Gujarat High Court
Bhanuben Kantilal Patel vs Decd. Harishchandrasinh Jadeja on 15 June, 2023
NEUTRAL CITATION
C/CRA/197/2023 JUDGMENT DATED: 15/06/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 197 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
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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BHANUBEN KANTILAL PATEL
Versus
DECD. HARISHCHANDRASINH JADEJA
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Appearance:
MR MEHUL SHAH, SR. ADVOCATE WITH MR DA SANKHESARA(5955) for
the Applicant(s) No. 1
for the Opponent(s) No. 1
MR YN OZA, SR. ADVOCATE WITH MR ADITYA A GUPTA(7875) for the
Opponent(s) No. 2
MOHIT A GUPTA(8967) for the Opponent(s) No. 2
MR DC DAVE, SR. ADVOCATE WITH MR DIGANT M POPAT(5385) for the
Opponent(s) No. 1.1,1.2,1.3,1.4,1.5,1.6,1.7
MS TRUSHA K PATEL(2434) for the Opponent(s) No. 7
NOTICE SERVED for the Opponent(s) No. 3
NOTICE SERVED BY DS for the Opponent(s) No. 4,6
UNSERVED EXPIRED (N) for the Opponent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 15/06/2023
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NEUTRAL CITATION
C/CRA/197/2023 JUDGMENT DATED: 15/06/2023
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ORAL JUDGMENT
1. By way of present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908, the petitioner - original defendant No.1/1 has called in question the order dated 13th March, 2023 passed by learned 13 th Additional Senior Civil Judge, Rajkot passed in Special Civil Suit No.53 of 2002 passed below Exh.291, whereby learned trial court was pleased to refuse to reject the plaint exercising its powers under Order VII Rule 11 of the CPC.
2. To understand and decide the controversy in its true perspective, I deem fit and appropriate to narrate facts in detail as under.
2.1 Land bearing Survey No.250 admeasuring 198.39 Acres situated at Village Raiya, Rajkot, was originally owned by late Shri Harishchandrasinhji Jadeja - original plaintiff. 2.2 A development agreement dated 01 st April, 1993 was executed between Shri Harishchandrasinhji Jadeja and Kantibhai Ambalal Patel - partner of Sai Developers - original defendant No.1, with regard to development of land and appropriation of share respectively. In the said development Page 2 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined agreement, it was also agreed that on behalf of Shri Harishchandrasinhji Jadeja, his power of attorney viz. Dhananjay Vallabhbhai Patel - original defendant No.2 would be discharging formalities till the completion of the development/scheme. To understand the agreement in its true perspective, it would be profitable to extract fair translation of relevant clauses 4 and 5.
"4. As the party of the first part is busy in other engagements, for the purpose of carrying out the above procedure and also to avoid the delay, the party of the first part has appointed their trustworthy and faithful person namely Dhananjay Vallabhabhai Patel, aged about 27 years, r/a. Shivam Society, Lalbag, Vadodara as their power of attorney holder and have given all authorities to him. That power of attorney is irrevocable. On the basis of said power of attorney, the power of attorney holder shall act till the project or scheme as per obtained sanction in above land bearing survey no. 250 of Moje Rainani is over. He shall utilize and use all the authorities mentioned in the power of attorney. That means the party of the second part have right to obtain all cooperation from the party of the first part and from their power of attorney holder to act as per the above mentioned approvals and to undertake procedure accordingly.
5. The party of the second part shall obtain all the permissions from the government for the above mentioned Page 3 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined land of survey no. 250 paiki. After obtaining those permissions, the party of the second part, shall carry out the work of scheme or get the work done through someone else on this land as per their desire and in this regard, we - party of the first part shall take 1/3 share of the value of the said land and the party of the second part shall take 2/3 share as they have made entire expense pertaining to this land. Moreover, as sanction has been obtained using their influence, they shall take 2/3 share. Thus, party of the first part and party of the second part have decided the division of share amicably. During the period till the scheme of the land is completed, the party of the second part shall give money on time to the party of the first part as 1/3 share. As consideration of this contract, cheque no. ---- of Bank of Baroda for Rs. 1,00,001/- (rupees one lakh and one only) has been given today."
2.3 On the same day, as stated in the development agreement, Shri Harishchandrasinhji Jadeja executed irrevocable power of attorney dated 01st April, 1993 in favour of Dhananjay Patel. From the bare reading of the said irrevocable power of attorney dated 01st April, 1993, it appears that authority was given with regard to execution of work in and before the government and semi-government offices such as Mamlatdar/Deputy Collector/Collector/ Revenue Tribunal and before any other governmental offices. Page 4 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023
NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined The same can be fortified by referring to clause 2 and the last paragraph of the power of attorney.
"(2) The case regarding our aforesaid land has been remanded by the Hon'ble Supreme Court and High Court under the Agriculture Land Ceiling Act. We vest powers to carry out all the procedures in this regard, to remain present and submit applications and reply in the office of the mamlatdar, deputy collector, collector, Revenue Tribunal or any other government office, to put signatures, to call for witnesses, to give consent, to execute agreement, to execute affidavits, to put signatures on the Vakaltnama after engaging an advocate, to put signatures and give deposition in suits, reply for suits, petitions, replies, affidavits, agreements, appeal, revision, review etc. by remaining present as the power of attorney holder and to carry out all such acts which we can do ourselves by remaining present.
(3) We vest power to submit applications, replies, affidavits, to execute guarantee bond, agreement or any other required documents after conducting the proceedings by remaining present in the concerned office to dispose of the form submitted by us under the U.L.C. Act, to conduct all the necessary procedures to get approved the housing scheme for the people of backward class on the remaining land after receiving such land which is liable to be held out of the said land and to get approval for it.
(4) We vest powers to get the plans approved, to Page 5 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined obtain construction permission, to pay the expenses for the same and get receipt, to execute necessary documents from the Rajkot Municipal Corporation or Panchayat or the office of Rajkot Urban Development Authority after receiving approval for the aforesaid scheme.
(5) The residences as per the conditions mentioned in the scheme approved on the said land.
In short, with respect to our aforesaid land with Survey No.250, we vest powers to carry out all the procedures by remaining present in our names at any government, (illegible), local offices, Panchayat or any upper or lower offices of land revenue, if required. Further, our power of attorney holder may function as our power of attorney holder until all the abovementioned procedures are completed and we will not be able to revoke this power of attorney till that time. All the procedures carried out by our power of attorney holder shall be considered as the same done by ourselves and they shall be binding to us. We put below our signatures as the witness for the same." 2.4 It is pertinent to take note at this point that upon perusal of the photocopy of irrevocable power of attorney produced at Page Nos.61 to 64, it appears that bold and underlined sentences appears to have inserted by way of hand-writing without any initial of the maker of the power of attorney holder nor by the notary advocate. Page 6 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023
NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined 2.5 On 07th April, 1993, Shri Harishchandrasinhji Jadeja appears to have changed his mind and thereby, instead of sharing the profit pursuant to agreement dated 01 st April, 1993, thought it fit to sell the said land to Kantibhai Patel - partner of Sai developers and thereby agreement to sell dated 07th April, 1993 was executed between Shri Harishchandrasinhji Jadeja and Kantibhai Patel. 2.6 It appears that on 30 th November, 1999 late Shri Harishchandrasinhji Jadeja executed one another irrevocable power of attorney in favour of one Rajesh Shah - original defendant No.3 for the land in question empowering him to act before any central government, state government and/or semi-governmental offices and/or also to appear before any court as well as empowered to execute agreement to sell, sale deed in favour of any private party, individual or firm. Meaning thereby, 2 power of attorney were issued in favour of 2 different persons for different purposes. 2.7 On 22nd December, 2000 Kantibhai Patel - partner of Sai Developers, now deceased, filed Special Civil Suit No.350 of 2000 against Shri Harishchandrasinhji Jadeja for Page 7 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined specific performance of the agreement dated 07 th April, 1993 as well as for declaration of injunction. Interestingly, the suit though for seeking performance of agreement to sell dated 7.4.1993 signed by Shri Harishchandrasinhji Jadeja, however if the cause-title of the plaint is seen, the same appears to have been filed against power of attorney holder viz. Dhananjay Patel only. In common parlance, suit is always being filed against the main person/ principal, rather than filing it directly against the power of attorney holder only. To appreciate the said aspect, it would be relevant to extract and quote the cause-title of Special Civil Suit No.350 of 2000.
"In the Court of Fifth Joint Civil Judge, (C.D.), Rajkot Special Civil Suit No.350 of 2000.
Shri Kantilal Ambalal Patel, Proprietor of "Sai Developers", Re.60, Vimal Society, Makarpura Road, Vadodara. ... Appellant Vs Shri Dhananjay Vallabhbhai Patel, Power of Attorney Holder of Harishchandrasinhji Bharatsinhji Jadeja, Re. "Shashank" 2, Shivam Society, In the lane of Arihant Complex, Lalbaug, Vadodara. ... Respondent."
2.7.1 It is important to note that in the said suit, as such, Page 8 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined Shri Harishchandrasinhji Jadeja was never joined as a party though performance of agreement dated 07 th April, 1993 was executed by Shri Harishchandrasinhji Jadeja. 2.8 It also appears that in the aforesaid suit, Kantibhai Patel being plaintiff therein, applied for and obtained service of summons by hand-delivery and the same was served upon Dhananjay Patel (power of attorney holder) at Vadodara. 2.9 Pursuant to service of summons, the said power of attorney Dhananjay Patel filed written statement on the basis of power of attorney dated 01st April, 1993. As stated hereinabove, the power of attorney dated 01st April, 1993, prima facie, appears to be suspicious being interpolated by way of hand-writing with no initial whatsoever nature. 2.10 On the basis of the aforesaid written statement being filed by the power of attorney and in view of certain admissions being made in the written statement, Kantilal Patel - plaintiff of Suit No.350 of 2000, preferred an application seeking decree in view of Order XII Rule 6, CPC. Accordingly, learned trial court, after having framed the issues with regard to Order XII Rule 6, passed judgment and Page 9 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined decree dated 07th February, 2001 by allowing the suit being Special Civil Suit No.350 of 2000.
2.11 After the decree dated 07th February, 2001, Kantibhai Patel filed application below Exh.25 for seeking return of original agreement to sell and likewise, power of attorney holder Dhananjay Patel also made an application below Exh.26 for obtaining power of attorney. Both the documents were returned by the trial court vide its order dated 09th February, 2001.
2.12 Being aggrieved by and dissatisfied with the aforesaid judgment and order dated 07 th February, 2001 passed in Special Civil Suit No.350 of 2000, Shri Harishchandrasinhji Jadeja, now deceased, approached learned Civil Judge (S.D.), Rajkot, by way of Special Civil Suit No.53 of 2002 for the following reliefs.
"1. To declare that the Decree executed in the Sp.C.S.No.350/2000 on 07/02/2001 be held as ab initio null and void and the same is not executable. To declare further that active, silent possession of the suit property is of the Appellant of this Suit.
2. As aforesaid Decree executed (in the Sp.C.S.350/2000) by Your Honour's Court is regarding the Page 10 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined subject matter prohibited by law, the same being null and void; thus in absence of inherent powers of the Court, to hold and declare the said order as beyond jurisdiction and not executable.
3. Be pleased to pass permanent injunction to prohibit execution of Decree dated 07/02/2001 issued in Sp.C.S.350/2000.
4. To enclose records file of Sp.C.S.350/2000 in original or xerox with this application in your honour's Court, at the costs of the applicant.
5. To pass order directing to keep original file of Agreement for Sale and Power of Attorney in safe deposit vault of the Judicial Officer and to produce both the said documents during first hearing in Your Honour's Court and to get the same kept in the custody.
6. To issue the summons to the Respondent No.3 - Mr.R.A.Desai, Notary, Public, Re.Baroda and to take his deposition u/s 10, 16 and 18 of the Cr.P.C. and Section- 165 of the Evidence Act.
7. To direct Respondents Nos.1 to 3 to pay the costs, in the form of special compensation, to the applicant u/s 35/A of the Cr.P.C."
2.13 The aforesaid suit being Special Civil Suit No.53 of 2002 has been filed against Kantilal Patel - original defendant No.1, power of attorney Dhananjay Patel - original defendant Page 11 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined No.2, power of attorney Rajesh B. Shah - original defendant No.3 and State of Gujarat - original defendant No.4 initially and thereafter, later on, M/s. Siddhi Infra also came to be added in the said suit as defendant No.5.
2.14 The learned trial court on 27th May, 2011 was pleased to allow Exh.5 application by staying the judgment and decree dated 07 th February, 2011 by giving its prima facie reasoning and observations. It is pertinent to note that the said order came to be confirmed by the District Court vide its order dated 09th January, 2017 in Civil Miscellaneous Appeal No.33 of 2011.
2.15 M/s.Siddhi Infra - newly joined defendant NO.5, preferred an application under Order VII Rule 11 seeking dismissal of the present suit on 12 th March, 2014. The said application came to be not pressed after a period of seven years by purshis at Exh.275 dated 14 th July, 2021 with a request to proceed the suit on day-to-day basis which was agreed upon by all the parties. That original defendant No.1 expired on 7.3.2014 and his legal heirs were brought on record on 26.8.2014.
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NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined 2.16 Accordingly, on 03rd September, 2021 issues came to be framed by the learned trial court in the present suit. On 08th October, 2021, vide Exh.281, plaintiff has filed affidavit in lieu of examination-in-chief.
2.17 On 21st October, 2021, plaintiff, by way of an application Exh.283, requested the learned trial court to call for the Record & Proceedings of Special Civil Suit No.350 of 2000 and further requested the said record to be kept with the present suit. Accordingly, with consent of all the parties, vide order dated 04th March, 2022 the learned trial court has directed the record of Special Civil Suit No.350 of 2000 to be kept with the present suit.
2.18 On 21st October, 2021, original defendant No.1/2 - heir of deceased Kantilal appears to have filed an application at Exh.285 under Section 151 of the Code seeking, inter alia, stay of Special Civil Suit No.53 of 2002. However, the said application came to be rejected by learned trial court vide order dated 08th April, 2022 with a well reasoned order. The said order has attained finality in absence of any further challenge.
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NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined 2.19 In the interregnum, defendant No.1/1 - another heir of deceased Kantilal has also filed an application at Exh.291 dated 04th December, 2021 under Order VII Rule 11 of the Code for the purpose of rejection of the present suit. The said application was resisted by the original plaintiff by way of reply to application Exh.291. Defendant No.5 has also filed its response in support of the application Exh.291. 2.20 Learned trial court, however, considering the submissions of the rival parties, by order dated 13 th March, 2023 was pleased to reject the said application.
3. Thus, being aggrieved by the aforesaid, petitioner - original defendant No.1/1 has preferred the present Civil Revision Application under Section 115 of the Code. 3.1 This Court, on 21st April, 2023, was pleased to issue notice for final disposal considering the peculiar fact that the suit is as old as of 20 years. Some of the contesting respondents i.e. respondent Nos.1/1 to 1/7 - original plaintiffs, respondent No.2 - original defendant No.1/2, respondent No.7
- original defendant No.5 waive service of notice having been appeared on caveat and for the rest of the respondents, i.e. Page 14 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined respondent Nos.3 to 6, direct service was permitted and the matter was ordered to be listed on top of the board. 3.2 The arguments were concluded on 03 rd May, 2023 and the matter was reserved for judgment.
4. I have heard learned senior advocate Mr.Mehul Shah with learned advocate Mr.D.A. Sankhesara for the petitioner, learned senior advocate Mr.D.C. Dave with learned advocate Mr.Digant Popat for respondent Nos.1/1 to 1/7, learned advocate Mr.Yatin Oza with learned advocate Mr.Aditya Gupta for respondent Nos.2 and 3 and learned advocate Ms.Trusha Patel for respondent No.7. Respondent No.4 was though served, chosen not to appear whereas respondent No.5 - R.A. Desai reported to have been expired.
5. Mr.Mehul Shah, learned Senior Advocate for the petitioner, while assailing the impugned order, has made following submissions :
(i) The trial court, while passing the impugned order, has not properly appreciated the provision of Order VII Rule 11 of the CPC and the object underlying the said provisions.Page 15 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023
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(ii) The decree dated 7.2.2001 is a consent decree and said to have been passed under Order XXIII Rule 3 of the CPC. According to Mr.Shah, the impugned decree though passed under Order XII Rule 6 of the CPC, but the same is mentioning of a wrong provision. As according to Mr.Shah while passing the impugned order, the trial court has not considered the written statement but considered the express consent produced by way of pursis and thus, the said decree can be said as that of one under Order XXIII Rule 3 of the CPC. In furtherance to the aforesaid assertion, Mr.Shah submitted that therefore, in view of provision of Order XXIII Rule 3A of the CPC, the present suit is barred by law.
(iii) Mr.Shah further submitted that even if the plaintiff was not the part to the decree dated 7.2.2001, it is always open for him to challenge the same under Section 96 of the CPC with a leave of the appellate court or to file review application before the same court or to make appropriate application before the same Court if the decree was fraudulently obtained. Mr.Shah, therefore, submitted that the suit is not certainly maintainable and the trial court ought to have rejected the plaint, in the Page 16 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined interest of justice.
(iv) Mr.Shah, alternatively, submitted, assuming without admitting, that decree in question is under Order XII Rule 6. Still, fact remains that it is a decree and the remedy would be first appeal under Section 96 and thereby filing of a separate suit is not maintainable. Learned senior advocate for the petitioner vehemently submitted that Section 96 of the Code is the only remedy available to the original plaintiff by way of law and thereby once the statute provides the remedy of appeal, there is implied bar on filing of civil suit and thereby the learned trial court should have exercised powers under Order VII Rule 11(d).
(v) Mr.Shah submitted that in the entire plaint, no cause of action has been made out. Learned Senior Advocate submitted that looking to the prayer of the suit, there is no prayer with regard to the cancellation of agreement to sell dated 7.4.1993, the power of attorney dated 1.4.1993 and 30.11.1994. Learned Senior advocate further submitted that even during the pendency of the suit, a sum of Rs.7 lakhs was accepted by the plaintiff and thereby, it is not open for the plaintiff to Page 17 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined proceed with the suit and thereby, the trial court should terminate the proceedings by exercising power under Order VII Rule 11 of the CPC.
(vi) Mr.Shah further submitted that the suit is also hit by the provision of Section 34 of the Specific Reliefs Act, 1963, as no consequential relief of recovery of possession of the suit land is prayed in the plaint. Mr.Shah submitted that as such, the averment made in the plaint that the possession of the suit land is with the plaintiff is not correct, because the possession of the suit land was handed over to the petitioner by Shri Rajesh B. Shah pursuant to the power of attorney dated 30.11.1994. Mr.Shah further pointed out that even in one of the civil suit being Civil Suit No.277 of 2010 filed by Shri Yashpal Singh being heir of the original plaintiff, had made similar averment with regard to possession, however, upon panchkyas being done, it was revealed that the possession of the suit land was with defendant No.5 - Siddhi Infrastructure. Mr.Shah further submitted that in another Civil Suit No.186 of 2010 filed by Shri Kantilal Patel against Siddhi Infrastructure wherein also it has been revealed during the panchkyas that the possession was with defendant No.5 - Siddhi Page 18 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined Infrastructure. Mr.Shah further pointed out that even as on today, pursuant to the order passed by this Court in First Appeal Nos.2238 and 2239 of 2012 arising out of Civil Suit No.186 of 2010, dated 18.7.2012, a committee was appointed by the High Court and the possesson of suit land is since last 10 years with the committee and the expenditure is borne by defendant No.5 - Siddhi Infrastructure. In view of the aforesaid facts and circumstances, according to Mr.Shah, not praying relief with regard to possession is clearly hit by Section 34 of the Specific Reliefs Act and thereby, the trial court ought to have appreciated this fact and rejected the suit under Order VII Rule 11 of the CPC.
5.1 In support of his submissions, Mr.Shah has placed reliance on the followings decisions :
(1) Ram Saran & Anr. v. Smt. Ganga Devi, reported in (1973) 2 SCC 60.
(2) The Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay & Others, reported in (1976) 1 SCC 496.
(3) Ankit Udyog & Others v. Laxman Prasad, reported in Page 19 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined 2001 SCC Online Raj 372.
(4) Sopan Sukhdeo Sable & Others v. Assistant Charity Commissioner & Others, reported in (2004) 3 SCC 137.
(5) Pushpa Devi Bhagat v. Rajinder Singh & Others, reported in (2006) 5 SCC 566.
(6) Horil v. Keshav & Anr., reported in (2012) 5 SCC 525.
(7) Sakina Sultanali Sunesara (Momin) & Others v. Shia Imami Ismaili Momin Jamat Samaj & Others, reported in 2020 (1) GLR 586.
(8) Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran & Others, reported in (2017) 3 SCC 702.
(9) A decision dated 26.12.2022 rendered in case of Rajhans Infracon (India) Pvt. Ltd. v. Santosh Rameshbhai Rathod in Civil Revision Application No.343 of 2019 (10) Triloki Nath Singh v. Anirudh Singh (Dead) thorugh LRs & others, reported in (2020) 6 SCC 629.
(11) R. Jankiammal v. S.K. Kumarsamy (Deceased) through Page 20 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined LRs & Others., reported in (2021) 9 SCC 114. (12) My Palace Mutually Aided v. B. Mahesh & Ors., reported in 2022 Scale 12-230.
(13) Sree Surya Developers & Promoters v. N. Sailesh Prasad & Ors., reported in (2022) 5 SCC 736.
6. Ms.Trusha K. Patel, learned advocate appearing for respondent No.7 - original defendant No.5 ( Siddhi Infrastructure and Developers), while adopting the submissions of Mr.Mehul S. Shah, learned Senior Advocate for the petitioner, submitted that it is the duty of the trial court to examine the maintainability of the suit and for which there is no requirement of filing application for rejection of the plaint. She submitted that considering the fact and overall circumstances, it was the duty of the trial court to reject the suit by exercising powers under Order VII Rule 11 of the CPC. However, the same has not been done by the trial court and that has resulted into serious miscarriage of justice. 6.1 Ms.Trusha Patel further submitted that even if application seeking rejection of plaint is withdrawn by the Page 21 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined original defendant No.5, the Court is obliged to examine as to whether the suit is maintainable or not, as the maintainability goes to the root of the matter. According to Ms.Trusha Patel, therefore, the trial court ought not to have rejected the application of the petitioner under Order VII Rule 11 of the CPC and ought to have decided it keeping in mind the aspect of maintainability of the suit.
6.2 Ms.Trusha Patel lastly submitted that there is no legal right existed in favour of original plaintiff to be enforced and, therefore, in absence of any right to sue, there cannot be any cause of action. Under the circumstances, the trial court ought to have rejected the plaint by exercising power under Order VII Rule 11 of the CPC.
7. Mr.Yatin Oza, learned Senior Advocate assisted by Mr.Aditya Gupta for respondent No.2, has adopted all the submissions and contentions raised by Mr.Mehul S. Shah, learned Senior Advocate for the petitioner and requested this Court to allow the Civil Revision Application, in the interest of justice.
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8. Per contra, Mr.Dhaval C. Dave, learned Senior Advocate assisted by Mr.Digant Popat for respondent Nos.1.1 to 1.7, has vehemently opposed the present Civil Revision Application contending, inter-alia, that the order passed by the trial court is perfectly justified and does not require any interference at this stage. At the outset, Mr.Dave has vehemently submitted that application under Order VII Rule 11 of the CPC after such gross delay of 20 years, is nothing but a sheer abuse of process of law. Mr.Dave submitted that although it is a settled law that an application under Order VII Rule 11 can be preferred at any stage, however, according to Mr.Dave, law certainly does not envisage application at a belated stage or to abuse the process of law. To substantiate the aforesaid contention, Mr.Dave has placed reliance upon the order dated 14.3.2012 passed by this Court in Civil Revision Application No.299 of 2011 in case of Dudhiben Hirabhai & Ors. v. Rajangiri Kishoregiri Goswami & Ors., more particularly Para.7 thereof, which, in turn, confirmed by the Apex Court in SLP (C) No.17396 of 2012 vide order dated 12.10.2012. 8.1 Mr.Dave also heavily relied upon the decision rendered by the Apex Court in case of Ram Prakash Gupta v. Rajiv Page 23 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined Kumar Gupta & Ors., reported in (2007) 10 SCC 59, more particularly Para.17, 22 and 23.
8.2 Mr.Dave submitted that the application under Order VII Rule 11 of the CPC came to be filed by the petitioner at a belated stage after filing of examination-in-chief of the plaintiff. Mr.Dave submitted that the defendant Nos.1.1 to 1.3 were impleaded as party in the year 2014 and have been participating in the present suit proceedings since then. Mr.Dave further pointed out that on 12.3.2014, the original defendant No.5 filed an application under Order VII Rule 11 which ultimately came to be not pressed on 14.7.2021 and at that time, all the parties have agreed to proceed further with the suit on day-to-day basis and thereby, issues came to be framed on 3.9.2021 and the affidavit in lieu of examination-in- chief filed on 8.10.2021. At this stage, Mr.Dave pointed out that one of the daughter of the original defendant No.1 filed an application on 21.10.2021 under Section 151 of the CPC for staying the suit proceedings, however, the same was rejected by the trial court by a detailed order and the said order has attained its finality. Mr.Dave, therefore, submitted that after the aforesaid unsuccessful attempt to stall the suit Page 24 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined proceedings, in a sheer abuse of process of law, the present application Exh.291 came to be filed and thereby, the trial court has rightly rejected the same which, according to Mr.Dave, does not require any interference at the end of this Court.
8.3 According to Mr.Dave, the suit is as old as 21 years and now ripe for trial and, therefore, at this stage, application under Order VII Rule 11 of the CPC is nothing but a misuse of process of law. Mr.Dave further pointed out that the defendants are acting in collusion with each other and it is their design to keep the present suit in limbo while trying to get adjudicated the First Appeal Nos.2238 and 2239 of 2012 pending before the High Court without joining the present respondents in the application.
8.4 According to Mr.Dave, the judgment and decree dated 7.2.2001 passed in Special Civil Suit No.350 of 2000 cannot be said to be consent decree under Order XXIII Rule 3, as sought to be canvassed. Mr.Dave submitted that the power of attorney holder - Shri Dhananjay Patel had filed written statement in the suit wherein he has made some admission Page 25 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined and thereby, on the basis of such admission, the defendant No.1 - Kantibhai Patel moved an application under Order XII Rule 6 of CPC seeking judgment on admission. Mr.Dave further pointed out that while passing the judgment, the trial court has in particular framed the issue about Order XII Rule 6 of CPC and then, proceeded to pass the decree accordingly. Therefore, Mr.Dave would submit that such decree cannot be termed as one under Order XXIII Rule 3 of the CPC. Mr.Dave submitted that the decree under Order XII Rule 6 of the CPC is different than a compromise decree envisaged under Order XXIII Rule 3 of the CPC, in view of said material difference, bar as envisaged under Order XXIII Rule 3A of the CPC cannot be said to be applicable in the present suit. Thus, Mr.Dave submitted that entire case of the defendant on this ground alone, fall flat.
8.5 Mr.Dave submitted that the decree was clearly obtained by playing fraud upon the Court, fraud upon the Statute as well as fraud upon the plaintiff and thereby, to establish the same, the only remedy available to the plaintiff is to prefer suit and prove his case by leading evidence to this effect. Mr.Dave further pointed out that the suit is preferred before Page 26 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined the very learned trial court which passed the judgment and the entire record of the proceedings of Special Civil suit has been called for in original and directed to be placed with the record of the present suit. Mr.Dave submitted that there cannot be specific bar like under Order XXIII Rule 3A of the CPC from preferring the present suit and in view of absence of specific bar, there is always a presumption in favour of jurisdiction of the trial court to adjudicate upon the issue set out in the present suit. To substantiate the said contention, Mr.Dave has placed reliance on the judgment of the Apex Court in case of Smt. Ganga Bai v. Vijay Kumar & Ors., reported in 1974 (2) SCC 393, more particularly Para.15 of the said judgment which reads as under :
"15. It is thus clear that the appeal filed by defendants 2 and 3 in the High Court was directed originally not against any part of the preliminary decree but against mere finding recorded by the trial court that the partition was not genuine. The main controversy before us centers round the question whether that appeal was maintainable on this question the position seems to us well-established. There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one's peril,_bring a suit of one's choice. It is no answer to a suit howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres Page 27 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute."
8.6 Mr.Dave submitted that assuming without admitting that the plaintiffs are not entitled to any reliefs, then also in that case it cannot be considered as a ground to reject the plaint under Order VII Rule 11 of the CPC. To substantiate the aforesaid contention, Mr.Dave has placed reliance on the decision of the Apex Court rendered in SLP (C) No.19018 of 2022.
8.7 Mr.Dave next submitted that as per settled law, the suit cannot be rejected in part. To substantiate the said contention, Mr.Dave placed reliance on the decision of the Apex Court in case of Sri Biswanath Banik & Anr. v. Sulanga Bose & Ors., reported in 2022 (7) SCC 731 (Para.10 to 12), which are reproduced below :
"10. When the suit is for a decree of permanent injunction and it is averred that the plaintiffs are in possession of the suit property pursuant to the agreement and thereafter, they have developed the land and that they are in continuous possession since more than twelve years and they are also paying taxes to the Corporation, the cause of action can be said to have arisen on the date on which the possession is sought to be disturbed. If that be so, the suit for decree for permanent injunction cannot Page 28 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined be said to be barred by limitation. It is the settled proposition of law that the plaint cannot be rejected partially.
11. Even otherwise, the reliefs sought are interconnected. Whether the plaintiffs shall be entitled to any relief under Section 53A of the Transfer of Property Act or not has to be considered at the time of trial, but at this stage it cannot be said that the suit for the relief sought under Section 53A would not be maintainable at all and therefore the plaint is liable to be rejected in exercise of powers under Order VII Rule 11 CPC.
12. In view of the above and for the reasons stated above, the High Court has committed a grave error in allowing the application under Order VII Rule 11 CPC and rejecting the plaint. The High Court has exceeded in its jurisdiction in rejecting the plaint while exercising the powers under Order VII Rule 11 CPC. The impugned judgment and order passed by the High Court is unsustainable both, on law as well as on facts."
8.7.1 Mr.Dave also placed reliance on the decision of the Apex Court in case of Sejal Glass Ltd. v. Navilan Merchants Pvt. Ltd., reported in 2018 (11) SCC 780, more particularly Para.8 which is reproduced below :
"8. We are afraid that this is a misreading of the Madras High Court judgment. It was only on the peculiar facts of that case that want of Section 80 CPC against one defendant led to the rejection of the plaint as a whole, as no cause of action would remain against the other defendants. This cannot elevate itself into a rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order VII Rule 11. In all such cases, if the plaint survives against certain Page 29 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined defendants and/or properties, Order VII Rule 11 will have no application at all, and the suit as a whole must then proceed to trial."
8.8 Mr.Dave submitted that "cause of action" would mean every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit and, therefore, according to Mr.Dave, it cannot be said that plaint does not disclose any cause of action. Mr.Dave submitted that so far as the contention with regard to averment made in the plaint in relation to the acceptance of money by the plaintiff and inclination to returning the amount is a matter to be appreciated upon conclusion of trial on the basis of the evidence produced on record. Mr.Dave submitted that the said contention would amount to applying principle of 'estoppel and acquiescence' and the same cannot be a ground for rejection of plaint under Order VII Rule 11(a) or (d) of the CPC. The said contentions are in form of defence and can be considered at the conclusion of trial.
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NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined 8.9 By making above submissions, Mr.Dave prayed this Court to dismiss the present Civil Revision Application.
9. Mr.Mehul S. Shah, learned Senior Advocate, in rejoinder, submitted that it is a settled law that application under Order VII Rule 11 of the CPC can be preferred at any stage of the suit. To substantiate the said contention, Mr.Shah relied upon Saleembhai v. State of Maharashtra, reported in (2003) 1 SCC 557, more particularly Para.9 which is reproduced below :
"9. A perusal of Order VII Rule 11 C.P.C. makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order VII Rule 11 C.P.C. at any stage of the suit-before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order VII C.P.C. the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order VII Rule 11 C.P.C. cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects."
9.1 Mr.Shah, in order to substantiate aforesaid contention, Page 31 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined also placed reliance on a decision of the Apex Court in case of Dahiben v. Arvindbhai Kalyanji Bhanushali, reported in (2020) 7 SCC 366. Relevant Para.23.14 is reproduced below :
"23.14 The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain case."
9.2 By making above submissions, Mr.Shah urged this Court to allow the present Civil Revision Application.
10. I have heard the learned advocates appearing for the respective parties in detail and have gone through the material produced on record, thoroughly. No other and further submissions have been canvassed by the learned advocates appearing for the respective parties, except what are stated herein-above.
11. Having considered the submissions made by learned advocates appearing for the respective parties and having Page 32 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined perused the material available on record, a short question that falls for consideration by this Court is whether the trial court has committed any error in law while passing the impugned order?
12. So as to consider the aforesaid question in its true perspective, it would be apt to take note of some undisputed facts, viz.
(i) The entire cause root of dispute is power of attorney dated 1.4.1993 executed by late Shri Harishchandrasinhji Jadeja in favour of Dhananjay Patel. Indisputably, the power which was given to Dhananjay Patel, if considered, it was given for the purpose of discharging some act in the Government or semi-Government bodies only. Perusal of the power would further reveal that the entire power was a typed copy. However, it appears that couple of lines have been interpolated by way of hand-writing, that too without any signature of the executant or a notary advocate.
(ii) Another glaring fact is that the petitioner herein sought specific performance of agreement to sell dated 7.4.1993 Page 33 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined signed and executed by Shri Harishchandrasinhji Jadeja by way of Special Civil Suit No.350 of 2000. However, surprisingly, the said suit was directly and solely filed against the power of attorney, namely, Dhananjay Patel without joining Shri Harishchandrasinhji Jadeja being owner of the property. Moreover, said power of attorney, after receiving the summons caused to be served by way of hand delivery, appeared and filed written statement with major admissions and on the basis of such admissions, the plaintiff therein, namely, Kantilal Patel filed an application for passing decree under Order XII Rule 6 of the CPC.
(iii) The power of attorney, thereafter, appears to have filed pursis below Exh.15 dated 12.1.2001, giving consent for passing decree under Order XII Rule 6 of the CPC.
(iv) The trial court, thus, framed the issues with regard to the Order XII Rule 6 of the CPC and accordingly, passed the judgment and decree dated 7.2.2001.
(v) It is pertinent to note that while passing the said decree, the trial court has, as such, not followed any procedure which Page 34 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined generally being followed while recording and/or passing the consent decree, viz., (i) stakeholders personal presence (ii) ascertainment of free will and (iii) identification of the parties etc. The said formality, the trial court did not follow as the trial court was passing a decree under the provision of Order XII Rule 6 of the CPC.
13. Keeping in mind the aforesaid peculiar facts and circumstances, before dealing with the submissions of learned advocates for the respective parties, it would be apt to deal with the issue as to at what stage an application under Order VII Rule 11 of the CPC can be considered. In the aforesaid context, it would be profitable to take note of the law laid down by this Court in the case of Dudhiben (supra), more particularly Para.7, which reads as under :
"7. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the present Civil Revision Application has been preferred by the applicants- original defendants nos. 2 to 13 to quash and set and aside the impugned order passed by the learned trial Court rejecting the application submitted by the applicants to dismiss the plaint in exercise of powers under Order 7 Rule 11(A) and/or 11(D) of the Code of Civil Procedure mainly on the ground that the suit is barred by res judicata. It is required to be noted that the said application has been submitted after a period of 10 years of filing the suit and after the applicants submitted Page 35 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined the written statement and after the learned trial Court framed the issues. It is also required to be noted that the learned Single Judge of this Court has passed an order dated 08/03/2010 in Appeal from Order No. 310/2009, in presence of the learned advocates appearing on behalf of the respective parties and with the consent of the learned advocates appearing on behalf of the respective parties, directing the learned trial Court to decide and dispose of Special Civil Suit No. 254/2001 on merits as expeditiously as possible and preferably within six months with outer limit of 9 months and instead of proceeding further with the said suit, the applicants preferred the application, Exh. 154, which has been dismissed by the learned trial Court by the impugned order. It is required to be noted that the application, Exh. 154 has been submitted by the applicants on 16/07/2011 i.e. much after expiry of the period fixed by the learned Single Judge to dispose of the main suit. Thus, it appears that the applicants have preferred the application, Exh. 154 only with a view to delay the hearing of the suit, which was as such required to be disposed by the learned trial Court on or before March, 2011. Considering the aforesaid facts and circumstances of the case, the learned trial Court has rightly rejected the application, Exh.154 and has rightly refused to reject the plaint under Order 7 Rule 11(A) and/or 11(D) of the Code of Civil Procedure."
13.1 it would also be profitable to take note of the law laid down by the Apex Court in the case of Ram Prakash Gupta (supra), more particularly Para.17, 22 and 23, which read as under :
"17. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill, (1982) 3 SCC 487 only a part of the plaint cannot be rejected and if no cause of action is disclosed, Page 36 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined the plaint as a whole must be rejected.
22. It is also relevant to mention that after filing of the written statement, framing of the issues including on limitation, evidence was led, plaintiff was cross- examined, thereafter before conclusion of the trial, the application under Order VII Rule 11 was filed for rejection of the plaint. It is also pertinent to mention that there was not even a suggestion to the plaintiff/appellant to the effect that the suit filed by him is barred by limitation.
23. On going through the entire plaint averments, we are of the view that the trial Court has committed an error in rejecting the same at the belated stage that too without adverting to all the materials which are available in the plaint. The High Court has also committed the same error in affirming the order of the trial Court."
13.2 At this stage, it would also be profitable to take note of the recent decision of this Court rendered in Civil Revision Application No.190 of 2023. Relevant observations of the said decision are as under :
"12. Keeping in mind the aforesaid position of law, in my opinion, law is crystal clear that the power under Order VII Rule 11 can be exercised at any stage of the trial i.e. right from registration of the plaint and before pronouncement of judgment. Whole laudable object is to see that the court may not be burdened with vexatious and frivolous litigation, saving of judicial time and also to protect defendant from wrongful claims and from undergoing entire gamut of trial unnecessary. However, it does not mean that such an application under Order VII Rule 11 of the CPC can be made after a period of 32 years of filing of the suit and after 25 Page 37 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined years of framing of the issues. If the submission of the defendant is accepted, then, in that case, the object and purpose to reject the plaint in exercise of powers under Order VII Rule 11 of the CPC will be frustrated. As per settled proposition of law, the object and purpose to reject the plaint under Order VII Rule 11 of the CPC is to reject the plaint at the threshold under the ground set out with a view to view to see that the defendant may not have to face the entire gamut of trial unnecessarily, if the suit is not maintainable under any law. Therefore, such powers to be exercised at the earliest and not after a period of 32 years.
13. Although the provisions of Order VII Rule 11 is meant for the benefit to protect the defendant from vexatious and frivolous claims, but at the same time, in my considered opinion, the protection made available to the defendant has to be opted as early as possible. The law laid down by the Apex Court that the provisions of Order VII Rule 11 can be exercised at any stage cannot be meant to be left to the whims of the defendant. In other words, in the facts of the present case, when the trial is already going on since 32 y ears and has reached to a very advance stage, defendant shall not be allowed to make application under Order VII Rule 11 on the grounds which might be available since from the inception. Permitting the defendant to invoke the provisions of Order VII Rule 11, after 33 y ears, that too after completion of evidence of the plaintiff, would, in my opinion, amount to abuse of process of law. Because defendant, all throughout the suit, kept silent over his right and now when the evidence of the plaintiff is over, for the reasons best known, made an application under Order VII Rule 11 which would nothing but sort of testing the water level by sitting on Page 38 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined the shore during entire suit proceedings. Such conduct is also relevant while deciding the application under Order VII Rule 11 at the advance stage of the proceedings. The defendant is not expected to sit over for 33 years and allow the suit to proceed for all these years. The main and laudable purpose behind Order VII Rule 11 is already frustrated and long judicial time has been invested. Thus, in my view, allowing the defendant to pursue his right under Order VII Rule 11, in the peculiar facts and circumstances, would be said to be counter productive. Once 33 years of judicial time has already been invested, it would be in the fitness of thing to have judgment on merits crystallizing the rights of the parties, rather terminating the proceedings at such a belated stage.
14. Thus in my considered opinion, when invocation of provisions of Order VII Rule 11 sought at an advance stage, at the instance of defendant, in that event, criteria has to be little different than that of invocation by the court suo motu. I say so because, like in the instant case, all throughout for 33 years the defendant has not invoked provisions of Order VII Rule 11 and allowed the suit to reach at the advance stage. The grounds on which Order VII Rule 11 invoked were indeed available from the inception. In spite of that, defendant did not prefer application at the threshold, rather allowed the suit to proceed. Now when the suit ripe and is on the verge of conclusion, defendant preferred an application under Order VII Rule 11 taking benefit of liberal construction "any stage", which in my opinion not in good test and court should deprecate such tactics. Purpose of Order VII Rule 11 is to protect the defendant from vexatious claim and unnecessary harassment of trial. But at the same time, Order Page 39 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined VII Rule 11 cannot be allowed to be used as a tool in the hands of the defendant to use against the plaintiff who is awaiting for his claims since 33 years, in the instant case, to be adjudicated upon.
15. Considering the law laid down by the Apex Court as well as this High Court, it is very well settled that exercising of power under Order VII Rule 11 is permitted at any stage. However, it has also been clarified by this Court as well as the Apex Court that it depends on facts and circumstances of each case. Thus, keeping in mind the peculiar fact that the suit is as old as 33 years, issues framed, issues re-framed, evidence of plaintiff is completed and right of defendant to adduce evidence is closed, I see no good reason to allow the application of the petitioner - original defendant under the provisions of Order VII Rule 11, CPC. Therefore, although I respectfully agree with the proposition of law that application under the provisions of Order VII Rule 11 can be entertained at any stage before pronouncement of the judgment, however, facts and circumstances of this case warrants no interference."
14. In view of the aforesaid legal enunciation, it is true that an application under Order VII Rule 11 of the CPC can be filed at any stage of the proceedings before the pronouncement of judgment. However, in my considered opinion, the same cannot be allowed to mean that defendants can be permitted to exercise their right as per their whims. As discussed in the aforesaid authorities, application under Order VII Rule 11 of Page 40 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined the CPC has to be filed at the threshold. However, in the present case, the petitioner appears to have filed the present application under Order VII Rule 11 of the CPC after a period of 20 years and that too, after the submission of the examination-in-chief by the plaintiff.
15. One more aspect which cannot be allowed to remain under oblivion is that respondent No.7 herein - original defendant No.5 already preferred an application under Order VII Rule 11 of the CPC and the said application was not pressed after a period of 7 years with a request to proceed with the suit on day-to-day basis and that too, with the consent of all the parties. Thereafter, another respondent being original defendant No.1/2 filed an application seeking, inter-alia, stay of the suit and the said application came to be rejected by a well reasoned order and the said order in absence of any further challenge, attained its finality and another defendant No.1/1 - petitioner herein has approached the trial court by way of this application under Order VII Rule 11 of the CPC. The conduct of the original defendants speaks volumes for itself. It appears to this Court that one way or the other, the original defendants, for the reasons best known, not Page 41 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined keen to proceed with the suit. Keeping in mind the said conduct, this Court is not inclined to entertain the present Civil Revision Application, as the same is nothing but a sheer abuse of process of law and being not in good test.
16. So far as the contention as to maintainability of the suit is concerned, it is required to be noted that there is always an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. In the suit, serious allegations with regard to playing fraud upon the court have been pleaded and thereby, when the fraud is alleged, the same requires to be decided on the basis of evidence. It is at this stage pertinent to record that as such, the present suit has been filed before the same court whose decree is under challenge. Thus, when the plaintiff chose to file civil suit instead of an appeal under Section 96 of the CPC, the same could not be said to be barred by law per-se. True it is that if the suit is barred by any law, the same can be at threshold dismissed under Order VII Rule 11 of the CPC. However, when it is a question whether the suit can be entertained or not, the same cannot be, in my view, fall within the purview of Page 42 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined Order VII Rule 11 of the CPC. The aspect as to the maintainability and entertainability both operates in a different context. If the suit is barred by any provision of law, the same can be said to be not maintainable per-se. However, if the suit is not entertainable in view of having filed under misconception of law or availability of other remedy, the same has to be decided by the trial court in the trial and not under the provision of Order VII Rule 11 of the CPC.
17. So far as the contention as to no cause of action has been pleaded, sought to be canvassed on the basis of no prayer of possession, no prayer for cancellation of agreement to sell and no prayer about cancellation of power of attorney and having accepted Rs.7 lakhs during the trial is concerned, in my opinion, it is a cardinal principle of law that while deciding an application under Order VII Rule 11 of the CPC, only averments of the plaint can be gone into. Having gone through the averments of the plaint, it appears that what is challenged is the decree obtained fraudulently. Therefore, if that prayer is qualified to be granted, in that event merely because other prayers not prayed for, would not be a ground to reject the plaint. At this stage, it is very important to note Page 43 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined that the decree alleged to have been obtained fraudulently and collusively. Thus, if, in the suit, such collusion is proved, in that event a decree can be set aside. It is pertinent to note that the present suit is filed and pending before the same court, which passed the decree in question and the record of the earlier suit is also kept along with the present suit. Accordingly, when the trial court is fully seized with the proceedings where serious fraud is alleged, it is not advisable to terminate the proceedings after a period of 20 years by exercising the provision of Order VII Rule 11 of the CPC. Hence, the contention raised by the petitioner is not worth accepting and is hereby rejected.
18. So far as the contention with regard to Section 34 of the Special Reliefs Act and in absence of any prayer for possession is concerned, it is pertinent to note that as per the settled law, only averment of plaint deserves to be gone into. Thus, when in the plaint, averment as to possession is made, in that case, it would be a matter of evidence with regard to status of possession. The petitioner claimed to be in possession, in that event, his statement cannot be denied and the same is a matter of trial and leading of an evidence. The Page 44 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined contention raised by the petitioner so as to establish that the petitioner is not in possession, can be said to be the defence and the trial court can deal with the same appropriately at an appropriate stage. In my view, the trial court cannot decide the same while exercising power under Order VII Rule 11 of the CPC. In view of this, the provison of Section 34 of the Specific Reliefs Act at this stage would not have any application. In my view, the contention raised by the petitioner can be said to be the defence which the trial court cannot go into while deciding application under Order VII Rule 11 of the CPC.
19. Thus, while summing up, when the decree in question alleged to have been obtained by way of practicing serious fraud and the suit is pending since more than 20 years more particularly when one after other all the defendants have adopted delayed tactics, I see no good reason to interfere with the order passed by the trial court. On the contrary, I have no hesitation to hold that the trial court has not committed any error of law as well as fact in refusing to reject the plaint under Order VII Rule 11 of the CPC at such a belated stage. Page 45 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023
NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined I answer the question accordingly.
20. So far as the authorities relied upon by the learned advocate for the petitioner are concerned, having gone through the same in detail, in my considered opinion, the facts of the present case are peculiarly different than the facts of the authorities cited by the learned advocate for the petitioner. In my view, in the present case, the allegation of fraud has been alleged and more particularly the suit in question is pending since last more than 20 years. More so, an application under VII Rule 11 of the CPC was filed by the defendant No.5 herein was not pressed by all the parties by agreeing, inter-alia, to proceed with the suit on day-to-day basis. Then, one of the other defenants had filed application under Section 151 of the CPC for staying the suit, that was also dismissed by a reasoned order and thereafter, present application by another defendant came to be moved under Order VII Rule 11 of the CPC. Thus, keeping in mind the said peculiar fact that suit proceedings sought to be delayed by one or another way, the facts of the authorities cited are materially different and thereby, the authorities cited by learned advocate for the petitioner would not render any help Page 46 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined as being distinguishable on facts.
21. Present Civil Revision Application is bereft of any merit, deserves to be dismissed and is hereby dismissed accordingly, with no order as to costs. Notice is discharged.
22. Before parting, this Court deems it fit to direct the trial court to expedite the suit proceedings and conclude the same as early as possible, but not later than six months from today, considering the fact that the suit is pending since almost 20 years. Further, the parties are hereby directed to cooperate with the trial court so as to enable the trial court to conclude the suit proceedings within the stipulated time.
23. It is needless to state that all the observations and findings recorded by this Court herein-above are prima facie in nature and thereby, the trial court is expected to decide the trial strictly in accordance with law and evidence produced on record.
(NIRAL R. MEHTA,J) FURTHER ORDER After the pronouncement of the judgment, learned Page 47 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023 NEUTRAL CITATION C/CRA/197/2023 JUDGMENT DATED: 15/06/2023 undefined Senior Advocate Mr. Yatin Oza assisted by learned advocate Mr. Aditya Gupta for the respondent No.2 has requested this Court to stay the suit proceedings for a period of one month.
The request made by the learned Senior Advocate Mr.Yatin Oza is rejected on the ground that the suit itself is as old as 22 years and considering the pendency of suit, this Court has accorded top most priority to this Civil Revision Application and thereby, after dismissal of the Civil Revision Application, the interim relief, as prayed for, cannot be granted.
(NIRAL R. MEHTA,J) ANUP/V.J.SATWARA Page 48 of 48 Downloaded on : Sat Sep 16 20:16:56 IST 2023