Gujarat High Court
Ahir Kanabhai Lakhmanbhai vs Sharadkumar Girdharlal Kotak on 29 November, 2019
Equivalent citations: AIRONLINE 2019 GUJ 691, 2020 AIR CC 732 (GUJ) (2020) 1 CURCC 323, (2020) 1 CURCC 323
Author: A. P. Thaker
Bench: A. P. Thaker
C/CRA/390/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 390 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR.JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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AHIR KANABHAI LAKHMANBHAI
Versus
SHARADKUMAR GIRDHARLAL KOTAK & 12 other(s)
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Appearance:
MR SANDEEP N BHATT(190) for the Applicant(s) No. 1
MS SONAL S BHATT(2870) for the Applicant(s) No. 1
for the Opponent(s) No. 10,3
MR HITESH V PATEL(6090) for the Opponent(s) No. 1
MR NISHANT LALAKIYA(5511) for the Opponent(s) No. 7,8,9
NOTICE SERVED BY DS(5) for the Opponent(s) No. 4,5
NOTICE SERVED(4) for the Opponent(s) No. 10.1,10.2,11,12,13,3.1,6
SERVED BY AFFIX(N)(7) for the Opponent(s) No. 2
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CORAM: HONOURABLE DR.JUSTICE A. P. THAKER
Date : 29/11/2019
ORAL JUDGMENT
1. This Civil Revision Application has been filed by the applicant -
Page 1 of 16 Downloaded on : Sat Nov 30 22:25:50 IST 2019C/CRA/390/2018 JUDGMENT original defendant No.1 under Section 115 of the Code of Civil Procedure, 1908 (hereinafter be referred to as "the CPC") challenging the impugned order dated 19th April 2018 passed below application Exhibit 38 in Regular Civil Suit No.404 of 2016 by the learned 3rd Additional Civil Judge, Rajkot whereby the learned Civil Judge has rejected the said application at Exhibit 38.
2. Brief facts of the present case are as under:-
2.1 That respondent No.1 has filed Regular Civil Suit No.404 of 2016 before the Civil Court, Rajkot for cancellation of the registered sale deeds executed in the year 1983 and for declaration and permanent injunction for the land bearing Revenue Survey No.450 situated at Near Mahila Collage Bridge, Rajkot. It is alleged that earlier Civil Suit No.495 of 1981 was decreed on 16 th October 1981 and Civil Suit No.496 of 1981 was decreed on 6th November 1981. In the execution proceedings being Execution Application No.225 of 1983 and Execution Application No.97 of 1982, various orders were passed by the Executing Court and this Court has also passed an order dated 8th December 2005 in Civil Revision Application No.1124 of 1997 wherein the respondent No.12 - original plaintiff was party and had contested all these proceedings and was well aware about such proceedings. It is also alleged that though such decree was passed in the year 1981 and the registered sale deeds were executed by the Executing Court in the year 1983, the respondent No.1 has filed Regular Civil Suit No.404 of 2016 with oblique motive only after original defendants No.1, 5 and 6 have submitted construction plan before the Rajkot Municipal Corporation. It is alleged that the agreement to sell of the suit land was executed in the year 1975 where the condition stipulated was that the land is required to be converted into Non-Agricultural Land by the seller.
That, thereafter, the Urban Land (Ceiling and Regulation) Act came into force in the year 1976 and form under Section 6(1) was filed by Page 2 of 16 Downloaded on : Sat Nov 30 22:25:50 IST 2019 C/CRA/390/2018 JUDGMENT the original landholder and accordingly, the suit land was excluded from holding of original landowner in view of the agreement to sell of 1975. It is alleged that thereafter, the applicant - defendant No.1 has filed suit before the Trial Court which was decreed and that order has been confirmed by this Court. It is alleged that the applicant herein is in possession of the suit land since agreement to sell executed. It is further alleged that after passing of the decree in the suit, the execution proceedings were filed before the Trial Court and defendant No.1 - applicant herein has deposited the remaining amount of sale consideration in the Trial Court, which came to be withdrawn by the original landowner and, thereafter, the sale deed was executed by the person appointed by the Executing Court. It is also alleged that the original plaintiff of the present suit is well aware of all the litigations and about such sale deeds since 1981 and 1983. It is alleged that only with a view to pressurize the defendants No.1, 5 and 6, the civil suit is filed which is apparently time barred and vexatious and not tenable in law.
2.2 It is alleged that defendant No.1 - applicant herein has filed an application at Exhibit 38, defendants No.5 and 6 have filed an application at Exhibit 40 and defendants No.7 and 9 have filed an application at Exhibit 52-A for dismissing the suit under Order VII, Rule 11 of the CPC in view of the averments made in the plaint and prayer made in the plaint. It is alleged that when the sale deed was executed in the year 1983, there is a long delay of almost 33 years in filing the suit. It is alleged that none of the defendants has carried out the construction on any part of the land which is ownership of the plaintiff and defendants No.1, 5 and 6 are constructing the house on their above mentioned land only after obtaining necessary permission from the Rajkot Municipal Corporation. It is further alleged that the Trial Court has not considered the point that in view of the admitted facts, the plaintiff has no locus standi or right to file the suit and such frivolous and vexatious suit filed by clever drafting Page 3 of 16 Downloaded on : Sat Nov 30 22:25:50 IST 2019 C/CRA/390/2018 JUDGMENT should not be encouraged in view of the judgment reported in (1977) 4 SCC 467. It is alleged that the plaintiff has filed the suit in the year 2016 challenging the decree passed by the Civil Court in the year 1981 and also registered sale deed executed in the year 1983 which is clearly barred only on the ground of limitation and there is no cause of action arisen for filing the suit. It is alleged that the suit itself is not maintainable in view of the provisions of the Indian Contract Act and also clearly time barred under the provisions of the CPC and the Limitation Act which suit should have been rejected by the Trial Court under Order VII Rule 11 of the CPC. On all these grounds, it is prayed to quash and set aside the impugned common order dated 19th April 2018 passed below application at Exhibit 38 in Regular Civil Suit No.404 of 2016 by the learned 3rd Additional Civil Judge, Rajkot
3. Heard Mr.Sandeep Bhatt, learned advocate for the applicant, Mr.Vimal Patel, learned advocate with Mr.Hitesh Patel, learned advocate for respondent No.1 and Mr.Nishant Lalakiya, learned advocate for respondents No.7, 8 and 9, whereas, nobody has appeared on behalf of rest of the respondents. Perused the materials placed on record and the decisions cited at the Bar.
4. After completion of the arguments and submissions on behalf of the applicant, Mr.Sandeep Bhatt, learned advocate for the applicant has placed written submissions as per permission granted by this Court. The written submissions are as under:-
1. The Trial Court has grossly erred in exercising jurisdiction by rejecting the application filed by the present applicant at Exhibit 38 and the other applications filed at Exhibit 40 and Exhibit 52-A by other defendants. The plaintiff - Sharadkumar Girdharlal Kotak has filed Regular Civil Suit No.404 of 2016 before the learned Civil Court, Rajkot for cancellation of sale deed, declaration and permanent injunction. This Hon'ble Court Page 4 of 16 Downloaded on : Sat Nov 30 22:25:50 IST 2019 C/CRA/390/2018 JUDGMENT may consider the name of parties and cause of action.
2. It is pertinent to note that the plaintiff himself was party to the proceeding of the Civil Suit No.495 of 1981 which is decreed on 16/10/1981 and Civil Suit No.496/1981 on 06/11/1981. The execution proceedings filed which is Execution Application Nos.225/1983 and 97/1982 where various order passed and Hon'ble High Cort has also passed order dated 08/12/2005 in Civil Revision Application No.1124 of 1997 where also plaintiff was party and had contested all proceedings and well aware about such proceedings. The learned Executing Court has appointed sale deeds and plaintiff has challenged decree of year 1981 and sale deeds executed on 15/10/1982, 29/12/1983 and 09/04/2009 by filing suit in December, 2016. Therefore, in view of the provision of Article 58, 59 of the Limitation Act such suit is time barred, moreover, the plaintiff has no locus and no cause of action has arisen to file such frivolous suit. Therefore, the applicant has filed an application at Exhibit 38 under O.7 R.11 of C.P.C. to reject the plaint in view of O.7 R.11(a) and also in view of O.7 R.11(d) by referring specific averments from the plaint but the learned Trial Court has, without deciding all the grounds made in applications, rejected applications by common order which is non-
reasoned and erroneous order. The suit is barred under Section 487 of B.P.M.C. Act also.
3. The applicant has challenged the impugned order by the present Civil Revision Application and this Hon'ble Court (Coram: Hon'ble Mr.Justice B. N. Karia) on 30/10/2018 has passed detailed order. This Hon'ble Court may consider observations in that order dated 30/10/2018.
4. The applicant submits that in view of Articles 58 and 59 of the Limitation Act and the plaintiff was party to the earlier suit and execution proceedings and decree of the year 1981 and sale deeds executed in the year 1983 and 2009 are challenged by the present suit filed in December 2016. Therefore, the suit is also barred by limitation and required to reject the plaint under O.7 R.11 of C.P.C.
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5. The applicant submits that the Hon'ble Supreme Court has held in the case of T. Arivandandam Vs. T. V. Satyapal, reported in (1977) 4 SCC 467 that mere clever drafting cannot save the vexatious suit if it is barred by law or no cause of action is arisen to file the suit.
Therefore, in view of the above stated submissions, the present Civil Revision Application may be allowed by quashing and setting aside the impugned judgment and order and/or by passing further order to dismiss the suit filed by respondent No.1 herein and may also grant any other appropriate relief.
4.1 Learned advocate for the applicant has relied upon the following decisions.
1. Emrald Co Operative Housing Society Ltd Vs. Decd. Gulamkadar s/o. Gulam Husain Abdulkadar and Bai Shakarbu and 7 others, 2019 (2) GLH 559.
2. Khatri Hotels Private Limited and another Vs. Union of India and another, AIR 2011 SC 3590.
3. Raghwendra Sharan Singh Vs. Ram Prasanna Singh (dead) by Lrs., AIR 2019 SC 1430.
4. Prem Singh Vs. Birbal, (2006) 5 SCC 353.
5. T. Arivandandam Vs. T. V. Satyapal, (1977) 4 SCC 467.
5. Mr.Vimal Patel, learned advocate for respondent No.1 has vehemently submitted that there are three applications filed by different defendants for rejection of the plaint and the Trial Court has passed the common order. While referring to the impugned order, he has submitted that so far as defendants No.5 to 9 are concerned, they have accepted the order and have not challenged the same. He has submitted that the suit cannot be partly dismissed under Order VII Rule 11 of the CPC. While referring to para-10 of the Page 6 of 16 Downloaded on : Sat Nov 30 22:25:50 IST 2019 C/CRA/390/2018 JUDGMENT plaint, he has submitted that the cause of action has clearly been mentioned that this is a case of fraud and, therefore, the suit cannot be said to be barred under law of limitation. He has submitted that respondents No.7 to 9 are the Rajkot Municipal Corporation and the civil revision application has not been filed by them against the impugned order. While referring to the impugned order, he has submitted that the Trial Court has not committed any error of facts and law in rejecting the application. He has submitted that the issue of limitation is required to be decided on facts and law and, therefore, the suit has to be proceeded with and the point of limitation cannot be decided in the application filed under Order VII Rule 11 of the CPC. While referring to the decisions of the Supreme Court in the case of Balasaria Construction (P) Ltd Vs. Hanuman Seva Trust and others, (2006) 5 SCC 658 and in the case of Madhav Prasad Aggarwal and another Vs. Axis Bank Limited and another, (2019) 7 SCC 158, Mr.Vimal Patel, learned advocate has submitted that in view of the decisions of the Apex Court, the relief of rejection of plaint in exercise of powers under Order VII Rule 11(d) of the CPC cannot be pursued only in respect of one of the defendant(s). He has urged to dismiss the present Civil Revision Application and confirm the impugned order passed by the Trial Court.
6. Mr.Nishant Lalakiya, learned advocate for respondents No.7, 8 and 9 has, on the line of the submissions of Mr.Sandeep Bhatt, learned advocate, submitted that the Trial Court has committed serious error in not rejecting the plaint under Order VII Rule 11(d) of the CPC. He has supported the arguments of the applicant and has prayed to pass the order rejecting the plaint.
7. In the case of Emrald Co Operative Housing Society Ltd (supra), it is found that considering the facts of that case, the Coordinate Bench of this Court has allowed the revision application Page 7 of 16 Downloaded on : Sat Nov 30 22:25:50 IST 2019 C/CRA/390/2018 JUDGMENT filed against the order of rejection of the application under Order VII Rule 10 of the CPC and allowed the revision application filed against the order of rejection of the application filed under Order VII Rule 11 of the CPC.
7.1 In the said case, there was registered sale deed of the year 1982 and it was challenged in the year 2010 and revenue entries were also mutated in the revenue records at the relevant point of time. The challenge to the transaction in question before the revenue Courts was in the year 2006 and that subsequently the suit was filed in the year 2010. In view of this fact, it was held that the question of limitation is not a mixed question of law and fact in light of such peculiar circumstances. It was also observed that the plaint is liable to be rejected at threshold. It was observed that smart drafting of a plaint cannot bring the suit within limitation and abuse of process of law cannot be allowed. It was also observed that the registration of a document is a deemed notice.
8. In the case of Prem Singh (supra), the Apex Court has held and observed in para-6 as under:-
"6..........The Schedule appended to the Limitation Act, as prescribed by the Articles, provides that upon lapse of the prescribed period, the institution of a suit will be barred. Section 3 of the Limitation Act provides that irrespective of the fact as to whether any defence is set out is raised by the defendant or not, in the event a suit is found to be barred by limitation, every suit instituted, appeal preferred and every application made after the prescribed period shall be dismissed. Article 59 of the Limitation Act applies specially when a relief is claimed on the ground of fraud or mistake. It only encompasses within its fold fraudulent transactions which are voidable transactions."
8.1 In the said decision, the Apex Court has held and observed in Page 8 of 16 Downloaded on : Sat Nov 30 22:25:50 IST 2019 C/CRA/390/2018 JUDGMENT para-8 as under:-
"8. Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable document. It provides for a discretionary relief. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is not-est in the eye of law, as it would be nullity. Once, however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59. Even if Article 59 is not attracted, the residuary Article would be. Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid. [see Unni & Anr. vs. Kunchi Amma & Ors. 1891 (14) ILR (Mad) 26 and Sheo Shankar Vir vs. Ram Shewak Chowdhri & Ors. 1897 (24) ILR (Cal) 77."
8.2 In the said decision, the Apex Court has observed in para-9 that "by reason of Article 59, the provisions contained in Articles 91 and 114 of 1908 Act had been combined. If the plaintiff is in possession of a property, he may file a suit for declaration that the deed is not binding upon him but if he is not in possession thereof, even under a void transaction, the right by way of adverse possession may be claimed. Thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void".
8.3 In the said decision, the Apex Court has held and observed in para-13 as under:-
"13.........There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid Page 9 of 16 Downloaded on : Sat Nov 30 22:25:50 IST 2019 C/CRA/390/2018 JUDGMENT in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption.......".
9. In the case of Khatri Hotels Private Limited and another (supra), the Apex Court has held and observed in para-27 as under:-
"27. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word 'first' has been used between the words 'sue' and 'accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued."
10. In the case of Raghwendra Sharan Singh (supra), the application under Order VII Rule 11(d) was filed. The Trial Court rejected the application under Order VII Rule 11(d), which order was challenged before the High Court of Patna and the same was challenged before the Apex Court wherein the Apex Court, while referring to the earlier decisions, has observed in para-8 that "considering the averments made in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC. It is also observed by the Apex Court that the averments in the plaint cleverly drafted to bring suit within period of limitation does not help the plaintiff and if it is so than Order VII Rule 11(d) can be exercised.
11. In the case of Balasaria Construction (P) Ltd (supra), while dealing with Order VII Rule 11(d), the Apex Court has left the question open regarding whether words "barred by any law" in Rule 11(d) also includes barred by the law of limitation However, it has Page 10 of 16 Downloaded on : Sat Nov 30 22:25:50 IST 2019 C/CRA/390/2018 JUDGMENT been observed therein that in view of the statement of both the parties that decision of the case would depend upon facts of earlier case. The question was left open. It has been observed that the suit could not be dismissed as barred by limitation without proper pleadings, framing of issue of limitation and taking of evidence. It has also observed therein that the question of limitation is a mixed question of law and fact and ex facie on reading of the plaint, the suit cannot be held to be barred by limitation. In the said case, there was no proper pleadings and considering the factual aspect of the case, the matter was remanded back to the Trial Court.
12. In the case of Madhav Prasad Aggarwal and another (supra), the Apex Court has held and observed in paras-10 and 12 as under:-
"10. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power under Order 7 Rule 11(d) CPC. Indeed, the learned Single Judge rejected this objection raised by the appellant(s) by relying on the decision of the Division Bench of the same High Court. However, we find that the decision of this Court in Sejal Glass Ltd is directly on the point. In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) CPC stating that the plaint disclosed no cause of action. The civil court held that the plaint is to be bifurcated as it did not disclose any cause of action against the Director's Defendant(s) 2 to 4 therein. On that basis, the High Court had opined that the suit can continue against Defendant 1 company alone. The question considered by this Court was whether such a course is open to the civil court in exercise of powers under Order 7 Rule 11(d) CPC. The Court answered the said question in the negative by adverting to several decisions on the point which had consistently Page 11 of 16 Downloaded on : Sat Nov 30 22:25:50 IST 2019 C/CRA/390/2018 JUDGMENT held that the plaint can either be rejected as a whole or not at all. The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) and/or properties, Order 7 Rule 11(d) CPC will have no application at all, and the suit as a whole must then proceed to trial.
11. xxx xxx xxx
12. Indubitably, the plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) CPC on account of non-compliance with mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses
(a) to (f) of Rule 11 of Order 7 CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part."
13. Now, considering the contentions raised by both the sides and perusing the materials placed on record, it is an admitted fact that the plaintiff - respondent No.1 herein has filed the suit being Regular Civil Suit No. 404 of 2016 against thirteen defendants for cancellation of registered sale deed and for declaration and permanent injunction alleging that he is the co-owner of the suit land and defendants No.1 and 2 have committed fraud and have executed agreement to sell. It is contended by the plaintiff that the said agreement to sell is of 23.10.1971 and is executed by fraud and the defendants have tried to encroach upon the said land illegally. He has referred to the suits being Special Civil Suit No.2 of 1991 and Regular Civil Suit No.649 of 2001 and 925 of 1990 and has stated that all the suits are still pending. It is contended by the plaintiff that defendants No.1 and 2 have not complied with the conditions of the agreement to sell. The said agreement to sell is automatically stand cancelled. He has averred that the survey No.450 is known as Aalabhai's Bhaththa and out of the suit land, Page 12 of 16 Downloaded on : Sat Nov 30 22:25:50 IST 2019 C/CRA/390/2018 JUDGMENT plot No.1 bearing 400 sq.mtr., after entering in their name and after converting into Non-Agricultural, registered in favour of the defendants. While referring to the contentions of the agreement to sell, the plaintiff has contended that one Hiralal Kothari has filed Civil Suit No.496 of 1981 for specific performance and defendant No.1 has also filed Civil Suit No.495 of 1981. While referring to the decree, it is contended by the plaintiff that the sale deed, proceedings of the suit land as well as the Bombay Prevention of Fragmentation and Consolidation of Holdings Act are void ab initio. It is contended that the decree passed is void ab initio and, therefore, it is misrepresentation and not binding to him. He has contended that as per the decree, the amount was to be deposited within 15 days from the date of decree and that was to be withdrawn by the plaintiff, but the the amount was not deposited within time and, therefore, the decree has become unexecutable. The plaintiff has contended that the Rajkot Municipal Corporation has also acquired the land admeasuring 71.76 sq.yrd. and defendants No.1 to 7 have obtained the compensation thereof. It is contended by the plaintiff that the decree is passed against only three person where there are seven persons as party to the suit.
14. While referring to the execution applications being Execution Application No.225 of 1983 and Execution Application No.97 of 1982, he has contended that in that matters, the point of breach of contract has not been discussed and, therefore, the contract as well as decree themselves are void ab initio. In para-10 of the suit, he has referred the cause of action for filing the suit. The ultimate relief sought in the suit is regarding cancellation of the registered sale deed which is subject matter of Regular Civil Suit Nos.495 of 1981 and 496 of 1981. He has also prayed for declaration that defendants No.1 to 9 have no right to pass any plan without hearing him and if there is any such approval than it may be set aside.
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15. Now, it is clear from the plaint that what he is seeking is the relief which was arising out of the earlier suit and the execution applications.
16. The present applicant and other defendants have filed application under Order VII Rule 10 of the CPC. The Trial Court has, by common order, rejected the applications on the ground that only averment of the plaint is required to be seen and the evidence is required to be led to decide the point of limitation.
17. At this juncture, it is required to refer to Order VII Rule 11 of the CPCP which 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;
[(e) where it is not filed in duplicate;] [(f) where the plaintiff fails to comply with the provisions of rule 9:] [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any Page 14 of 16 Downloaded on : Sat Nov 30 22:25:50 IST 2019 C/CRA/390/2018 JUDGMENT cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]
18. Regarding application under Order VII Rule 11(d), as to the application of the Limitation Act, recently, in the case of Raghwendra Shara Singh (supra), the main issue itself was found to be beyond limitation period, it was held therein that if from the pleadings / averments in the plaint itself suggests that the suit is clearly time barred, then under the provisions of Order VII Rule 11(d), the plaint can be rejected by the concerned Court. Now, in this case, it is an admitted facts that the plaintiff herein is challenging the decree passed in earlier suit and also registered sale deed. The fact that the plaintiff was party to the earlier proceedings have not been disputed by him. It means that he has knowledge and has participant in earlier proceedings, he also has knowledge of passing of the decree and execution of the same decree by the Executing Court. Thus, the participation in the earlier proceedings and execution of the registered sale deed at the instance of the Court, by mere adding other parties in a subsequent suit like in the present matter, the plaintiff cannot get shelter and plead that the suit is in limitation period. Considering the peculiar facts and circumstances of the case, when the plaintiff has knowledge of earlier legal proceedings and passing of decree and execution by the Court, the plaintiff cannot get any benefit by merely adding new defendants in subsequent suit with a view to get registered sale deed as cancelled and declaration and permanent injunction. In the peculiar facts of the present case, the provisions of Order VII Rule 11(d) is applicable in the present case. Of course, the rest of the respondents have not challenged the order. But, it clearly appears from the record that the suit itself is barred by law of limitation and, therefore, under Order VII Rule 11(d) is applied to the facts of the case and powers under Order VII Rule 11 of CPC is to be Page 15 of 16 Downloaded on : Sat Nov 30 22:25:50 IST 2019 C/CRA/390/2018 JUDGMENT applied and the suit is required to be dismissed.
19. On perusal of the impugned order, it is crystal clear that the impugned order of the Trial Court is not sustainable in law and deserves to be interfered with.
20. For the foregoing reasons, the present Civil Revision Application is liable to be allowed and accordingly, it is allowed. The impugned common order dated 19th April 2018 passed below application Exhibit 38 in Regular Civil Suit No.404 of 2016 by the learned 3rd Additional Civil Judge, Rajkot is hereby quashed and set aside. The application at Exhibit 38 is hereby allowed. The suit of the plaintiffs being Regular Civil Suit No.404 of 2016 stands rejected under Order VII Rule 11(d) of the CPC. Rule is made absolute to the aforesaid extent. No order as to cost.
(A. P. THAKER, J) FURTHER ORDER Learned advocate for the respondents requests to stay this order. Considering the reasons given in this order, the request is declined.
(A. P. THAKER, J) V.R. PANCHAL Page 16 of 16 Downloaded on : Sat Nov 30 22:25:50 IST 2019