Gujarat High Court
Whiteswan Buildcon Llp vs Thakor Praveenji Mangaji on 28 September, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/CRA/497/2021 JUDGMENT DATED: 28/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 497 of 2021
With
CIVIL APPLICATION (FOR VACATING STAY) NO. 1 of 2022
In R/CIVIL REVISION APPLICATION NO. 497 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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WHITESWAN BUILDCON LLP
Versus
THAKOR PRAVEENJI MANGAJI
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Appearance:
MR KV SHELAT(834) for the Applicant(s) No. 1
for the Opponent(s) No. 17
DECEASED LITIGANT for the Opponent(s) No. 17.1
MR AR PATEL(5838) for the Opponent(s) No. 1,2,3
MR PINAKIN B RAVAL(3468) for the Opponent(s) No.
17.1.1,17.1.2,17.1.3,17.2
MR. SHYAM K SHELAT(6552) for the Opponent(s) No. 4,5,6,7
NOTICE SERVED for the Opponent(s) No.
10,11,12,13,14,15,16,18,19,20,21,22,23,24,25,8,9
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 28/09/2022
ORAL JUDGMENT
(1) RULE. Learned advocates for the respective respondents waive service of notice of rule.
Page 1 of 17 Downloaded on : Sun Dec 25 02:47:33 IST 2022C/CRA/497/2021 JUDGMENT DATED: 28/09/2022 (2) The present revision application has been filed for the following prayer:
"(A) This Honourable Court be pleased to admit/allow the present Civil Revision Application and allow the present revision by quashing and setting aside the impugned judgment and order dated 04.09.2021 passed below Exh.28 and be pleased to allow the application Exh.28 by rejecting the Special Civil Suit No.244 of 2018 pending before the 8th Additional Civil Judge, Gandhinagar, Dist.
Gandhinagar."
(3) The revision application emanates from the judgement and order dated 04.09.2021, wherein and whereby the application below Exh.28 has been rejected under the provisions of Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (CPC) seeking rejection of the plaint being Special Civil Suit No.244 of 2018.
(4) The parties shall be referred as per their original status in the suit proceedings.
(5) The plaintiffs have instituted Special Civil Suit No.244 of 2018 seeking cancellation of the registered sale-deed No.195 of 2006 dated 22.11.2006 for getting the share in the suit property bearing Block No.187 admeasuring 3-13-64 Hec.-Are-sq.mtrs. of Village Raisan, Dist. Gandhinagar contending Page 2 of 17 Downloaded on : Sun Dec 25 02:47:33 IST 2022 C/CRA/497/2021 JUDGMENT DATED: 28/09/2022 inter alia that the Revenue Change Entry No.2157, which was mutated on 07.06.2005, whereby the heirs of late Bhagwanji Maganji and Pratapji Maganji came to be brought on the revenue record. It is mentioned in the plaint that the late mother of the plaintiffs, though was the heir of late Bhagwanji Maganji, her name is not brought on record and the plaintiffs' mother having died on 17.03.2003, but in Change Entry No.2157, the names of the plaintiffs are not mutated and they came to know on 17.07.2018, when they applied for the certified copy of Village Form No.7/12 extract and hence, they instituted the suit against the defendants seeking setting aside the sale-deed, which was registered on 22.11.2006.
(6) Learned advocate Mr.Shelat appearing for the applicant-defendant No.23 has submitted that on coming to know about such suit, the application below Exh.28 was filed for seeking rejection of the plaint under Order VII Rule 11(d) of the CPC, which has been rejected by the order dated 04.09.2021. It is submitted that the suit is barred by the Limitation Act, 1963 (the Limitation Act) since the suit is instituted for setting Page 3 of 17 Downloaded on : Sun Dec 25 02:47:33 IST 2022 C/CRA/497/2021 JUDGMENT DATED: 28/09/2022 aside the registered sale-deed executed on 22.11.2006. It is submitted that the cause of action, which is shown to have occurred on 17.07.2018 by extracting the copies of the entries mutated in Village Form No.7/12 is concocted cause in order to dilute the limitation period. It is submitted that as per the settled proposition of law, the plaintiffs can be said to have deemed knowledge of sale deed when it was registered i.e. on 22.11.2006 and also of the certified revenue entries.
6.1) In support of his submissions, he has placed reliance on the decision of the Apex Court in the case of Dilboo (Smt) (dead) By Lrs. & Ors. Vs. Dhanraji (Smt) (dead) & Ors., (2000) 7 S.C.C. 702. Reliance is also placed on the judgement of the Apex Court in the case of Khatri Hotels Private Limited & Anr. Vs. Union of India and Anr., (2011) 9 S.C.C. 126 and in the case of Raghwendra Sharan Singh Vs. Ram Prasanna Singh, (2020) 16 S.C.C. 601 and Dahiben Vs.Arvindbhai Kalyanji Bhanusali (Gajra), (2020) 7 S.C.C.
366. Thus, he has submitted that the impugned order rejecting the application below Exh.28 under Order VII Rule 11 of the Page 4 of 17 Downloaded on : Sun Dec 25 02:47:33 IST 2022 C/CRA/497/2021 JUDGMENT DATED: 28/09/2022 CPC may be quashed and set aside and the plaint may be ordered to be returned.
(7) In response to the aforesaid submissions, learned advocate Mr.Sharma appearing for the respondent No.1 to 3-original plaintiffs has submitted that the impugned order rejecting the application filed below Exh.28 under Order VII Rule 11 of the CPC by the applicant-defendant is appropriate and may not be interfered with by this Court. It is submitted that the suit is instituted within a period of limitation of three years since the plaintiffs got the knowledge of the aforesaid sale-deed executed on 22.11.2006 when they applied for the Village Form No.7/12 extract. It is submitted that the plaintiffs, being the legal heirs, are entitled to the share in the suit property, which is an ancestral property. It is submitted that the plaintiffs had acquired knowledge of the aforesaid sale deed only in the year 2018 and being deprived of their legal share of the property, the heirs instituted the suit seeking cancellation of the sale-deed executed in the year 2006 and have also sought prayer for proportionate share in the suit land. It is thus, Page 5 of 17 Downloaded on : Sun Dec 25 02:47:33 IST 2022 C/CRA/497/2021 JUDGMENT DATED: 28/09/2022 submitted that the present application may not be entertained.
7.1) In support of his submissions, he has placed reliance on the judgement of the Apex Court in the case of Chhotanben & Anr. Vs. Kiritbhai Jalkrushnabhai Thakkar & Ors., (2018) 6 S.C.C. 422 and judgement of this Court in the case of Shanabhai Popatbhai Bharwad Vs. Ballard Projects Pvt. Ltd., AIR 2020 Guj. 173.
7.2) Learned advocate Mr.Sharma appearing for the respondents has submitted that the aforesaid sale deed has been executed by keeping the plaintiffs in dark and hence, when the knowledge with regard to execution of the same was acquired by the plaintiffs in the year 2018, Special Civil Suit No.244 of 2018 has been instituted, and hence it cannot be said to be having barred by limitation.
(8) I have heard the learned advocates appearing on behalf of the respective parties.
(9) It is well settled proposition of law that while examining an application under Order VII Rule 11 of the Code of Civil Procedure, Page 6 of 17 Downloaded on : Sun Dec 25 02:47:33 IST 2022 C/CRA/497/2021 JUDGMENT DATED: 28/09/2022 1908, the sum and substance of the plaint, recitals made in the plaint and the accompanying documents are required to be examined and the defence of the defendants is irrelevant. The issue on merit of the matter which may arise between the parties would not be in the realm of the Court at that stage. The defence taken by the defendant in the written statement cannot be taken into consideration and the plaint has to be read as a whole and the application cannot be decided in context of few averments made in the plaint.
(10) The facts, as narrated in the plaint, would suggest that the suit is instituted with a specific prayer seeking setting aside the registered sale deed dated 22.11.2006, which reads as under (translated from Gujarati):
"A) May please be passed an order to cancel the Registered Sale Deed No.195/06 (Old No.8486) dated 22/11/2006 executed for the old tenured agricultural land admeasuring Hector-3, Are-1, Sq. Mts.-64 bearing Survey / Block No.187, Assessment Rs.11-94 Ps. of Moje: Raysan, Taluka and District:
Gandhinagar and to make division of the land in such manner that the plaintiff can get entered his/her name for his/her proportionate share in the land by virtue Page 7 of 17 Downloaded on : Sun Dec 25 02:47:33 IST 2022 C/CRA/497/2021 JUDGMENT DATED: 28/09/2022 of succession rights and land remain in his exclusive name."
(11) The aforesaid prayer will suggest that the plaintiffs are seeking setting aside and cancellation of the registered sale deed dated 22.11.2006 and consequently it is also prayed that after such cancellation, the plaintiffs are claiming their propotionate share in the suit land. The cause of action narrated in Paragraph No.4 of the plaint suggests that the plaintiffs came to know about the registered sale deed on 17.07.2018 when they acquired Village Form No.7/12 extract from the village revenue record. This fact is not in dispute.
(12) At this state, it would be apposite to refer to the judgment in the case of Dahiben (supra). The Supreme Court, while examining the provisions of Articles 58 and 59 of the Limitation Act, 1963 vis-à-vis an application filed under Order VII Rule 11(a) of the CPC seeking rejection of the plaint, has held thus:
"23.13 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 power under Order VII Rule 11 CPC.Page 8 of 17 Downloaded on : Sun Dec 25 02:47:33 IST 2022
C/CRA/497/2021 JUDGMENT DATED: 28/09/2022 23.14 The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra.7 The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra).
23.15 The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint shall be rejected if any of the grounds specified in clause
(a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.
24.1 In Swamy Atmanand v. Sri Ramakrishna Tapovanam, (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 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" (emphasis supplied) 24.2 In T. Arivandandam v. T.V. Satyapal & Anr., (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 O. VII, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created Page 9 of 17 Downloaded on : Sun Dec 25 02:47:33 IST 2022 C/CRA/497/2021 JUDGMENT DATED: 28/09/2022 the illusion of a cause of action, nip it in the bud at the first hearing ..."
(emphasis supplied) 24.3 Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, (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.
24.4 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, (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.
25. The Limitation Act, 1963 prescribes a time- limit for the institution of all suits, appeals, and applications. Section 2(j) defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article.
26. Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the period of limitation for filing a suit where a declaration is sought, or cancellation of an instrument, or rescission of a contract, which reads as under :
Description of Period of Time from which period suit limitation begins to run
58. To obtain any Three When the right to sue other years first accrues.
declaration.
59. To cancel or Three When the facts set aside an years entitling the Instrument or plaintiff to have the decree or for the instrument or decree rescission of a cancelled or set aside contract. or the contract rescinded first become known to him.Page 10 of 17 Downloaded on : Sun Dec 25 02:47:33 IST 2022
C/CRA/497/2021 JUDGMENT DATED: 28/09/2022 The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues.
27. In Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., (2011) 9 SCC 126, this Court held that the use of the word first between the words sue and accrued , would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.
28. A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh, (1991) 4 SCC 1, held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words "right to sue" means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. Order VII Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected.
29.11 The plea taken in the plaint that they learnt of the alleged fraud in 2014, on receipt of the index of the sale deed, is wholly misconceived, since the receipt of the index would not constitute the cause of action for filing the suit. ... ... ..."
(13) The Apex Court, after survey of various judgments on the analogous issue, has held that the use of the word "first" between the words "suit" and "accrue" would mean that if a suit is based on multiple causes of action, the period of limitation would begun Page 11 of 17 Downloaded on : Sun Dec 25 02:47:33 IST 2022 C/CRA/497/2021 JUDGMENT DATED: 28/09/2022 to run from the date when the rights to sue first accrues. It is further held that the right to sue accrues only when the cause of action arises and the suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe such right by the defendant, against whom the suit is instituted. It is held that the courts must be vigilant to clever drafting of the plaint, and it is held that, if by such clever drafting of the plaint, it has created the illusion of a cause of action, it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Apex Court has also noticed the cause of action mentioned in the plaint in the aformentioned case, and has held that the "The plea taken in the plaint that they learnt of the alleged fraud in 2014, on receipt of the index of the sale deed, is wholly misconceived, since the receipt of the index would not constitute the cause of action for filing the suit." In the present case, the plaintiffs, in order to frustrate the limitation period have taken shelter under the pretext of obtaining an extract of Village Form No.7/12 containing the mutated Page 12 of 17 Downloaded on : Sun Dec 25 02:47:33 IST 2022 C/CRA/497/2021 JUDGMENT DATED: 28/09/2022 certified entries of the suit land in the year 2018. Thus, the cause of action, as mentioned in the plaint, is an illusory and appears to have been a well-planned action in order to bring the suit challenging the registered sale deed dated 12.11.2006.
(14) As held by the Supreme Court in case of Dilboo (Smt.) (dead) by Lrs (supra), whenever a document is registered, the date of registration becomes the date of deemed knowledge. In other cases, where a fact could be discovered by due diligence, then deemed knowledge would be attributed to the plaintiff, because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge. It is held that in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge. In the present case, the cause of action, as narrated in the plaint, more particularly Paragraph No.4 thereof, states that the plaintiffs came to know for the first time about the registered document in the year Page 13 of 17 Downloaded on : Sun Dec 25 02:47:33 IST 2022 C/CRA/497/2021 JUDGMENT DATED: 28/09/2022 2018 when they applied for Village Form No.7/12 extract. The plaintiffs in the plaint, is seeking setting aside of the registered sale deed and as a consequence are also claiming a share in the suit land. The averments in the plaint reflect that she has alleged that heirs of late Bhagwanji Maganji and Pratapji Maganji came to be brought on the revenue record on 07.06.2005 and it is further stated that late mother of the plaintiffs, though was heir of Bhagwanji Maganji, her name was not brought on record and she died on 17.03.2003 but in changed Entry No.2157, the names of the plaintiffs are not recorded or entered and they came to know on 17.07.2018 when the certified copy of Village Form No.7/12 was obtained. The facts, as narrated in the plaint, will suggest that since 2003 till 2018, no efforts are made by the plaintiffs to see that after the demise of their mother in 2003 their names are mutated in the revenue entries, and it is hard to believe that though the plaintiffs are claiming share their claim in the suit land, they would not care to examine the revenue records for a period of almost 15 years. Thus, by a clever drafting and in order to see that the Page 14 of 17 Downloaded on : Sun Dec 25 02:47:33 IST 2022 C/CRA/497/2021 JUDGMENT DATED: 28/09/2022 limitation period gets frustrated, the suit has been instituted on a sole reason of obtaining Village Form No.7/12 extract on 17.07.2018 by alleging that they were kept in dark for 15 years, after the registration of the sale deed on 25.05.2006. It cannot be said that the plaintiffs have discovered the fact of execution of the registered sale on due diligence by obtaining such extract after a period of 15 years. Hence, the suit, which is otherwise barred under the provisions of Articles 58 and 59 of the Limitation Act, by way of clever drafting and by devising the cause of action, on the basis of procuring village Form No.7/12 in the year 2018; the suit only appears to have been instituted to frustrate the rights of the defendants. With regard to the prayer of seeking proportionate share in the suit land, the same is a consequential relief which entirely depends on the setting aside the registered sale, hence the suit cannot be allowed to be continued for the residuary prayer.
(15) The decision of Chottanben (supra), on which the reliance is placed will not rescue the plaintiffs, since the facts of the said case Page 15 of 17 Downloaded on : Sun Dec 25 02:47:33 IST 2022 C/CRA/497/2021 JUDGMENT DATED: 28/09/2022 suggest that the plaintiffs had specifically alleged that their thumb impression and the signatures were forged, whereas in the case before the Coordinate Bench, in case of Shanabhai Popatbhai Bharwad (supra), the facts suggest that the suit was instituted for specific performance of contract, wherein the time was not an essence of contract. The parameters of a suit instituted for a specific performance of contract are different from the suit seeking cancellation of a contract or instrument. Hence, the submissions advanced by the plaintiffs by placing reliance on the said decisions do not merit acceptance.
(16) On the substratum of the aforenoted observations and analysis, the impugned order dated 04.09.2021 passed below application Exh.28 moved in Special Civil Suit No.244 of 2018 rejecting the application filed by the present applicant seeking rejection of the plaint, is hereby quashed and set aside. The Civil Revision Application is hereby allowed.
Page 16 of 17 Downloaded on : Sun Dec 25 02:47:33 IST 2022C/CRA/497/2021 JUDGMENT DATED: 28/09/2022 (17) As a sequel, the plaint - Special Civil Suit No.244 of 2018 pending before Civil Court, Gandhinagar, is hereby rejected.
(18) Rule made absolute. No order as to costs.
Sd/- .
(A. S. SUPEHIA, J)
NVMEWADA
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