Indian Kanoon - Search engine for Indian Law

Gujarat High Court

Decd. Hanubhai Ladhrabhai Bharwad'S ... vs Legal Heirs Of Decd. Chimanbhai ... on 14 August, 2018

Bench: Akil Kureshi, B.N. Karia

       C/FA/2287/2015                                         CAV JUDGMENT




  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL No. 2287 of 2015


FOR APPROVAL AND SIGNATURE :
HONOURABLE Mr. JUSTICE AKIL KURESHI
and
HONOURABLE Mr. JUSTICE B.N. KARIA
==============================================================

1 Whether Reporters of Local Papers may be allowed to see the
  judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the
  interpretation of the Constitution of India or any order made
  thereunder ?

==============================================================
 DECD. HANUBHAI LADHRABHAI BHARWAD'S MAIN LEGAL
              HEIRS AND ADMINISTRATOR
                        Versus
   LEGAL HEIRS OF DECD. CHIMANBHAI JIVABHAI PATEL
==============================================================
Appearance:
MR GOPAL M PANDYA(3400) for the PETITIONER(s) No. 1
MR NV GANDHI for the PETITIONER(s) No. 1
MR JIGAR M PATEL(3841) for the RESPONDENT(s) No. 10,11,12,13,14,5,6,7,8,9
MR MILAN N PATEL(2052) for the RESPONDENT(s) No. 10,11,12,13,5,6,7,8,9
NOTICE SERVED BY DS for the RESPONDENT(s) No. 1.1,15,1.5,16,2,3,4
SERVED BY AFFIX(N)(7) for the RESPONDENT(s) No. 1.2,1.3,1.4,1.6
==============================================================

             CORAM: HONOURABLE         Mr .JUSTICE AKIL KURESHI
                        and
                        HONOURABLE Mr. JUSTICE B.N. KARIA
                        14th August 2018

CAV JUDGMENT              (PER : HONOURABLE Mr. JUSTICE B.N. KARIA)

Instant appeal is preferred by the appellant-original plaintiff invoking the provisions of Order 41 Rule 96 of the Code of Civil Procedure, 1908 ["the Code" for short], being aggrieved and dissatisfied with the judgment and order dated 30th September 2015 passed by the learned City Civil Court, Ahmedabad which upholds the Application moved under Order VII Rule 11 [d] of the Code on the ground that the suit was barred by limitation.

Brief facts giving rise to the present appeal are that as per averments made in the plaint, on 8th December 1988, ancestor of the respondents nos. 1/1 to 1/6 herein ie., late Shri Chimanbhai Jivabhai Patel had executed an Agreement to Sale with possession. Out of stipulated consideration of Rs. 4,50,000/=, a sum of Rs. 3,00,000/= has been paid by the appellant who took over possession of the suit property in terms of condition no. 2 of the agreement to sale. That, without there being any cancellation deed of the Agreement to Sale dated 8th December 1988 and even without knowledge of the appellant or even for that matter without the consent of the appellant, the heirs of deceased-Chimanbhai Jivabhai Patel [respondents Nos. 1/1 to 1/6 herein] have executed sale deed Page 2 of 15 C/FA/2287/2015 CAV JUDGMENT dated 25th February 2011 in favour of the respondents no. 2 to 4 herein disposing of part of the suit property. These respondents no. 2 to 4 thereafter had sold that part of the suit property to the respondents no. 5 to 13 without the knowledge of the appellant. Not only that, the respondents no. 2 to 4 herein disposed of remaining part of the suit property in favour of the respondent no. 14 herein, though the agreement to sale with possession dated 8th December 1988 has never been cancelled. As a sequence of events, on 16th April 2015, the respondents no. 5 to 13 executed a development agreement in favour of respondent no. 15; and whereas, the respondent no. 14 mortgaged the suit property with the respondent no. 16. This chronology of events came to light when the respondent no. 15 visited the site and in pursuance thereto, the appellant took out a search report from the office of Sub-Registrar to ascertain the fact with respect to the aforesaid alleged transactions between the heirs of the deceased Chimanbhai with that of the respondents no. 2 to 16. On the basis of these facts, the appellant filed a Civil Suit No. 1234 of 2014 against the heirs of deceased-Chimanmbhai Jivabhai Patel and others, praying for [a] specific performance of agreement to sale Page 3 of 15 C/FA/2287/2015 CAV JUDGMENT dated 8th December 1988; [b] cancellation of documents referred to therein; [c] restraining the respondents from dealing with the suit property and [d] restraining the respondents from disturbing the appellant's peaceful possession of the suit property. The appellant also took out a notice of motion for interim relief. The respondents filed their replies. The respondents no. 5 to 7 in particular filed an application under Order VII Rule 11 [b], [c] and [d] of the Code contending inter alia that [a] no action was taken by the appellant to get the sale deed executed, and therefore, the appellant's suit was barred by Section 16 [c] of the Specific Relief Act; [b] for want of action for twenty two long years, the right of enforcement of an agreement to sale dated 8th December 1988 becomes barred by the provisions of Section 20 of the Specific Relief Act; [c] the other legal heirs of deceased Hanubhai Bharwad have not been joined as party respondents and therefore in absence of any right to inherit the suit property allegedly agreed to have been sold in pursuance to an agreement dated 8th February 1988, the suit becomes barred by provisions of Order 1 Rule 9 of the Code; [e] that late Shri Hanubhai Bharward nor the appellant have during their Page 4 of 15 C/FA/2287/2015 CAV JUDGMENT life time indulged into correspondence showing that they were ready and willing to perform their part of the contract and on demise of Shri Hanubhai Bharward, the appellant filed the suit; and lastly [f] the appellant had failed to disclosed that the said Hanubhai Bharward had executed agreement dated 2nd May 2010 cancelling the alleged agreement to sale dated 8th December 1988 and thereby obtained back the amount, and therefore, there remains no agreement to sale dated 8th December 1988 in existence on and from 2nd May 2010 and therefore, no cause of action for filing of the suit arises. Based on this defence, the respondents no. 5 to 7 prayed the Court below to reject the plaint of Civil Suit No. 1234 of 2014, being barred by limitation; provisions of Specific Relief Act and also provisions of Gujarat Court Fees Stamp Act. Though this application which was filed by the respondents no. 5 to 7 came to be resisted by the appellant-original plaintiff by an application under Order VII Rule 11 [b], [c] and [d] of the Code on 11th September 2015, the learned Court below rejected the plaint primarily on the ground that the appellant ought to have filed the suit before 7th June 1993, but remained silent till 20th May 2014 and held that question of limitation was not a mixed Page 5 of 15 C/FA/2287/2015 CAV JUDGMENT question of fact and law. The learned trial Judge disbelieved the possession observing that the appellant has failed to register the agreement to sale dated 8th December 1988 in accordance with law. Observing that nothing specific is averred against the respondents which may require consideration, or which may be called a mixed question of fact and law, the trial Court dismissed the suit also on the ground of non-joinder and mis-joinder of the parties.

Assailing the impugned judgment and order dated 30th September 2015 passed by the learned Judge, City Civil Court, Ahmedabad in Civil Suit No. 1234 of 2014, learned counsel Shri Gopal M Pandya appearing for the appellant contended inter alia that the learned trial Judge has erred in holding that the suit has become time-barred, by applying Article 54 of the Limitation Act, 1996. That, the Court below erred in not following the principles applicable to an application which was moved under Order VII Rule 11 [d] of the Code. That, the Court below erred in deciding the said application on the ground that the appellant was not in possession of the suit property and then ought not to have decided that the suit for specific performance and/or for permanent injunction was Page 6 of 15 C/FA/2287/2015 CAV JUDGMENT barred by the law of limitation. That, the Court below erroneously proceeded to ignore the factum of possession by holding that the agreement to sale with possession was not a registered document, without specifying as to under which provisions of law, registration of agreement to sale was necessary and whether the said provision was applicable to the agreements which were entered into by and between the parties prior in point of time ie., in the year 1980. Counsel pointed out that the Court below out to have appreciated that the cause of action for the respondents Nos. 1/1 to 1/6 would arise to claim Rs. 1,50,000/= upon expiry of time of one and half years from the date of execution, however, the cause of action for the appellant to demand execution of sale deed would arise when he tenders the balance amount of consideration, and therefore, the learned trial Judge failed to appreciate that the respondents No. 1/1 to 1/6 have neither demanded nor sought back the possession of the suit property from the appellant herein and therefore, the period of agreement was continuous and hence, the second limb of Article 54 of the Limitation Act would not apply in the facts of the present case. Counsel reiterated that the plea of limitation Page 7 of 15 C/FA/2287/2015 CAV JUDGMENT cannot be decided as an abstract principle of law diverse from the facts as in every case the starting point of limitation has to be ascertained, which is entirely a question of fact. According to learned counsel for the appellant, the Court below had seriously erred in not holding that the limitation is a mixed question of law and facts in the instant case. With these contentions, learned counsel for the appellant concluded urging that the impugned judgment and order deserves interference by this Court. In support of his arguments, learned advocate Mr. N.V Gandhi appearing for the appellant has placed reliance on the decision of Apex Court rendered in the case of P.V Guru Raj Reddy and Ors. Vs. P.Neeradha Reddy and Ors., reported in (2015) 8 SCC 331 and prayed to allow the appeal by quashing the impugned order.

Per contra, learned senior advocate Shri D C Dave appearing for the respondents vehemently opposed the submissions made by the learned counsel appearing on behalf of the appellant and submitted that the entire suit was based on the alleged agreement to sale dated 8th December 1988 and the suit was instituted on 20th May 2014 i.e approx. 25years and 6 months later, and therefore, this is completely barred by the Page 8 of 15 C/FA/2287/2015 CAV JUDGMENT law of limitation. That, in the agreement to sale dated 8th December 1988, time has been stipulated of one and half years from the date of execution of the alleged agreement, which would expire on 7th June 1990. That, the appellants were supposed to file the suit within the period of three years for enforcement of the alleged agreement, but they have not enforced it during the period of limitation ie., upto 7th June 1990 and the suit was in fact filed on 20th May 2014 i.e after 21 years after the period of limitation. That, late Shri Hanubhai Ladhrabhai Bharwad, during his life time nor thereafter the present appellants have ever written any letter or issued any notice showing their readiness or willingness to perform their part of the contract and more than three and half years after the demise of Shri H.L Bharwad, the suit came to be filed by the appellants. That, in the plaint there is nowhere disclosed the cause of action. In fact, Mr. Bharwad had during his lifetime, executed an agreement dated 2nd May 2010 for cancellation of alleged agreement to sale dated 8th December 1988 and obtained back the amount referred to therein. It is further urged that under the circumstances by virtue of a subsequent agreement dated 2nd May 2010, cancellation of the previous Page 9 of 15 C/FA/2287/2015 CAV JUDGMENT agreement dated 8th December 1988 has not remained in existence, however, a false suit was instituted. That, no cause of action was disclosed by the appellant-plaintiff nor they have any cause of action for filing the suit. The learned trial Judge has rightly rejected the suit of the plaintiff holding it to be time-barred by giving detailed reasons, and therefore interference of this Court is not called for. That, Section 54 of the Limitation Act, 1963 squarely applies to the facts of the case and the trial Court rightly relied on the same, while rejecting the plaint. In support of his submissions, counsel for the respondents relied upon a decision of Apex Court in the case of Fatehji & Company Vs. L.M Nagpal, reported in 2015 JX (SC) 312.

We have gone through the plaint, written statements as well as application Exh. 39 preferred by the defendants No. 5 to 7 under Order 7 Rule 11 (b), (c) and (d) of the Code of Civil Procedure, 1908. It appears from the pleadings of the suit that the same are based on the terms of agreement to sale dated 8th December 1988 produced on the record. From the contents of this document (Exh. 4/1), it transpires that time was stipulated of one and half years from the date of execution of the Page 10 of 15 C/FA/2287/2015 CAV JUDGMENT agreement for specific performance of the said document. If we consider the date of execution of the agreement to sale 8th December 1988, period of 18 months would expire on 7th June 1990 and thereafter, within 3 years, the appellants shall have to file the suit for enforcement of the agreement upto 7th of June 1993. From the plaint, it appears that the suit was filed by the present appellant- plaintiff on 20th May 2014 and thus, he remained silent till filing of the suit. As per paragraph 11 of the plaint, the cause of action as disclosed therein is that when the agent of defendant No.15 came at the suit land, at that time, the plaintiff came to know that an agreement for development of the suit land was executed in favour of third persons and thereafter the plaintiff enquired with the office of the Sub-Registrar and received such report in respect of the suit land and came to the knowledge that the registered sale deeds were executed and therefore she instituted a civil suit: as afore stated. It is nowhere stated by the plaintiff as to on which date the agent of defendant no. 15 came at the suit land. Nor thus it culls out from the averments made in their plaint as to exactly when the plaintiff came to the knowledge about execution of an agreement for development. It simply reflects Page 11 of 15 C/FA/2287/2015 CAV JUDGMENT from the record that when the plaintiff approached the office of the Sub-Registrar seeking search report in respect of the suit land, he came to the know about execution of the sale deeds. Thus, the plaintiff is completely silent on the issue of his coming to knowledge about execution of the sale deeds.

Order VII Rule 11 (d) CPC clearly provides that where the suit appears from the statement in the plaint to be barred by any law, the plaint shall be rejected. It appears that after executing agreement to sale dated 8th December 1988, father of the plaintiff never approached the defendants to execute a Sale Deed in respect of the suit land nor shown his willingness for the same. After his demise, the present plaintiff-appellant also did not made any attempt by showing his readiness and willingness to get the sale deed executed. The plaintiff side was never interested in transferring the suit land in their favour. When the plaintiff failed to establish the fact that due to non cooperation of the defendants, he was not able to perform the contract and the delay caused due to their unwillingness and unreadiness then in such circumstances, the reason shown by the plaintiff for causing the delay in filing the suit for specific performance cannot be accepted and hence, barred by the Page 12 of 15 C/FA/2287/2015 CAV JUDGMENT limitation. In the instant case, specific date for execution of sale deed is not shown in the agreement to sale dated 8th December 1988, however, the same is capable of being ascertained from the contents of the agreement as well as contents made in the plaint, and therefore, limitation can certainly commence from that date. The suit was filed many years after expiry of three years from that date, and therefore, was rightly held barred by the limitation.

In case of P.V Guru Raj Reddy & Ors. [Supra], the Apex Court in para 5 of its decision, held and observed as under :

"Rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order VII Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial."

In a cited decision in the case of Fatehji & Company v. L.M Nagpal [Supra], an application under Order VII Rule 11 CPC came to be filed by the defendants no. 1 to 3 therein seeking rejection of the plaint as barred by the law of limitation. In the said case, written agreement to sale was executed on 2nd July 1973 in respect of the suit property referred to therein and as per the terms of the agreement, the performance of the contract was fixed 2nd December 1973, however, by subsequent letters dated 7th April 1975; 1st October 1975 and 1st August 1976 defendants sought extension of time to enable them to obtain permission of the lessor and the last such extension of six months expired with effect from August 1976. The Apex Court upholding the decision of the trial Court observed that, "... .. In view of Order VII Rule 11 [a] and 11 [d], the Court has to satisfy that the plaint discloses a cause of action and does not appear to be barred by any law. Article 54 of the Limitation Act stipulates that the limitation for filing the suit for specific performance of the contract is three years from the date fixed for the performance or if no such date is fixed, when the plaintiff has noticed that performance is refused. "

Page 14 of 15 C/FA/2287/2015 CAV JUDGMENT

Here, in the present case, reading the plaint as a whole and proceeding on the basis of averments made therein, it can be said that the said pleadings ex facie discloses that the suit is barred by limitation. The claim of the plaintiff with regard to his knowledge of the essential facts giving rise to the cause of action; as pleaded, will have to be accepted as correct.

Considering the facts of the present case, averments made in the plaint are accepted as correct for the purpose of consideration of the application under Order VII Rule 11 [d] CPC filed by the defendants No. 5 to 7.

For the aforestated reasons, the impugned order of trial Court is held to be legal and proper. We accordingly do not intend to interfere with the order impugned.

Resultantly, the present Appeal fails and the same is dismissed. In the circumstances of the case, there shall be no order as to costs.

[Akil Kureshi, J.] [B.N Karia, J.] Prakash Page 15 of 15