Gujarat High Court
Jayantibhai Maganbhai Patel vs Manibhai Hirabhai Patel on 25 November, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3827 of 2011
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2012
In R/FIRST APPEAL NO. 3827 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JAYANTIBHAI MAGANBHAI PATEL & 3 other(s)
Versus
MANIBHAI HIRABHAI PATEL & 5 other(s)
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Appearance:
MR MAULIK G NANAVATI(3318) for the Appellant(s) No. 1,2,3,4
for the Defendant(s) No. 4
DELETED for the Defendant(s) No. 5
MR DIPEN C SHAH(3374) for the Defendant(s) No. 2,3,5,6
MR NILESH M SHAH(780) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 1,2,3,5,6
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 25/11/2022
CAV JUDGMENT
Page 1 of 57
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C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 (PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
1. This is an Appeal filed by the original plaintiffs under Section 96 of Code of Civil Procedure,1908, (hereinafter referred to as "Code") challenging the judgment and order dated 14.09.2011 below Exhibit 48 in Special Civil Suit No.676 of 2010 passed by the learned 5th Additional Senior Civil Judge, Vadodara. By the said judgment and order, learned Trial Judge has allowed the application filed by the original defendants under Order VII, Rule 11 (d) of Code, thereby dismissing the Suit against the defendant No.1 on the ground that the suit is barred by the law of limitation.
2. Before entering into merits of the case, it would be appropriate to reproduce the relevant facts of the case, which are as under:
2.1 The Suit land includes an agricultural land bearing old Revenue Survey Nos.102 and 110, Block No.76 admeasuring 5356 Sq. Mtrs. and another having old Revenue Survey Nos.129 and 116/3 and 114, Block No.85 admeasuring 9049 Sq. Mtrs. at village: Aalamgir, Dist. Vadodara (hereinafter referred to as the "Suit land").Page 2 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022
C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 2.2 The original plaintiffs claimed to be the heirs of Maganbhai Ranchhodbhai Patel i.e. father of the appellant Nos.1 to 3 and grand-father of appellant No.4, who passed away on 07.06.1979 and upon his death, the aforesaid suit lands along with other properties came to be devolved in the name of the appellants. Thus, the appellants claimed to be joint owners of the suit land. 2.3 It is further contended that on 01.12.1982, inter-se distribution of the inherited lands took place amongst the heirs of the deceased Maganbhai Patel and as per the said understanding, the Block No.76 came to the share of the appellant No.2 - Naranbhai Maganbhai Patel and Block No.85 came to the share of appellant No.1 Jayantilal Maganbhai Patel. Inspite of such mutual understanding between the appellants, the factually the possession of the land Block No.76 had continued with the appellant No.2 and possession of the land bearing Block No.85 had continued with the appellant No.1 and considering the fact that both were real brothers, no assertion was made by the family members in terms of distribution agreed between them. 2.4 It is further contended that the defendant No.6 had shown Page 3 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 willingness to purchase part of land bearing Block No.85 which had gone to the share of the appellant No.1. However, under the pretext of getting correction as per the distribution agreed upon, the defendant No.6 obtained signature of the appellant Nos.1 and 2 and created fraudulent sale deed of entire block No.85 and also of block No.76. It is further contended that on 04.10.1999 the aforesaid sale deeds were fraudulently got executed in favour of the defendant Nos.1 and 2 and was registered before the office of the Sub-Registrar on 28.10.1999. It is the case of the plaintiffs that they have continued to remain in actual possession of the aforesaid lands. It is further pleaded by the plaintiffs that the original defendant Nos.2 and 3 sold their part of land bearing Block No.76 by executing registered sale deed dated 25.07.2012 in favour of the defendant No.4, who in turn sold the said land to the original defendant No.5 by registered sale deed dated 30.03.2010. 2.5 It is further contended that on 07.08.2010, the original defendant No.1 had approached the Civil Court by filing Regular Civil Suit No.833 of 2010 seeking declaration and permanent injunction against the plaintiffs in respect of land bearing Block No.85, which is pending adjudication before the concerned Civil Page 4 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 Court at Vadodara. It is the case of the plaintiffs that in response to such summons issued in the aforesaid Suit, when the plaintiffs appeared before the concerned Civil Court, they became aware about the fraud played by the defendants in collusion with each other in respect of the suit land. Initially, the plaintiffs approached the concerned Police Station raising grievance about the fraud committed by the defendants and the cause of action arose for the plaintiff to approach the Civil Court.
2.6 In such circumstances, the original plaintiffs have filed Regular Civil Suit No.676 of 2010 before the Court of learned Senior Civil Judge (S.D.), Vadodara, seeking declaration that the suit land belonged to the plaintiff Nos.1 and 2 and the sale deeds dated 20.10.1999, 25.07.2002 and 20.03.2010 executed in respect of the suit land be declared as null and void as being false and fabricated. The plaintiffs have also prayed for mandatory injunction restraining the original defendants from interfering with their possession over the suit land.
2.7 The defendants upon service of summons have appeared before the concerned Court. The defendant No.1 namely Manibhai Page 5 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 Hirabhai Patel has filed application under Order VII, Rule 11 of Code vide Exhibit 48. In the said application, the defendant No.1 had submitted that the registered sale deed was executed in favour of the defendant No.1 by the plaintiffs on 04.10.1999. Pursuant to such registered sale deed, necessary procedure was undertaken to get mutated his name in the revenue record, whereby the notice under Section 135(D) of the Bombay Land Revenue Code was served upon the original plaintiff No.1, who had not raised any objection with regard to certification of such revenue entry. The defendant No.1 had further asserted that since the execution of registered sale deed, he has been cultivating the suit land. He therefore, raised objection that the aforesaid suit is barred by law of limitation being filed on 27.12.2010 i.e. after delay of almost 11 years, 2 months and 22 days from the date of the execution of registered sale deed in favour of the defendant No.1. 2.8 Apart from Exhibit 48, the original defendant Nos.2 to 5 have also preferred separate application Exhibit 33 seeking rejection of the plaint on the ground of limitation. Such application was moved by the original defendant Nos.2 to 5 under Order VII, Rule 11 (d) of the Code on 30.12.2010. It appears from the record that the written Page 6 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 statement was also filed Exhibit 31 on behalf of the original defendant Nos.2 to 5 on 30.12.2010, wherein also issue of the Suit being barred by limitation was specifically averred. The record reveals that the original plaintiffs - present appellants have opposed such application by filing reply vide Exhibit 39. 2.9 The learned Additional Senior Civil Judge, Vadodara, passed separate orders on the same date i.e. 14.09.2011. The learned Civil Judge was pleased to partly allow application Exhibit 33 thereby holding the challenge to earlier sale deeds dated 28.10.1999 in favour of the original defendant No.2 Vibhaben and second sale deed dated 25.07.2002 executed in favour of defendant No.3 Pankaj Ambalal Patel, as being barred by law of limitation. Further, the learned Senior Civil Judge, Vadodara, rejected the application in so far as the challenge to subsequent sale deed dated 15.09.2010 executed in favour of Satishbhai Shah (original defendant No.5) and 30.03.2010 executed in favour of original defendant No.5 as the prescribed period of 3 years as provided under Article 58 of the Limitation Act has not lapsed. Thus, the learned Senior Civil Judge partly rejected the plaint qua the original defendant Nos.2 and 3 whereas the Suit continued in Page 7 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 so far as challenge to registered sale deeds in favour of defendant Nos.4 and 5 are concerned.
2.10 The learned Senior Civil Judge by the impugned order dated 14.09.2011 passed below Exhibit 48 allowed the application filed by the original defendant No.1 under Order VII, Rule 11(d) of the Code holding the registered sale deed in favour of defendant No.1 as it related to dated 04.10.1999, wherein the plaintiff No.1 had himself signed the documents and the Suit was required to be filed within a period of 3 years as prescribed under Article 58 of the Limitation Act by 05.10.2001, whereas the Suit was actually filed on 26.11.2010. Thus, the learned Senior Civil Judge accepted the case of the defendant No.1 of Suit being barred by delay of 11 years, 2 months and 22 days and therefore, rejected the plaint against the defendant No.1.
2.11 Thus, by the impugned orders dated 14.09.2011 passed separately below Exhibit 33 and Exhibit 48 resulted into a situation whereby the Suit was held barred by law of limitation in case of the defendant No.1 (Block No.85) and the defendant Nos.2 and 3 (in so far as registered sale deed dated 04.10.1999 and 28.10.1999 Page 8 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 and also 25.07.2012 of Block No.76 are concerned) Thus, the Suit continued against the defendant Nos.4, 5 and 6 only in so far as prayer of the plaintiffs to challenge the registered sale deed dated 30.03.2010 and that too in respect of only one suit property i.e. Block No.76 is concerned. In order to complete the facts of the case, it would be necessary to mention at this stage that subsequently, after passing of the impugned order, the defendant Nos.4 and 5 have preferred an application under Order VII, Rule 11(a) of the Code vide Exhibit 53 seeking relief of the Suit being not maintainable on the ground that plain reading of the plaint does not disclose any cause of action for filing of the Suit against the defendant Nos.4 and 5. Such application was filed by the defendant Nos.4 and 5 on 30.09.2011.
2.12 Being aggrieved and dissatisfied with the aforesaid orders dated 14.09.2011 separately passed below Exhibit 33 and 48, the original plaintiffs - the appellants herein have preferred present appeal.
3. Present appeal came to be admitted by this Court by oral order dated 28.03.2012. The same reads as under: Page 9 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022
C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 "Leave to amend.
Heard learned advocate Mr.Maulik G. Nanavati for the appellants, learned advocate Mr.Nilesh M. Shah for the respondent No.1 and learned advocate Mr.Dipen C. Shah for the respondents No.2 to 5.
In view of the contention raised with regard to the fraud and submission regarding transaction and the original sale deed executed on 28.10.1999, the matter requires detailed hearing. At the same time, the contention with regard to the preliminary objections based on the limitation as well as jurisdiction also can be considered. ADMIT.
Civil Application No.3812 of 2012 to be heard along with main First Appeal."
4. It would be relevant to record at this stage about the subsequent development which has taken place pending this appeal. Original defendant Nos.2 and 3 - respondent Nos.2 and 3 had preferred Civil Application No.3812 of 2012 raising the preliminary objections with regard to the maintainability of the present appeal for the want of pecuniary jurisdiction on 27.03.2012. It further appears that the original defendant No.5 had moved Civil Application (for orders) No.10800 of 2013 on 12.09.2013. The respondent Nos.2 to 5 were represented by the learned advocate Mr. Dipen C. Desai. The aforesaid Civil Application filed by the original defendant No.5 was moved seeking permission of this Court to delete his name from the Page 10 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 proceedings on the ground that the original plaintiffs have entered into compromise in respect of the land bearing Block No.76, whereby the original plaintiffs have accepted him as an exclusive owner of the aforesaid parcel of land and thus, waived their right to challenge the registered sale deed dated 30.03.2010 executed in favour of the original defendant No.5 in respect of Block No.76. Along with such application, the original defendant No.5 had placed on record the "Karar Dad" executed between the plaintiffs and the original defendant No.5, which was placed on record before the learned Senior Civil Judge in pending Special Civil Suit No.676 of 2010 vide Exhibit 58. The learned trial Court below by order dated 27.11.2012 had accepted such compromise by recording the same. At the same time, the trial court observed that such compromise in no manner would affect or prejudice the rights of the parties, more particularly, the original defendant No.5. The learned trial Court further directed to draw the compromise decree in terms of the aforesaid settlement in so far as Block No.76 is concerned, the compromise decree was drawn accordingly, which has been placed on record in the aforesaid Civil Application. It further transpires that upon hearing the learned advocates appearing for the respective parties including the learned advocate Page 11 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 appearing for the original defendant No.5- respondent No.5, therein represented by Mr. Nilesh M. Shah, this Court vide oral order dated 29.11.2013 granted prayer in favour of the respondent No.5 thereby permitted to delete the name of original respondent No.5 from present appeal. The oral oral dated 29.11.2013 passed in Civil Application (for orders) No.10800 of 2013 is reproduced as under:
"1. The present application is for seeking deletion of the name of the applicant who is original opponent - respondent in First Appeal No.3827/11.
2. Mr.Nanavati, learned counsel appearing for the opponents no.1 to 4 herein - original appellants original plaintiffs states that he has no objection if the applicant is deleted from the proceedings of the main First Appeal.
3. No other adverse circumstance is brought to the notice of this Court.
4. So far as the original plaintiffs - appellants are concerned, if he has no objection, in our view, it would take care of the situation.
5. Under the circumstances, the applicant is permitted to be deleted as party respondent no.5 in First Appeal No.3827/11. Disposed of accordingly. However, it is observed that rights and contentions of all other parties in First Appeal No.3827/11 shall remain open and shall not be prejudiced by deletion of the applicant herein."
5. In light of aforesaid subsequent development, present appeal Page 12 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 is essentially surviving for consideration of challenge to the sale deed in favour of the defendant No.1 i.e. the First Appeal survives challenge to the order dated 14.09.2011 passed by the learned 5 th learned Senior Civil Judge, Vadodara below Exhibit 48 application in Special Civil Suit No.66 of 2010 in respect of the suit land i.e. Block No.85.
6. We have heard Mr. Maulik Nanavati, learned advocate appearing for the appellants - original plaintiffs, Mr. Dipen C. Desai, learned advocate representing the respondent Nos.2 to 5 and Mr. Nilesh M. Shah, learned advocate appearing for the respondent No.1 - original defendant No.1.
7. On previous occasion, when the First Appeal was taken up for final hearing, Mr. Dipen C. Shah, learned advocate appearing for the respondent Nos.2 to 5, had moved office note seeking permission for withdrawal of his appearance. However, since the letter of withdrawal of appearance, having wrongly addressed to the original appellants instead of respondent Nos.2 to 5, such permission of withdrawal of appearance was not allowed as observed in the order dated 26.09.2022. On the next date of Page 13 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 hearing, Mr. Dipen C. Shah, learned advocate appearing for the respondent Nos.2 to 5 had clearly conceded that in view of the compromise arrived at by the original plaintiffs with original defendant No.5 in whose favour lastly the sale deed dated 30.03.2010, which confers exclusive ownership right in respect of the suit land bearing Block No.76 having been accepted, the challenge to the earlier sale deeds in respect of very parcel of land no more requires adjudication. On the other hand, Mr. Maulik Nanavati, learned advocate appearing for the original plaintiffs submitted that while accepting the compromise, the learned Senior Civil Judge as well as this Court while passing the order of deletion of respondent No.5 from the proceedings of the First Appeal, have categorically observed that such compromise would in no manner have any bearing in respect of dispute with other parties are concerned.
8. At the outset, we take notice of compromise terms arrived at between the parties, more particularly, the original plaintiffs - appellants herein and respondent No.5, who is the last purchaser of the land bearing Block No.76 is concerned. Having accepted the original defendant No.5 - respondent No.5 herein as an exclusive Page 14 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 owner of the suit land bearing Block No.76, the challenge put forward by the original plaintiffs - appellants herein in so far earlier sale deeds dated 04.10.1999, 20.10.1999 and 25.07.2002/ 30.30.2010 executed in favour of the original defendant Nos.2 to 4 does not survive. Thus, we are of the considered opinion that the challenge to the order dated 14.09.2011 passed by the learned 5 th Senior Civil Judge, Vadodara, below Exhibit 33 filed by the original defendant Nos.2 to 5 stands modified in terms of decree drawn by the learned Senior Civil Judge, Vadodara, in Special Civil Suit No.676 of 2010.
9. The only question which falls for our consideration in the present appeal is that whether the learned trial Court committed error while passing the impugned order dated 14.09.2011 below Exhibit 48 in respect of second suit land i.e. Block No.85 with regard to the registered sale deed dated 04.10.1999 executed by the plaintiff No.2 in favour of the original defendant No.1.
10. At the outset, Mr. Maulik Nanavati, learned advocate appearing for the appellants has invited our attention to the impugned order dated 14.09.2011 passed below Exhibit 33 and Page 15 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 Exhibit 48 and has submitted that the learned trial Court has committed grave error of law by not appreciating that the suit filed by the original plaintiffs could not have been dismissed partly while holding partly maintainable. He further invited our attention to the fact that originally the learned trial Court while passing the order below Exhibit 33 had partly rejected the plaint and had partly held the suit maintainable qua the defendant Nos.4 and 5. At this stage, he invited our attention to the order passed below Exhibit 33 and further relied upon decision of the Hon'ble Apex Court in the case of Sejal Glass Limited vs. Navilan Merchants Private limited, reported in ( 2018) 11 SCC 780 to contend that the Suit cannot be dismissed once the Court has satisfied that the Suit is maintainable qua other reliefs.
11. He submitted that the learned trial Judge committed error in entertaining application under Order VII, Rule 11(d) of the Code by rejecting plaint qua the original defendant No.1 only on the ground of limitation. He submitted that considering the nature of dispute involved in the facts and circumstances of the case, the learned trial Judge has failed to appreciate that the question of limitation though raised was mixed question of law and fact. Page 16 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022
12. Mr. Maulik Nanavati, learned advocate further referred to the averments made in the plaint and submitted that on bare perusal of the pleadings, one can notice that the original plaintiffs in no uncertain terms had made specific averments with regard to the manner in which fraud was committed in obtaining signature on the so called sale deeds executed in favour of the original defendant Nos.2 and 3. He further submitted that specific case was put forward by the original plaintiffs that two sale deeds dated 04.10.1999, one executed in favour of the original defendant No.1 and another executed in favour of the original defendant No.2, were created as part of conspiracy hatched by the original defendant No.6 Punambhai Nathabhai Patel, who is alleged to be aware about the fact of the suit land being continued in actual possession of the plaintiff Nos.1 and 2 irrespective of the family settlement drawn amongst the heirs of the original owner Maganbhai Ranchhodbhai Patel. He further submitted that the very fact of both the sale deeds were got registered on 04.10.1999 supported the version of the appellants to contend that the defendant No.6 in collusion with the defendant Nos.1 and 2 had obtained signatures under misrepresentation that their signatures were required for correction of possession of the respective land Page 17 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 as per the original family distribution agreement. At this stage, he invited attention of this Court to the pleadings in the plaint and submitted that the learned trial Judge has committed gross error in recording that no averments have been made in the plaint as regards the allegations of fraud being committed in respect of the land bearing Block No.85, the sale deed of which alleged to have been executed in favour of the original defendant No.1. He, therefore, submitted that present First Appeal is required to be entertained as the findings recorded by the learned trial Court is not only erroneous, but against the well settled principles of law as regards the manner in which the application under Order VII, Rule 11(d) of the Code is otherwise to be adjudicated.
13. On the other hand, the aforesaid submissions made by the learned advocate appearing for the appellant has strongly been objected by Mr. Nilesh M. Shah, learned advocate on record for the original defendant No.1 - respondent No.1 herein. Mr. Shah, learned advocate invited our attention to the affidavit in reply filed by Manibhai Hirabhai Patel and supported the impugned order dated 14.09.2011 passed by the learned Senior Civil Judge below Exhibit 48. He has submitted that pursuant to the sale deed Page 18 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 executed way back in the year 1999, the mutation entry bearing No.494 dated 08.10.1999 was promptly entered in the revenue record. Pursuant to which notice under Section 135(D) of the Bombay Land Revenue Code was served upon the appellants. Ultimately, the aforesaid mutation entry No.494 was certified in the month of December, 1999. He further submitted that the aforesaid facts have been stated in the original application Exhibit 48 while raising the issue that the plaint being barred by law of limitation. He further submitted that the original defendant No.1 had approached the concerned Civil Court by filing Regular Civil Suit No.833 of 2010 seeking declaration and permanent injunction for very same parcel of land bearing Block No.85. He further submitted that along with the aforesaid Suit, the respondent No.1 had also preferred application seeking temporary injunction to the effect that the defendants, their servants etc. i.e. the appellants be restrained from interfering with the possession of the plaintiffs. It was alleged that the appellants were forcibly trying to take away the possession of the suit land. He further invited attention of this Court to the reasons recorded by the concerned Court while deciding Exhibit 5 application in Regular Civil Suit No.833 of 2010 and submitted that the learned trial Court has believed the case of Page 19 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 the respondent No.1 herein having purchased the suit land from plaintiff No.1 by registered sale deed and the possession being with the respondent No.1 herein and at the same time, had recorded the fact that the defendants have failed to produce any evidence to show that the suit land was in possession of the present appellants. He therefore, prayed that considering the aforesaid facts, learned 13th Senior Civil Judge, Vadodara, was pleased to allow Exhibit 5 application thereby granting prayer of the respondent No.1 herein by an order dated 18.09.2010. He further invited attention of this Court to the written statement filed by the present appellants in the aforesaid Regular Civil Suit. He further submitted that though fraud is alleged to have been contended, the learned trial Court has rightly not accepted illusory case put forward by the original plaintiffs - appellants herein. He supported the impugned order dated 14.09.2011 passed by the learned trial Court.
14. Mr. Nilesh Shah, learned advocate for the respondent No.1 has relied upon the recent decision of the Hon'ble Apex Court in the case of C.S. Ramaswamy Vs. V.K. Senthil & Ors. decided on 30.09.2022 in Civil Appeal No.500 of 2022 and allied matters. He Page 20 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 invited our attention to the various decisions quoted in the aforesaid case and has submitted that applying the ratio laid down by the Hon'ble Apex Court in earlier decision, the Hon'ble Apex has ultimately quashed and set aside the orders of both the Courts below, who had otherwise refused to reject the plaint in exercise of powers conferred under Order VII, Rule 11(d) of the Code. Considering the aforesaid decision, Mr. Shah strenuously urged that in light of the facts of the present case where registered sale deed in favour of the respondent No.1 - original defendant No.1 being executed way back in the year 1999 to be precised on 04.10.1999 and the Suit being filed on 18.12.2010, the learned trial Court has rightly held the Suit being barred by law limitation qua defendant no.1 and hence, directed to reject the plaint qua the original defendant No.1 as per Article 58 of the Limitation Act. He, therefore, prayed to not to entertain present appeal.
15. We have sufficiently heard the learned advocates appearing for the respective parties and have carefully perused the records of the captioned appeal. We have also scrutinized the impugned order dated 14.09.2011 passed below Exhibit 33 and 48 in light of the averments made in the plaint of Special Civil Suit No.676 of Page 21 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 2010. Before we examine the merits of the case, we would like to hurriedly examine the legal position as settled by the Hon'ble Supreme Court in various decisions as regards the provisions of Order VII, Rule 11(d) and more particularly, in the case where the averments of fraud is involved.
16. There cannot be a dispute of proposition which has otherwise been consistently laid down by various decisions. Even the recent decision delivered by the Apex Court as relied upon by the learned advocate appearing for the respondent No.1 in case of C.S. Ramaswamy (Supra), on the very same line, the Hon'ble Apex Court has after analyzing the various case laws on this subject, has again clearly opined that if the suit proceedings are clearly barred by law of limitation by smart pleadings, the same cannot be maintained by the plaintiffs. We would like to quote relevant observations contained in celebrated decision of the Hon'ble Apex Court in case of T. Arvindandam Vs. T.V. Satyapal reported in (1977) 4 SCC 467, wherein considering the very same provisions i.e. Order VII, Rule 11 of the Code has observed in para 5, which reads as under:
Page 22 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022
C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 "5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits."
17. Even in the case of Church of Christ Charitable Trust & Educational Charitable Society Vs. Ponniamman Educational Trust reported in (2012) 8 SCC 706. the Hon'ble Apex Court in para 13 has observed and held as under:
"13. While scrutinising the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue."Page 23 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022
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18. In the case of ABC Laminart (P) Ltd. Vs. A.P. Agencies reported in (1989) 2 SCC 163, the Hon'ble Supreme Court has explained the meaning of cause of action as follow:
"12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in 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. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
19. In case of Sopan Sukhdeo Sable Vs. Charity Commissioner reported in (2004) 3 SCC 137, the Hon'ble Supreme Court has observed in paras 11 and 12 as under:
"11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.Page 24 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022
C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022
12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467].)"
20. In the case of Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal reported in (2017) 13 SCC 174, the observations made in para 7 by the Hon'ble Supreme Court, which reads as under:
"7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even Page 25 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. 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."
21. In light of the aforesaid decisions, there is no denial of proposition as consistently laid down and opined that if such proceedings are clearly barred by law of limitation, the Courts within their ambit can reject the plaint by strictly adhering to the provisions of Order VII, Rule 11 of the Code. However, at the same time, the Court would also like to remind the legal position as regards the issue of limitation being mixed question of law and facts which invariably appears on facts of each case. At this stage, we would like to examine the provisions of the Order VII, Rule 11(d) of the Code, which abstract is reproduced as under:
"11. Rejection of plaint.-- The plaint shall be rejected in the following cases:--
(a).....
(b).....
(c) .....
(d) where the suit appears from the statement in the plaint to be barred by any law; "
22. From the aforesaid provisions, it can be carved out that to Page 26 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 consider the application for rejection of plaint under Order VII, Rule 7 of the Code, especially clause (d), the averments made in the plaint solely are required to be looked into. The Hon'ble Supreme Court in various decisions has time and again laid down aforesaid proposition. In the case of Popatlal and Kotecha Property Vs. State Bank of India Staff Association reported in 2005(7) SCC 510, the Hon'ble Supreme court has observed and held as under:
(Para 19 and 20) "19. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation.
Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.
20. Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by searching examination of the party in case the court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 Page 27 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 of the Code can be exercised."
23. Further in the case of Pawankumar Vs. Babulal Sons since deceased through legal representative, reported in 2019(4) SCC 367, the Hon'ble Supreme Court has held as under:
"13. In the present case, the controversy has arisen in an application under Order VII Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the Plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject matter of assessment at the stage when application under Order VII Rule 11 CPC was taken up for consideration. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not. We may quote the following observations of this Court in Popat and Kotecha Property vs. State Bank of India Staff Association:
"10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force."
24. This Court (Coram: Hon'ble Mr. Justice J.B. Pardiwala and Page 28 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 Hon'ble Ms. Justice Vaibhavi D. Nanavati) in the case of Bardoli Shreerang Exhibitors Private Ltd. Vs. Maheshbhai Babubhai Hirpara in CAV Judgment dated 28.09.2021 passed in First Appeal No.1774 of 2020 along with Civil Application (for stay) No.1 of 2020, while dealing with the order passed by the Court below rejecting the plaint under the provisions of Order VII, Rule 11(a) and (d) of the Code, had elaborately dealt with similar issue wherein after taking into consideration the fact that the Court below had committed error in rejecting the plaint on the ground of no cause of action and limitation, had allowed appeal. This Court thus, observed as under:
"28. The controversy between the parties seems to be confined to Order 7, Rule 11(d), as the period of limitation has been used as a propulsion by the learned counsel appearing for the defendants in their quest for getting the plaint rejected.
29. To consider an application for rejection of the plaint under Order 7, Rule 11 CPC especially under clause (d), the averments made in the plaint are only to be looked in. To elaborate further, we may refer to and rely upon the case of Popat and Kotecha Property vs. State Bank of India Staff Association, reported in (2005) 7 SCC 510, wherein it has been held as follows:
"19. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to Page 29 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hairsplitting technicalities.
20. Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by searching examination of the party in case the court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised."
30. The aforesaid judgment was relied upon in the case of Hardesh Ores (P) Ltd. vs. Hede and Company, reported in (2007) 5 SCC 614, wherein it has was held as follows:
"33. The respondent sought rejection of the plaint by filing application under Order 7 Rule 11 CPC contending that the suit was barred by limitation on the face of it. It was contended before the High Court as also before us that the plaint has been cleverly drafted to give it the appearance of a simple suit for injunction to enforce the terms of clauses 15 and 20 of the agreement which incorporated negative covenants prohibiting mining operation by anyone else except the appellant Hardesh, or without its permission. It was submitted before us that the law is well settled that the dexterity of the draftsman Page 30 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 whereby the real cause of action is camouflaged in a plaint cleverly drafted cannot defeat the right of the defendant to get the suit dismissed on the ground of limitation if on the facts, as stated in the plaint, the suit is shown to be barred by limitation. In T. Arivandandam vs. T.V. Satyapal this Court observed 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 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."
31. Mr.Marshall, the learned senior counsel appearing for the plaintiff, while making good his submission that the question whether the plaint was barred by any law and can only be decided after the evidences are led, has relied upon the case of Pawan Kumar vs. Babulal since deceased through Legal Representative and others reported in (2019) 4 SCC 367. It has been held therein as follows:
"13. In the present case, the controversy has arisen in an application under Order 7 Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect Page 31 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 which must be gone into on the strength of the evidence on record. Going by the averments in the plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject- matter of assessment at the stage when application under Order 7 Rule 11 CPC was taken up for consideration. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not."
32. We are of the view that the plaint could not have been rejected on the ground that the suit is time-barred. The plaintiff, in no uncertain terms, has pleaded in the plaint that he came to know about the execution of the sale deeds only when the defendants nos.7 and 8 filed their written-statement Exh.86 in the Regular Civil Suit No.47 of 2011. The court below has gone to the extent of ascertaining the veracity of such statement made in the plaint. The court below imputes bad faith to the plaintiff saying that the plaintiff intentionally has not stated the date of filing of the said writ-statement. The entire approach of the court below, in our view, is not correct. In so far as the rejection of the plaint on the ground of limitation is concerned, it is needless to emphasize that limitation is a mixed question of fact and law. When it is the specific case of the plaintiff that he came to know about the sale deeds at the time when the written statement came to be filed in the civil suit referred to above, such averments may or may not be true, but if the plaintiff succeeds in establishing the above averments, the issue of limitation cannot be put against the plaintiff.
33. The averment made in the plaint appears to be candid and does not intend to camouflage the intention of the plaintiff to circumvent Order 7 Rule 11(d) CPC. The averment made in the plaint on close introspection does not indicate a bogus or a frivolous litigation or an illusory Page 32 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 drafting to obviate the obstacle of Order 7 Rule 11(d) CPC. The application filed under Order 7 Rule 11 CPC appears to have been done as a matter of course as the averments made in the same suggest.
34. When limitation is a pure question of law and from the pleadings itself it becomes apparent that a suit is barred by limitation, then, of course, it is the duty of the court to decide limitation at the outset even in the absence of a plea. However, in cases like the one on hand, where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved. (see Narne Rama Murthy vs. Ravula Somasundaram, 2005 (6) SCC 614)
35. Time and again, this Court has, in many orders, explained stating that a plea of limitation cannot be decided as an abstract principle of law divorced from the facts as in every case the starting point of limitation has to be ascertained, which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question, whether the words 'barred by law' occurring in Order 7 Rule 11(d) CPC would also include the ground that it is barred by law of limitation, has been considered by the Supreme Court in the case of Balasaria Construction Pvt. Ltd. vs. Hanuman Seva Trust and others, decided on 8th October 2005), held as under :
"After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the paint it cannot be held that the suit is barred by time."
36. What is a pure question of fact or of law or of a mixed question of law and fact and how the court should approach and decide them have been set at rest by the Page 33 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 Supreme Court in Sree Meenakshi Mills' case [1957] 31 ITR 28. On all these aspects, Venkatarama Ayyar J., speaking for the court, has expressed thus (at p. 39) :
"Considering the question on principle, when there is a question of fact to be determined, it would usually be necessary first to decide disputed facts of a subsidiary or evidentiary character, and the ultimate conclusion will depend on an appreciation of these facts. Can it be said that a conclusion of fact, pure and simple, ceases to be that when it is in turn a deduction from other facts ? What can be the principle on which a question of fact becomes transformed into a question of law when it involves an inference from basic facts ? To take an illustration, let us suppose that in a suit on a promissory note, the defence taken is one of denial of execution. The court finds that the disputed signature is unlike the admitted signatures of the defendant. It also finds that the attesting witnesses who speak to execution were not, in fact, present at the time of the alleged execution. On a consideration of these facts, the court comes to the conclusion that the promissory note is not genuine. Here, there are certain facts which are ascertain, and on these facts, a certain conclusion is reached, which is also one of fact. Can it be contended that the finding that the promissory note is not genuine is one of law, as it is an inference from the primary facts found ? Clearly not. But it is argued against this conclusion that it conflicts with the view expressed in several English decisions, some of them of the highest authority, that it is a question of law that inference is to be drawn from facts. The fallacy underlying this contention is that it fails to take into account the distinction which exists between a pure question of fact and a mixed question of law and fact, and that the observations relied on have reference to the latter and not to the former, which is what we Page 34 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 are concerned with in this case."
37. In between the domains occupied respectively by question of fact and of law, there is a large area in which both these question run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as the mixed question of law and fact. These question involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether the defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site, that the defendant is the owner of the adjacent residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive ? Is it as of right or permissive in character ? Thus, for deciding whether the defendant has acquired title by adverse possession, the court has firstly to find on an appreciation of the evidence what the facts are. So far, it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse possession, and decide whether on the facts established by the evidence, the requirements of law are satisfied. That is a question of law. The ultimate finding on the issue must, therefore, be an inference to be drawn from the facts found, on the application of the proper principles of law, and it will be correct to say in such cases that an inference from facts is a question of law. In this respect, mixed questions of law and fact differ from pure questions of fact in which the final determination equally with the finding or ascertainment of basic facts does not involve the application of any principle of law.
38. This Court, while deciding the Appeal from Order filed by the other side against the grant of injunction below Exh.5, observed in no uncertain terms that the question of limitation in the case on hand is one of facts and would Page 35 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 be decided only during the trial. It is very disturbing to note that the court below just ignored such findings recorded by this Court.
39. It has been the case of the plaintiff from day one that the existence of the sale deeds came to his knowledge only when the defendants filed their written statement in the Regular Civil Suit No.47 of 2011. The question of deemed knowledge of a registered document was also considered by this Court while deciding the Appeal from Order referred to above.
40. The Issue of limitation may be addressed by us from a different perspective. So far as the law of limitation is concerned, it does not bar the institution of the suit, it merely bars the remedy. As a piece of substantive law, it may result in extinguishment of the right if the action is not commenced within a particular time, or as a piece of procedural law, it may merely bar the claim. Where a party to the suit sets up the plea of limitation, the court is required to consider (a) the cause of action in the suit; (b) when the cause of action commenced; and (c) the result of non-action by the plaintiff. In these premises, the question of limitation cannot be called a pure question of law, it would rather be mixed question of law and fact.
41. We also take notice of the fact that the plaint has also been rejected on the ground that the plaintiff has no cause of action to file the suit. There appears to be a serious misconception of law in the mind of the courts below that once the suit is found to be time-barred, the cause of action automatically becomes illusive. In many orders which came up before us in appeals such line of reasoning could be noticed. In the case on hand, on a fair reading of the application Exh.142 filed by the defendants under Order 7, Rule 11 CPC, it is clear that the case of the defendants is that the plaintiff has no cause of action to file the suit. It is not specifically pleaded by the defendants that the plaint does not disclose any cause of action. The court below has also not recorded any specific finding to this effect. From the discussion in the order, it appears that the court below has failed to maintain the fine distinction between the plea that there was no cause of action for the suit and the plea that the Page 36 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 plaint does not disclose a cause of action. No specific reason or ground has been stated in the impugned order in support of the finding that the plaint is to be rejected under Order 7, Rule 11(a) CPC. From the averments in the plaint, it is clear that the plaintiff has pleaded a cause of action for filing the suit seeking the reliefs stated in it. That is not to say that the plaintiff has a cause of action to file the suit for the reliefs sought for. That question is to be determined on the basis of the materials (other than the plaint) which may be produced by the parties at an appropriate stage in the suit. For the limited purpose of determining the question whether the plaint is to be rejected under Order 7, Rule 11(a) CPC or not, the averments in the plaint are only to be looked into.
42. We also take notice of the fact that the court below has discussed Section 19(1)(g) of the Partnership Act, 1932, and Section 23 of the Contract Act. How the court could have gone into all such issues while considering the plea for rejection of the plaint.
43. In the overall view of the matter, we are convinced that the court below committed a serious error in rejecting the plaint.
44. We sum up our final conclusions :
(1) Undoubtedly, Order 7, Rule 11(d) of the CPC provides that the plaint shall be rejected in case when the suit appears from the statement in the plaint to be barred by any law. The object behind the said provision of law is to avoid manifestly vexatious and meritless litigation and to protect the parties being unnecessarily harassed by others. The clause
(d) of Rule 11 of the Order 7 of the CPC would apply to the cases when it would reveal from the contents of the plaint that the suit is barred. In other words, in order to enable the court to arrive at the conclusion that the suit filed by plaintiff is barred, the pleadings in the plaint should apparently disclose the facts revealing the bar to the suit instituted by the plaintiff.
The conclusion under clause (d) regarding the bar to the suit cannot be arrived at on the basis of materials extraneous to the pleadings in the plaint. The jurisdiction of the court to take action under Order 7, Page 37 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 Rule 11(d) of the CPC can arise only in case where the pleadings in the plaint are sufficient to disclose the bar to the suit, and not otherwise. Of course, the jurisdiction can be exercised at any stage of the suit, however, the decision under Order 7, Rule 11(d) of the CPC has to be on the basis of the pleadings in the plaint.
(2) A plaint can be rejected under the said provision of law only if the plaint on the face of it discloses the same to be barred by any law in force, and not by referring to the materials which are sought to be placed on record by the defendant in answer to the plaint. In case the defendant requires to refer to any material other than the plaint, certainly such an exercise is permissible by way of leading evidence after framing issues and satisfying the court about the non-maintainability of the suit. But the same exercise cannot be done under Order 7, Rule 11(d) of the CPC. On account of any material being available with the defendant to prove that the suit being not maintainable, the same cannot be a ground to non-suit the plaintiff by exercise of power under Order 7, Rule 11(d) of the CPC. In order to get the necessary relief on the basis of such materials, the defendant will have to lead necessary evidence by producing such materials on record in accordance with the provisions of law and only thereupon the court can take appropriate decision as regards the objection sought to be raised by the defendant regarding non-maintainability of the suit."
25. In light of the aforesaid precedents of the Hon'ble Supreme Court as well as this Court, we are of the opinion that the Court below committed serious error of law by entertaining application under order 7 rule 11(d) in light of the facts of the case. We notice that the trial court has committed serious error by recording a Page 38 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 finding that no specific averment is made in the plaint about alleged fraud, more particularly, in the case of original defendant No.1 in respect of Block No.85. Apt would be to reproduce the relevant paras of the pleadings noticed in the plaint in particular related to Block No.85. The translated version of original vernacular pleadings of the plaint is reproduced for the convenience of the Court, as under :
"(3) Among the aforementioned lands, the land of Block No - 85 - Survey No - 129, 116/3 and 114, H. 0- 90-49 is located in two parts at north and south. A narrow passage, i.e. a passage for movement with cart for the neighbouring and concerned persons exists for many years between the north and the south parts. The said narrow passage belongs to the government. The said narrow passage begins at the National Highway No - 8 and goes to the inner area. The said land has come in the share of Jayantibhai Maganabhai as per the partition. But the said land is in possession of Naranbhai Maganbhai. Similarly, the land of Block No - 76, Survey No - 102 - 110, Area H. 0- 53-62 has come in the share of Naranbhai Maganbhai. But the possession of the said land remained with Jayantibhai Maganbhai from the Page 39 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 beginning.
(4) Punamchand Nathabhai of Alamgir village knew the aforementioned fact very well.
Punamchand Nathabhai had the intention of usurping the said land. Therefore, he took Jayantibhai Maganbhai and Naranbhai Maganbhai into confidence. With the intention of committing cheating and fraud with them, he persuaded the said two persons to rectify the interchanged possession of both the lands and to sell the northern part of the land bearing Block No - 85 to Punambhai. But since he had a criminal intention in mind, he made writing on the stamp paper and obtained signatures of Jayantibhai Maganbhai and Naranbhai Maganbhai on the last page of the stamp paper as a writing for interchanging the possession by cheating them. Further, he took both the said two persons before the registrar after giving them the same understanding and got the documents for sale executed fraudulently by Page 40 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 cheating them. In fact, Jayantibhai Maganbhai was not the owner of Block No - 85, but he was the occupier of Block No - 85 by agreement. In the same manner, Naranbhai Maganbhai was not the owner of Block No - 76, but he was the occupier of Block No - 76 in the aforementioned circumstances. In such circumstances, Naranbhai Maganbhai had no rights to sell the land of Block No - 76. In the same manner, Jayantibhai Maganbhai had no rights to sell the land of Block No - 85.
(5) As stated above, Respondent No - 1 Manibhai Hirabhai Patel illegally got executed a false sale deed from Jayantibhai Maganbhai Patel on 04/10/1999 through Punambhai Nathabhai for Rs. 75000/- for the land with Revenue S. No. 129- 116/3 and S. No. 114 - Block No.85, Area Ha.0-90 Are 49 Pr. Are Assessment Rs. 10-70paisa.
Jayantibhai Maganbhai has never actually decided Page 41 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 to sell or has sold the said land to Manibhai Hirabhai Patel. But Punambhai Nathabhai i.e. Respondent No - 6 and Respondent No - 1 Manibhai Hirabhai Patel have got it written illegally and fraudulently. The fact that this document is false is also evident from the fact that there is no mention of the narrow passage or the two parts of Block No - 85 anywhere in the said sale deed. Respondent No - 1 committed this fraud-cheating in collusion with Respondent No. 6 Punambhai Nathbhai since Punambhai had the knowledge of the interchanged possession.
Therefore, this suit has been filed to get cancelled the sale deed dated 04/10/1999 of the Block No -
85.
--------------------
(10) The ownership of this entire disputed lands as per the above details, i.e. the lands of Block no. 85 and Block no. 76 is pertaining to us - the Plaintiffs only. This land has been allotted to Page 42 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 us with the rights of ownership and possession as Homestead (Gharkhed). Hence, we - the Plaintiffs have filed this suit to get the reliefs to get the declaration that the said lands are of our ownership and of possession and occupancy and the Opponents might not illegally usurp or make to usurp the possession or ownership (of the said land) by executing fake and illegal documents as mentioned above which are produced by the Opponents - Or - shall not obstruct or prevent the possession of the Plaintiffs by any means. This suit has been filed to get such permanent injunction /warning .
(11) Opp. no. 1 has filed a suit against us -
the Plaintiffs in the Court of Hon'ble Civil Judge - S.D. of Vadodara vide Regular Suit no. 833 / 2010 on 07/08/2010. In which they have misled the Resp. Court and had succeeded in getting the Confirmation of Stay Order dtd. 18/09/2010.
Against this Stay Order, we - the Plaintiffs have Page 43 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 filed Appeal no. 180/2010 in the Court of Hon'ble District Judge of Vadodara and this appeal is pending. In this case, we - the Plaintiffs have made the representation according to the details as mentioned above to cancel the Stay Order, also an application is submitted to draw the Panchnama (Panchkyas) of the road - narrow passage and possession of the land in dispute. The hearings of all these Applications as well as the Appeal are pending.
(13) Cause for Suit :- The cause for the suit has been arisen in the jurisdiction of the Hon'ble Court is such that, at the time when the Opponents have falsely executed the Sale Deeds of Date : 04/10/1999, Dt. 28/10/1999, Dt. 25/07/2002 and of Dt. 30/03/2010 by cheating - and - when the Reg. Suit no. 833/2010 was registered on 07/08/2010 - and - when the Opponent have tried to usurp the possession of the said land at the same time. Hence, due to these reasons the suit have been filed."
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26. We also find that the learned trial Court not only ignored the aforesaid pleadings made by the original plaintiffs in the plaint, but at the same time, committed serious error of law. First, the trial court fall in serious error of law by deciding the application under order 7 rule 11, by holding suit being partly maintainable and at the same time partly rejecting the plaint, in view of the decision of the Hon'ble Apex court in the case of Sejal Glass ( Supra). Secondly, by treating the issue of limitation in the facts of the case as "question of law". As observed earlier while dealing with the application under Order VII, Rule 11, the Courts are expected to strictly adhere to the averments made in the plaint and are not required to look beyond. It is true that the disputed sale deed is a registered document executed way back in the year 1999 to be precised on 04.10.1999 in respect of the suit land bearing Block No.85 and the suit being Special Civil Suit No.676 of 2010 came to be filed on 18.12.2010, which is almost after a delay of 11 years, 2 months and 22 days as contended by the original defendant No.1. There cannot be dispute to the fact that once a registered sale deed is executed before the Sub-Registrar and the plaintiffs being parties to such execution, in terms of Section 3 of the Transfer of Properties Act, it can safely be presumed that the plaintiffs have Page 45 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 deemed notice cum knowledge of the execution of the registered sale deed. Had it been a case where fraud was simply alleged without further averments being made in the plaint in particular as regards the manner in which fraud is committed, it would have been a fit case to dismiss the First Appeal, considering the provisions of the Order VII, Rule 11(d). But at the same time, in light of the facts of the case, we notice specific averments for fraud being made by the plaintiffs coupled with the right to first accrued to approach court. On bare reading of the averments made in the plaint coupled with the facts that two registered sale deeds in respect of two different parcels of land came to be registered on the same day and additionally the averments being raised by the plaintiff about the exchange of lands as per family settlement being not implemented, prima facie lead us to believe the case put forward by the plaintiffs with regard to the fraud requires close examination. We are of the opinion that present case does not fall in the case where simplicity fraud has been alleged. In fact, the examination of the plaint further reveals that specific allegations of misrepresentation have been made wherein the role of defendant No.6 - Punambhai Nathabhai Patel has also been specifically averred who in collusion with defendant Nos.1 and 2 is alleged to Page 46 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 have created false and fabricated sale deeds. In such circumstances, the case of plaintiff as regards the fact of right to sue first accrued to approach the Court is not merely a "question of law" but a "mixed question of law and fact", and requires close examination by providing an opportunity of leading evidence to establish their case.
27. It is specifically averred by the plaintiffs under the head of cause of action that cause arose when the original defendant No.1 filed Regular Civil Suit No.833 of 2010 on 07.08.2010. We could notice that the present Suit being Special Civil Suit No.676 of 2010 has been filed immediately within a period of 3 months thereafter on 25.11.2010. Mere filing of the Suit after Exhibit 5 application being allowed in favour of the original defendant No.1 in Regular Civil Suit No.833 of 2010 will have no bearing as contended by the original defendant No.1 - respondent No.1 herein. Thus, we are of the considerate opinion that present facts of the case does not fall in the category of "simplicity fraud" as question related to law of limitation, in facts of the case is required to be closely examined based on evidence which may be brought on record by either side. At this stage, it would be appropriate to reproduce the relevant Page 47 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 provisions of Limitation Act.
"Article 58 of the Limitation Act Description of suit Period of limitation Time from which period begins to run To obtain any other declaration Three years When the right to sue first accrues "
From a cursory look of the provision of the said Article, the period of limitation prescribed is for three years from the date when the right to sue first accrues. It is easily discernable that apart from the declaratory suits mentioned in Articles 56 and 57, any other declaratory suit should be filed within three years from the date when right to sue first accrues. Thus, the question arose for consideration before the Court as to when does a right to sue accrue to the plaintiff within the meaning of Article 120 of the Limitation Act, 1908 or within the meaning of Article 113 and 58 of the Limitation Act, 1963. In the decision referred herein above, it has been held there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. In the decision of the Privy Council reported in AIR 1930 PC 270 [Mt.Bolo vs. Mt. Page 48 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 Koklan and others], their Lordships of the Privy Council observed as follows :-
"There can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted."
A similar view was reiterated in the case of C. Mohammad Yunus vs. Syed Unnisa and others[AIR 1961 SC 808] in which the Hon'ble Supreme Court observed :
"the period of 6 years prescribed by Article 120 has to be computed from the date when the right to sue accrued and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right."
In the case of C.Mohammad Yunus (supra), the Hon'ble Supreme Court held that the cause of action for the purposes of Article 120 of Limitation Act, 1908 (corresponding to Article 113 or Article 58 of the Limitation Act, 1963 ) accrues only when the right asserted in the suit is infringed or there is atleast a clear and Page 49 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 unequivocal threat to infringe that right. The Court further noted that the mere existence of an adverse entry into the revenue record cannot give rise to cause of action.
28. In light of aforesaid legal position, in the case on hand, the burden to prove would lie upon the plaintiffs as averred in the plaint about the rights to sue accrued first which according to the original plaintiffs is date when the plaintiffs were served with the summons of Regular Civil Suit No.833 of 2010. We are conscious of the fact about the specific defense being raised by the original defendant No.1 of the fact about certification of mutation entry bearing No.494 dated 28.10.1999 entered into revenue record. However, without going to that extent, what is essential at this stage of deciding order 7 rule 11 is that the Legislation has clearly suggested the period of limitation to be counted from the date of cause of action when accrued first. Again looking into the defence raised in written statement / affidavit in reply filed by the original defendants would amount to examining the defense irrespective of the case put forward by the plaintiffs in the plaint which would be against the legal procedure prescribe while dealing with application under order 7 rule 11. We find support of our view from the Page 50 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 decision of the Hon'ble Supreme Court in the case of Shaukathussain Mohammed Patel Vs. Khatunben Mohmmedbhai Polara reported in (2019) 10 Supreme Court Case 226, wherein the Hon'ble Supreme Court had looked into the judgment passed by this Court arising out of the application preferred by the respondents therein under the provisions of Order VII, Rule 11 of the Code. In the said case, initially the learned trial Court had rejected such application under Order VII, Rule 11 and the High Court in its revisional jurisdiction had allowed and quashed and set aside the order passed by the learned trial Court. The facts in aforesaid case as recorded by the Hon'ble Supreme Court seems to be that Special Civil Suit No.204 of 2016 was filed before the Court of learned Principal Senior Civil Judge, Surat contending that by deception registered sale deed was executed on 21.03.2008 in respect of land situated in village: Bhanodara, Dist. Surat, Gujarat. The defendants therein preferred an application under Order VII, Rule 11 seeking rejection of the plaint. This Court from overall reading and upon consideration of the relevant proposition, arrived at finding that the litigation was generated after more than a period of 8 years and therefore formed opinion that the Suit is clearly barred by law of limitation. It Page 51 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 would be relevant to mention here that the plaintiffs therein had made relevant assertion as regards the cause of action and the period of limitation. The Hon'ble Supreme Court after taking into consideration the relevant assertion as regards the cause of action and limitation and upon appreciation of the prayers sought for in the suit, has observed as under:
"5. Pursuant to the application moved by the respondent- original defendant under Order VII Rule 11 of the Code, the Trial Court considered the issue and by its order dated 07.03.2017 rejected the prayer. In revision arising therefrom, the High Court by its judgment and order, which is presently under appeal, interfered in the matter and held that in terms of the provisions of Order VII Rule 11 of the Code, the plaint was required to be rejected. The High Court observed as under:
"16. From overall reading and from consideration of the relevant proposition, it appears that this being a litigation generated after more than a period of 8 years, is clearly hit by law of limitation and as such, in view of the proposition of law laid down by the Apex Court, the revision petition deserves to be allowed. Accordingly, the order impugned dated 7.3.2017 passed below Exh.16 in Special Civil Suit No.204 of 2016 is quashed and set aside hereby and accordingly, the application under Order 7 Rule 11(d) of the Code of Civil Procedure stands allowed and the plaint i.e. Special Civil Suit No.204 of 2016 is hereby rejected. Rule is made absolute with no order as to costs."
6. It is well settled that for the purposes of the provisions of Order VII Rule 11 of the Code, the entirety of the averments in the plaint have to be taken into account. Going by the version of the appellant as detailed in the Page 52 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 plaint, there was an element of deception and fraud which was practised upon him as a result of which the concerned document got entered into. It is also a matter of record that the consideration in respect of the transfer of the property in question was stated to have been paid in cash.
7. Again going by the averments made in the plaint, the information in respect of the transaction came to the knowledge only in the year 2013-2014. According to the assertions in the plaint, the plaintiff-appellant was always in possession of the property. In the entirety of the circumstances, as pleaded in the plaint, the issues raised in the matter were certainly required to be considered on merits.
8.In our view, the High Court was not right and justified in accepting the prayer and holding that the plaint was required to be rejected. We, therefore, allow this appeal, set-aside the judgment and order passed by the High Court and restore the one that was passed by the Trial Court.
9. Since the Suit now stands restored, we direct the parties to appear before the concerned Court on 25.11.2019. We also direct the Trial Court to dispose of the suit as expeditiously as possible and preferably within six months.
10. The appeal is allowed in aforesaid terms. No costs."
29. Further, it was held by the Hon'ble Apex Court in the case of C. Nataranjan v. Ashim Bai (supra) that applicability of one or other provision of the Limitation Act per se cannot be decisive for the purpose of determining the question as to whether the suit is barred under it or some other article contained in the Schedule to the said Act. In Balasaria Construction (P) Ltd. v. Hanuman Page 53 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 Seva Trust, ( 2006) 5 SCC 658, the Apex Court observed that the question of limitation is a mixed question of law and fact and on the ground of limitation a plaint cannot be rejected under Order 7 Rule 11(d) of the CPC. In Popat and Kotecha Property v. State Bank of India Staff Association,(2005) 7 SCC 510, the Apex Court observed that Order 7 Rule 11(d) is not applicable in a case where a question has to be decided on the basis of fact that the suit is barred by limitation. In light of the aforesaid decisions, as regards the contention of the defendants that the suit is barred by limitation, Art. 58 of the Schedule to the Limitation Act 1963 which pertains to a suit for declaration of cancellation of the document, in our opinion, the plaintiffs have an arguable case. This Court cannot arrive at conclusion from the statements made in the plaint that the suit is barred by limitation ignoring the specific case of fraud pleaded in the plaint. The power exercised under order 7 rule 11 of rejecting plaint at very threshold is very drastic and therefore before the Court can reject the plaint under O.7 R. 11(d) of the CPC the Court is expected to be absolutely sure that a suit is barred by any law from the averments made in the plaint and taking such averments to be correct. If there is any doubt in the mind of the Court, the benefit of doubt must be given to the Page 54 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 plaintiffs. In our opinion, considering the peculiar facts of the case it will not be proper to reject the plaint in this suit on the ground that the suit is barred by limitation. There are few conflicting views of various High Courts on the point as to whether or not the words 'barred by law' occurring in O. 7 R. 11(d) of the CPC would include the suit being barred by limitation.
30. We are of the considered opinion that the entirety of the averments made in plaint were required to be closely scrutinized by the Court below, while dealing with the application under the provisions of Order VII, Rule 11(d) of the Code. The learned Court below failed to consider that a very specific case was put forward by the original plaintiffs wherein the averments of deception and fraud, the manner in which it is alleged to have been practiced with regard to creation of false and fabricated documents in nature of registered sale deed was required to be gone into. From the overall reading and consideration of the aforesaid legal provisions, the law settled by this Court as well as the Hon'ble Supreme Court, in our view the entirety of facts as pleaded in plaint goes to suggest that law of limitation is a mixed question of law and fact, which can be examined either as a preliminary issue or as one of Page 55 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 the issues after evidence comes on record before the learned trial Court. Thus, the impugned order dated 14.10.2011 passed below Exhibit 48 is hereby quashed and set aside.
31. We further direct the learned trial Court to restore the suit against the original defendant Nos.1 and 6 in so far as, prayer sought for by the original plaintiffs in respect of registered sale deed dated 04.10.1999 bearing Registration No. 7266 in respect of suit land bearing Block No.85 is concerned. Since the suit stands restored. We direct the parties to appear before the Court concerned. Considering the fact that the original suit is of year 2010, we direct the learned trial Court to dispose of the suit as expeditiously as possible preferably within a period of six months from the date of receipt of this order. The appeal is allowed in the aforesaid terms.
32. We further make it clear that the observations made herein are merely prima facie for the determination of the applications seeking rejection of plaint, filed by the defendants. The same shall not be treated as any expression of opinion on the merits of the claims put forward by the parties in the suit, including the objection Page 56 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022 C/FA/3827/2011 CAV JUDGMENT DATED: 25/11/2022 that the suit is barred by the Limitation Act, 1963.
No orders are required to be passed in pending Civil Application in light of the fact that the present appeal is disposed of.
(SONIA GOKANI, J) (NISHA M. THAKORE,J) Y.N. VYAS Page 57 of 57 Downloaded on : Sat Dec 24 00:15:13 IST 2022