Gujarat High Court
Swapnilbhai Arvindbhai Doshi Since ... vs Bahadursang Bhavsang on 20 June, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025
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Reserved On : 02/05/2025
Pronounced On : 20/06/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1043 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/FIRST APPEAL NO. 1043 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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Approved for Reporting Yes No
✔
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SWAPNILBHAI ARVINDBHAI DOSHI SINCE DECD. THROUGH LHS &
ORS.
Versus
BAHADURSANG BHAVSANG & ORS.
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Appearance:
DEV D PATEL(8264) for the Appellant(s) No. 1,1.1,1.2,1.3
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE NIRAL R. MEHTA) This Appeal, at the instance of the original plaintiffs, is directed against the order dated 17th January, 2025 passed in Special Civil Suit No.675 of 2017 passed below Exh.17 by learned Principal Senior Civil Judge, Sanand, Ahmedabad (Rural), whereby the learned Judge has Page 1 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined rejected the plaint under the provisions of the Order VII Rule 11(a) and 11(d) of the Code of Civil Procedure, 1908.
2. Basic facts of the case can be stated as under.
2.1 Land bearing Survey No.314 admeasuring 5868 sq. mtrs. and Survey No.316 admeasuring 6576 sq. mtrs. situated in Village Godhavi, Taluka Sanand, District Ahmedabad, was originally owned by original Defendant No.1. Defendant No.1 has executed power of attorney in favour of Defendant No.2 with respect to the aforesaid lands. Pursuant to the said power of attorney, Defendant No.2-power of attorney holder, executed a registered agreement to sell dated 28th October, 1996 bearing No.2306 with possession in favour of one Shri Swapnilbhai Arvindbhai Doshi, now deceased, happened to be the husband of original plaintiff No.1 and father of original plaintiff Nos.2 and 3.
2.2 Said Swapnilbhai Doshi expired on 21st November, 2003. During life span of Swapnilbhai Doshi, the said agreement to sell was not culminated into the sale deed. Pertinent to note that the registered agreement to sell dated 28th October, 1996 appears to be cancelled on 20th Page 2 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined February, 2004.
2.3 Defendant No.1 thereafter appears to have sold out the aforesaid lands in favour of original Defendant Nos.3 to 5 by way of registered sale deed Nos.323 and 324 dated 19th February, 2004. The said transaction got mutated in the revenue record by way of Mutation Entry Nos.4412 and 4417 dated 27th February, 2004 and later on certified on 07th April, 2004.
2.4 The plaintiffs appear to have filed one Special Civil Suit No.80 of 2005 against the present Defendant Nos.1 to 5 seeking, inter alia, specific performance of agreement to sell dated 28th October, 1996 and challenge to the sale deed dated 19th February, 2003 (sic. 19th February, 2004) executed in favour of Defendant Nos.3 to 5 and also sought perpetual injunction.
2.5 During the pendency of the said Special Civil Suit No.80 of 2005, Defendant Nos.3 to 5 have further sold out the suit property in favour of Defendant No.6 by way of registered sale deed Nos.5842 to 5844 dated 01st December, 2007. Defendant No.6 then sold out the suit property in favour of Defendant No.7 by executing registered sale deed No.530 dated 21st January, 2010.
Page 3 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined 2.6 In view of the aforesaid subsequent development during the pendency of the suit, the plaintiffs have moved an application under Order I Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') for joining Defendant Nos.6 and 7 in Special Civil Suit No.80 of 2005. The said application, however, was rejected by the learned trial court vide order dated 16th November, 2013.
2.7 It appears that thereafter the said Special Civil Suit No.80 of 2005 ordered to be dismissed for default on 01st December, 2014.
2.8 It further appears that the plaintiffs have filed Civil Miscellaneous Application No.45 of 2017 in the court of learned Principal Senior Civil Judge, Ahmedabad (Rural) at Mirzapur for restoration of Special Civil Suit No.80 of 2005. The said application was ordered to be returned under Order VII Rule 10 of the Code vide order dated 03rd August, 2019 by learned Principal Senior Civil Judge, Ahmedabad (Rural) on the ground of having no jurisdiction. After the aforesaid order, learned advocate for the appellants has not shown and/or produced any application for restoration of Special Civil Suit No.80 of 2005 filed in the appropriate court.
Page 4 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined 2.9 In the meantime, however, present suit for cancellation of sale deed of Defendant Nos.6 and 7 filed on 02nd May, 2017. For the brevity, reliefs prayed for in the said suit are reproduced hereunder.
"(a) In consideration of the facts and circumstances of the plaint, the Defendant Nos. 3 and 5 in this case executed/ caused to have executed a sale-deed in favour of the Defendant No. 6 vide Sl. No. 5842 and Sl. No. 5844 without any rights or authority on 01/12/2007, in connection with the suit property land mentioned in detail in the plaint, viz., the land with area 00-58-68 h/a/sqm of Block/Survey No. 314 and 00-
65-76 h/a/sqm of Block/Survey No. 316 located at the outskirts of Village: Godhavi, Taluka: Sanand, District & Sub-District: Ahmedabad, and that the Defendant No. 6, by relying on the said sale-deed executed/ caused to have executed the sale-deed in favour of the Defendant No. 7 on 21/01/2010 vide Sl. No. 530 without any rights or authority, which was executed for the land in dispute in this plaint, and therefore, it is kindly requested to hold it null and void ab initio and pass appropriate order in that regard.
(b) It is kindly requested to pass permanent injunction against the said Defendants and in favour of us, the plaintiffs, to the effect that the Defendants in this case themselves, their associates, servants, agents, etc. do not acquire or caused to have acquired the ownership- possession of the property in dispute from us, the plaintiffs, or they do not trespass or cause to have trespassed the said property, or they do not hinder or caused to have hindered in any way our possession or usage thereof, or they do not sell out, mortgage, transfer the said property.
(c) It is kindly requested that the entire costs of the plaint be reimbursed.
(d) In view of the circumstances of the plaint, the Court is kindly requested to pass any other order in favour of us, the plaintiff, which it deems fit and appropriate."
Page 5 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined 2.10 In the said suit, Defendant No.7 has filed application under the provisions of Order VII Rule 11 of the Code praying, inter alia, for rejection of the plaint.
2.11 The learned trial court vide order dated 17th January, 2025 passed below Exh.17 rejected the plaint under the provisions of Order VII Rule 11(a) and 11(d) of the Code.
3. Being aggrieved and dissatisfied by the aforesaid, the appellants herein-original plaintiffs, have approached this Court by way of present Appeal under Section 96 of the Code.
4. We have heard learned advocate Mr.Dev D. Patel for the appellants-original plaintiffs.
5. Learned advocate for the appellants, while assailing the impugned order, has made following submissions.
(i) Learned advocate submitted that the impugned order passed by the learned trial court is de hors the provisions of Order VII Rule 11 of the Code and thereby deserves to be quashed and set aside.
(ii) Learned advocate submitted that the learned trial court has committed serious error Page 6 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined in law in appreciating the fact that the suit filed by them contained two separate prayers. He submitted that the first prayer is against Defendant No.6 for declaration of his sale deed dated 01st December, 2007 as illegal, null and void and the second prayer is with regard to cancellation of sale deed dated 21st January, 2010 executed in favour of Defendant No.7. Learned advocate, therefore, submitted that the entire plaint could not have been rejected at the instance of original Defendant No.7. Accordingly, the impugned order passed by the learned trial court is bad in law and therefore, deserves to be quashed and set aside.
(iii) Learned advocate submitted that the learned trial court has committed serious error while deciding the application under Order VII Rule 11 of the Code inasmuch as, while deciding the said application, learned trial court has travelled beyond the averments made in the plaint which has resulted into serious miscarriage of justice. Learned advocate, therefore, requested this Court to quash and set aside the impugned order.
(iv) Learned advocate submitted that rejection of the plaint under Order VII Rule Page 7 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined 11(d) of the Code is sheer misconception of law. According to learned advocate, suit which is barred by limitation cannot be said to be a suit barred by any law. Thus, learned advocate submitted that rejection of the plaint on the ground of Order VII Rule 11(d) is not applicable and accordingly, the impugned order deserves to be quashed and set aside.
(v) Learned advocate submitted that the question of limitation is a mix question of fact and law and thereby cannot be decided without recording proper evidence during the course of trial. Learned advocate, therefore, submitted that the impugned order passed under Order VII Rule 11(d) of the Code is not tenable in eye of law and accordingly, the same deserves to be quashed and set aside.
(vi) Learned advocate submitted that the learned trial court has committed clear mistake in holding that the plaintiffs have no right to sue and thereby invocation of Order VII Rule 11(a) of the Code is not tenable in eye of law. Hence, the impugned order based on Order VII Rule 11(a) of the Code is not tenable in eye of law and deserves to be quashed and set aside.
(vii) Learned advocate next submitted that Page 8 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined earlier suit being Special Civil Suit No.80 of 2005 filed by them has been dismissed for default and thus, it is not decided on merits. Learned advocate submitted that the plaint, therefore, cannot be rejected under the provisions of Section 12 of the Code.
(viii) Learned advocate thereafter submitted that the plaintiffs have right to sue for cancellation of subsequent sale deeds as they are holder of registered agreement to sell. Learned advocate further submitted that merely because the suit for performance has been dismissed for default, right accrued in favour of the plaintiffs cannot be said to be extinguished. Accordingly, learned trial court has committed serious error in holding that the plaintiffs have no right to sue.
(ix) So as to substantiate the aforesaid contentions, learned advocate Mr.Patel has placed reliance on the decisions of Sri Biswanath Banik v Sulanga Bose [(2022) 7 SCC 731], Dipakbhai Manilal Patel v State of Gujarat Through Secretary [2007 (2) GLR 1297], Ganesh Prasad v Rajeshwar Prasad [2003 (4) Scale 138], Punjab Small Industries and Export Corporation v Union of India [1995 (Sup4) SCC 681 and Daliben Page 9 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined Valjibhai v Prajapati Kodarbhai Kachrabhai [2024 (0) AIJEL-SC 74555].
5.1 By making above submissions, learned advocate for the appellants has requested this Court to entertain the present Appeal in the interest of justice.
6. We have heard learned advocate Mr.Patel for the appellants, at length. We have also gone through the relevant materials produced at the time of hearing of the Appeal. No other and/or further submissions have been canvassed except what are stated hereinabove.
7. Having considered the aforesaid submissions, following questions fall for consideration of this Court.
(a) Whether in the facts and circumstances the plaintiffs have any right to sue?
(b) Whether the learned trial court has committed any illegality in rejecting the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908?
8. So as to decide the aforesaid questions, in our considered opinion, it is worthy to take note of the decision of the Apex Court in the Page 10 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined case of Correspondence, RBANMS Educational Institution v. B. Gunashekar [2025 SCC Online SC 793]. In the said decision, the Apex Court has succinctly explained the contours of Order VII Rule 11(a) and (d) of the Code. For the sake of brevity, relevant paragraphs are extracted hereinbelow.
"14. Let us first examine the scope and purpose of Order VII Rule 11 CPC. This Court in Dahiben v. Arvindbhai Kalyanji Bhanusali (supra) dead through legal representatives12, explained in detail the applicable law for deciding the application for rejection of the plaint. The relevant paragraphs of the said decision are reproduced below:
23.1 ...
23.2. The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.
23.3. The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words : (SCC p.324, para 12) "12. ...The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to Page 11 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action."
23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.
23.6. Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint14 read in conjunction with the documents relied upon, or whether the suit is barred by any law.
23.7. Order VII Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under:
"14.Production of document on which plaintiff sues or relies.- (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2)Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3)A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4)Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory."
(emphasis supplied) 23.8. Having regard to Order VII Rule 14 CPC, the documents filed alongwith the plaint, are required to be taken into consideration for deciding the application Page 12 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined under Order VII Rule 11(a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
23.9. In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration.
23.11. The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V.Sea Success I which reads as : (SCC p.562, para 139) "139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed."
23.12. In Hardesh Ores (P.) Ltd. v. Hede & Co. the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact.
23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC.
Page 13 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined 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 (supra).
23.15. The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.
24. "Cause of action" means 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.
24.1. In Swamy Atmanand v. Sri Ramakrishna Tapovanam this Court held:
"24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded"
(emphasis supplied) 24.2. In T. Arivandandam v. T.V. Satyapal this Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words: (SCC p. 470, para
5) "5. ...The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of Page 14 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing ..."
(emphasis supplied) 24.3. Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.
24.4. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.
.....
28. A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words "right to sue" means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. Order VII Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected."
14.1. Thus, it is clear that the above provision viz., Order VII Rule 11 CPC serves as a crucial filter in civil litigation, enabling courts to terminate proceedings at the threshold where the plaintiff's case, even if accepted in its entirety, fails to disclose any cause of action or is barred by law, either express or by implication. The scope of Order VII Rule 11 CPC and the authority of the courts is well settled in law. There is a bounden duty on the Court to discern and identify fictitious suit, which Page 15 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined on the face of it would be barred, but for the clever pleadings disclosing a cause of action, that is surreal. Generally, sub-clauses (a) and (d) are stand alone grounds, that can be raised by the defendant in a suit. However, it cannot be ruled out that under certain circumstances, clauses (a) and (d) can be mutually inclusive. For instances, when clever drafting veils the implied bar to disclose the cause of action; it then becomes the duty of the Court to lift the veil and expose the bar to reject the suit at the threshold. The power to reject a plaint under this provision is not merely procedural but substantive, aimed at preventing abuse of the judicial process and ensuring that court time is not wasted on fictitious claims failing to disclose any cause of action to sustain the suit or barred by law. Therefore, the appeal before us requires careful consideration of the scope of rejection of the plaint under Order VII Rule 11 CPC, particularly, in the context of the suit filed based on an agreement to sell against third parties in possession.
15. Order VII Rule 11(a) CPC mandates rejection of the plaint where it does not disclose a cause of action. In Om Prakash Srivastava v. Union of India & Another, this Court pointed out that cause of action means every fact which, if traversed, would be necessary for the plaintiff to prove in order to support their right to judgment. It consists of bundle of facts which narrate the circumstances and the reasons for filing such suit. It is the foundation on which the entire suit would rest. Therefore, it goes without saying that merely including a paragraph on cause of action is not sufficient but rather, on a meaningful reading of the plaint and the documents, it must disclose a cause of action. The plaint should contain such cause of action that discloses all the necessary facts required in law to sustain the suit and not mere statements of fact which fail to disclose a legal right of the plaintiff to sue and breach or violation by the defendant(s). It is pertinent to note here that even if a right is found, unless there is a violation or breach of that right by the defendant, the cause of action should be deemed to be unreal. This is where the substantive laws like Specific Relief Act, 1963, Contract Act, 1872, and Transfer of Property Act, 1882, come into operation. A pure question of law that can be decided at the early stage of litigation, ought to be decided at the earliest stage. In the present case, the respondents' claim based on an agreement to sell. The legal effect of such an agreement must be examined in light of Section 54 of the Transfer of Property Act, 1882, which explicitly states that a contract for the sale of immovable property does not, of itself, create any (2006) 6 SCC 207 interest in or charge on such property. This principle has been Page 16 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined consistently upheld by this Court in the following judgments:
(i) Rambhau Namdeo Gajre (supra) "13. The agreement to sell does not create an interest of the proposed vendee in the suit property. As per Section 54 of the Act, the title in immovable property valued at more than Rs 100 can be conveyed only by executing a registered sale deed. Section 54 specifically provides that a contract for sale of immovable property is a contract evidencing the fact that the sale of such property shall take place on the terms settled between the parties, but does not, of itself, create any interest in or charge on such property. It is not disputed before us that the suit land sought to be conveyed is of the value of more than Rs 100. Therefore, unless there was a registered document of sale in favour of Pishorrilal (the proposed transferee) the title of the suit land continued to vest in Narayan Bapuji Dhotra (original plaintiff) and remain in his ownership. This point was examined in detail by this Court in State of U.P. v.
District Judge [(1997) 1 SCC 496] and it was held thus : (SCC pp. 499-500, para 7) "7. Having given our anxious consideration to the rival contentions we find that the High Court with respect had patently erred in taking the view that because of Section 53-A of the Transfer of Property Act the proposed transferees of the land had acquired an interest in the lands which would result in exclusion of these lands from the computation of the holding of the tenure-holder transferor on the appointed day. It is obvious that an agreement to sell creates no interest in land. As per Section 54 of the Transfer of Property Act, the property in the land gets conveyed only by registered sale deed. It is not in dispute that the lands sought to be covered were having value of more than Rs 100. Therefore, unless there was a registered document of sale in favour of the proposed transferee agreement- holders, the title of the lands would not get divested from the vendor and would remain in his ownership. There is no dispute on this aspect. However, strong reliance was placed by learned counsel for Respondent 3 on Section 53-A of the Transfer of Property Act. We fail to appreciate how that section can at all be relevant against the third party like the appellant State. That section provides for a shield of protection to the proposed transferee to remain in possession against the Page 17 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined original owner who has agreed to sell these lands to the transferee if the proposed transferee satisfies other conditions of Section 53-A. That protection is available as a shield only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. But that has nothing to do with the ownership of the proposed transferor who remains full owner of the said lands till they are legally conveyed by sale deed to the proposed transferees. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party like the appellant State when it seeks to enforce the provisions of the Act against the tenure-holder, proposed transferor of these lands." (emphasis supplied) There was no agreement between the appellant and the respondent in connection with the suit land. The doctrine of part-performance could have been availed of by Pishorrilal against his proposed vendor subject, of course, to the fulfilment of the conditions mentioned above. It could not be availed of by the appellant against the respondent with whom he has no privity of contract. The appellant has been put in possession of the suit land on the basis of an agreement of sale not by the respondent but by Pishorrilal, therefore, the privity of contract is between Pishorrilal and the appellant and not between the appellant and the respondent. The doctrine of part-performance as contemplated in Section 53-A can be availed of by the proposed transferee against his transferor or any person claiming under him and not against a third person with whom he does not have a privity of contract."
(ii) Suraj Lamp & Industries (P) Ltd. v. State of Haryana & Another, wherein, this Court comprehensively examined the nature of rights created by an agreement to sell and concluded that such agreements create, at best, a personal right enforceable against the vendor. The relevant paragraphs read as under:
"16. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam and Anr. (1977) 3 SCC 247, observed:
(SCC pp.254-55, paras 32-33 & 37) Page 18 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined "32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the (2012) 1 SCC 656 Transfer of Property Act. See Rambaran Prasad v.
Ram Mohit Hazra [1967]1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.
33. In India, the word `transfer' is defined with reference to the word `convey'. The word `conveys' in Section 5 of Transfer of Property Act is used in the wider sense of conveying ownership...
37....that only on execution of conveyance, ownership passes from one party to another...."
17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004 (8) SCC 614] this Court held:
"10. Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party."
18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, Page 19 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject- matter."
(iii) Cosmos Co. Operative Bank Ltd v. Central Bank of India & Ors "25. The observations made by this Court in Suraj Lamp (supra) in paras 16 and 19 are also relevant. ....
26. Suraj Lamp (supra) later came to be referred to and relied upon by this Court in Shakeel Ahmed v. Syed Akhlaq Hussain, 2023 SCC OnLine SC 1526 wherein the Court after referring to its earlier judgment held that the person relying upon the customary documents cannot claim to be the owner of the immovable property and consequently not maintain any claims against a third-party. The relevant paras read as under:--
"10. Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries (supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882.
11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:Page 20 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025
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(i). Ameer Minhaj v. Deirdre Elizabeth (Wright) Issar (2018) 7 SCC 639
(ii). Balram Singh v. Kelo Devi Civil Appeal No.6733 of 2022
(iii). Paul Rubber Industries Private Limited v.
Amit Chand Mitra, SLP(C) No.15774 of 2022.
12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property. Once this is the settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property in question whether as an owner or a licensee.
13. The argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view."
15.1. Undoubtedly, a sale deed, which amounts to conveyance, has to be a registered document, as mandated under Section 17 of the Registration Act, 1908. On the other hand, an agreement for sale, which also requires to be registered, does not amount to a conveyance as it is merely a contractual document, by which one party, namely the vendor, agrees or assures or promises to convey the property described in the schedule of such agreement to the other party, namely the purchaser, upon the latter performing his part of the obligation under the agreement fully and in time. Section 54 of the Transfer of Property Act, 1882 explicitly lays down that a contract for sale will not confer any right or interest. Section 53-A of the Transfer of Property Act, 1882 offers protection only to a proposed transferee who has part performed his part of the promise and has been put into possession, against the actions of transferor, acting against the interest of the transferee. For the proposed transferee to seek any protection against the transferor, he must have either performed his part of obligation in full or in part. The Page 21 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined applicability of Section 53-A of the Transfer of Property Act, 1882 is subject to certain conditions viz., (a) the agreement must be in writing with the owner of the property or in other words, the transferor must be either the owner or his authorised representative, (b) the transferee must have been put into possession or must have acted in furtherance of the agreement and made some developments, (c) the protection under Section 53-A is not an exemption to Section 52 of the Transfer of Property Act, 1882 or in other words, a transferee, put into possession with the knowledge of a pending lis, is not entitled to any protection, (d) the transferee must be in possession when the lis is initiated against his transferor and must be willing to perform the remaining part of his obligation, (e) the transferee must be entitled to seek specific performance or in other words, must not be barred by any of the provisions of the Specific Relief Act, 1963 from seeking such performance. The protection under Section 53-A is not available against a third party who may have an adversarial claim against the vendor. Therefore, unless and until the sale deed is executed, the purchaser is not vested with any right, title or interest in the property except to the limited extent of seeking specific performance from his vendor. An agreement for sale does not confer any right to the purchaser to file a suit against a third party who is either the owner or in possession, or who claims to be the owner and to be in possession. In such cases, the vendor will have to approach the court and not the proposed transferee.
15.2. In the present case, juxtaposing the above legal principles to the facts of the case, we find that the respondents' claim suffers from multiple fatal defects that go to the root of the case, which are as follows:
15.2.1. First, there is no privity between the respondents and the appellant. The agreement to sell, is not between the parties to the suit. According to Section 7 of the Transfer of Property Act, 1882, only the owner, or any person authorised by him, can transfer the property. We have already held that an agreement to sell does not confer any right on the proposed purchaser under the agreement. Therefore, as a natural corollary, any right, until the sale deed is executed, will vest only with the owner, or in other words, the vendor to take necessary action to protect his interest in the property. According to the respondents, the property belongs to the vendors and according to the appellant, the property vests in them. Since the respondents are not divested any right by virtue of the agreement, they cannot sustain the suit as they would not have any locus. Consequently, they also cannot seek any declaration in respect of the title of the Page 22 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined vendors. But when the title is under a cloud, it is necessary that a declaration be sought as laid down by this Court in the judgment in Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs and others27. Therefore, the suit at the instance of the respondents/plaintiffs is not maintainable and only the vendors could have approached the court for a relief of declaration. In the present case, strangely, the vendors are not arrayed as parties to even support any semblance of right sought by the respondents/plaintiffs, which we found not to be in existence. Further, the respondents/plaintiffs claim to have paid the entire consideration of Rs.75,00,000/- in cash, despite the introduction of Section 269ST to the Income Tax Act in 2017 and the corresponding amendment to Section 271 DA. As held by us, the agreement can only create rights against the proposed vendors and not against third parties like the appellant herein. As the agreement to sell does not create any transferable interest or title in the property in favour of the respondents/plaintiffs, as per Section 54 of the Transfer of Property Act, 1882, we hold that the attempt of the plaintiffs to disclose the cause of action through clever drafting, based solely on an agreement to sell, must fail, as such disclosure cannot be restricted to mere statement of facts but must disclose a legal right to sue.
15.2.2. Secondly, and perhaps more fundamentally, as we have seen and held above, the respondents have no legal right that can be enforced against the appellant as their claim is impliedly barred by virtue of Section 54 of the Transfer of Property Act, 1882. Their remedy, if any, lies against their proposed vendors. The plaint averments remain silent regarding the execution of a registered sale deed in favour of the respondents, which alone can confer a valid right on them to file a suit against the appellant as held by us earlier. Another, remedy available to them is to institute a suit against the vendors for specific performance. This principle was clearly established in K. Basavarajappa (supra), wherein this Court held that an agreement holder lacks locus standi to maintain actions against third parties. The relevant paragraph of the said judgment is extracted below:
"8. ... By mere agreement to sell the appellant got no interest in the property put to auction to enable him to apply for setting aside such auction under Rule 60 and especially when his transaction was hit by Rule 16(1) read with Rules 51 and 48. Consequently he could not be said to be having any legal interest to entitle him to move such an application. Consequently no fault could be found with the decision of the Division Bench of the High Court rejecting the entitlement of the appellant to move such an application."Page 23 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025
NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined 15.2.3. The contention of the learned counsel for the respondents that the judgements relied upon by the appellant are not applicable, cannot be accepted for the simple reason that the ratio laid down by this court, is applicable irrespective of the stage at which it is relied upon. What is relevant is the ratio and not the stage. Such contentions go against the spirit of Article 141 of the Constitution of India. Once a ratio is laid down, the courts have to apply the ratio, considering the facts of the case and once, found to be applicable, irrespective of the stage, the same has to be applied, to throw out frivolous suits. There is no gainsaying in contending that the other party must be put to undergo the ordeal of entire trial, when the plaintiff's claim is either barred by law or the plaint fails to disclose a cause of action, as it would amount to abuse of process of law, wasting the precious time of the courts. On the other hand, the judgments relied upon by the respondents do not come into their aid as the judgments referred to by them also lay down the proposition that the plaint can be rejected if on a meaningful reading of it, fails to disclose a cause of action or is barred by law. In the present case, from the facts, we also find this to be a case of champertous litigation, between the plaintiffs and the vendors, who are not parties to the suit. Though champertous litigations have been recognized in our country to some extent by way of amendment to CPC by certain states, considering the facts of the present case and the averments in the plaint, we only find the litigation to be inequitable, unconscionable or extortionate.
15.2.4. Further, the respondents are not in possession of the property. Whereas, the appellant's possession since 1905 is admitted in the plaint itself. In such circumstances, where the plaintiffs are not in possession and the defendant is in settled possession for over a century, a suit for bare injunction by a proposed transferee is clearly not maintainable Section 41(j) of the Specific Relief Act, 1963 prohibits grant of injunction when the plaintiff has no personal interest in the matter. In the present case, the respondents, being mere agreement holders, have no personal interest in the suit schedule property that can be enforced against third parties. The "personal interest" is to be understood in the context of a legally enforceable right, as when there is a bar in law, the mere existence of an interest in the outcome cannot give a right to sue. As held by us above, no declaratory relief has been sought as contemplated under Section 34 of the Specific Relief Act, 1963. This principle was clearly established in Jharkhand State Housing Board (supra), in which, this Court emphasized that where title is in dispute, a mere suit for injunction Page 24 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined is not maintainable. The relevant portion of the said judgment is reproduced hereunder:-
"11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction."
16. The High Court without noticing the above defects in the plaint, dismissed the application filed by the appellant under Order VII Rule 11 CPC by observing that the cause of action is a mixed question of fact and law and that the matter requires trial. When the defects go to the root of the case, barred by law with fictitious allegations and are incurable, no amount of evidence can salvage the plaintiffs' case. Though an agreement to sell creates certain rights, these rights are purely personal between the parties to the agreement and can only be enforced against the vendors or, in limited circumstances, under Section 53-A of the Transfer of Property Act, 1882, against a subsequent transferee with notice, as held by us above. They cannot be enforced against third parties who claim independent title and possession. Therefore, the High Court's observation that an agreement to sell creates an "enforceable right" cannot be countenanced by us.
17. At the same time, we are conscious of principle that only averments in the plaint are to be considered under Order VII Rule 11 CPC. While it is true that the defendant's defense is not to be considered at this stage, this does not mean that the court must accept patently untenable claims or shut its eyes to settled principles of law and put the parties to trial, even in cases which are barred and the cause of action is fictitious. In T. Arivandandam (supra), this Court emphasized that where the plaint is manifestly vexatious and meritless, courts should exercise their power under Order VII Rule 11 CPC and not waste judicial time on matters that are legally barred and frivolous. The present case falls squarely within this principle."
9. Keeping in mind the aforesaid exposition Page 25 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined of law, in our view, certain admitted facts deserve to be kept in mind, which are as under.
(i) Swapnilbhai Doshi, ancestor of the plaintiffs, entered into registered agreement to sell dated 28th October, 1996 for the suit property, owned by original Defendant No.1 through his power of attorney - Defendant No.2.
(ii) Swapnilbhai Doshi expired on 21st November, 2003. It is pertinent to state that during his entire lifespan, no efforts appear to have been made by him to get the sale deed executed in his favour pursuant to agreement to sell dated 28th October, 1996.
(iii) Importantly, agreement to sell dated 28th October, 1996 was followed by the document being cancellation of agreement to sell on 20th February, 2004. The said cancellation of agreement to sell is also a registered document duly registered before the Sub Registrar, Sanand. Surprisingly, till today, by way of any proceedings, the said cancellation of agreement to sell document has not been questioned by the plaintiffs before any court of law. The original Defendant No.1 has sold the suit property in favour of Defendant Nos.3 to 5 by way of registered sale deed dated 19th February, 2004.
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(iv) The plaintiffs have filed one Special Civil Suit No.80 of 2005 against the Defendant Nos.1 to 5 seeking specific performance of registered agreement to sell dated 28th October, 1996 as well as cancellation of sale deed dated 19th February, 2004 executed in favour of Defendant Nos.3 to 5.
(v) Defendant Nos.3 to 5, during the pendency of the said Special Civil Suit, further transferred the suit property by way of registered sale deed dated 01st December, 2007 in favour of Defendant No.6. Defendant No.6 thereafter transferred the suit property in favour of Defendant No.7 by executing registered sale deed dated 21st January, 2010.
(vi) Having learnt about the said transfers, plaintiffs have moved an application under Order I Rule 10 of the Code in Special Civil Suit No.80 of 2005 seeking, inter alia, impleadment of Defendant Nos.6 and 7 in Special Civil Suit No.80 of 2005.
(vii) The said application was rejected by the learned trial court vide order dated 16th November, 2013. Importantly, the said order has attained its finality in absence of any further challenge thereto.
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(viii) Special Civil Suit No.80 of 2005 has been ordered to be dismissed for default on 01st December, 2014.
(ix) After almost three years, the plaintiffs appear to have approached the learned trial court by way of CMA No.45 of 2017 seeking, inter alia, restoration of the Special Civil Suit No.80 of 2005 which, vide order dated 03rd August, 2019, learned Principal Senior Civil Judge, Ahmedabad (Rural) at Mirzapur returned under Order VII Rule 10 of the Code for want of jurisdiction. The appellants thereafter could not produced and/or to show this Court that any application for restoration of Special Civil Suit No.80 of 2005 was filed before the competent court.
(x) However, in the meantime, by way of present suit being Special Civil Suit No.657 of 2017, appellants have challenged sale deeds of original Defendant Nos.6 and 7.
10. On careful consideration of the aforesaid admitted position, it appears that the appellants-plaintiffs are espousing their right on the basis of agreement to sell dated 28th October, 1996. The said agreement to sell is the main source on which the appellants-plaintiffs are claiming their right to sue. However, the Page 28 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined said agreement to sell dated 28th October, 1996 has been cancelled way back in the year 2004 by way of a registered document. Pertinently, neither the appellants-plaintiffs have challenged the said registered document by way of any suit nor in the plaint any averment is made with regard to the same. Thus, in our view, it is a case of suppression at the behest of the plaintiffs. Accordingly, when the entire suit is based on an agreement to sell which itself is cancelled, plaintiffs have no right to institute any suit questioning and/or challenging the sale deed of the defendant Nos.6 and 7. We say so because agreement to sell does not confer any right on the appellants-plaintiffs who is the proposed purchaser. Further, it is important to note that suit being Special Civil Suit No.80 of 2005 filed by the appellants-plaintiffs against defendant Nos.1 to 5 for specific performance of registered agreement to sell dated 28th October, 1996 as well as cancellation of registered sale deed dated 19th February, 2004 executed in favour of defendant Nos.3 to 5 has already been dismissed for default way back on 01st December, 2014. An application for restoration of the said suit has also been returned by the court vide order dated 03rd August, 2019 under Order VII Rule 10 of the Code for want of jurisdiction. The Page 29 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined appellants-plaintiffs thereafter have not shown this Court that any application for restoration of the suit being Special Civil Suit No.80 of 2005 was filed before the competent court of law. Thus, the instant suit is for cancellation of the sale deed of defendant Nos.6 and 7 who have purchased from defendant Nos.3 to 5, in our view, is not maintainable for the simple reason (I) that the suit of the plaintiffs on the basis of so-called agreement to sell itself is not maintainable against third party as the plaintiffs cannot sustain the suit by virtue of agreement to sell and (ii) the suit for specific performance being Special Civil Suit No.80 of 2005 has already been dismissed for default, therefore, the present defendant Nos.6 and 7 who have purchased the suit property from defendant Nos.3 to 5 cannot be questioned directly without establishing the right of the plaintiffs in the suit for performance and consequential relief of cancellation of sale deed of defendant Nos.3 to 5. 10.1 In view of the aforesaid facts, this Court would not hesitate to hold that approach and conduct of the plaintiffs is not bona fide. We feel so because on one hand the suit seeking specific performance as well as cancellation of Page 30 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined sale deed of Defendant Nos.3 to 5 got dismissed for default and no effective steps appear to have been taken till today by the plaintiffs for restoration of the said suit and on the other hand, by way of independent suit, the sale deed of defendant Nos.6 and 7 is sought to be challenged. Thus, clearly the intention of the plaintiffs behind filing the present suit is to put the title of defendant Nos.6 and 7 in limbo. In our view, the present suit is most vexatious and frivolous in nature. Under the circumstances, the decision of the Apex Court in the case of Correspondence, RBANMS Educational Institution (supra) squarely applies for such a nature of suit.
11. Under the circumstances, so far as question (a) is concerned, it is answered in negative inasmuch as, the agreement to sell does not confer any right upon the proposed purchaser. In the instant case, admittedly, even otherwise, agreement to sell dated 28th October, 1996 has already been cancelled by way of registered document and the same has not been questioned by the appellants-plaintiffs. Therefore, considering the plaint, the plaintiffs have not prayed for any performance against defendant Nos.1 and 2. Even there is no prayer so far as sale deed of Page 31 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined defendant Nos.3 to 5 is concerned. Therefore, consequential sale deed in favour of defendant Nos.6 and 7 cannot be questioned. Upon careful consideration of the entire plaint, the plaintiffs have averred that they are registered holder of the agreement to sell dated 28th October, 1996, however, the said agreement to sell has already been cancelled by way of a registered document way back in the year 2004. Therefore, the entire suit based on such registered agreement to sell would fall flat and the plaint also suffers from vices of material suppression of fact. In our view, therefore, the plaintiffs will have no right to sue and the learned trial court has rightly rejected the plaint on that ground.
12. We have gone through the entire order of the learned trial court. The observations of the learned trial court are reproduced hereunder.
"6. Keep in mind the settled proposition of law with respect to the provision contained in Order 7 Rule 11 of CPC, if the above mentioned issues be determined, then meaningful reading of the plaint makes it crystal clear that, the plaintiffs herein have filed the present suit based upon the registered agreement to sale vide Regis. No.2306/1996 dated 28-10-1996 executed by the defendant No.1 through his power of attorney being the defendant No.2 in favour of the plaintiffs' ancestor Mr. Swapnilbhai Arvindbhai Doshi. It is pertinent to note here that, the plaintiffs' ancestor Mr. Swampnilbhai Arvindbhai Doshi died on 21-11-2003, and till his lifetime, the said Page 32 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined agreement to sale was not been fruitilized as well as neither of the parties to the same ever tried to enforce their respective duties amongst each other. For the said reason, the plaintiffs herein as being the legal heirs of Mr. Swampnilbhai Arvindbhai Doshi have filed the Special Civil Suit No.80 of 2005 seeking specific performance of the said agreement to sale executed in favour of their father. It is also being admitted fact on record that, the said suit is ordered to be dismissed under the provision contained in Order 10 Rule 8 of the CPC on 01-12- 2014. Meaning thereby, the remedy in favour of the plaintiffs based upon the said registered agreement to sale vide Regis. No.2306/1996 dated 28-10-1996 to have executed with the registered sale deed in their favour and to obtain the title with respect to the present suit property, is not been decreed in their favour. It is pertinent to note here that, in view of the provision contained in Section 54 of the Transfer of Property Act, 1881 the agreement to sale with respect to any immovable property will never create any right or title to the said property in favour of the intending purchasor (Meghmala v. G. Narasimha Reddy, 2010 8 SCC 383). By virtue of the agreement to sale, the only right legally vested in favour of the intending purchasor is, to have executed with the registered sale deed in relation to the property dealt with and to get the legal title to the same, either by mutual acts of the parties or by way of enforcing it within the ambit of specific performance. Except the same, the intending purchasor would get nothing. Here in the case, it is admitted position on record that, since the plaintiffs herein remain failed to get the relief of the specific performance of the said registered agreement to sale vide Regis. No.2306/1996 dated 28-10-1996, in its earlier Spl. Civil Suit No.80/2005. For the said reason, the plaintiffs herein would not possess any legal right to sue and challenged the registered sale deed No.5842 and 5843 dated 01-12-2007 executed in favour of the defendant No.6 as well as the registered sale deed No.530 dated 21-01-2010 executed in favour of the defendant No.7. In the absence of the legal right to sue and legal right to challenge the present registered sale deeds, no legal cause of action can be said to have ever arose in favour of the plaintiffs to file the present suit with the facts as pleaded in the plaint in relation to the final relief as prayed for vide para-11 of the plaint. Hence, it can be said that, the plaintiffs herein remain failed to disclose the legal cause of action in relation to the final relief as praved for Page 33 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined in terms of para-11 of the plaint. Along with the same, it is also appears crystal clear that, the plaintiffs herein in the absence of the legal cause of action have filed the present suit by having recourse of clever drafting, which is not permissible in the eyes of law [ITC v Debts Recovery Appellate Tribunal, AIR 1998 SC 634]. Hence, the plaint of the present suit is clearly deserves to be rejected under the provision contained in Order VII Rule 11(a) of the CPC.
The meaningful reading of the plaint further clearly suggestive to the fact that, the plaintiffs' earlier suit vide Special Civil Suit No.80/2005 was dismissed under the provision contained in Order IX Rule 8 of CPC vide order dated 01-12-2014. It is pertinent to note here that, the plaintiffs have filed the present suit with the same facts, based upon the same cause of action, against the same parties, for the very same subject matter identical to that of their earlier Spl. Civil Suit No.80 of 2005. Since the said suit is dismissed under the provision contained in Order IX Rule 8 of CPC vide order dated 01-12-2014, hence, the provision contained in Order IX Rule 9 of CPC would clearly bar the fresh suit based upon the same cause of action. Accordingly, the present suit is clearly appears to be hit by Order IX Rule 9 of CPC. If that be so, the present suit is clearly barred by Section 12 of the CPC. For the said reason, the plaint of the present suit is clearly deserves to be rejected under the provision contained in Order VII Rule 11(d) of CPC.
Meaningful reading of the plaint clearly suggestive to the fact that, though the base of the present suit is the registered agreement to sale vide Regis. No.2306/1996 dated 28-10-1996, but the plaintiffs herein have not sought the relief of specific performance of the said agreement to sale as well as the plaintiffs herein have not sought the relief of the cancellation of the registered sale deed No.323 and 324 dated 19-02-2004 executed by the defendant No.1 in favour of the defendant No.3 to 5. In the absence of the said main relief directly emerging from the registered agreement to sale dated 28-10-1996, the relief of the plaintiffs herein seeking the cancellation of the registered sale deed No.5842 and 5843 dated 01-12-2007 executed in favour of the defendant No.6 as well as seeking cancellation of the registered sale deed No.530 dated 21-01-2010 executed in favour of the defendant No.7, is legally noi tenable. It is pertinent to Page 34 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined note here that, the plaintiffs have sought the present relief as a main relief under Section 31 of the Specific Relief Act, 1963. The period of limitation to seek the said relief is provided under Article 59 of the Limitation Act, 1963. The said provision provides the period of limitation for 03 years, which begins to run from the moment, the plaintiffs came to know with regard to the facts which makes them entitled to sought cancellation of the instrument/ document. In the case on hand, the plaintiffs herein seeking cancellation of the above- mentioned two registered sale deeds executed in favour of the defendant No.6 & 7 respectively, hence, it would be appropriate to scrutinize herein from the meaningful reading of the plaint itself as to when the plaintiffs herein came to know with regard to the said registered sale deeds executed in favour of the defendant No. 6 & 7? In relation to the same, the meaningful reading of the plaint is clearly suggestive to the fact that, in the previous Spl. Civil Suit No.80/2005, the plaintiffs herein clearly came to know with regard to the present both the registered sale deeds in favour of the present defendant No.6 & 7 and that is why in view of the pleadings vide para-7 of the plaint, they have submitted an application under Order 1 Rule 10 of CPC in the said suit, which has been rejected by the said Court on 16-11-2013. Meaning thereby, before 16-11-2013, the plaintiffs herein clearly came to know with regard to the said registered sale deeds. It is further pertinent to note here that, without the signature of the plaintiffs herein, the said application could not have been filed. After filing the said application, since the same was rejected on 16-11-2013, meaning thereby, the plaintiffs herein throügh their Ld. Advocate have taken part therein and it is therefore, after hearing on both the sides, the said application was decided by the said Court. It is contended by the plaintiffs herein that, the said order was not been intimated to them by their Ld. Advocate. But to corroborate the same, nothing produced on record by the plaintiffs to believe the said facts as well as it is not being the say of the plaintiffs that for the said negligency they have filed complaint against their Ld. Advocate before the Bar Council as well as it is not being the say of the plaintiffs that, till the said suit been dismissed, the plaintiffs have retired the said Advocate as well as it is not being the say of the plaintiffs that the said order was not within the knowledge of their Advocate. Accordingly, it cannot be denied that, on and prior to the date 16-11-2013 on which their application to Page 35 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined join the present defendant No.6 & 7 therein the said suit, was rejected, the plaintiffs herein were within the knowledge regarding the execution of the registered sale deed in favour of the present defendant No.6 & 7. Accordingly, the right to sue in favour of the plaintiffs to challenge the said registered sale deeds executed in favour of the defendant No.6 & 7 was clearly came into existence on or prior to 16-11-2013. In view of the provision contained in Article 59 of the Limitation Act, 1963, period of itation to challenge the said registered sale deeds was clearly began toin on or prior to 16- 11-2013, hence, within the period of 03 years, the plaintiffs herein had to challenge the said registered sale deeds executed in favour of the defendant No.6 & 7 either therein the said Spl. Civil Suit No.80/2005 or by way of filing the new suit, which period of limitation stood expired on 16-11-2016. But admittedly, neither the plaintiffs herein remain succeed to challenge the said registered sale deeds executed in favour of the defendant No.6 & 7 therein the said Spl. Civil Suit No.80/2005 within the said period of limitation nor the plaintiffs have filed the present suit till 16- 11-2016. Accordingly, the present suit instituted on 02-05-2017 with the main prayer of seeking cancellation of the registered sale deeds executed in favour of the defendant No.6 & 7 in terms of para-11(A) of the plaint is clearly barred by law. Minutely scrutinizing the pleadings of the plaint makes it crystal clear that, the plaintiffs herein remain failed to plea any facts, within the purview of Section 4 to 24 (inclusive) of the Limitation Act, 1963, which may extend the said period of limitation since 15-11-2016 till 02-05-2017 on which the present suit is filed. Accordingly, the present suit with the main prayer in terms of para-11(A) of the plaint is clearly barred under Section 3 of the Limitation Act, 1963. Since the main relief is barred by law, hence, the consequential relief would not be survived. For the said reason, the plaint of the present suit is clearly deserves to be rejected under the provision contained in Order VII Rule 11(d) of CPC.
So far as the issue raised by the present defendant No.7 as to the present suit is hit by the principle of res judicata as envisaged by Section 11 of the CPC is concerned, it is pertinent to note here that, plaintiff's earlier suit being the Spl. Civil Suit bearing No.80 of 2005 was though filed between the same parties as involved in the present suit, subject matter involved therein were also been Page 36 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025 NEUTRAL CITATION C/FA/1043/2025 CAV JUDGMENT DATED: 20/06/2025 undefined identical to the present suit, parties are litigating the same issue, but the said previous suit was not been heard and finally decided on merits by the said Court & since the said suit was dismissed under Order IX Rule 8 of CPC, the said suit cannot be said to have been heard and finally decided on merits and for the said reason, the present suit cannot be said to be hit by doctrine of res judicata. Accordingly, the present stand taken by defendant No.7 not appeared to be sustainable in the eye of law and for the said reason, the plaint of the present suit is not deserves to be rejected under the provision contained in Order VII Rule 11(d) of CPC. Evenotherwise, it is being the settled law that, the plaint can not be rejected within the ambit of Order VII Rule 11 of CPC by applying the doctrine of res judicata [Keshav Sood v. Kirit Pradeep Sood, Civil Appeal No.5841/2023].
In view of the aforesaid, in our view, there is no illegality committed by the learned trial court.
13. In the result, the present Appeal is bereft of any merits and the same is hereby rejected.
14. In view of above, the Civil Application does not survive and stands disposed of accordingly.
(SANGEETA K. VISHEN,J) (NIRAL R. MEHTA,J) ANUP Page 37 of 37 Uploaded by ANUP V PARIKH(HC00956) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:17:25 IST 2025