Gujarat High Court
Nimeshbhai Vasudev Shrimali vs Ghanshyambhai Manibhai Patel on 12 February, 2026
NEUTRAL CITATION
C/SA/182/2022 ORDER DATED: 12/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 182 of 2022
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NIMESHBHAI VASUDEV SHRIMALI & ANR.
Versus
GHANSHYAMBHAI MANIBHAI PATEL & ORS.
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Appearance:
MR UMANG H OZA(2440) for the Appellant(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 1,10,11,12,13,14,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 12/02/2026
ORAL ORDER
1. The present Second Appeal is preferred under Section 100 of the Code of Civil Procedure 1908 ("the Code"
for short) at the instance of unsuccessful plaintiffs challenging concurrent judgment and order passed by learned trial Court below whereby learned Principal Senior Civil Judge, Nadiad rejected the plaint of Special Civil Suit No.47 of 2018 by passing the order below Exh.10 in exercise of jurisdiction under Order VII, Rule 11(d) of the Code as well as the judgment and order dated 20.9.2021 passed by learned 3rd Additional District Judge, Kheda at Nadiad in an appeal under Section 96 of the Code being Regular Civil Appeal No.160 of 2019 filed by the appellants / plaintiffs came to be dismissed by which the impugned judgment and order passed by the learned Court below has been Page 1 of 12 Uploaded by H.M. PATHAN(HC00167) on Mon Feb 16 2026 Downloaded on : Fri Mar 13 21:53:24 IST 2026 NEUTRAL CITATION C/SA/182/2022 ORDER DATED: 12/02/2026 undefined confirmed.
2. In nutshell, the facts taken from the impugned judgments and orders as well as pleadings are as under.
3. Navratna society in city of Nadiad exists on Final Plot No.786, Town Planning Scheme No.1 of Survey No.3264. The plaintiffs and defendants are residents of Navratna society. In the said society, in total 21 tenements and 8 row houses have been constructed. The plaintiffs are one of the owners of row house in the said society. According to the plaintiffs, the compound wall of the northern side wall damaged due to the trees grown up there. The plaintiffs, having removed the trees, reconstructed the compound wall. Some of the defendants raised the dispute that the plaintiffs have constructed compound wall on the common plot and thereby the defendants have filed the application before the concerned Police Station and subsequent thereto, removed the compound wall constructed by the plaintiffs.
4. The plaintiffs in the suit further alleged that some of the defendants and owners of some of the houses in the same society permitted Montu @ Popat Chelaji Marwadi to carry on kachcha construction in the common plot by obtaining Rs.5,00,000/- from him. Thus, the plaintiffs Page 2 of 12 Uploaded by H.M. PATHAN(HC00167) on Mon Feb 16 2026 Downloaded on : Fri Mar 13 21:53:24 IST 2026 NEUTRAL CITATION C/SA/182/2022 ORDER DATED: 12/02/2026 undefined firstly demanded help from the defendants to remove unauthorized construction and then went to Nagarpalika and Police Station on 10.5.2011 and subsequently on 12.12.2011 encroachment was removed. In pursuance of which, the suit was also filed by the encrocher raising contention that only the plaintiffs and owners of House No.A/12 are objecting against the construction in the common plot.
5. In the background of these pleadings, the plaintiffs pleaded the cause of action that they have given the notice to the defendants and the defendant No.10 are not permitting to park their vehicle in the common plot and the defendants have removed the compound wall and they are liable to pay damages of Rs.19,10,000/- with interest and the relief which may be deemed fit may be granted by the learned trial Court.
6. In the suit proceedings, the defendants have come forward with an application Exh.10 under Order VII, Rule 11(d) of the Code to reject the plaint.
7. Learned trial Court, having referred and relied upon the plethora of authorities cited at bar, was pleased to reject the plaint on the ground that the plaintiff himself, being practicing Advocate, undervalued the suit for the Page 3 of 12 Uploaded by H.M. PATHAN(HC00167) on Mon Feb 16 2026 Downloaded on : Fri Mar 13 21:53:24 IST 2026 NEUTRAL CITATION C/SA/182/2022 ORDER DATED: 12/02/2026 undefined purpose of Court Fees, the plaintiffs have not submitted insufficient court fee stamp of Rs.26,873/- and secondly, the suit filed by the plaintiffs attract the provisions of Section 96 of the Gujarat Cooperative Societies Act 1961. The judgment and order dated 26.8.2019 passed by the learned Principal Senior Civil Judge, Kheda at Nadiad has been made subject matter of First Appeal under Section 96 of the Code by the appellants / plaintiffs by filing Regular Civil Appeal No.160 of 2019. The appeal was heard extensively by the learned Appellate Court and dismissed the same by judgment and order dated 20.9.2021. Hence, this Second Appeal.
8. The appellants proposed the following questions of law as substantial questions of law.
"(a) Whether Ld Courts below committed error in law while rejecting the plaint and confirming the order without considering the fact that the society is not registered under the provisions of Gujarat Co-Operative Societies Act.
(b) Whether suit is bad and not tenable under provisions or Order-7 Rule 11 if deficit court fees are not paid in time?
(c) Whether suit filed by any member of unregistered society against the other members of the society be considered to be bad and not tenable ?
(d) Whether any suit can be rejected without Page 4 of 12 Uploaded by H.M. PATHAN(HC00167) on Mon Feb 16 2026 Downloaded on : Fri Mar 13 21:53:24 IST 2026 NEUTRAL CITATION C/SA/182/2022 ORDER DATED: 12/02/2026 undefined there being any averment about bar of provisions of any law?"
9. Learned advocate Mr.Umang Oza, seeking admission of this Second Appeal on the aforesaid questions of law formulated them as substantial questions of law and / or any other substantial questions of law as may be deemed fit by this Court, would submit that learned trial Court has committed an error in passing the impugned order as the said society is a cooperative society registered under the provisions of the Gujarat Cooperative Societies Act, 1961. He referred to the judgment of this Court in the case of Chitrakut Dham Cooperative Housing Society Limited, Mahuva Vs Kharak Haribhai Ravjibhai Bhalariya and others, reported in 2010 (1) GLR 430 in support of his submissions. He further submits that learned Appellate Court has continued brew such error and dismissed the appeal. He further submits that learned Appellate Court instead of applying the mind independently, mainly referred to the findings of the learned trial Court and confirmed the judgment and order passed by the learned trial Court below. Therefore, he submits that the present Second Appeal deserves consideration.
10. Upon the above submissions, learned advocate Mr.Umang Oza appearing for the appellants submits to admit the Second Appeal.
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11. I have heard learned advocate Mr.Umang Oza appearing for the appellants. Though Notice is served to the otherside, none has remained present.
12. It is needless to say that while deciding the plea of rejection of plaint under Order VII, Rule 11 of the Code, the averments made in the plaint have to be seen and the defence made by the defendants is wholly irrelevant. Since it is a plea of demurrer, the Court is required to see whether the averments made in the plaint, without examining its validity, are barred by the provisions of law. Simultaneously, the Court is required to see that the suit is not camaflouged by devious and clever drafting of the plaint. It is also to be noted that the provisions of Order VII, Rule 11 of Code cast obligation upon the Court to verify whether the plaint discloses a cause of action or whether the reliefs claimed are undervalued for the purpose of Court Fees or jurisdiction or the suit appears from the statements in the plaint to be barred by any law. Thus, even if the defendant did not submit the plea of rejection of plaint, it is the bounden duty of the Court to verify the plaint and its statements in regard to the maintainability of the suit prior to registration of the suit. The Honourable Supreme Court in the case of Saleem Bhai and others Vs State of Maharashtra and others, reported in (2003) 1 SCC 557 Page 6 of 12 Uploaded by H.M. PATHAN(HC00167) on Mon Feb 16 2026 Downloaded on : Fri Mar 13 21:53:24 IST 2026 NEUTRAL CITATION C/SA/182/2022 ORDER DATED: 12/02/2026 undefined mandates that suit is irresponsible and barred under the law if the suit is camaflouged by devious and clever drafting in the plaint, such suit be nipped in the bud as it being the frivolous or vexatioius suit. In para 9, the Honourable Apex Court has held as under.
"9. A perusal of Order 7 Rule 11 CPC 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 7 Rule 11 CPC 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 7 CPC, 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 7 Rule 11 CPC 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."
13. At this stage, reference is required to be made to the decision of the Honourable Supreme Court in the case of K.Akbar Ali Vs K.Umar Khan and others, reported in (2021) 14 SCC 51, wherein the Honourable Supreme Court has observed as under.
Page 7 of 12 Uploaded by H.M. PATHAN(HC00167) on Mon Feb 16 2026 Downloaded on : Fri Mar 13 21:53:24 IST 2026NEUTRAL CITATION C/SA/182/2022 ORDER DATED: 12/02/2026 undefined "5. It is well settled that while considering an application under Order 7 Rule 11 CPC, the question before the Court is whether the plaint discloses any cause of action or whether the suit is barred by any law, on the face of the averments contained in the plaint itself. While considering an application under Order 7 Rule 11 CPC, the Court is not to look into the strength or weakness of the case of the plaintiff or the defence raised by the defendant.
6. In this case, the petitioner-plaintiff has, as stated above, asserted that the power of attorney was given to Mr Zahir Ali to maintain and administer the suit property. There is no assertion in the plaint that the power of attorney authorised Mr Zahir Ali to execute any pre- emption agreement.
7. In any case, an application under Order 7 Rule 11 CPC for rejection of the plaint requires a meaningful reading of the plaint as a whole. As held by this Court in ITC Ltd. v. Debts Recovery Appellate Tribunal, clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Similarly the Court must see that the bar in law of the suit is not camouflaged by devious and clever drafting of the plaint. Moreover, the provisions of Order 7 Rule 11 are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are not allowed to consume the time of the Court.
Xxxxx xxxxxx xxxxx
13. The Division Bench of the High Court has Page 8 of 12 Uploaded by H.M. PATHAN(HC00167) on Mon Feb 16 2026 Downloaded on : Fri Mar 13 21:53:24 IST 2026 NEUTRAL CITATION C/SA/182/2022 ORDER DATED: 12/02/2026 undefined done substantial justice by nipping in the bud, a suit which is ex facie not maintainable for want of cause of action against the defendants or any of them, thereby saving precious judicial time as also inconvenience and expenditure to the parties to the suit.
14. We are, therefore, not inclined to interfere with the impugned judgment and order of the Division Bench of the High Court under Article 136 of the Constitution of India. Consequently, the special leave petition is dismissed."
14. In the background of the aforesaid facts, if we examined the order of the learned trial Court, the plaint has been rejected on the ground that the said society is registered under the provisions of the Gujarat Cooperative Societies Act 1961 and the suit attracts the provisions of Sections 96, 166 and 167 of the Gujarat Cooperative Societies Act 1961. Non-following such provisions and filing of the suit thereof is barred by the law. The second ground raised by learned trial Court to reject the plaint is that the plaint is short off the Court Fees stamp of Rs.26,873/-. In the First Appeal, the learned Appellate Court, having considered the defence of cause of action being tenable on facts, come to the conclusion that the cause of action pleaded by the plaintiffs is hopelessly barred by law of limitation and is insufficient to draw decree rather it is deviously and cleverly pleaded to harass the defendants. Thus, in absence of real and genuine cause of action, Page 9 of 12 Uploaded by H.M. PATHAN(HC00167) on Mon Feb 16 2026 Downloaded on : Fri Mar 13 21:53:24 IST 2026 NEUTRAL CITATION C/SA/182/2022 ORDER DATED: 12/02/2026 undefined learned Appellate Court dismissed the First Appeal. The words "cause of action" are tenable on facts permitting the Court to take it with law applicable from the pleadings of the plaint to decide the fate of the application under Order VII, Rule 11 of the Code.
15. In the case of Church of Christ Charitable Trust and Educational Charitable Society Vs Ponniamman Educational Trust, reported in AIR 2012 SC 3912, the Honourable Supreme Court has held as under.
"Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue."
16. In view of the above, if we examine the plaint on the face of it, it is seen that it is absurd plaint. Instead of making averments as per Order VI of the Code, it is pleaded north and south in the plaint. The tone and tenor of the plaint indicates that the plaintiffs, being aggrieved by the demolition of his compound wall which was erected on the common plot, have filed the suit in the year 2018. On one hand, the plaintiffs pleaded that the defendants have profiteered by giving the present common plot to some third Page 10 of 12 Uploaded by H.M. PATHAN(HC00167) on Mon Feb 16 2026 Downloaded on : Fri Mar 13 21:53:24 IST 2026 NEUTRAL CITATION C/SA/182/2022 ORDER DATED: 12/02/2026 undefined party which can fetch Rs.5,00,000/-. Secondly, the plaintiffs have pleaded that the defendants are not permitting to park their vehicle in the common plot and thirdly, the plaintiffs have come out with a cause of action that since their compound wall is demolished by the defendants, they have suffered a loss of Rs.19,10,000/-. The plaint itself suggests that the compound wall was removed somewhere in 2011 and the plaintiffs by devious and clever drafting not pleaded specific date that on which date, their compound wall was demolished but their statement with regard to filing of police complaint etc. indicates that the common wall was demolished in the year 2011. The plaintiffs filed the suit for recovery of damages of Rs.19,10,000/- which according to them has been caused due to demolition of the compound wall. As per Article 113 of the Limitation Act, the suit has to be filed within three years from the date of right to sue accrues. In the present case, if the pleadings of the plaintiffs in the plaint are taken as true and correct, his right to sue accrues within three years from the year 2011 in which compound wall was demolished. The suit is filed in the year 2018 which is hopelessly barred by law of limitation. The cause of action pleaded by the plaintiffs is also even seems to be absurd and ingenuine. In the case of T.Arivandandam Vs. T.V.Satyapal and another, reported in (1977) 4 SCC 467, the Honourable Supreme Court pitched for rejecting such Page 11 of 12 Uploaded by H.M. PATHAN(HC00167) on Mon Feb 16 2026 Downloaded on : Fri Mar 13 21:53:24 IST 2026 NEUTRAL CITATION C/SA/182/2022 ORDER DATED: 12/02/2026 undefined irresponsible suits by invoking the powers under Order VII, Rule 11 of the Code.
17. For the foregoing reasons, this Second Appeal sans merits. The substantial questions of law upon which learned advocate for the appellants / plaintiffs necked upon would not help the plaintiffs.
18. In view of the aforesaid reasons, this Second Appeal stands dismissed at admission stage in limine.
(J. C. DOSHI,J) H.M. PATHAN Page 12 of 12 Uploaded by H.M. PATHAN(HC00167) on Mon Feb 16 2026 Downloaded on : Fri Mar 13 21:53:24 IST 2026