course, it is admitted in the plaint that the plaintiffs had notice that performance was refused by the defendants and it is seen that the plaintiffs approached the court beyond three years of the date of notice. Such is not the case here.
13. Section 27 of the Limitation Act provides for extinguishment of right to property only at the determination of the period limited by the Limitation Act for instituting a suit for possession. Section 3 of the Limitation Act provides that subject to Sections 4 to 24 of the Act every suit instituted after the period prescribed therefor in the Limitation Act shall be dismissed. When the suit is for specific performance of an agreement for sale and we conduct a search in the Limitation Act in the context of Section 3 of the Act, we are obviously confronted only with Article 54 of the Schedule to the Limitation Act. We have already dealt with the scope of Article 54 and indicated that in this case it would be the second limb of the Article that would apply and consequentially the suit could not be held to be barred by limitation, having been filed three years after the agreement for sale or the date for performance fixed in the agreement for sale. We have also noticed that the plaintiffs have pleaded that they are in possession of the suit property and since it is not a suit for possession as such, the applicability of Section 27 of the Limitation Act also may not arise. It is, therefore, a case where in the context of Article 54 of the Limitation Act, the question had to be decided on the pleadings and evidence to be adduced by the parties on the aspect of the second limb of Article 54 of the Limitation Act."
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16. The judgment which is cited at the bar by the learned advocate Mr. Thakore for the respondents, rendered in the case of Manglaben Maganlal Modi Vs. Jitendrabhai Bhikhabhai Patel reported in 2021 SCC OnLine Guj 1228, more particularly, para 24 of that judgment, which reads as under:
"24 We may explain the decision of the Supreme Court in the case of Dahiben (supra) more elaborately as under:
FACTUAL MATRIX In the aforesaid case, a plot of agricultural land was sold by the Plaintiff to the Respondent No. 1, by executing a registered sale deed dated July 02, 2009. The sale consideration was paid for by the Respondent No.1 by issuing 36 different cheques in favor of the Plaintiff. Having purchased the Land from the Plaintiff, the Respondent No. 1 subsequently sold the Land to certain third parties being the Respondent Nos. 2 and 3 respectively. The Plaintiff, in December of 2014, more than five years after the execution of the Sale Deed, instituted a suit before the Principal Civil Judge, Surat on the grounds that the sale consideration for the Land had not been paid in its entirely by Respondent No.1 and inter alia praying that the Sale Deed be declared void, illegal and ineffective. Respondent Nos. 2 and 3 were impleaded in the Suit, as the Land had already been sold to them and was in their possession at the time of institution of the Suit. The Respondents Nos. 2 and 3 respectively filed an application seeking rejection of the plaint under Order VII Rule 11(a) and (d) of the CPC, contending that the Suit filed by the Plaintiff was barred by limitation and that no cause of action was made out in Page 23 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined the plaint. The Trial Court allowed the application and rejected the plaint at the threshold on the ground that the suit was barred by limitation. The Plaintiff filed an appeal before this High Court, which in turn upheld the order of the Trial Court. Accordingly, the Plaintiff came before the Supreme Court impugning the order passed by this Court.
The Object and Purpose of Order VII Rule 11:
While dealing with the appeal before it, the Supreme Court considered various precedents on the underlying object of Order VII Rule 11. It observed that if no cause of action is disclosed in the plaint or if the suit is barred by limitation, the court would not permit protraction of the proceedings. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted. Placing reliance on Azhar Hussain v. Rajiv Gandhi [1986 Supp CC 315], it opined that the entire purpose of conferment of such powers under Order VII Rule 11 is to ensure that a litigation, which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the courts, and exercise the mind of the respondent. The Determining Test:
The Supreme Court clarified that the Courts, while dealing with such an application seeking rejection of a plaint, ought to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint, read in conjunction with the documents relied upon. In this regard, it also clarified that while making such a determination, the Courts would have to disregard the pleas taken by the defendant in the written statement and application for rejection of the plaint on merit. Hence, the Supreme Court clarified that while determining any application filed under Order VII Rule 11, the Courts should Page 24 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined restrict itself to the plaint and should not go into the detail facts as provided under the written statement or even the application filed under Order VII Rule 11. The Supreme Court reiterated the test laid down in Liverpool and London S.P. and I Association Ltd. v. M.V. Sea Success [(2004) 9 SCC 512], which inter alia provides that whether the plaint discloses a cause of action or not is essentially a question of fact. However, whether it does or does not must be found from the reading of the plaint itself during which the averments made in the plaint in their entirety must be held to be correct. In other words, the plaint must be construed as it stands, without addition or subtraction of words. On the Suit being barred by limitation The Supreme Court observed that the sale was concluded upon the execution of the Sale Deed in 2009, wherein it was also recorded that the Plaintiff had received 36 cheques, covering the entire consideration for the Land and that the Plaintiff had various opportunities to challenge the Sale Deed on the ground of non-receipt of full consideration. There was no explanation provided as to why the Plaintiff remained completely silent for a period of five and a half years, without even issuing a legal notice. It found that the conduct of the Plaintiff in not taking recourse to legal action for over five year from the execution of the Sale Deed in 2009 was indicative of the fact that the institution of the Suit was merely an afterthought.
While interpreting Articles 58 and 59 respectively of the Limitation Act, 1963, the Supreme Court relied on Khatri Hotels Private Limited v. Union of India [(2011) 9 SCC 126] to reiterate that the period of limitation would begin to run from the date when the first right to sue accrues. Accordingly, it observed that since the Suit was filed much after the expiry of three years when the first right to sue occurred, it found the Suit to be Page 25 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined barred by limitation. On the Plaint being manifestly vexatious and without merit The Supreme Court found that the plea taken by the Plaintiff that he learned of the alleged fraud only in 2014, upon receipt of the index of the Sale Deed, was wholly misconceived since the receipt of the index would not constitute the cause of action for filing of the suit. It also observed that the Plaintiff had deliberately not mentioned the date of execution and registration of the Sale Deed. Accordingly, it held the present to be a case where the Plaintiffs by clever drafting of the plaint, attempted to make out an illusory cause of action in order to bring the suit within limitation and hence deserved to be rejected at the threshold. In coming to such conclusion, the Supreme Court observed that if on a meaningful reading of the plaint, it is found that the plaint is manifestly vexatious and without any merit, and does not disclose a right to sue, courts would be justified in exercising power under Order VII Rule 11. Through the aforesaid judgment, the Supreme Court has emphasised that judicial time is precious, and that Courts are duty bound to reject vexatious plaints to avoid wastage of judicial time. It has clarified that the power of the courts under Order VII Rule 11 are mandatory in nature and may be exercised at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial. However, it has also clarified that the power conferred under Order VII Rule 11 is a drastic one and that the requirements enumerated therein should be strictly adhered to. In this case, the Supreme Court upheld the orders of the lower courts, rejecting the plaint at the threshold since it found that the institution of the Suit by the Plaintiff was clearly an abuse of the process of the court and was bereft of any merit."
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17. Also, referring to the judgment rendered in the case of Sree Surya Developers and Promoters Vs. N. Sailesh Prasad and Others reported in (2022) 5 SCC 736, more particularly, para 11 of that judgment, which reads as under:
"11. Now, so far as the submission on behalf of the plaintiff that in the suit the plaintiff has not specifically prayed for setting aside the Compromise Decree and what is prayed is to declare that the Compromise Decree is not binding on him and that for the other reliefs sought, the suit would not be barred and still the suit would be maintainable is concerned, the aforesaid cannot be accepted.
11.1 As held by this Court in a catena of decisions right from 1977 that a mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise would not be maintainable and/or barred by law. It has been consistently held by this Court that if clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage. 11.2 In the case of T. Arivandandam Vs. T.V. Satyapal, (1977) 4 SCC 467, it is observed and held as under:-
"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 Page 27 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined 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."
11.3 In the case of Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364, this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation."
18. Considering all the above-mentioned aspects and factual position of law, the judgments which are cited at the bar on behalf of the appellant are not helpful to the appellant in the facts of the present case, whereas, the judgments which are cited at the bar on behalf of the respondents are helpful in the present case. Otherwise also, now there is settled position of law that such stale proceedings which are initiated after delay of 28 years, is required to be discouraged, more particularly, when no genuine cause of action is found from the plaint itself and therefore, the powers which are exercised by the trial Court under Order VII Rule 11 (a) and (d) of the C.P.C. are found just and proper in the facts of the present case. Also, there is no perversity or illegality committed by the Courts below while Page 28 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined coming to the findings and on the contrary, both the Courts below have discussed in detail about the factual aspects as well as legal position of law and have given convincing and proper findings after appreciating the provisions of law and also after considering the averments made in the plaint. Therefore, I found no reason to interfere with the concurrent findings given by the Courts below.
19. It is fruitful to refer the judgment in the case of Gurbachan Singh (Dead) Through Lrs Gurcharan Singh (Dead) Through Lrs and Others. reported in 2023 SCC Online SC 875, paragraphs 7, 14 and 15 which read as under:
"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala (2- Judge Bench), it was observed:--
"27. In HeroVinoth v. Seshammal [HeroVinoth v. Seshammal, (2006) 5 SCC 545], this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the Page 29 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined judgment of this Court in Hero Vinoth [Hero Vinoth v.
Seshammal, (2006) 5 SCC 545] are set out hereinbelow : (SCC p. 554, para 21) "21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means-- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-
28) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969] : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314], AIR p. 1318, para 5) '5. ... when a question of law is fairly arguable, where there is room for Page 30 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.'
28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way." (Emphasis supplied)
14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgment entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are:--
"(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
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15. A Bench of three learned Judges, recently in Balasubramanian v. M. Arockiasamy (Dead) Through LRs. , had referred to, with approval judgment rendered in Ramathal v. Maruthathal (two-Judge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence "suffers from material irregularity" the court will be justified in interfering with such findings."
20. It is also fruitful to refer to the judgment of the Hon'ble Apex Court in the case of Nazir Mohamed vs J. Kamala reported in AIR 2020 SC 4321, wherein, it is observed in paragraphs 56, 57 and 59 as under:
"56.As held by the Privy Council in Peri v. Chrishold reported in (1907) AC 73, it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner...and if the rightful owner does not come forward and assert his right of possession by law, within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever distinguished, and the possessory owner acquires an absolute title.
57.The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law.
59.When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court Page 32 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024 NEUTRAL CITATION C/SA/70/2022 ORDER DATED: 02/05/2024 undefined is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of Section 100 of the CPC."
21. Therefore, in view of the above settled position of law, more particularly, the concurrent findings of facts given by the Courts below and as no substantial question of law has arisen for the consideration of this Court, the present appeal lacks merit and the same is required to be dismissed.
22. Accordingly, the present Second Appeal is dismissed with no order as to costs.
23. In view of the dismissal of the main matter, connected civil application does not survive and the same stands disposed of accordingly.
(SANDEEP N. BHATT,J) SLOCK BAROT Page 33 of 33 Downloaded on : Mon May 06 20:52:37 IST 2024