Gujarat High Court
Hemaben Prafulbhai Kaneria vs L.H. Of Decd. Dwarkadas Mathurdas Shah - ... on 13 April, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/CRA/580/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 580 of 2016
==========================================================
HEMABEN PRAFULBHAI KANERIA....Applicant(s)
Versus
L.H. OF DECD. DWARKADAS MATHURDAS SHAH - RAMESHCHANDRA
DWARKADAS SHAH & 5....Opponent(s)
==========================================================
Appearance:
MR DIPAL R RAVAIYA, ADVOCATE for the Applicant(s) No. 1
MR ASHISH M DAGLI, ADVOCATE for the Opponent(s) No. 1
==========================================================
CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 13/04/2017
ORAL ORDER
1. The applicant, by way of the present Civil Revision Application filed under Section 115 of CPC, has challenged the order dated 3rd October, 2016 passed by the 4th Additional Senior Civil Judge, Junagadh (hereinafter referred to as "the trial Court") below Exh. 104 in Regular Civil Suit No.271 of 2015, whereby the trial Court has dismissed the application of the applicant filed under Order VII Rule 11 of CPC seeking rejection of the plaint.
2. In the instant case, it appears that the Opponent No.1 has filed the suit against the other Opponents and the applicant, seeking partition of Page 1 of 3 HC-NIC Page 1 of 3 Created On Tue Aug 15 21:05:42 IST 2017 C/CRA/580/2016 ORDER the property in question and for setting aside the sale deed dated 25.5.2004 executed by the legal heirs of the deceased Dwarkadas Mathuradas Shah i.e. opponent Nos.2.1 and 2.2 in favour of the present applicant, (original defendant No.4) and also to set aside the sale deed dated 11.6.2015 executed by the present applicant in favour of the opponent No.5 (original defendant No.5).
3. It is sought to be submitted by the learned Advocate Mr.Dipal Ravaiya for the applicant that the opponent No.1 has not disclosed any cause of action in the plaint and even otherwise the suit is barred by law of limitation, inasmuch as the sale deed of 2004 executed in favour of the applicant is sought to be challenged in the year 2014. Relying upon the decision of this Court in case of Masrur Fatema Jafarali Saiyed Vs. Vishnubhai Ambalal Patel, reported in 2016(0) AIJ-GJ 237186, he submitted that the plaint is liable to be rejected as barred by law of limitation.
4. However, the learned Advocate Mr.Dagli for the opponent No.1 submitted that the plaintiff being a resident of Kolkata was not aware about the sale deed in question and he came to know about the same only in October 2015, and therefore, the limitation would start running from the date of knowledge of the plaintiff. He also submitted that the issue of limitation being a mixed Page 2 of 3 HC-NIC Page 2 of 3 Created On Tue Aug 15 21:05:42 IST 2017 C/CRA/580/2016 ORDER question of law and facts, the plaint cannot be rejected.
5. So far as the cause of action is concerned, it appears that the opponent - plaintiff has stated in paragraph nos.18 to 21 of the plaint to the effect that the plaintiff came to know about the sale-deed executed by the defendant No.1 on 01.10.2015 when the suit property was being demolished and thereafter, the suit was filed. So far as issue of limitation is concerned, it is required to be noted that the opponent - plaintiff has filed suit for partition of suit properties and for setting aside of the sale-deed executed by the defendant No.1 in favour of the defendant No.4 i.e. present petitioner in the year 2004 and the sale deed executed by the defendant No.4 in favour of the defendant No.5 in the year 2015. The issue of limitation being a mixed question of law and facts, as rightly held by the trial Court, the plaint could not be decided at this juncture.
6. In that view of the matter, Revision Application, being devoid of merits, is dismissed.
(BELA M. TRIVEDI, J.) vinod Page 3 of 3 HC-NIC Page 3 of 3 Created On Tue Aug 15 21:05:42 IST 2017