Gujarat High Court
Kanubhai Ratilal Patel vs Legal Heirs And on 30 April, 2013
Author: C.L. Soni
Bench: C.L. Soni
KANUBHAI RATILAL PATEL....Petitioner(s)V/SLEGAL HEIRS AND REPRESENTATIVEOF DECEASED JESANGBHAI M RABAR C/SCA/11786/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 11786 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE C.L. SONI Sd/- ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 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 of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ================================================================ KANUBHAI RATILAL PATEL Versus LEGAL HEIRS AND REPRESENTATIVEOF DECEASED JESANGBHAI M RABARI & 3 ================================================================ Appearance: MR PARTHIV B SHAH, ADVOCATE for the Petitioner MR MTM HAKIM, ADVOCATE for the Respondent(s) No. 1.1 - 1.4 , 2 RULE SERVED BY DS for the Respondent(s) No. 2 - 3 , 4.1 - 4.7 ================================================================ CORAM: HONOURABLE MR.JUSTICE C.L. SONI Date : 30/04/2013 ORAL JUDGMENT
1. The petitioner who is original defendant No.4 in the suit filed by respondent Nos.1/1 to 1/4 has moved this petition under Articles 226 and 227 of the Constitution of India challenging order dated 1.5.2012 passed by the Court below, whereby the application of the petitioner under Order-VII Rule 11 of the Code of Civil Procedure for rejection of the plaint is rejected.
2. It is the case of the petitioner that the petitioner acquired right in the suit property by virtue of a registered sale deed in the knowledge of the plaintiffs. The plaintiffs have challenged the sale deed executed by Lakhiben- their grandmother on the ground that the sale deed executed by her was not binding to them. It is further case of the plaintiffs that in the said suit, the petitioner appeared and filed application at Exh.11 under Order-VII Rule 11 of the Code of Civil Procedure on 29.6.2010 praying to reject the plaint on the grounds that there was no cause of action for filing the suit and the suit was time barred and therefore, the plaint is required to be rejected under Order-VII Rule 11 of the Code of Civil Procedure. It is further case of the petitioner that the learned Judge has not decided the said application on merits but rejected the said application on the ground that the petitioner has sold the suit land to a third party. The petitioner has further averred that an application to join third party purchaser is already filed at Exh.15 and the same is pending adjudication.
3. I have heard learned advocates Mr. Parthiv B. Shah for the petitioner and Mr. MTM Hakim for respondent Nos.1/1 to 1/4. Nobody has appeared for rest of the respondents though they are served with the notice of Rule.
4. Learned advocate Mr. Parthiv B. Shah appearing for the petitioner submitted that the petitioner, being one of the defendants in the suit, was entitled to file application under Order-VII Rule 11 of the C.P. Code. Mr. Shah submitted that learned Judge was required to decide such application on merits as required by Order-VII Rule 11 of the C.P. Code. Mr. Shah submitted that the ground on which the application was rejected is unknown to law for deciding the application under Order-VII Rule 11 of the C.P. Code. Mr. Shah further submitted that once it was brought to the notice of the learned Judge that there was no cause of action available to the plaintiffs for filing the suit and the suit was time barred, it was incumbent upon the learned Judge to decide such application on merits and could not have been rejected on the ground that the petitioner has sold the suit property. Mr. Shah submitted that it is nowhere provided in the provisions of Order-VII Rule 11 of the C.P. Code that the party to the suit transferring his interest in the suit property cannot pray for rejection of the plaint. Mr. Shah submitted that once the petitioner is made party- defendant in the suit, the petitioner became entitled to make application under Order-VII Rule 11 of the C.P. Code. Thus, learned Trial Judge has failed to exercise the jurisdiction vested with him by not deciding the application on merits.
5. As against the above arguments, learned advocate Mr. MTM Hakim appearing for the original plaintiffs- respondent Nos.1/1 to 1/4, submitted that since the petitioner has sold the suit property to third party, it is not permissible to the petitioner to pray for rejection of the plaint by filing application under Order-VII Rule 11 of the C.P. Code. Mr. Hakim submitted that the petitioner having lost interest in the suit property, cannot be permitted to pray for rejection of the plaint, especially when third parties are yet to be brought on record of the suit. Mr. Hakim submitted that it is not that whenever application is filed by any of the parties, Court is to decide the same on the basis of the grounds urged in the application made under Order-VII Rule 11 of the C.P. Code, but the Court is also required to look at the locus of such party, especially when there was a question of surviving interest in the suit property. Mr. Hakim thus submitted that the learned Judge has not committed any error in rejecting the application filed by the petitioner on the grounds that the petitioner has sold the suit property.
6. Having heard learned advocates for the parties and having perused the impugned order passed by the learned Trial Judge, it appears that learned Judge has rejected the application of the petitioner on the ground that the petitioner transferred the suit property by registered sale deed on 16.3.2010 and, therefore, he is not entitled to oppose the suit. It is further stated in the impugned order that the petitioner filed the application under Order-VII Rule 11 of the C.P. Code after he sold away the suit property, and on the date of the application, no interest of the petitioner was surviving in the suit property and in such circumstances, the plaint cannot be rejected on the basis of the application filed by the petitioner.
7. It appears that the petitioner filed the application under Order-VII Rule 11 of the C.P. Code praying to reject the plaint mainly on two grounds, viz. there was no cause of action for filing the suit and the suit of the plaintiffs was time barred.
8. Order-VII Rule 11 of the C.P. Code reads as under:-
11. Rejection of plaint.-
The plaint shall be rejected in the following cases:-
(a) Where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law.
9. The provisions of Order-VII Rule 11 of the C.P. Code do not prohibit the party who is defendant from making the application for rejection of plaint if such party transfers the interest in the suit property. It is required to be noted that once a person is joined as party defendant, he is to face litigation till the same comes to an end at the final stage. Such party, therefore, cannot be prevented from urging to the Court that the suit filed against him cannot be permitted to be further prosecuted for the grounds stated in the provisions of Order-VII Rule 11 of the C.P. Code. Application of such party, therefore, cannot be rejected on the ground that such party has lost interest in the suit property. In my view, the learned Judge has failed to exercise the jurisdiction vested in him by not deciding the application on merits and rejecting the same simply on the ground that the petitioner made application under Order-VII Rule 11 of the C.P. Code after he transferred the suit property. Such ground since not available in law, the impugned order passed by the learned Judge cannot be sustained and is required to be quashed and set aside.
10. In the result, the petition is allowed. Impugned order dated 1.5.2012 is hereby quashed and set aside. The matter is remanded to the learned Trial Judge to decide application at Exh.11 afresh on merits and in accordance with law. Rule is made absolute accordingly. No costs.
Sd/-
(C.L. SONI, J.) omkar Page 5 of 5