Gujarat High Court
Ramilaben Devji Jodhani vs Ishvarlal Maganlal Shah on 15 September, 2023
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 446 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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 ?
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RAMILABEN DEVJI JODHANI
Versus
ISHVARLAL MAGANLAL SHAH
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Appearance:
MR ABHAYKUMAR P SHAH(3093) for the Applicant(s) No. 1
MR SAGAR B PANDYA(13177) for the Opponent(s) No. 1,2
NOTICE SERVED for the Opponent(s) No. 3,4,5,6,7
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 15/09/2023
CAV JUDGMENT
1.Heard learned advocate Mr. Abhaykumar P. Shah Page 1 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined for the petitioner and learned advocate Ms. Rekha Mehta for respondent nos. 1 and 2.
2.By this petition, the petitioners have challenged the order dated 16.07.2021 passed by 3rd Additional Senior Civil Judge & ACJM, Bhuj, District Kachchh below Exh.30 in Special Civil Suit No.53/2016 preferred by the petitioner under Order VII Rule 11 of the Code of Civil Procedure 1908, (For short "the Code").
3.Brief facts of the case are that respondent nos. 1 and 2 who are the original plaintiffs preferred Special Civil Suit No.53/2016 in the Court of Principal Senior Civil Judge, Bhuj-Kachchh for declaration, specific performance, damages and permanent injunction against the petitioner and respondent nos. 3 to 5. Respondent no.6 and 7 were subsequently joined as defendant no.5 and 6 by way of Page 2 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined amendment by the plaintiff.
3.1) The plaintiffs preferred the suit for specific performance for enforcing the Agreement to Sale dated 04.03.2010 for purchase of Plot Nos. 23/3, 23/4, 23/16 and 23/17 situated in Revenue Survey No.311/2 situated at Moje Kodki Road, Mankuva, Taluka Bhuj and District Kachchh (hereinafter referred to as "the suit property") admeasuring 334.80 sq. mtr or 400.44 sq. yards for a consideration of Rs. 4,00,000/-. At the time of execution of the Agreement to Sale, the plaintiffs paid earnest money of Rs.50,000/- to the petitioner-original defendant no.1. The Agreement to Sale was signed by the petitioner and respondent no.3 as the co-owners of the land.
3.2) The plaintiffs paid the remaining amount of Rs. 3,50,000/- to the petitioner Page 3 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined and respondent no.3 on 22.03.2010. Consequently, a Power of Attorney was issued in favour of the plaintiffs confirming the right of administration and possession of the suit property.
3.3) It is averred in the plaint that with a view to destroy the rights of the plaintiffs over the suit property, the petitioner and respondent no.3 had sold the suit property to one Noormammad Alimmad by creating a bogus, fabricated and forged deed dated 16.12.2013 which was registered with office of Sub-Registrar at Serial No.12347. The plaintiffs therefore, published a caution public notice in the newspaper and also sent a legal notice to the petitioner on 25.01.2014. However, as there was no response from the petitioner in compliance of the demand of the plaintiffs to execute the sale deed, Special Civil Suit No.53/2016 was filed Page 4 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined seeking specific performance of the agreement made on 04.01.2010.
3.4) The petitioner filed application Exh.30 under Order VII Rule 11 of the Code to reject the application on the ground of limitation as the plaintiffs have sought specific performance of the Agreement to Sale entered into on 04.01.2010 and payment was also made on 22.01.2010 and accordingly, the suit was not filed within three years from the date of entire payment. It was further contended that though the Agreement to Sale was made with plaintiff no.1, payment was made by plaintiff no.2 which created doubt on the veracity of the transaction. It was also contended that as per the provisions of Section 17A of the Registration Act, every Agreement to Sale is required to be compulsorily registered. However, the Agreement to Sale dated 04.01.2010 was not Page 5 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined registered. It was submitted that the plaintiffs failed to show readiness and willingness for specific performance of the agreement.
3.5) Learned Judge after considering the submissions made by both the sides by impugned order dated 16.07.2021 rejected the application Exh.30 filed by the petitioner under order VII Rule 11 of the Code on the ground that no specific date was fixed by the parties in the Agreement to Sale. Reliance was also placed on Article 54 of the Limitation Act which provides limitation of 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. Learned Judge referring to the said Article came to the conclusion that plaintiffs came to know that performance is refused when they had seen the caution notice Page 6 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined dated 25.01.2014 produced at Mark 3/5 considering the said date as date of knowledge. It was held that the suit was filed within a period of limitation as per Article 54 of the Limitation Act. Learned Judge also placed reliance upon the decision of Apex Court in case of Ram Karan v. Govind Lal reported in AIR 1999 Raj 167 wherein it is held that in absence of any stipulation in agreement with regard to time of execution of sale deed, suit filed within three years from the date of notice to the defendant for execution of sale deed is not barred by limitation.
3.6) Learned Judge therefore, considering the averments made in the plaint and the documents annexed therewith held that suit is not barred by limitation rejecting the application filed under Order VII Rule 11 of the Code.
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4.Learned advocate Mr. Abhaykumar P. Shah for the petitioner submitted that learned Judge has committed an error by referring to the date of knowledge of refusal to perform the Agreement to Sale by the petitioner from the date of publication of notice dated 25.01.2014 because in view of Article 54 of the Limitation Act, limitation would start running from the date of payment and within three years suit ought to have been filed whereas admittedly suit has been filed after more than six years.
4.1) It was submitted that application filed by the petitioner ought to have been allowed by the learned Judge inasmuch as findings of the learned Judge are erroneous with regard to contention raised by the plaintiffs that no specific date was fixed by the parties for performance considering the Page 8 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined fact that the agreement for sale clearly provides for payment of remaining amount and, therefore, limitation is to be ascertained from that date. It was therefore, submitted that learned Judge has committed an error against the settled principle of limitation as per the judgment of the Apex Court in case of Ramzan v. Hussaini reported in (1990) 1 Supreme Court Cases 104. Learned advocate Mr. Shah referred to and relied upon paragraph no.6 of the judgment wherein it is held and observed by the Apex Court that requirement of Article 54 of limitation Act, is not that the actual day should necessarily be ascertained upon the face of the deed but that the basis of the calculation which was to make it certain should be found therein. It was therefore, submitted that admittedly the suit is not filed within three years after remaining payment was made by respondent nos. 1 and 2-original plaintiffs. Page 9 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023
NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined 4.2) Reliance was also placed on the decision in case of Decd. Hanubhai Ladhrabhai Bharwad's Main Legal Heirs and Administrator v. Legal Heirs of Decd. Chimanbhai Jivabhai Patel (Judgment dated 12.08.2018 passed in First Appeal No.2287/2015.), wherein Division Bench of this Court accepted the proposition that if the date is capable of being ascertained from the contents of the agreement as well as averments made in the plaint, limitation can certainly commence from that date. It was further submitted by learned advocate Mr. Shah that the learned Judge has erroneously considered the limitation from the date of publication of notice in newspaper on 25.01.2014 which would be an illegal exercise of power.
5.On the other hand, learned advocate Ms. Rekha Mehta for the respondent nos. 1 and 2- Page 10 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined original plaintiffs submitted that on perusal of the averments made in the plaint, learned Judge has rightly passed the impugned order rejecting application Exh.30. 5.1) Learned advocate Ms. Mehta would submit that after making payment of entire sale consideration of Rs. 4 lakhs, the petitioner executed Power of Attorney in favour of respondent nos. 1 and 2- original plaintiffs on 22.01.2010. It was submitted that the petitioners thereafter executed the sale deed in the year 2013 in favour of third person and thereafter on publication of the caution notice on 25.01.2014, the plaintiffs came to know about such execution of the sale deed. It was therefore, submitted that the date of knowledge of refusal to perform by the petitioner is 25.01.2014 and therefore, suit filed in the year 2016 was within the period of limitation of three years as per Page 11 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined Article 54 of the Limitation act. It was submitted that learned Judge has therefore, rightly dismissed the application filed by the petitioner.
5.2) Learned advocate Ms. Mehta thereafter submitted that reliance placed by the petitioner on decision in case of Ramzan(supra) would not be applicable in facts of the case as there is no date fixed in the Agreement to Sale dated 04.01.2010. It was further submitted that on perusal of the Agreement to Sale, it is clear that the date of payment of remaining amount of Rs.3,50,000/- was fixed at 31.03.2010 and accordingly, amount of Rs.3,50,000/- was paid on 22.03.2010 and receipt was also issued by the petitioner in favour of respondent no.2. In such circumstances, when there is no date fixed in the Agreement to Sale for execution of the sale deed, limitation of Page 12 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined three years would not be applicable as no date is stipulated for performance of Agreement to Sale. It was submitted that as the action on part of the petitioner to execute the sale deed amounts to refusal to perform the Agreement to Sale, limitation would start from the date on which such refusal was made known to the plaintiff i.e. on publication of caution notice on 25.01.2014. It was therefore, submitted that the suit was filed within the period of limitation. In support of her submission, reliance was placed on the decision of Apex Court in case of Chhotaben and another v. Kiritbhai Jalkrushnabhai Thakkar and others reported in (2018) 6 Supreme Court Cases 422 wherein the Apex Court held in facts of the said case that when the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by the original defendants by keeping them in dark about such Page 13 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined execution, the suit being barred by limitation in facts of the case is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of powers under Order VII Rule 11(d) of the Code.
6.Considering the submissions made by both the sides and on perusal of the averments made in the plaint along with documents annexed therewith, it appears that after execution of the Agreement to Sale on 04.01.2010, entire sale consideration of rs.4 lakh as agreed upon was paid on 22.03.2010 before the time fixed in the Agreement to Sale for such payment i.e. 31.03.2010. It is also pertinent to note that General Power of Attorney was also executed in favour of the plaintiff i.e. respondent no.2 by the petitioner after handing over the possession of the suit property and thereafter plaintiffs were Page 14 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined enjoying the suit property in capacity of the owner. The suit was filed in the year 2016 after coming to know about the fraudulent sale deed executed by the petitioner in favour of one Noormammad Alimmad on 16.12.2013 for a meagre amount of Rs. 42,000/-. However, such sale deed was cancelled and subsequently another sale deed was executed on 11.09.2014 for Rs.84,000/- in favour of Surajgiri Valgiri Goswami who is joined as original defendant no.5 as per the amended plaint.
7.Article 54 of the Limitation Act provides for limitation of three years from the date of specific performance or if no such date is fixed when the plaintiff has noticed that performance is refused. In the facts of the case, the plaintiffs came to know about refusal when the caution notice was published in newspaper on 25.01.2014. The Agreement to Page 15 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined Sale dated 04.01.2010 does not specify any date or time for making payment or execution of the sale deed. It is not possible to ascertain time of event from the Agreement to Sale. It is true that the Apex Court has held that requirement of Article 54 is not that the actual day should necessarily be ascertained upon the face of the deed but that the basis of the calculation which was to make it certain should be found therein. Therefore, in facts of the case, the date to execute the sale deed was not fixed. The period of limitation itself started running on the day when the plaintiffs came to know about the fraudulent sale deed executed by the petitioner in favour of Noormammad Alimmad. In case of Chhotaben and another (supra), the Apex Court in similar circumstances, has held as under:
"14.After having cogitated over the averments in the plaint and the reasons recorded by the Trial Court Page 16 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined as well as the High Court, we have no manner of doubt that the High Court committed manifest error in reversing the view taken by the Trial Court that the factum of suit being barred by limitation, was a triable issue in the fact situation of the present case. We say so because the appellants (plaintiffs) have asserted that until 2013 they had no knowledge whatsoever about the execution of the registered sale deed concerning their ancestral property. Further, they have denied the thumb impressions on the registered sale deed as belonging to them and have alleged forgery and impersonation. In the context of totality of averments in the plaint and the reliefs claimed, which of the Articles from amongst Articles 56, 58, 59, 65 or 110 or any other Article of the Limitation Act will apply to the facts of the present case, may have to be considered at the appropriate stage.
15. 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). Only the averments in the plaint are germane. It is common ground that the Page 17 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined registered sale deed is dated 18th October, 1996. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the appellants (plaintiffs) is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers - original defendant Nos.1 & 2, in favour of Jaikrishnabhai Prabhudas Thakkar or defendant Nos.3 to 6. They acquired that knowledge on 26.12.2012 and immediately took steps to obtain a certified copy of the registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original defendant Nos.1 & 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half (1/2) portion of the land so designated towards their share. However, when they realized that the original defendant Nos.1 & 2 would not pay any heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. According to the appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the Trial Court opined that Page 18 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined it was a triable issue and declined to accept the application filed by respondent No.1 (defendant No.5) for rejection of the plaint under Order VII Rule 11(d). That view commends to us.
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19. In the present case, we find that the appellants (plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original defendant Nos.1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original defendant Nos.1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order VII Rule 11(d).
20. In the above conspectus, we have no hesitation in reversing the view taken by the High Court and restoring the order of the Trial Court rejecting the application (Exh.21) filed by respondent No.1 (defendant No.5) under Order VII Rule 11(d). Consequently, the plaint will get restored to its original number on the file of the IVth Page 19 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined Additional Civil Judge, Anand, for being proceeded further in accordance with law. We may additionally clarify that the Trial Court shall give effect to the order passed below Exh.17 dated 20th January, 2016, reproduced in paragraph 5 above, and take it to its logical end, if the same has remained unchallenged at the instance of any one of the defendants. Subject to that, the said order must be taken to its logical end in accordance with law."
8.The Apex Court further in the said decision referred to decision in case of Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Education Trust reported in (2012) 8 SCC 706, wherein it is observed as under:
"11. This position was explained by this Court in Saleem Bhai v. State of Maharashtra[(2003) 1 SCC 557], in which, while considering Order 7 Rule 11 of the Code, it was held as under:
(SCC p. 560, para 9)
"9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage Page 20 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined of the suit-before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and
(d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court."
It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express[(2006) 3 SCC 100]."
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9.Decision in case of Decd. Hanubhai Ladhrabhai Bharwad's Main Legal Heirs and Administrator(supra) relied upon by the petitioner is not applicable in facts of the case as in the said case, it was not in dispute that as per the averments made in the plaint, it was not possible to know as to when the plaintiff came to knowledge about execution of Agreement for Development and plaint was completely silent on his coming to know about the execution of the sale deed whereas in the facts of the present case, the plaintiffs have issued notice to the petitioner calling upon him for specific performance on coming to know about eventual sale deed executed by the petitioner.
10. Therefore, in facts of the case, there is no error committed by the learned Judge while dismissing the application Exh.30 filed Page 22 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023 NEUTRAL CITATION C/CRA/446/2021 CAV JUDGMENT DATED: 15/09/2023 undefined by the petitioner under Order VII Rule 11(d) of the Code.
11. In view of foregoing reasons, petition fails and is accordingly dismissed. No order as to costs. Rule is discharged.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 23 of 23 Downloaded on : Sat Sep 16 17:21:17 IST 2023