Gujarat High Court
Chinubhai Babaldas Chauhan vs Shardaben Somaji Thakor & on 3 February, 2014
Author: M.R. Shah
Bench: M.R. Shah, R.P.Dholaria
C/FA/3407/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 3407 of 2013
With
CIVIL APPLICATION NO. 12564 of 2013
In
FIRST APPEAL NO. 3407 of 2013
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CHINUBHAI BABALDAS CHAUHAN....Appellant(s)
Versus
SHARDABEN SOMAJI THAKOR & 11....Defendant(s)
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Appearance:
MR MC BHATT FOR MR VIKRAM J THAKOR, ADVOCATE for the Appellant(s)
No. 1
MR NIKHIL D JOSHI, ADVOCATE for the Defendant(s) No. 10
MR SANJAY M AMIN, ADVOCATE for the Defendant(s) No. 2 - 6
NOTICE SERVED BY DS for the Defendant(s) No. 1 , 7 , 9 , 11 - 12
VIRAL K SHAH, ADVOCATE for the Defendant(s) No. 8
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 03/02/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. Feeling aggrieved and dissatisfied with the impugned judgement and order passed by the learned Principal Senior Civil Judge, Kalol dated 22/10/2013 below Ex.45 in Special Civil Suit No.100 of 2012 by which in exercise of power under Order 7 Rule 11(d) of the Code of Civil Procedure, the learned Judge has rejected the plaint on the ground that the same is barred by law of limitation, the Page 1 of 22 C/FA/3407/2013 ORDER appellant herein - original plaintiff has preferred the present appeal.
2.00. Facts leading to the present First Appeal in nutshell are as under:
2.01. That the appellant herein - original plaintiff instituted Special Civil Suit No.100 of 2012 in the court of learned Principal Senior Civil Judge, Kalol against the respondents herein - original defendants for specific performance of two Agreements-to-sell dated 19/8/2006 executed by the original defendant Nos.2 to 3 registered at Sr.Nos. 4335 and 4336 and two registered Agreements-to-sell dated 16/11/2006 executed by the original defendant Nos.4 to 6 registered at Sr.Nos.6073 and 6074. That the plaintiff also prayed for cancellation of registered sale deed dated 13/9/2006 executed by the original defendant Nos.2 to 6 executed in favour of the defendant No.7 as well as registered sale deed dated 4/8/2007 executed by the original defendant Nos.2 to 6 in favour of defendant No.9 registered at Sr.No.4992 as well as writing / Kabulatnama dated 24/8/2007 executed by original defendant No.1 in favour of defendant No.9 registered at Sr.No.5390. The plaintiff also prayed to quash and set aside the registered sale deed dated 29/10/2007 executed by original defendant no.9 in favour of original defendant No.10 registered at Sr.No.6591 as well as registered sale deed dated 5/1/2007 executed by original defendant No.7 in favour of the defendant No.8 registered at Sr.No.83 with respect to Block No.1570. The plaintiff also prayed to quash and set aside the registered sale deed executed by the original defendant Nos.1 to 6 in favour of the defendant No.11 and 12 with respect to Page 2 of 22 C/FA/3407/2013 ORDER Block / Survey Nos.501 and 507 registered at Sr.No.5929 and 5926, respectively. The plaintiff also prayed for permanent injunction restraining the defendants, their agents, servants etc. from transferring, alienating and/or putting up any construction on the suit land in question. That the aforesaid suit came to be filed/instituted on 16/11/2012.
2.02. That having served with the Summons of the aforesaid suit, the original defendant Nos.2 and 3 submitted application below Ex.45 requesting to reject the plaint in exercise of the powers under Order 7 Rule 11(d) of the Code of Civil Procedure contending inter-alia that the suit for the reliefs prayed is barred by law of limitation and more particularly on the ground that the suit for specific performance of the Agreements-to-sell has been instituted beyond the period of limitation of three years from the date of cause of action. The aforesaid application was opposed by the plaintiff by filing reply at Ex.48. It was the case on behalf of the plaintiff that the plaintiff has paid total Rs.10 Lacs towards part consideration and only remaining Rs.2 Lacs was required to be paid towards balance consideration which the plaintiff was ready and willing to pay. It was also the case on behalf of the plaintiff that delay has taken place as the original defendant Nos.1 to 6 have failed to get Title Clearance Certificate of the lands in question and therefore, there was no bar of limitation under section 54 of the Limitation Act. Therefore, it was requested to dismiss the application Ex.45.
2.03. That considering the averments made in the plaint and conditions mentioned in the respective Agreements-to-
sells, by the impugned order, the learned trial court has Page 3 of 22 C/FA/3407/2013 ORDER observed and held that the suit is barred by law of limitation and therefore, the case would fall under Order 7 Rule 11(d) of the Code of Civil Procedure and consequently has allowed the application Ex.45 and has rejected the plaint in exercise of power under Order 7 Rule 11(d) of the Code of Civil Procedure by observing and holding that the suit is barred by law of limitation.
2.04. Feeling aggrieved by and dissatisfied with the impugned order rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure, the original plaintiff has preferred the present First Appeal.
3.00. Mr.M.C. Bhatt, learned advocate appearing on behalf of the appellant - plaintiff has vehemently submitted that the learned trial court has materially erred in rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the suit for performance of the specific Agreements-for-Sale dated 19/8/2006 and 16/11/2006, which has been filed on 16/11/2012 is beyond the period of three years. It is submitted that the learned Judge has erred in not considering the averments made in the plaint and law applicable to the case covered under Order 7 Rule 11 of the Code of Civil Procedure.
3.01. Mr.M.C. Bhatt, learned advocate appearing on behalf of the appellant - plaintiff has further submitted that it was specifically averred and pleaded in the plaint in para 6 that the whenever the defendant Nos.1 to 6 were asked to get Title Clearance Certificate and other necessary permissions and execute sale deeds, it was assured by the defendant Nos.1 Page 4 of 22 C/FA/3407/2013 ORDER to 6 to execute sale deeds. It is submitted that it is also averred in para 8 of the plaintiff that the plaintiff came to know about execution of the illegal sale deeds by the defendant Nos.1 to 6 in favour of the defendant Nos.7 to 12 only before 2 months when the defendant Nos.1 to 6 informed to the plaintiff - appellant and thereafter upon making inquiry of revenue record. It is submitted that in para 14 of the pliant also it is averred that the appellant plaintiff has purchased the suit land by registered sale Agreements-to-sell dated 4335 and 4336 dated 19/8/2006 and the registered Agreements-to- sell dated 16/11/2006 bearing No.6073 and 6074 and the appellant has paid Rs.4 Lacs by cheque cash at the time of execution of the Agreements-to-sell and Rs.3 Lacs on 31/12/2006 and further Rs.3 Lacs on 4/4/2007. Thus, the appellant - plaintiff has paid Rs.10 Lacs and only Rs.2 Lacs was to be paid after obtaining Title Clearance Certificate and other permissions by the defendant Nos.2 to 4. It is submitted that it was the specific condition mentioned in the Agreements-to-sell that the remaining amount is to be paid after the defendant Nos.2 to 6 obtains Title Clearance Certificate and other permissions. it is submitted that thus, there is specific averment that time was not the essence of the contract since the time limit was extended by the defendant Nos.2 to 6 till they obtain Title Clearance Certificate and other permissions. It is submitted that in para 16 of the plaint, the plaintiff also specifically averred that the cause of action has arisen when the plaintiff came to know about execution of the sale deeds just before 2 months and thereafter when he obtained revenue record and thereafter just before 2 days when the defendants threatened the plaintiff to further transfer the suit land. It is submitted that therefore, from the pleadings in the plaint, the Page 5 of 22 C/FA/3407/2013 ORDER following the questions of facts arise :-
(a) Whether time was essence of the contract?
(b) Whether the defendants assured to the plaintiff to obtain Title Clearance Certificate and other permissions and to execute the documents whenever was asked by the plaintiff?
(c) Whether defendants executed time orally or by conduct?
(d) Whether plaintiff could come to know about the execution of different sale deeds by defendant Nos.1 to 6 in favour of defendant Nos.7 to 12 before two months of filing of the suit when the plaintiff obtained the revenue record?
(e) Whether the plaintiff contacted the defendants before two days of filing of the suit and at the time the plaintiff was given threat by the defendants to transfer the suit land?
3.02. It is submitted that as such the above questions of facts are required to be adjudicated at the time of trial by leading evidence by the parties and therefore, the learned Judge has erred in rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure.
3.03. Mr.M.C. Bhatt, learned advocate appearing on behalf of the appellant - plaintiff has further submitted that it is settled law that scope of Order 7 Rule 11(d) is very limited Page 6 of 22 C/FA/3407/2013 ORDER and Court has no jurisdiction and power to decide the question of facts.
3.04. Mr.M.C. Bhatt, learned advocate appearing on behalf of the appellant - plaintiff has further submitted that since the learned judge has not considered the questions of facts arising out of the averments made in the plaint, the impugned order deserves to be quashed and set aside.
3.05. Mr.Bhatt, learned advocate for the appellant - plaintiff has heavily relied upon the following decisions of the Hon'ble Supreme Court in support of his submission that in the facts and circumstances of the case, the learned Judge has materially erred in rejecting the plaint on the ground of limitation in exercise of power under Order 7 Rule 11(d) of the Code of Civil Procedure :
1. AIR 2008 S.C. 3174 (Kamla & Ors. Vs. K.T. Eshwara Sa & Ors.);
2. AIR 2006 S.C. 1828 [Mayar (H.K.) Ltd. & Ors. Vs. Owners & Parties Vessel M.V. Fortune Express & Ors.]; and
3. 2012 (1) GLR 866 (Union Bearings (India) Ltd. Vs. Arvindbhai Chhaganbhai Patel & Anr.).
3.06. It is submitted by Mr.Bhatt, learned advocate appearing on behalf of the plaintiff that the Hon'ble Bombay High Court in the decision reported in 2009 AIHC 2690 has held that if the land owners have failed to perform their part to file application for grant of permission, then in that case, the suit for specific performance is not barred by limitation.
3.07. Mr.M.C. Bhatt, learned advocate appearing on Page 7 of 22 C/FA/3407/2013 ORDER behalf of the appellant - plaintiff has also relied upon the decision of the Rajasthan High Court in the case of Ram Karan and others Vs. Govind Lal and another, reported in AIR 1999 Rajasthan 167, decision of Karnataka High Court in the case of Smt. Saraswathamma Vs. H. Sharad Shrikhande and others, reported in AIR 2005 Karnataka 292.
3.08. Mr.M.C. Bhatt, learned advocate appearing on behalf of the appellant - plaintiff has submitted that in the case of Gunwantbhai Mulchand Shah and others Versus Anton Elis Farl and others, reported in AIR 2006 S.C. 1556, the Hon'ble Supreme Court has held that when question of limitation requires investigation on terms of agreement and on the basis of the evidence produced by the parties, dismissal of suit as barred by limitation by deciding the issue of limitation as preliminary issue is not proper. It is submitted that the Hon'ble Supreme Court in the case of Pancharan Dhara and others Versus Monmatha Nath Maity (D) by L.Rs. and another, reported in AIR 2006 S.C. 2281 has observed and held that the period of execution of the sale deeds if extended by conduct of the parties, time to file shall be deemed to start running only when the plaintiff had notice that performance had been refused. It is submitted that in the instant case as averred in the plaint, time was extended by the defendant Nos.1 to 6 and therefore, limitation begins only before 2 months of filing of the suit when and the plaintiff came to know about execution of the sale deed.
3.09. Mr.M.C. Bhatt, learned advocate appearing on behalf of the appellant - plaintiff has further submitted that the appellant plaintiff is the victim of fraud and collusion of the Page 8 of 22 C/FA/3407/2013 ORDER defendants. It is submitted that the defendant Nos.2 to 6 having executed registered Agreements-to-sell in favour of the appellant - plaintiff and having recovered 80% of the consideration have executed registered sale deed in favour of the defendant Nos.7 to 12 behind the back of the plaintiff-
appellant and without performing any formality of publishing public notice; inviting objections and without even obtaining Title Clearance Certificate. It is submitted that Order 7 Rule 11
(d) of the Code of Civil Procedure is for doing substantial justice and preventing the filing of frivolous suit and therefore, the defendant Nos.2 and 3 who have received the 80% amount of consideration is not entitled to invoke the jurisdiction of the court of Order 7 Rule 11(d) of the Code of Civil Procedure on the ground of equity also.
By making above submissions and relying upon above decisions it is requested to allow the present appeal and quash and set aside the impugned order rejecting the plaint.
No other submissions have been made.
4.00. Present appeal is opposed by Mr.Sanjay Amin, learned advocate appearing on behalf of the respondent Nos.2 to 6 - original defendant Nos.2 to 6 and Mr.Viral K. Shah, learned advocate appearing on behalf of the respondent No.8 - original defendant No.8. The learned advocates appearing on behalf of the respective parties have vehemently submitted that in the facts and circumstances of the case and considering the conditions / time limit stipulated in the respective Agreements-to-sell and even thereafter subsequent sale deeds executed in favour of the original defendant Nos.7 and 8 and even considering the averments made in the plaint and as it has been found that the suit is clearly barred by law of Page 9 of 22 C/FA/3407/2013 ORDER limitation, the learned trial court has rightly rejected the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure.
4.01. It is further submitted by the learned advocates appearing on behalf of the respective respondents - original defendants that in the present case the dispute is with respect to four different Agreements-to-sell / Banakhats with respect to different parcels of land, two dated 19/8/2006 and remaining two dated 16/11/2006, executed by the original defendant Nos.2 and 3 and defendant Nos.4 to 6, respectively and the suit for specific performance of the aforesaid Agreements-to- sell has been instituted on 16/11/2012 i.e. beyond the period of limitation from the date of accrual of cause of action as per the respective Agreements-to-sell / Banakhats and therefore, the suit is clearly barred by law of limitation and therefore, the learned Judge has rightly rejected the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the suit is barred by law of limitation.
4.02. It is further submitted by the learned advocates appearing on behalf of the respective respondents - original defendants that with respect to some of the lands, original defendant Nos.2 to 6 have executed registered sale deed in favour of the original defendant No.7 on 13/9/2006 and with respect to another parcel of land by the original defendant No.2 to 6 in favour of the original defendant No.9 on 4/8/2007 and both the aforesaid registered sale deeds have been challenged by instituting the present suit on 16/11/2012 i.e. beyond the period of three years. It is submitted that therefore, no error has been committed by the learned Judge rejecting the plaint.
Page 10 of 22 C/FA/3407/2013 ORDER4.03. It is further submitted by the learned advocates appearing on behalf of the respective respondents - original defendants that so far as Agreements-to-sell / Banakhats registered at Sr.Nos.4335 and 4336 dated 19/8/2006 executed by the original defendant Nos.2 and 3 are concerned, there was a specific condition mentioned in the said Agreements-to- sell that remaining sale consideration i.e. Rs.2 Lacs, each is required to be paid by the plaintiff within a period of six months i.e. six months from 19/8/2006 and on receipt of the said balance sale consideration, the original land owners were required to execute sale deeds.
4.04. It is further submitted that remaining two Agreements-to-sell / Banakhats registered at Sr.Nos.6073 and 6074 dated 16/11/2006 executed by the original defendant Nos.4 to 6 are concerned, there was also a specific time limit of six months fixed and within that time, the original land owners who executed the Banakhats were required to get the Title Clearance Certificate within a period of six months. It is submitted that therefore, the cause of action to file the suit for specific performance of the aforesaid Agreements-to-sell / Banakhats had accrued / commenced immediately on completion of six months from the date of execution of the said Agreements-to-sell / Banakhats. It is submitted that therefore, within a period of three years from the date of completion of six months, the plaintiff was required to file the suit. It is submitted that in the present case, the suit has been preferred after a period of three years after completion of six months of execution of the respective Agreements-to-sell which is clearly barred by law of limitation and therefore, the Page 11 of 22 C/FA/3407/2013 ORDER learned judge has rightly rejected the plaint in exercise of power under Order 7 Rule 11(d) of the Code of Civil Procedure.
4.05. The learned advocates appearing on behalf of the respective respondents - original defendants have heavily relied upon the case of Dilboo (Smt) (Dead) By Lrs. And another Versus Dhanraji (Smt) (Dead) and others, reported in (2000) 7 SCC 702 as well as decision of this Court in the case of Becharbhai Zaverbhai Patel and another Vs. Jashbhai Shivabhai Patel and others, reported in 2013 (1) GLR 398 in support of their prayer to dismiss the present appeal by confirming the impugned order passed by the learned trial court.
By making above submissions and relying upon the above decisions, it is requested to dismiss the present appeal.
No other submissions have been made.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered minutely the respective Agreements-to-sell / Banakhats of which specific performance is sought.
5.01. At the outset, it is required to be noted that in the plaint / suit, the original plaintiff has sought specific performance of the Agreements-to-sell / Banakhats executed by the defendant Nos.2 and 3 dated 19/8/2006 registered at Sr.Nos.4335 and 4336 and registered Agreements-to-sell / Banakhats executed by the original defendant Nos.4 to 6 dated 16/11/2006 registered at Sr.Nos.6073 and 6074. The plaintiff has also prayed to quash and set aside the registered sale deed executed by the original defendant Nos.2 to 6 in favour of Page 12 of 22 C/FA/3407/2013 ORDER original defendant No.7 executed on 13/9/2006 registered at Sr.No.4763 with respect to land bearing Block / Survey No.1570 as well as to quash and set aside another registered sale deed executed by the original defendant Nos.2 to 6 in favour of original defendant No.9 on dated 4/8/2007 registered at Sr.No.4992.
5.02. It is required to be noted that in the pliant / suit, the plaintiff has prayed for the following reliefs :-
(A) To pass order and decree directing the defendant Nos.2 and 3 to act upon Banakhats executed in favour of the plaintiff dated 19/8/2006 registered at Sr.No.4335 and 4336 and directing the defendant Nos.4 to 6 to execute Banakhats executed in favour of the plaintiff dated 16/11/2006 registered at Sr.Nos.6073 and 6074 and execute registered sale deed in favour of the plaintiff for the suit land and to handover peaceful and physical possession of the suit land and pass such order and decree in favour of the plaintiff and if the defendant Nos.1 to 6 do not act accordingly, to execute sale deed in favour of the plaintiff by appointing Court Commissioner.
(B) To hold and declare that the registered sale deed executed by the defendant Nos.2 to 6 in favour of the defendant No.7 dated 13/9/2006 registered at Sr.No.4763 with respect to land bearing Block/Survey No.1570 is illegal and against the right and interest of the plaintiff and cancel the same.
(C) To hold and declare that the registered sale deed executed by the defendant Nos.2 to 6 in favour of the defendant No.9 dated 4/8/2007 registered at Sr.No.4992 with respect to suit land land is Page 13 of 22 C/FA/3407/2013 ORDER illegal and against the right and interest of the plaintiff and the same is nullity and cancel the same.
(D) To hold and declare that the Kabulatnama executed by the defendant No.1 in favour of the defendant No.9 dated 24/8/2007 registered at Sr.No.5390 is illegal and cancel the same.
(E) To hold and declare that the sale deed executed by the defendant No.9 in favour of the defendant No.10 dated 29/10/2007 registered at Sr.No.6591 with respect to suit land is illegal and cancel the same.
(F) To hold and declare that the registered sale deed executed by the defendant No.7 in favour of the defendant No.8 dated 5/1/2007 registered at Sr.No.1570 with respect to Block No.83 is illegal, against the right and interest of the plaintiff and cancel the same.
(G) To hold and declare that the registered sale deed executed by the defendant Nos.1 to 6 in favour of the defendant Nos.11 and 12 with respect to Block/Survey Nos.501 and 507 registered at Sr.No.5929 and 5926 is illegal, against the right and interest of the plaintiff and cancel the same.
(H) To grant permanent injunction in favour of the plaintiff and against the defendants directing the defendants, their agents, assignees not to sell the suit land and not to get the suit land sold or not to create any encumbrance on the suit land and not to make any kutcha or pakka construction on the suit land.
(I) To pass such other and further order as may be deemed just and proper to this Hon'ble Court."
5.03. At this stage, it is required to be noted that the suit has been instituted on 16/11/2012. By the impugned order the learned trial court has rejected the plaint under Order 7 Rule Page 14 of 22 C/FA/3407/2013 ORDER 11(d) of the Code of Civil Procedure on the ground that the suit is clearly barred by law of limitation. Therefore, short question which is posed for consideration of this Court is whether in the facts and circumstances of the case the learned Judge is right in rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the suit is barred by law of limitation? To appreciate and consider the aforesaid, necessary conditions as mentioned / stipulated in the respective Agreements-to-sell / Banakhats with respect to period of limitation is required to be considered.
5.04. So far as two Agreements-to-sell / Banakhats dated 19/8/2006 executed by the defendant Nos.2 and 3 registered at Sr.No.4335 and 4336 of which specific performance is sought, conditions are same and similar and in condition No.2 it is mentioned that remaining sale consideration of Rs.2 Lacs is required to be paid within a period of six months and on payment of said balance sale consideration, executant of the said Agreements-to-sell - original land owners are required to execute sale deed.
5.05. So far as the other two Agreements-to-sell / Banakhats dated 16/11/2006 executed by the original defendant Nos.4 to 6 registered at Sr.No.6073 and 6074 are concerned, condition No.3 provides that the period of limitation of the Agreements-to-sell / Banakhats is fixed at six months and within a period of six months, the executant of the Agreements-to-sell / Banakhats - original owners are required to get Title Clearance Certificate and on getting the Title Clearance Certificate and on making payment of balance sale consideration of Rs.2 Lacs within a period of six months by the Page 15 of 22 C/FA/3407/2013 ORDER plaintiff, registered sale deed is required to be executed 5.06. Considering the aforesaid conditions in respective Agreements-to-sell / Banakhats it can be said that the time was the essence of the contract and the period of limitation of the respective Agreements-to-sell / Banakhats is six months. Therefore, after six months, the cause of action to file the suit for specific performance of the respective Agreements-to-sell / Banakhats has accrued and therefore, within three years thereafter i.e. within a period of three years on completion of period of six months, the plaintiff was required to institute the suit for specific performance of the respective Agreements-to- sell / Banakhats. In the present case, as stated hereinabove, the suit has been instituted on 16/11/2012 i.e. beyond the period of three years after completion of six months of execution of the respective Agreements-to-sell / Banakhats. Under the circumstances, the suit for specific performance of the aforesaid Agreements-to-sell / Banakhats is clearly barred by law of limitation and therefore, the learned Judge has rightly rejected the plaint in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the suit is barred by law of limitation.
5.07. Now, so far as the averments in the plaint with respect to limitation and/or cause of action is concerned, it is required to be noted that in para 16, it is averred as under :
"16. Cause of Action has arisen from 19/8/2006 and 16/11/2006 on which the plaintiff purchased the suit land by executing Banakhat and from the date the defendant Nos.1 to
6 sold the suit land to the defendant Nos.7 to 12 on different Page 16 of 22 C/FA/3407/2013 ORDER dates though more than 80% of the sale consideration is paid and the plaintiff came to know about the same before two months and thereafter the plaintiff got copy of the revenue records and the plaintiff met the defendants prior to two days and they threatened to transfer the land and since then the cause of action has arisen within the jurisdiction of this Hon'ble Court."
5.08. Therefore, the averments made in the plaint with respect to cause of action that he came to know about execution of the receptive sale deeds executed by the original defendant Nos.1 to 5 in favour of the defendant Nos.7 to 12 before two months only and from the date on which they have got the revenue records and other averments with respect to giving threat before two days are too vague and only with a view to bring the suit within the period of limitation.
5.09. In the case of T.Trivandam Versus T.V.
Satyapal and another, reported in (1977) 4 SCC 467 the Hon'ble Supreme Court has observed and held that if clever drafting has created the illusion of a cause of action, it is the duty of the Court to nip it in the bird at the first hearing and by clever drafting a suit which is otherwise barred by law of limitation cannot be brought within the period of limitation. It cannot be disputed that if on the face of it and considering the averments made in plaint / suit as they are, if it is found that the suit is clearly barred by law of limitation, plaint can be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure. In the present case, as stated hereinabove, suit for specific performance of the Agreements-to-sell / Banakhats dated 19/8/2006 registered at Sr.Nos.4335 and 4336 as well as Page 17 of 22 C/FA/3407/2013 ORDER Agreements-to-sell / Banakhats dated 16/11/2006 registered at Sr.Nos.6073 and 6074 are clearly beyond the period of limitation and barred by law of limitation. Under the circumstances, the learned trial court has not committed any error and/or illegality in rejecting the plaint on the ground that the same is barred by law of limitation.
5.10. Now, so far as the other prayers / reliefs to quash and set aside the registered sale deed executed by the original defendant Nos.2 to 6 in favour of the original defendant No.9 dated 4/8/2007 registered at Sr.No.4992; registered sale deed executed by the original defendant Nos.2 to 6 in favour of the original defendant No.7 dated 13/9/2006 registered at Sr.No.4763; registered sale deed executed by the original defendant No.9 in favour of original defendant No.10 dated 29/10/2007 registered at Sr.No.6591; registered sale deed executed by original defendant No.7 in favour of original defendant No.8 dated 5/1/2007 registered at Sr.No.83 and registered sale deed executed by the original defendant Nos.1 to 6 in favour of defendant Nos.11 and 12 registered at Sr.No.5929 and 5926 are concerned; from the date of registration of the said sale deeds, the suit which has been instituted on 16/11/2012 is clearly beyond the period of three years i.e. barred by law of limitation.
5.11. In the case of Dilboo (Smt)(Dead) By Lrs & Anr vs. Dhanraji (Smt)(Dead) and Others reported in (2000)7 SCC 702, the Hon'ble Supreme Court has observed and held that whenever the document is registered, the date of registration becomes the date of deemed knowledge and in other cases where a fact could be discovered by due diligence Page 18 of 22 C/FA/3407/2013 ORDER then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge. In the said decision, the Hon'ble Supreme Court has also observed and held that plaint can be rejected in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure if it is found that even accepting all the averments made in the suit, it is found that the suit is barred by law of limitation. Relying upon the aforesaid decision of the Hon'ble Supreme Court, this Court in the case of Becharbhai Zaverbhai Patel and another (supra) has held that considering the averments in the plaint and supporting documents produced along with the plaint if the suit is clearly barred by law of limitation, plaint is required to be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure. It is further observed and held that in case of suit challenging the registered document, date of registration becomes date of deemed knowledge and by clever drafting and vague averments, the suit which is otherwise barred by law of limitation cannot be brought within the period of limitation. Considering the aforesaid law laid down by the Hon'ble Supreme Court as well as this Court in the case of Becharbhai Zaverbhai Patel and another (supra), other prayers challenging the respective registered sale deeds are also clearly barred by law of limitation. Under the circumstances, no error has been committed by the learned Judge in rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the suit filed for the aforesaid reliefs is also barred by law of limitation.
5.12. Now, so far as the decisions relied upon by Mr.Bhatt learned advocate appearing on behalf of the appellant -
Page 19 of 22 C/FA/3407/2013 ORDERoriginal plaintiff referred to hereinabove are concerned, on facts none of the above decisions would be of any assistance to the appellant - original plaintiff. There is no dispute and as such there cannot be any dispute with respect to proposition of law laid down by the Hon'ble Supreme Court in the case of Kamla and others (supra) and in the case of Mayar (HK) Limited and others (supra). However, on facts the said decisions would not be applicable. Considering the facts of the case on hand and even considering the averments made in the plaint and supporting documents produced along with the plaint - respective Agreements-to-sell, the suit is barred bylaw of limitation.
5.13. Now so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Pancharan Dhara and others (supra) is concerned, it was found on facts that the period of limitation was extended by conduct of the parties.
5.14. Now reliance placed upon the decision of the Bombay High Court in the case reported in 2009 AIHC 2690 (supra) is concerned, the same shall not be applicable on facts of the case on hand.
5.15. Similarly decision of Karnataka High Court in the case of Smt. Saraswathamma (supra) and decision of Rajasthan High Court in the case of Ram Karan and others (supra), are concerned, on facts the same shall not be applicable. In the case before the Rajasthan High Court it was found that there was no clause stipulating limitation in the Agreement-to-sell and the suit was filed within a period of Page 20 of 22 C/FA/3407/2013 ORDER three years from the date of notice served upon the respondent to registered sale deed and to that it was found that the suit is not barred by law of limitation. Similarly, decision of the Karnataka High Court in the case of Smt. Saraswathamma (supra) shall not be applicable to the facts of the case on hand.
5.16. Under the circumstances, we are of the opinion that we are in complete agreement with the view taken by the learned judge in rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the suit is barred by law of limitation. No error has been committed by the learned Judge in rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure. We see no reason to interfere with the impugned order passed by the learned Judge in rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure.
6.00. In view of the above and for the reasons stated above, present appeal fails and the same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the mail First Appeal, no order in the Civil Application and the same also stands dismissed accordingly. Notice is discharged. No costs.
Sd/-
(M.R.SHAH, J.) Sd/-
(R.P.DHOLARIA,J.) Rafik.
Page 21 of 22 C/FA/3407/2013 ORDER Page 22 of 22