Rajnikant Bhogilal Patel vs Lh Of Decd Bhudarbhai Hakkabhai ... on 19 April, 2022

[Cites 16, Cited by 1]

Gujarat High Court

Rajnikant Bhogilal Patel vs Lh Of Decd Bhudarbhai Hakkabhai ... on 19 April, 2022

1. Present appellant, who is the original plaintiff, has challenged Page 1 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 the judgment and decree dated 12.11.2020 passed in Civil Suit No. 575 of 2018 by learned Chamber Judge, City Civil Court, Court No.15, Ahmedabad and prayed to revive the Civil Suit No. No. 575 of 2018 and direct the learned trial Court to proceed further with the suit on merits and in accordance with law. Against that order, present First Appeal preferred u/s. 96 of Code of Civil Procedure, 1908.

2. The short facts leading to the present case are as under:-

3. Plaintiff filed Civil Suit No. 575 of 2018 before the learned City Civil Court, Ahmedabad against original defendants who are the legal heirs of the late Shri Bhudarbhai Hakkabhai Brahmbhatt (hereinafter referred to as 'deceased' for convenience) for specific performance of contract and permanent injunction in respect of the land bearing Survey No. 388/1 admeasuring Hecter-Are-Square Meter 0-71-83 of Rs. 7.75 of Mouje Vadaj, Dist-Ahmedabad. Defendants appeared and waived the process and also moved a Chamber Summons with an application seeking rejection of plaint on the ground of bar of limitation under Order 7 Rule 11(d) of the Civil Procedure Code, 1908. After hearing the parties, learned trial Court allowed the said application and rejected the plaint vide Page 2 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 judgment and decree dated 12.11.2020. Present appellant being aggrieved and dissatisfied with the judgment and decree dated 12.11.2020 passed in Civil Suit No. 575 of 2018 by learned Chamber Judge, City Civil Court, Court No.15, Ahmedabad has preferred present appeal u/s. 96 of the C.P.C.

4. Heard learned advocate for the appellant and learned advocate for the respondents.

5. Learned advocate appearing fort the appellant-plaintiff submits that impugned judgment and decree passed by the trial Court is contrary to the record of the case and contrary to the provisions of Order 7 Rule 11(d) of the C.P.C. That, learned trial court has failed to consider the averments made in the plaint and failed to consider that Entry No. 14260 in revenue records qua the 'suit land' is still in existence as on date as reflected in VF No. 7/12 and that the 'reservation' which was intended to be lifted by Gazette Notification dated 04.12.2013 was actually lifted in the year-2017. That, appellant received the notice issued on 03.04.2018 of the proceedings before the learned Collector relating to the N.A. permission application qua the 'suit land' filed by the respondents/original defendants. That, appellant immediately filed Page 3 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 the suit for specific performance and injunction. That, learned trial Court ought to have appreciated that in the nature of the averments made in the plaint, the issue of limitation is a mixed question of law and facts and therefore, it could not be taken as pure question of law to reject the plaint. That, appellant has filed suit within the prescribed time limit as required under Article 54 of the Limitation Act for specific performance as since no date was fixed in the 'agreement to sell', the limitation would begin from the date when the the plaintiff acquired knowledge of the proceedings before the learned Collector and when the performance was refused by the defendants. That, after acquiring knowledge of the proceedings before the learned Collector, appellant immediately filed the suit for specific performance and that was the cause of action for filing the suit as limitation was started from 03.04.2018, when notice was received by the plaintiff of the proceedings before the learned Collector and therefore, the learned trial Court should not observe that appellant to prove the case by evidence for the relief of specific performance of contract and ought to have rejected the application filed under Order 7 Rule 11(d) of the C.P.C. by the original defendants.

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5.1       It is further submitted that when rejection of the plaint is

sought under Order 7 Rule 11(d) of the C.P.C., same is to be considered in fact of each case by looking only averments made in the plaint. That it is a matter for the trial to record the correctness or otherwise of the allegations made in the plaint when the suit for specific performance falls in the second limb of Article 54, as a period of 3 years is to be counted from the date when it comes to the notice /knowledge of the plaintiff that performance is refused by the defendants. It is further submitted that plaint is required to be read as a whole and defence available to the defendants or the plea taken by the defendants in the written statement or in any application filed by the defendant cannot be the basis to decide the application under Order 7 Rule 11(d) of the C.P.C.

5.2 It is further submitted that in the present case, issue on limitation is a mixed question of facts and law as many facts stated therein would require evidence to be taken. That for the purpose of deciding the application filed under Order 7 Rule 11(d) of the C.P.C only averments made in the plaint alone can be looked into merits and demerits of the matter and the defence cannot be gone into. That learned trial court has committed grave error in holding that the Page 5 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 period of limitation in the facts of the present case should be counted from the year-2013 when the reservation was lifted and the defendants had refused to perform their part of contract. 5.3 It is further submitted that conclusion of the learned trial court is not justified in the year-2013 only the intention to lift reservation was notified vide Gazette Notification, but the actual lifting of the reservation was done in the year-2017 and thereafter, in the year- 2018, proceedings before the learned Collector for N.A. permission qua the suit land was under the knowledge/notice to the appellant, when the performance has been refused. That, therefore, the limitation for filing the suit ought to have been counted by the learned trial court from the year-2018, and therefore, plaint ought not to have been rejected on the ground of bar of limitation. In support of his arguments, learned advocate appearing for the appellant/plaitniff has relied upon the judgments reported in 2010 (2) SCC 194, 2014 (16) SCC 125, 2018 (6) SCC 422, 2019 (13) SCC 372 and AIR 2020 SC 2721. Ultimately, it was requested by learned advocate appearing for the appellant to quash and set aside the impugned judgment and decree dated 12.11.2020 passed in Civil Suit No. 575 of 2018 by learned Chamber Judge, City Civil Court, Page 6 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 Court No.15, Ahmedabad and revive the Civil Suit No. No. 575 of 2018 by allowing this appeal directing the learned trial court to proceed further with suit on merits and in accordance with law.

6. From the other side, learned advocate appearing for the respondents supported the judgment and order dated 12.11.2020 passed by the learned trial court below the applications at Exh.12 and Exh.13 under Order 7 Rule 11 of the C.P.C. submitting that after passing of 33 years, execution of the agreement to sell suit was filed by the plaintiff by preferring a clever drafting, which was not maintainable in view of under Order 7 Rule 11 of the C.P.C. It is further submitted that alleged agreement to sell of the suit land was executed by the deceased on 25.04.1982 and as per the averments of the plaintiff, on 23.02.1985, deceased was expired and his wife namely Samuben Bhudarbhai Brahmbhatt was also expired on 28.02.1993. Entry No.18797 in the revenue record was made and names of Manubhai and Manjulaben were entered. As per the averments made in the plaint, on 25.04.1982, in connection with the agreement to sell of the suit land, Rs.41,000/- was paid and remaining amount of Rs.2,00,000/- was paid on different dates by installments, but it is nowhere stated by the plaintiff in the plaint that Page 7 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 to whom and when this amount was paid by the plaintiff. That plaintiff was aware that deceased was expired on 23.02.1985. He has also admitted in Paragraph No.5 of the plaint that after paying an earnest money of Rs.41,000/-, deceased was obliged to execute registered sale deed after paying the remaining amount of consideration. That suit was to be filed by the plaintiff from the date of execution of agreement to sale dated i.e. 25.04.1982 or within three years from the date i.e. 23.02.1985, when deceased expired. 6.1 It is further submitted that without making any correct facts in the plaint or producing any corroborative documents , suit was filed by the plaintiff, which was clearly barred by limitation of law. That after starting cause of action, passing of 33 years, suit was filed by the plaintiff and therefore, the plaint was rightly rejected by the learned trial court under Order 7 Rule 11 (d) of the C.P.C. That after the death of the deceased, no action was taken by the plaintiff nor any notice was given in writing for specific performance of the agreement to sell. That perusing the plaint as a whole, it is clear that there was refusal by the defendants on two occasions as narrated, however, plaintiff has not preferred the present suit within three years from the date of said refusal and has cleverly drafted the plaint Page 8 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 to circumvent the question of limitation.

6.2 It is further submitted that as per the say of the plaintiff, removal of the reservation applied to the suit land came to be removed with effect from 04.12.2013 and during the said period, plaintiff had again asked to the defendants to execute the sale deed in favour of the plaintiff, which was refused by the defendants, and therefore, period of limitation would start from the date of said refusal, however, plaintiff has not preferred the present suit within a period of three years from the said refusal. That plaintiff is miserably failed to show that the suit is within time.

6.3 It is further submitted that though the agreement to sell does not fix any time limit for execution of the final sale deed, however, in absence of any such clause, same suit be filed within a reasonable time and period of 33 years, cannot be stated to be reasonable. That the alleged notice issued by the plaintiff, has not clarified as to on which date, the notice was issued and even plaintiff has not cared to produce the said notice. That plaintiff has made averments to the effect that another amount of Rs.2,00,000/- was paid to the defendants in installments but has not given any clear account as to on which date, what amount was paid and to whom. That plaintiff Page 9 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 has not produced any documentary evidence to substantiate the say of the further payment of Rs.2,00,000/-.

6.4 It is further submitted that it is the duty of the plaintiff to make all the averments to his knowledge and information in the plaint and cannot claim a premium for deliberate omission of certain relevant facts. That plaintiff has suppressed the material facts with regard to notice issued upon the defendants and said aspect can also be taken into account for the purpose of under Order 7 Rule 11 of the C.P.C. That suit preferred by the plaintiff is clearly barred by law of limitation and only with a view to get out of the law of limitation, vague averments are made and material facts with regard to notice is suppressed in order to save the case from the proviso of Order 7 Rule 11 of the C.P.C. That cause of action pleaded in the plaint is mere a clever drafting in illusion of the cause of action. That learned trial court has rightly rejected the plaint under the provisions contained in Order 7 Rule 11 of the C.P.C. In support of his arguments, learned advocate appearing for the respondents has placed reliance upon the judgments reported in Laws (GJH) 2015 6 67, Laws (BOM) 2020 3 296, 2019 JX (Guj) 578, 2018 (2) GLH 431, 2018 GLR 688, 2020(7) SCC 366 and AIR 2021 Supreme Page 10 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 Court 4594. Ultimately, it was requested by learned advocate appearing for the respondents to dismiss the present appeal.

7. I have heard the learned advocates appearing for the respective parties, perused the plaint and documents therewith.

8. This Court first would briefly touch upon the law applicable for deciding an application under Order 7 Rule 11 of the C.P.C., which reads as under:

"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. 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."

"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. 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 plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law. 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 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. In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, Page 11 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out. 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. 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. 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. If however, on a meaningful reading of the plaint, it is found that suit does not disclose right to sue, cause of action or suit is barred by any law and the court has no option but to reject the plaint and without any merit, Order 7 Rule 11 CPC. The 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."

"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. The plea that that once issues are framed, the matter must necessarily go to trial cannot be accepted."

"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. 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. What is required is that a clear right must be made out in the plaint.

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C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, 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."

"The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues. The use of the word 'first' between the words 'sue' and 'accrued', requires the court to 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" mean 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 arrested in the suit is infringed, or when there is clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. Order 7 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."

9. On a plain reading of the plaint and the documents relied upon, it is clear that plaintiff has admitted the execution of agreement to sale deed on 25.04.1982. Plaintiff has also admitted that suit was barred by limitation of 33 years, still plaintiff tried to cover the limitation period in Paragraph No.8 of the plaint stating that the suit land was reserved under the Land Ceiling Act on 07.09.1982 and entry No.14260 was made in the revenue records. He further averred in the said para that deceased did not execute the sale deed in favour of the plaintiff and after his death, entry of the suit land was Page 13 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 transferred in favour of the legal heirs of the deceased. He further averred that after removing the suit land from the Land Ceiling Act, land was transferred in favour of the defendants, at that time, the plaintiff requested the defendants to execute the sale deed but they refused for the same. Hence, the suit was filed. That the land was relieved from the Land Ceiling Act and was restored in its original position, and therefore, suit was not barred by the provisions of the Limitation Act.

10. In Paragraph No. 3 of the plaint, it is averred that father of the defendants and grand father- Bhudarbhai Hakkabhai Brahmbhatt was expired on 23.02.1985, and thereafter, the suit land was continued in favour of his wife namely Samuben Bhudarbhai Brahmbhatt. It is further averred that wife of deceased was also expired on 28.02.1993, and thereafter, by entry No.18797, the suit land was transferred to legal heirs namely Manubhai and Manjulaben on 17.01.2001, thereafter by entry No.15588, suit land was managed in the revenue record and name of the defendants were entered in the village Form No.7/12.

11. In Paragraph No.4, it is stated that the suit land was purchased from father/grandfather of the defendant on 25.04.1982 and Page 14 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 Rs.41,000/- was paid. Remaining amount of Rs. 2 Lakhs was also paid to the defendants by installments. That the defendants failed to execute the registered sale deed in favour of the plaintiff after prescribed period, notice was also issued by the plaintiff to the defendants. In Paragraph No.7, it is stated that at present joining certificate was issued by the defendants in respect of the suit land and final plots were divided. The defendants were trying to make entry in the R.E.R.A. also and therefore, rights of the plaintiff would be disturbed. Hence, the suit was filed. It is further averred that to transfer the suit land under N.A. by the defendants, one application was made before the learned Collector, which was objected by the plaintiff in writing on 01.03.2018.

12. The suit land was also placed under reservation with green belt and Gujarat Housing Board, which was released from the limitation. In Paragraph No.1, it is averred in the plaint that the suit land was transferred in favour of the defendants in the revenue record. The plaintiff requested them to execute the registered sale deed by informing that deceased had executed an agreement to sell, however, it was refused by the defendants, and therefore, cause of action for filing the suit was arisen on 01.03.2018. In Paragraph No.11, no date Page 15 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 was shown by the plaintiff, when the suit land was transferred in favour of the defendants in the revenue record. When the plaintiff requested the defendants to execute the sale deed in his favour. When the defendant refused to execute the registered sale deed in favour of the plaintiff. When joining certificate of the suit land was issued or final plots were divided. When the defendants tried to make entry in the R.E.R.A. When the defendants made an application before the office of the Collector to transfer the suit land under N.A.

13. It appears from the record that agreement to sell was executed of the suit land between Rajnikant Bhogilal Patel and Bhudarbhai Hakkabhai Brahmbhatt (deceased) being an administrator of the Hindu undivided family on 25.04.1982. As per this agreement to sell, Rs.41,000/- was paid and remaining amount was to be paid by the purchaser, and thereafter, registered sale deed was to be executed by the seller as per the request of the purchaser. There was no specific date mentioned in the agreement to sell when the remaining amount was to be paid by the defendants or when registered sale deed was to be executed by the defendants in favour of the plaintiff. There is nothing on record produced by the plaintiff that when Page 16 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 remaining amount of Rs.2 Lakhs was paid or to whom it was paid and at what time. There was no other condition imposed in the agreement to sell executed on 25.04.1982. In a village form No.6, entry was made on 07.09.1982 under the Land Ceiling Act. The land was placed under the reservation for Housing Board, thereafter it was relieved by the Government vide order dated 20.07.1980, which was entered in the revenue record. There was no condition imposed in the agreement to sell executed on 25.04.1982 that on lifting the reservation by the Government, the defendants would responsible to execute the sale deed. There was no condition in the agreement to sell in respect of the proceedings pending before the office of the Collector or the plaintiff received a notice of the proceedings before the learned Collector, and therefore, cause of action was started on 03.04.2018. The plaintiff has created these two reasons in his plaint for filing the suit and tried cleverly to cover the period of limitation, which was not at all narrated in the agreement to sell.

14. In case of Chhotanben versus Kiritbhai Jalkrushnabhai Thakkar, reported in 2018 (6) SCC Page 422 relied upon by the learned advocate appearing for the appellant, In Paragraph No.12, Hon'ble Apex Court has observed as under:

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                     "What
                       is relevant for answering the matter in issue

in the context of the application under Order VII Rule 11(d), is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order VII Rule 11(d)."

15. In case of Urvashiben versus Krishnakant Manuprasad Trivedi, reported in 2019 (13) SCC 372, Hon'ble Apex Court has observed as under:

"11. It is fairly well settled that, so far as the issue of limitation is concerned, it is a mixed question of fact and law. It is true that limitation can be the ground for rejection of plaint in exercise of powers under O.VII R.11(d) of the CPC. Equally, it is well settled that for the purpose of deciding application filed under O.VII R.11 only averments stated in the plaint alone can be looked into, merits and demerits of the matter and the allegations by the parties cannot be gone into. Article 54 of the Limitation Act, 1963 prescribes the limitation of three years, for suits for specific performance. The said Article reads as under :

Suit for Specific 3 Years The date fixed for the performance, or, if Performance no such date is fixed, when the plaintiff has notice that performance is refused

12. From a reading of the aforesaid Article, it is clear that when the date is fixed for performance, limitation is three years from such date. If no such date is fixed, the period of three years is to be computed from the date when the plaintiff, has notice of refusal. When rejection of plaint is sought in an application filed under O.VII R.11, same is to be considered from the facts of each case, looking at the averments made in the plaint, for the purpose of adjudicating such application"

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16. In case of Shakti Bhog Food Industries Ltd. Versus Central Bank of India reported in AIR 2020 SC 2721, Hon'ble Apex Court has observed as under:

"The trial court must remember that if on a meaningful no formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, [it has to be nipped] in the bud at the first hearing by examining the party searchingly under Order 10 CPC."

It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order 7 Rule 11. If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer J., in the above referred decision, it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code."

17. In case of Daya Singh versus Gurdev Singh (Dead) by L.RS. reported in 2010 (2) SCC 194, Hon'ble Apex Court has observed as under:

"As noted herein earlier, the only question, therefore, to be decided is whether the mere existence of an adverse entry in the revenue records had given rise to cause of action as contemplated under Article 58 or it had accrued when the right was infringed or threatened to be infringed. Let us, therefore, consider whether the suit was barred by limitation in view of Article 58 of the Act in the background of the facts stated in the plaint itself. Part III of the schedule which has prescribed the period of limitation relates to suits concerning declarations. Article 58 of the Act clearly says that to obtain any other declaration, the limitation would be three years from the date when the right to sue first accrues."

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18. In case of Van Oil Petroleum Ltd. Versus M. V. Denali reported in 2018 (2) GLH Page 431, this Court has observed as under:

"Therefore, considering the averments and pleadings in the Plaint, even according to the plaintiff, the last acknowledgment was on 29.03.2012. Therefore, the limitation started running from 29.03.2012. Even in Paragraph-24, while pleading cause of action, it is specifically stated by the plaintiff that the cause of action arose in 2012. But by clever drafting, it is not stated from which date in the year 2012 the period of limitation started running. The only case on behalf of the plaintiff is that the cause of action arose in 2012 when the invoice for the supply of Bunkers fell due and that as per the general terms and conditions for sale of maritime fuel, the supply was governed by English law and the English Limitation Act, 1980, Section 5, provides that "an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued". Therefore, assuming that the English Limitation Act, 1980, shall be applicable, in that case also, considering the starting point of limitation from 29.03.2012, even applying the English Limitation Act which provides six years' time limit, in that case also, the period of limitation would expire on 28.03.2018. It is an admitted position that the suit has been preferred on 06.04.2018. Therefore, the same is clearly barred by law of limitation. Therefore, even considering the averments in the Plaint as they are, the suit is clearly barred by law of limitation even as per the English Limitation Act, 1980."

19. In case of Shabbirahmed Ahmedbahi Gandhrap Versus Natvarbhai Haribhai Patel reported in 2019 JX (Guj) 578, this Court has observed as under:

"Here also, the sale deed was executed in favour of the defendants on 4th October 1951 was not challenged by the plaintiffs by cleverly drafting the plaint. The possession was Page 20 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 lying with the defendants as per the revenue record from 1951. The predecessor of the plaintiff never challenged the sale deed executed in the year 1951 nor objected possession lying with the defendants. As per averments made in the plaint, the predecessor namely Umedbhai Bhavanbhai died before eighty years from the date of filing of the suit; his son Pamjibhai was also died on 26th August 1940; his daughter Shakinaben was died on 2nd October 1983 and her daughter Jiluben was died on 12th November 2006.

This Court is of the opinion that trial Court has rightly passed the order observing that the suit is barred by provisions of limitation of law while rejecting the plaint."

20. In case of Vinayak Shankar Bawane versus Tilkaj reported in Laws (Bom) 2020 3 296, Hon'ble High Court of Bombay has observed as under:

"The second limb of Article 54 of the Limitation Act, 1963, provides that the period of limitation would start from the point when the plaintiff becomes aware about the refusal on the part of the defendants to perform their part of the agreement. In this case, as per the statements made on behalf of the respondent in the above quoted portion of the plaint itself, it is stated repeatedly that the predecessors of the revision applicants had refused and avoided to perform their part of the contract. Yet, there appear to be no steps taken by the respondent by issuing notice or otherwise to pursue the matter. In fact it is claimed in the above quoted portion of the plaint itself that the respondent was continuously approaching the predecessors of the revision applicants and they were not performing their obligations. Thus, even as per the pleadings in the plaint read with the agreement dated 25/12/2007, it becomes evident that the respondent was aware about the refusal on the part of the predecessors of the revision applicants to perform their part of the agreement. In this situation, it becomes significant that the respondent never issued any notice to the predecessors of the revision applicants when they were alive. The suit was filed only after having come across a public notice dated 23/03/2019, Page 21 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 published in the newspaper in respect of the suit property."

21. In case of Rajendra Bajoria and Ors. Versus Hemant Kumar Jalan and Ors reported in AIR 2021 Supreme Court 4594, Hon'ble Supreme Court has observed as under:

"Whether a cause of action made out or not could be ascertained only on basis of averments made in plaint. Also for finding out same, entire pleadings in plaint to be read and that too, at their face value. Reading of averments made in plaint should not only be formal but also meaningful. If clever drafting has created illusion of a cause of action, and a meaningful reading thereof would show that pleadings are manifestly vexatious and meritless, in sense of not disclosing a clear right to sue, then Court should exercise its power under O.7 R.11 of CPC. Such a suit to be nipped in bud at first hearing itself. Power conferred on Court to terminate a civil action is a drastic one and conditions enumerated under O.7 R.11 of CPC required to be strictly adhered to. However, under O.7 R.11 of CPC, duty cast upon Court to determine whether plaint discloses a cause of action, by scrutinizing averments in plaint, read in conjunction with documents relied upon or whether suit is barred by any law. Court held that underlying object of O.7 R.11 of CPC is that when a plaint does not disclose a cause of action, Court would not permit plaintiff to unnecessarily protract proceedings. In such a case, it will be necessary to put an end to sham litigation so that further judicial time is not wasted. Plaintiff filing suit seeking declaration of co-ownership of assets and properties of partnership firm as well as dissolution of said firm. Division Bench of High Court by scrutinizing averments in plaint, reliefs claimed therein, provisions of Act and clauses of partnership deed, held that since reliefs as sought in plaint cannot be granted, plaint liable to be rejected as disclosing no cause of action."

22. Admittedly, suit was filed by the plaintiff in the year-2018 (no Page 22 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 date was mentioned in the plaint). Cause of action averred in the plaint is completely vague and plaint itself is silent at a material stage that when the deceased expired, when the suit land was transferred in favour of the legal heirs of the deceased, when the plaintiff informed the defendants in respect of the agreement to sell executed in the year-1982, when the defendants refused to execute the registered sale deed as requested by the plaintiff, when the joining certificate was issued and final plots were divided, when the defendants tried to make any entry in R.E.R.A. etc.

23. Present suit filed by the plaintiff is clearly an abuse of the process of the Court and forfeit of any merit. Learned trial court has rightly exercised the powers under Order 7 Rule 11 of the C.P.C. by allowing the application filed by the defendants.

24. In view of the aforesaid discussions, present appeal is dismissed and the impugned judgment and decree dated 12.11.2020 passed in Civil Suit No. 575 of 2018 by learned Chamber Judge, City Civil Court, Court No.15, Ahmedabad is confirmed. Notice stands discharged.



                                                                (B.N. KARIA, J)




                                 Page 23 of 41

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      C/FA/53/2021                                CAV JUDGMENT DATED: 19/04/2022

ORDER IN CIVIL APPLICATION (FOR INJUNCTION) NO. 1 of 2020 In view of the final order passed by this Court in First Appeal No.53 of 2021, present application would not survive and accordingly, disposed of. Notice is discharged.

(B.N. KARIA, J) ORDER IN CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2022

1. By way of preferring this application under Order 41 Rule 27 of the Code of Civil Procedure, 1908, applicant has prayed to permit the applicant/ original plaintiff to produce the additional documents at Annexure- I and II on record of the First Appeal No.53 of 2021 as additional evidence.

2. Short facts of the present case may be referred as under:

Present applicant being the plaintiff filed Civil Suit No. 575 of 2018 before the learned City Civil Court, Ahmedabad ( hereinafter to be referred as " the suit") against original defendants who are the legal heirs of the late Shri Bhudarbhai Hakkabhai Brahmbhatt (hereinafter referred to be referred as "deceased") for specific performance of contract and permanent injunction in respect of the Page 24 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 land bearing Survey No. 388/1 admeasuring Hecter-Are-Square Meter 0-71-83 of Rs. 7.75 of Mouje Vadaj, Dist-Ahmedabad.

Defendants appeared in the suit and waived the process and also moved a Chamber Summons with an application seeking rejection of the plaint on the ground of bar of limitation under Order 7 Rule 11(d) of the Civil Procedure Code, 1908. Learned court below allowed the said application and rejected the plaint vide judgment and decree dated 12.11.2020. Being aggrieved and dissatisfied with the judgment and decree dated 12.11.2020 passed in the Suit by learned Chamber Judge, City Civil Court, Court No.15, Ahmedabad, applicant has preferred First Appeal No.53 of 2021 under Section 96 of the C.P.C. During the hearing of the appeal, applicant has filed this application subsequently.

3. Heard learned advocate appearing for the applicant and learned advocate appearing for the respondents.

4. It is submitted by learned advocate appearing for the applicant that the suit land was restricted under the provisions of U.L.C. Act and the same was reserved for G.H.B. vide order No. Agriculture/Bodakdev/A/113, dated 20.02.1980 an entry No.14260 qua the same was also mutated in the revenue records. That due to Page 25 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 the above said entry, both the parties were not able to execute the registered sale deed. That "Reservation" stated above was intended to be lifted by the State Government vide its Gazette Notification dated 04.12.2013 and thereafter in the year-2017, the "reservation" was actually lifted.

4.1 It is further submitted that applicant as soon as obtained the knowledge of the "reservation" being lifted had issued a notice dated 10.07.2017 asking the opponents to complete the specific performance from their part. That relations between the applicant and respondents was so cordial and that the said notice was not served through R.P.A.D. and other courier services but in fact, was given hand to hand upon which same was not accepted informing the applicant orally that there is no need of such notice and the opponents would complete their part of performance qua the "agreement to sell". That in the year-2018, zoning certificate and final plot number of the suit land were obtained by the opponents and applied before the learned Collector to obtain N.A. permission for the suit land, notice was served but the Office of the Collector, Ahmedabad in pursuance of the application made by the opponents to obtain N.A. permission against which applicant had raised his Page 26 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 objections and that is how the applicant came to know that opponents are now trying to obtain N.A. permission to sell the land in question to third party.

4.2 It is further submitted that additional documents are necessary for the substantial cause for verifying the claim of the applicant qua the actual time period/date of knowledge of notice that specific performance was refused since/starting from, the year-2017/2018. That said notice in the plaint itself was not produced on record as the stage of production of the documentary evidence is yet not over and the applicant's advocate thought it fit to defer the production of the same on record at the relevant point of the time during the trial of the suit. That if the applicant is not allowed to produce the additional documents as stated above, then it would cause substantial injury to the applicant as regards the question of limitation, which was started from the year-2017/2018 for filing of the suit.

4.3 It is further submitted that additional documents sought to be produced by the applicant are necessary for effective adjudication of the matter and for doing substantial justice and also with a view to allow the suit to be adjudicated on merits, permission is required to be granted as prayed for. That if the prayers would not be granted, Page 27 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 which would cause irreparable loss to the applicants whereas no prejudice will be caused to the opponents. Hence, it is requested by learned advocate appearing for the applicant to permit the applicant to produce the documents at Annexure- I and II on record of the First Appeal No.53 of 2021 as additional evidence. In support of his arguments, learned advocate appearing for the applicant has relied upon the judgment reported in 1984 (1) GLR Page No.29, 1994 (4) SCC Page No.659, 2004 (10) SCC Page No.507, 2010 (8) SCC 423, 2015 (1) SCC 677 and 2016 (13) SCC 124.

5. From the other side, learned advocate appearing for the respondents/opponents has strongly objected the submissions made by learned advocate appearing for applicant and submitted that final hearing of First Appeal No.53 of 2021 was started on 04.01.2022 and same was in progress. Applicant has moved this application with a view to prolong the hearing of the First Appeal and therefore, on this ground alone present civil application should be dismissed without going into merits. That alleged notice dated 10.07.2017 was never served upon the opponents.

5.1 It is further submitted that applicant has conspicuously stated that notice dated 10.07.2017 was issued and not served. That service Page 28 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 of the notice dated 10.07.2017 is buttressed by from the fact that there is no reference to the said notice in the plaint much less service of the same upon opponents. Referring Para No. 11 of the plaint, it is submitted that applicant has specifically contended that when the plaintiff has asked the heirs of deceased to execute the sale deed, they have denied for the same. Referring Para No.3 of the plaint, it is submitted that applicant has specifically stated that deceased was expired on 23.02.1985, Samuben wife of the deceased was expired on 28.02.1993 and name of the heirs were mutated on 17.01.2001. That as per the contents of the applicant in his plaint, heirs have denied for execution of the sale deed since long.

5.2 It is further submitted that alleged notice is a concocted document, which is established from Para No.11 of the plaint. That zoning certificate is produced by the applicant from which, it appears that applicant has applied on 20.12.2017 and on the same day, zoning certificate was issued, while issuance of the notice is dated 10.07.2017 cannot be believed. That learned trial court has considered an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 and while deciding the same application, court is required to look into the allegation made in the plaint and the Page 29 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 documents produced on record by the plaintiff as provided under Order 7 Rule 114 of the code in support of the contents of the plaint. 5.3 It is further submitted that applicant has not averred any document dated 10.07.2017 being the alleged notice, which was not produced as per Order 7 Rule 14 of the Code, and therefore, said document cannot be appreciated in appeal arising out of the judgment passed below application under Order 7 Rule 11 of the Code of Civil Procedure, 1908. That plaintiff/applicant has to produce all the documents, which are in his possession and power at the time of filing of the suit. That document produced at Annexure-II collectively are not the documents pertaining to the suit property. That none of the documents indicates any material fact regarding the cause of action, which has arisen within a period of limitation of the suit land. That those documents are produced with a view to mislead this Court.

5.4 It is further submitted that in the appeal preferred by the applicant, limited point is required to be considered whether judgment rendered by the learned trial court was correct and the findings of the learned trial court that the suit was beyond the period of limitation is correct. Referring Paragraph No.8 of the plaint Page 30 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 pertaining to the limitation, it is submitted that there is no whisper about the reservation of the said land by the government. The only case made by the plaintiff that the land was under the Urban Land Ceiling Act and it has come in its original position, the limitation has started. That trial court has rightly held that Urban Land Ceiling Act was repealed in the year-1999 and the suit was beyond the period of limitation. It is further submitted that provision of Order 41 Rule 27 of the Code cannot be utilized to fill up the lacuna in the pleadings and evidence.

5.5 It is further submitted that applicant wants to create a new cause of action, which was not pleaded in the plaint. That present application is preferred with a mala fide intention and only to prolong the proceedings, which is part heard before this Court and hence, it was requested by learned advocate appearing for the respondents/opponents to dismiss the present application. In support of his arguments, learned advocate appearing for the respondents has relied upon the judgment reported in 1983 G.L.H. Page No.693 and AIR Online 2021 Gujarat Page 29.

6. Having heard learned advocates appearing for the respective parties, facts of the case and material placed on record, it is Page 31 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 undisputed fact that applicant being the original plaintiff has filed Civil Suit No.575 of 2018 before the learned City Civil Court, Ahmedabad against the opponents/original defendants, who were the legal heirs of the deceased for specific performance of contract and permanent injunction in respect of land bearing Survey No. 388/1 admeasuring Hecter-Are-Square Meter 0-71-83 of Rs. 7.75 of Mouje Vadaj, Dist-Ahmedabad. It appears that learned trial court was pleased to allow the application under Order 7 Rule 11 (d) of the Code of Civil Procedure filed by the opponents/original defendants and rejected the plaint of the suit filed by the applicant vide its judgment and decree dated 12.11.2020. The applicant/original plaintiff, being aggrieved by and dissatisfied with the judgment and decree dated 12.11.2020 passed in the suit by learned Chamber Judge, City Civil Court, Court No.15, Ahmedabad, has preferred First Appeal No.53 of 2021.

7. It is not in dispute that after starting final hearing of the First Appeal No.53 of 2021, during the hearing of First Appeal, this application under Order 41 Rule 27 of the Code was preferred by the present applicant. From the plaint, it appears that an agreement to sell qua the suit land on Rs.10 stamp paper was executed on Page 32 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 25.04.1982 by the deceased in faovur of the original plaintiff. The transfer of the suit land was restricted under the provisions of U.L.C. Act and the same was reserved for G.H.B. vide order No. Agriculture/Bodakdev/A/113 dated 20.02.1980 and an entry No.14260 qua the same was also mutated in the revenue records. While deciding an application under Order 7 Rule 11 of the Code, averments of the plaint only would be required to be considered. If on an entire meaningful reading of the plaint, it is found that the suit is manifestly vexatious and merit less in the sense of not disclosing any right to sue, the Court should exercise powers under Order 7 Rule 11 of the C.P.C. The averments in the written statement as well as the contents of the defendants are not material while considering the prayer of the defendants for rejection of the plaint.

8. This Court has considered the record at Mark 4/1 i.e. agreement to sell executed in the year-1982. Applicant in the plaint has specifically stated that the defendants have avoided or refused to execute registered sale deed on two occasions. First of all in Paragraph No.4 of the plaint, applicant has specifically averred that as the defendants did not execute the sale deed even after more than considerable time, plaintiff had issued notice. It is nowhere stated in Page 33 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 the plaint by the plaintiff as on which date, notice was issued and even the plaintiff did not care to produce the said notice. Further considerable/reasonable time would be termed as three years and it can be safely attributed that notice, if any, was issued upon the defendants after lapse of period of three years or from the date of the execution of the agreement to sale, defendants, however, have not executed the registered sale deed. Admittedly, no suit was filed within three years from the date of refusal by the plaintiff.

9. If we refer the Paragraph No.8 of the plaint, wherein it is specifically mentioned by the plaintiff that upon removal of the reservation applied to the suit land, the suit land stood in the name of the defendants and defendants were asked to execute the sale deed, however defendants have refused to execute sale deed in favour of the plaintiff, and therefore, suit was filed. It is nowhere stated clearly in the plaint as to on which date, the defendants were asked to execute the sale deed after removal of the reservation applied to the suit land. Learned trial court has observed in the order that the Urban Land (Ceiling & Regulation) Repeal Act, 1999 came to be passed by the State Government repealing the main Urban Land (Ceiling & Regulation) Act, 1976 on 30.03.1999. However, the plaintiff in his Page 34 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 reply to the application preferred by the defendants/opponents under Order 7 Rule 11 stated that reservation applied to the suit land came to be removed with effect from 04.12.2013 meaning thereby defendants were again asked to execute the sale deed on or around 04.12.2013 and however, defendants did not execute the sale deed, which was termed as second refusal to notice by the plaintiff. From this statement and record, there was refusal by the defendants on two occasions as discussed above, however no suit was preferred by the plaintiff within three years from the said refusal and plaint was cleverly drafted to circumvent the question of limitation.

10. No action was taken by the plaintiff till the death of the deceased nor notice was given in writing for specific performance of the agreement to sell. The plaintiff tried to justify his act by preferring suit after lapse of 33 years contending that the suit land was kept reserved under Urban Land (Ceiling & Regulation) Act, 1976 and upon removal of reservation the suit land was restored to its original position and cause of action to file suit arose afresh.

11. This Court in case of Varsha Engineering Pvt. Ltd. Baroda versus M/s. Vijay Traders, Baroda and others reported in 1983 G.L.H. Page 693 while deciding the question under Order 41 Rule Page 35 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 27 has ordered as under:

"Now in order to substantiate the case which is tried to be put, Civil Application No. 2291 of 1975 was given by which the plaintiff desired to lead additional evidence. The additional evidence which the plaintiff desired to produce, tbe plaintiff attached the copies thereof with that application. We have gone through the entire bunch of papers which are tagged with this Civil Application. The question which is required to be considered is whether this application was required to be granted. The law on the point is laid down in Order XLI, Rule 27 of the C. P. C. where h is laid down as under:

27. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined."

It is not the case of the appellant that Civil Court refused to admit the evidence and, therefore, they had come here with a request to lead additional evidence. It is also not the case of the appellant that the documents which are being produced were not in their possession at the time when the suit was filed. What has been stated in this petition is that the petitioner did not produce extract from the cash book and the sale register through oversight. We have examined this aspect of tbe case and we only say that the witnesses examined on behalf of the appellant stated in clear terms that the sale register, cash book etc. were being maintained by the plaintiff film. In fact, therefore, no case is made out for producing additional evidence. We have thereafter examined the matter from the aspect as to whether the documents could be of any use for the purpose of deciding Page 36 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 this matter or as to whether there was sufficient cause apart from what the appellant stated and we may only say that if we bad allowed the production of these documents it would not have led the case of the appellant any further and the documents would not have been of any use for the purpose of deciding this matter.

12. In another case of State of Gujarat and Ors. v. Bharat Vijay Construction Co. reported in AIR Online Guj 29, same question was again arose before the Division Bench of this Court wherein, it was observed in Paragraph No.8, as under:

"8. The civil application has been moved under Order 41 Rule 27 of CPC. Under the said provision, additional evidence could be adduced under any one of the three situations provided therein. For ready reference, the said provision is reproduced hereunder;

"27. Production of additional evidence in Appellate Court. -

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reasons for its admission."

Page 37 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022

C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 8.1 It is well-settled that additional evidence cannot be permitted to be adduced so as to fill-up the lacunae or to patch up the weak points in the case, as has been held by the Apex Court in the case of N. Kamalam v. Ayyaswami reported in (2001) 7 SCC 503. The trial Court has framed issues at Exhibit-12. Before the Court below, the appellants were called upon to prove the issue that there was no concluded contract between the parties, which was answered in the negative. The appellants had every opportunity to produce the aforesaid documents in the suit proceedings but, they never did so. Now, by producing the said documents with a plea to consider them as additional evidence, the appellant-State intends to fill-up the lacunae, which could not be permitted."

13. In support of his arguments, learned advocate appearing for the applicant has relied upon the judgment in the case of Manji Dharamshi versus Patel Kadva Bhada reported in 1966 GLR 405. The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the Appellate Court. But if the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, such permission can be granted.

14. In the case of Billa Jagan Mohan Reddy versus Billa Sanjeeva Reddy reported in 1994 (4) SCC 659, it is observed that if the documents are found to be relevant to decide the real issue in the controversy, and when the court felt that interest of justice requires that the documents may be received, exercising the power under Page 38 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 Order 41, Rule 27 CPC the appellate court would receive the documents and consider their effect thereof. This is not the position in the present case, when the documents are sought to be produced by the present applicant before this Court.

15. In the case of Jayaramdas and Sons Versus Mirza Rafatullah Baig reported in 2004 (10) SCC 507, two documents in evidence were certified copies/documents, which were already on record. A minute comparative study of the documents revealed that the contents of the documents which the appellants were seeking to be brought on record were at variance with the documents available on record which would have material therein on the crucial issue was to be decided. Hence, admission of those documents as additional evidence was allowed subject to payment of Rs.5,000/- as cost. Here it is not the position in the present case as none of the documents, which are sought by the present applicant were on record in the suit at the time of filing suit.

16. In the case of Shalimar Chemical Works Limited versus Surendra Oil and Dal Mills reported in 2010 (8) SCC 423, plaintiff produced photocopies of registration of certificate in the suit, which was dismissed. Appeal against the dismissal of the suit was also Page 39 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 dismissed by learned Single Judge of the High Court. Division Bench did not allow production of original registration certificate at appellate stage as additional evidence which was allowed by learned Single Judge of High Court. It was held by the Hon'ble Apex Court that Division Bench ought to have been remanded the case so that defendant can lead evidence to rebut the evidence. This is not the facts of the present case.

17. In the case of Wadi Versus Amilal reported in 2015 (1) SCC 677, germane issue was involved in the suit was to ascertain death of one (R) application under Order 41 Rule 27 was filed before the Revenue Appellate Authority for admitting certified copy of mutation entry as additional evidence. Application was allowed, however, Board of Revenue declined to admit the additional evidence against which appeal was preferred. It was held that documents in question would so light on the germane issue, and therefore, necessary for production pronouncing the judgment. Board of Revenue erred in declining admission of the document. Here also the fact is quite dissimilar with the facts of the present case.

18. In the case of Union of India Versus K.V. Lakshman reported Page 40 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022 C/FA/53/2021 CAV JUDGMENT DATED: 19/04/2022 in 2016 (13) SCC 124, additional evidence was found necessary to decide the real controversy involved in the appeal. Further, additional evidence being in the nature of public documents and pertinent to suit land was found necessary to be taken on record, and therefore, permission was granted to produce the additional evidence as prayed for. Here fact is quite different. Documents sought to be produced by the applicant would not require to decide the appeal preferred by him or relevant to decide the issue of the parties over the suit land and hence the same would not require to be taken on record.

19. None of the aforesaid judgments are applied in the present case. The applicant has tried to produce additional evidence to fill up the lacuna or to patch up the weak points in the case, and therefore, no permission as sought for by the applicant under Order 41 Rule 27 of the Code of Civil Procedure can be granted. Accordingly, this application is hereby dismissed.

(B.N. KARIA, J) SUYASH Page 41 of 41 Downloaded on : Thu Apr 21 20:40:01 IST 2022

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