Gujarat High Court
Hasmukhbhai Ramchadnra Barot vs Ramanbhai Mangalbhai Prajapati on 20 December, 2021
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
C/SA/103/2020 JUDGMENT DATED: 20/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 103 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/SECOND APPEAL NO. 103 of 2020
With
R/SECOND APPEAL NO. 104 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/SECOND APPEAL NO. 104 of 2020
With
R/SECOND APPEAL NO. 105 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/SECOND APPEAL NO. 105 of 2020
With
R/SECOND APPEAL NO. 106 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/SECOND APPEAL NO. 106 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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HASMUKHBHAI RAMCHADNRA BAROT
Versus
RAMANBHAI MANGALBHAI PRAJAPATI
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2
Page 1 of 37
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for the Respondent(s) No. 11,2,2.1,3,5,6,8,9,9.1
MR PARTHIV B SHAH(2678) for the Respondent(s) No. 1,10,4,7
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 20/12/2021
COMMON ORAL JUDGMENT
1.Heard learned Advocate Shri Hiren Modi for the appellants and learned Advocate Shri Parthiv Shah for the respondent Nos.1,4,7 and 10.
2.At the outset, it is required to be noted that this Court has heard four Second Appeals being Second Appeal Nos.103 to 106 of 2020 together, more particularly, since the parties and the issues raised in all Appeals though arising from the different Civil Suits and different Civil Appeals are near similar, in this view of the matter, this Court propose to dispose of all the four Second Appeals by way of present common judgment.
3.Since four Appeals are having decided together, it would be appropriate to give a brief background of each of the Second Appeal by way of tabular chart as hereinbelow:
1. Regular Civil Suit No.706 of 2003:
Plaintiffs:
1.Hasmukhbhai Ramchandra Barot
2.Arunaben Ramchandra Barot.Page 2 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022
C/SA/103/2020 JUDGMENT DATED: 20/12/2021 Prayer in brief:
For declaration that the land admeasuring 4700 Sq. Mtrs. of total land admeasuring 15782 Sq. Mtrs. was of the ownership and occupation of the plaintiffs and for a declaration that the defendants did not have any right, title or interest over the said land in question.
Regular Civil Appeal No.311 of 2018 Second Appeal No.103 of 2020
2. Regular Civil Suit No.774 of 2006 Plaintiffs:
Heirs of late Ramchandrabhai Ranchhodbhai Barot
1. Yogeshbhai Rajeshbhai Barot
2. Alpaben Rajeshbhai Barot
3. Paulomi Hasmukhbhai Barot Prayer in brief:
For challenging the sale deeds executed by the defendant No.1 in favour of the defendant Nos.2 to 9 in 1996 to be declared as illegal, restraining the defendant Nos.1 to 9 and 13 to 15 from dealing with the property (incidentally the sale deeds are with regard to parcels of land from total land admeasuring 15782 Sq. Mtrs.) Regular Civil Appeal No. 89 of 2015 Second Appeal No.104 of 2020
3. Regular Civil Suit No.281 of 2010:
Plaintiffs:
1.Hasmukhbhai Ramchandra Barot
2. Ambaben Wd/o. Ramchandra Barot Prayer in brief:
For declaration that the land mentioned in paras 1 and 2 of the plaint (4288 Sq. Mtrs. of land) of total 15728 Sq. Mtrs. of land is of the ownership of the Page 3 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 plaintiffs and for getting possession of the said parcel of land from the defendants therein.
Regular Civil Appeal No.78 of 2015 Second Appeal No.106 of 2020
4. Regular Civil Suit No.546 of 2013 Plaintiffs:
1. Hasmukhbhai Ramchandra Barot
2. Arunaben Ramchandra Barot.
Prayer in brief:
For declaration that the sale deed of the year 1999 in so far as the same deals with land belonging to the share of the plaintiffs is illegal, the defendants to be restrained from dealing with the said land. For declaration that the sale deed with regard to land in the Schedule be declared as illegal and not binding on the plaintiffs. (incidentally schedule refers to the land admeasuring 5304 Sq. Mtrs. out of total land admeasuring 15782 Sq. Mtrs.) Regular Civil Appeal No.228 of 2017 Second Appeal No.105 of 2020
4.What could be observed from the above table prima facie is that 3 Civil Suits have been preferred by Shri Hasmukhbhai Ramchandra Barot and others whereas one Suit is preferred by the daughter, nephew and niece of Shri Hasmukhbhai Ramchandra Barot. The subject land is a part of the same parcel of land admeasuring 15782 Sq. Mtrs.
and prayers sought for in the Civil Suits where Shri Hasmukhbhai Barot is one of the party, are similar Page 4 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 in nature albeit on different grounds. With this above backdrop, this Court proposes to deal with each Second Appeal separately.
(I) SECOND APPEAL No.103 of 2020:
5.By way of present Second Appeal, the appellants herein challenge the judgment and order passed by the learned 4th Additional Civil Judge, Vadodara, under Exhibit 60 and 73 in Regular Civil Suit No.706 of 2003 dated 03.04.2018, whereby the plaint preferred by the appellants - plaintiffs has been rejected under Order VII, Rule 11 (a) and (d) of the Code of Civil Procedure. The appellants further challenge the judgment and order passed by the learned Principal District Judge, Vadodara, confirming the order of the learned Civil Judge vide judgment and order dated 30.04.2019 in Regular Civil Appeal No.311 of 2018.
5.1. The appellants being original plaintiffs along with mother of the appellant - plaintiff No.1, who had expired in the interregnum had preferred Regular Civil Suit No.706 of 2003 inter alia claiming that the father of the appellants - plaintiffs Ramchandra Barot was the owner and occupier of the land bearing Survey No.125/2, 119, 126 and 138 situated at village: Gotri, Dist. Vadodara and whereas out of the said land, land Page 5 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 admeasuring 4288 Sq. Mtrs. was acquired for the purpose of widening the road. That in ULC proceeding with regard to the land in question, the Authority had declared 10670 Sq. Mtrs. of land as being freehold land from which 192 Sq. Mtrs. was deducted as there was construction thereon and therefore, available freehold land admeasuring 10478 Sq. Mtrs. That Power of Attorney had been executed with regard to the said land on 12.12.1991 in favour of one Bhailalbhai Punjabhai Prajapati and others and further an agreement to sell was also executed by the Power of Attorney and the plaintiffs have received the sale consideration also with regard to land admeasuring 10478 Sq. Mtrs. It is mentioned that the land acquired for the purpose of widening the road had been released on account of alignment and whereas it was the case of the plaintiffs that the said 4288 Sq. Mtrs. was never sold to anyone and furthermore, the Power of Attorney was stated to be cancelled. Hence, the Suit was filed praying for declaration and permanent injunction with regard to the said parcel of land.
5.2. The defendants after having appeared in the said Civil Suit had preferred applications under Exhibit 60 and 73 under the provisions of Order VII, Rule 11 praying for rejection of the Page 6 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 plaint. Learned Trial Court after hearing both the sides, came to a conclusion that no meaningful cause of action had been stated by the plaintiffs and furthermore, the plaintiffs had suppressed material fact and that the Suit was frivolous and vexatious and if allowed to continue would amount to an abuse of process of law and therefore, rejected the plaint vide judgment and order dated 03.04.2018. The appellants - plaintiffs had thereupon preferred Regular Civil Appeal No.311 of 2018 before the learned Principal District Judge, Vadodara. Learned Principal District Judge, Vadodara, vide judgment and order dated 30.04.2019 had after inter alia coming to a conclusion that there is no cause of action in the plaint, had confirmed the order passed by the learned Trial Court and dismissed the appeal. The appellants - plaintiffs by way of present appeal seeks to challenge the order of learned Trial Court as confirmed by the learned First Appellate Court. The appellants have preferred present Second Appeal by formulating two questions as found in the memo of appeal, which are stated to be substantial questions of law. Same are referred to as herein below:
a) Whether learned Court erred in rejecting the plaint of the appellant under Order VII, Rule 11?Page 7 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022
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b) Whether the learned Appellate Court was justified in holding that the plaint of the appellants does not disclose any cause of action and therefore, deserves to be rejected?
6.Learned Advocate Shri Hiren Modi for the appellants has contended that learned Trial Court as well as learned Appellate Court had erred in rejecting the plaint by confirming the order passed by the learned Trial Court and whereas it is submitted that for deciding whether the Suit disclosed a cause of action or not detailed evidence was required to be led and since the same had not been done in the instant case, therefore, interference is required with the orders passed by the learned District Court as well as the learned Trial Court. Learned Advocate further submits that in any case, it was the case of the plaintiffs that there was no agreement or Power of Attorney given with regard to the said land admeasuring 4288 Sq. Mtrs. and since Power of Attorney given by the plaintiffs had also been cancelled and since the defendants to the Suit were attempting to sell the parcel of land admeasuring 4288 Sq. Mtrs., therefore, the plaintiffs had disclosed a cause of action and therefore, learned Advocate submits that the decision of the learned Trial Court and the decision of the learned Appellate Court may be quashed and set aside.
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7.As against this, learned Advocate Shri Parthiv Bhatt has vehemently opposed the admission and grant of any relief in the present Second Appeal, more particularly, submitting that the learned Trial Court as well as learned Appellate Court both had given detailed reasonings for coming to a conclusion that there is no cause of action disclosed in the Suit and therefore, he submits that this Court may not interfere with the said decisions. It is further submitted by the learned Advocate that the appellants have not raised any valid substantial questions of law in the present Appeal, which would require interference by this Court and therefore also, learned Advocate submits that the impugned decisions are not required to be interfered with. Learned Advocate for the respondents has further submitted that the appellants in the plaint had sought for declaration with regard to 4288 Sq. Mtrs. of land and whereas the plaintiffs have suppressed from the Court that the entire parcel of land admeasuring 15782 Sq. Mtrs. including 4288 Sq. Mtrs. land had been sold by virtue of Power of Attorney from 1991 - 1999, which fact was not brought to the notice of the Court. That though it is mentioned in the Suit that the Power of Attorney has been cancelled by virtue of notice dated 26.11.2002 yet neither the sale deeds on the basis of Power of Attorney or the Power of Attorney itself Page 9 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 had been challenged in the Suit. Furthermore, learned Advocate submits that on a bare reading of the plaint, the plaintiffs do not disclose as to what was the cause of action which necessitated filing of the Civil Suit. Learned Advocate further submits that the land has been sold by the family members of the plaintiffs in the year 1991 and 1996 whereas the defendant Nos.9,10, 11 and 12 had preferred a Suit being Special Civil Suit No.349 of 1996 against 21 members of the family of the plaintiffs including present appellant Nos.1 and 2 and whereas an affidavit had been preferred by the defendants therein including present appellant Nos.1 and 2 before the learned Civil Court whereby they have confirmed the fact of having sold the entire land and having received the consideration for the same, which according to the learned Advocate for the respondents was one of the most relevant aspect which ought to have been disclosed and which effectively negates presence of even an illusory cause of action which might be disclosed by the appellants. In these circumstances, learned Advocate for the respondents submits that no error of law has been committed by the learned Courts below and whereas as submitted hereinabove, even substantial questions of law have not been raised in the Second Appeal and therefore, learned Advocate has requested this Court to reject the Second Page 10 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 Appeal after imposing exemplary costs upon the appellants.
8.Heard learned Advocates for the respective parties and perused the record. Since for deciding present Appeal, this Court would be required to adjudicate whether a cause of action is disclosed in the plaint or not and what would be effect of suppression of material facts, therefore, this Court deems it appropriate to refer to the decision of the Supreme Court in the case of Dahiben Vs. Arvind Kalyanji Bhanushali (Gajera) (D) Thr. legal heirs and Ors. reported in 2020(7) SCC 366, more particularly para 13 thereof, where the Hon'ble Supreme Court had an occasion to deal with both these issues, in context of an application under Order VII, Rule 11 of the CPC.
"13. 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.
In Swamy Atmanand v. Sri Ramakrishna Tapovanam this Court held:
24. A cause of action, thus, means every Page 11 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded (emphasis supplied) In T. Arivandandam v. T.V. Satyapal & Anr. this Court held that 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, in the following words : -
5. The learned Munsiff must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if Page 12 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing (emphasis supplied) Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal held that 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."
9.From the perusal of the above quoted portion, where the Hon'ble Supreme Court was referring earlier decision of the Supreme Court, following principles would emerge with regard to the cause of action as required in context of Order VII, Rule 11
(a) of the Code of Civil Procedure.
a) A cause of action being bundle of facts Page 13 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the Suit.
b) Cause of action would include some act done by the defendant since in absence of such an act, no cause of action can possibly accrue.
c)Cause of action is not limited to the actual infringement of right sued on but also includes all the material facts on which the right is founded.
d) Cause of action should be a real cause of action and not an illusory one and while considering the aspect of availability of cause of action the Court should consider whether the plaint is vexatious in the context of not disclosing a clear right to sue.
e) The Court should also ensure that right to sue is not illusory created by clever drafting. If any illusion of cause of action is created by clever drafting than the Court should nip such litigation in the bud.
f) The Court should also consider the aspect of camouflage or suppression to determine whether the litigation is utterly vexatious and an abuse of process of Court.
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10. Examining the plaint in light of law laid down by the Hon'ble Supreme Court, it appears that there is total absence of cause of action as found on a meaningful reading of the plaint and whereas considered along with the aspect of suppression, there is total lack of cause of action to sue, which would entitle the plaintiff to seek any relief.
11. It would be pertinent to mention that the plaintiffs have referred to Power of Attorney entered into between the plaintiffs and the defendant Nos.9 to 12 and further fact that the defendant Nos.9 to 12 have on the basis of Power of Attorney have sold the land to defendant Nos.2 to 9, the Power of Attorney being dated 25.11.1996. It is the case of the plaintiffs that they had not sold the land which had been acquired for the purpose of widening of the road admeasuring 4288 Sq. Mtrs. In this regard, it would be pertinent to refer to the findings by the learned Appellate Court at para 10 where the learned Appellate Court has gone through the document produced by the plaintiff and come to a conclusion that the plaintiffs have sold the entire land i.e. the land admeasuring 15782 Sq. Mtr. through Power of Attorney which fact according to the learned Appellate Court has been accepted by the plaintiffs. The learned Appellate Court has noted that "not only that if we go through the documents, which are produced by the Page 15 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 plaintiffs, it contains selling of entire land i.e. land admeasuring 15782 Sq. Mtr. through Power of Attorney, which the plaintiffs themselves have accepted." Thus it appears that the entire land admeasuring 15782 Sq. Mtrs. had been sold through Power of Attorney in the year 1991 and in a Suit filed in the year 2003, the plaintiffs have claimed that the plaintiffs have not sold 4288 Sq. Mtrs. of land. The plaintiffs have not clarified in the pleadings with regard to such inconsistency nor have the plaintiffs challenged the Power of Attorney itself in the Suit.
12. It would be pertinent to mention here that the sale of the entire parcel of land as observed by the learned Appellate Court has not been controverted by the appellants - plaintiffs in the memo of Second Appeal. At this stage, it would be relevant to mention here that the appellants have not mentioned about the fact of Special Civil Suit No.349 of 1996 preferred by the defendant Nos.9 to 12 against the entire family of the appellants, and whereas in the said Civil Suit, affidavit had been preferred by the defendants therein including the appellants herein and their father whereby it was accepted that the entire parcel of land admeasuring 15782 Sq. Mtrs. had been sold by the family of the appellants vide an agreement to sell dated 12.12.1991 on which date the irrevocable Power of Page 16 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 Attorney had also been given in favour of the defendant No.9 herein and the fact of consideration having been received was also mentioned. The fact of various sale deeds with regard to entire land had also been admitted. It was also admitted that the possession of entire land including the disputed land i.e. 4288 Sq. Mtrs. and 809 Sq. Mtrs. was also handed over to the defendants. It clearly appears that this is very important and material aspect which would have direct and negative bearing on the right of the appellants to sue has been suppressed in the plaint.
13. The law as regards the scope of the Court while examining a plaint in the context of an application under Order VII, Rule 11 is succinctly explained by the Apex Court in the case of T. Arivandandam v. T.V. Satyapal & Anr. reported in 1977 AIR 2421. In the case of T. Arivandandam (Supra), the Supreme Court has held that "The learned Munsiff must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled." It thus, appears that the Supreme Court has held that in context of a Suit not disclosing a clear right to sue, the Magistrate must consider whether the plaint is manifestly Page 17 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 vexatious and meritless on meaningful reading of the plaint. The Merriam Webster Dictionary defines the word 'meaningful' as having meaning or purpose. Thus it could be stated that on a reading of the plaint for the purpose of finding out whether it would disclose the right to sue and wherein it appears to the Court that the Suit is manifestly vexatious and meritless and then power under Order VII, Rule 11 should be exercised. In later decision of Dahiben (Supra), the Supreme Court has held thus "the Court must be vigilant against any camouflage or suppression and determined whether the litigation is utterly vexatious, and an abuse of the process of the Court". It appears that the Supreme Court expected the Court to ensure that the Court should also while examining whether the Suit discloses a clear right to sue, should also be vigilant to ensure that the a right to sue is not attempted to be established by camouflage or suppression and also to examine whether the Suit is vexatious and an abuse of the process of Court.
14. Examining the plaint in view of the dictum laid down by the Supreme Court, this Court finds that in addition to the fact that no cause of action is disclosed on plain reading of the plaint, it also appears that the appellants - plaintiffs had indulged in gross suppression by not disclosing that the plaintiffs in earlier Suit being Regular Civil Suit Page 18 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 No.349 of 1996 where the appellants - plaintiffs were defendants had submitted an affidavit, where they had admitted the fact of the entire 15782 Sq. Mtrs. of land having been sold and they have accepted handing over the possession of the disputed land of 4800 Sq. Mtrs. of land and the plaintiffs have also accepted the fact of having received consideration. It thus becomes clear that the appellant - plaintiff have suppressed a most vital aspect which would have entailed clear and palpable bar against their right to sue. Thus, it appears to the Court that the litigation is utterly vexatious and clear abuse of process of law.
15. At this stage, this Court deems it appropriate to refer to the decision of the Supreme Court in the case of Nazir Mohamed Vs. J. Kamala and Ors. reported in AIR 2020 Supreme Court 4321, more particularly para 37 thereof, which is quoted herein below for the purpose of better appreciation:
"37. The principles relating to Section 100 CPC relevant for this case may be summarised thus :
(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction Page 19 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is Page 20 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 still debatable, but because the decision rendered 5 AIR 1963 SC 302 on a material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. "
16. The Supreme Court has set out principles relating to the exercise of jurisdiction under Section 100 of Code of Civil Procedure in the above quoted judgment. Appreciating the questions as formulated by the appellants, this Court is of the opinion that the questions are not even questions of law much less any substantial questions of law, which requires interference.
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17. In view of the discussion, observations and findings recorded hereinabove, this Court is of the opinion that the Second Appeal not raising any substantial questions of law, which requires interference by this Court, is required to be rejected. Furthermore, since in the considered opinion of this Court, present litigation is an abuse of process of the Court, therefore, this Court deems it appropriate to impose costs upon the appellant, which is quantified at Rs.25,000/-.
18. In view of the disposal of the Second Appeal, the Civil Application No.1 of 2020 does not survive, hence, the same is disposed of.
(II) Second Appeal No.104 of 2020:
19. Present Second Appeal arises from the Suit being Regular Civil Suit No.774 of 2006 preferred by the heirs of Ramchandra Ranchhodbhai Barot i.e. Yogesh Rajeshbhai Barot, Rajesh Ramchandra Barot, Alpanaben Rajeshbhai Barot and Paulomi Hasmukhbhai Barot.
19.1. The said Suit was preferred inter alia submitting that the sale of parcel of land in the year 1996 by Power of Attorney was illegal since the Power of Attorney had been cancelled and whereas the original purchaser as well as subsequent purchasers were sought to be Page 22 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 restrained from dealing with the property at all. The defendant Nos.1 to 15 had appeared in the Suit and preferred an application for rejecting the plaint under Order VII Rule 11 of Code of Civil Procedure. Learned Civil Court vide an order dated 26.08.2015 in Exhibit 32 had been pleased to reject the plaint in question. The ground which had weighed with the learned Civil Court was with regard to the limitation and whereas the learned Civil Court had come to a conclusion that the grievance was with regard to the sale deed of the year 1996 and whereas the plaintiffs had not mentioned the date when the cause of action had arisen. The plaintiffs had carried the order in the Appeal and whereas vide judgment and order dated 03.07.2019, the learned Appellate Court had been pleased to confirm the order passed by the learned Civil Court rejecting the plaint.
19.2. Learned Appellate Court had found that while the dispute raised by the plaintiffs is with regard to the payment of consideration, perusal of the copies of the deeds produced along with the plaint reveals that the sellers including ancestors of the plaintiffs as well as some of the defendants have got full amount of consideration. Learned Appellate Court had also found that since the case of the plaintiffs was that the Page 23 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 defendants did not act as per their promise than the limitation for filing such Suit for specific performance under Article 54 of the Limitation Act would be 3 years whereas the plaintiffs in the plaint have neither averred as to when they have attained the majority nor did without cause of action for filing of the Suit had arisen. On such conclusion, the learned Appellate Court had been pleased to confirm the order of the learned Civil Court. The appellants herein - original plaintiffs have formulated the following questions as substantial questions of law:
a) Whether the learned Appellate Court failed in holding that the Regular Civil Suit as well as Regular Civil Appeal preferred by the appellants are barred by Limitation?
b) Whether the learned Appellate Court failed in holding that the appellant herein in not in possession of the Suit property?
c)Whether the learned both Courts below has committed an error in allowing the application below Exhibit - 32 and rejecting the plaint by holding that the suit is barred by limitation as per the provisions of Order VII, Rule 11 of CPC?
20. Learned Advocate Shri Hiren Modi has Page 24 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 submitted that the defendants by misrepresentation committed fraudulent act had created a bogus Power of Attorney in favour of the defendant No.1. That the defendants had misused the terms of the Power of Attorney; that the properties of the appellants have been snatched away by paying the meager amount to the ancestors of the appellants; that the Civil Court as well as Appellate Court had committed an error in holding that the Suit is barred by limitation.
Findings:
21. In case of Dahiben (Supra), the Hon'ble Supreme Court has observed at paras 14 and 15 as under:
"14. On a perusal of the registered Sale Deed dated 02.07.2009, [marked as Exhibit 3/9] it was noted that the Plaintiffs had in fact accepted and acknowledged the payment of the full sale consideration from Respondent No.1, through cheques which were issued prior to the execution of the Sale Deed, during the period 07.07.2008 to 02.07.2009. As per the Plaintiffs, the Sale Deed was executed on 02.07.2009 in favour of Respondent No.1, which was registered before the Office of the Sub-Registrar, for Page 25 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 which the Plaintiffs would have remained personally present. The transaction having been executed through a registered document, was in the public domain, and in the knowledge of the Plaintiffs right from the beginning.
15. The Trial Court noted that there was no averment in the plaint that the cheques had not been received by them. Once the cheques were received by them, in the normal course, they would have presented the cheques for encashment within 6 months. The Court held that had the Plaintiffs not been able to encash 30 cheques, a complaint ought to have been filed, or proceedings initiated for recovery of the unpaid sale consideration. There was however, nothing on record to show that the Plaintiffs had made any complaint in this regard for a period of over 5 years. The Plaintiffs also failed to produce the returned cheques, their passbooks, bank statements, or any other document to support their averments in the plaint. A notice for transfer of the suit property in the revenue records under Section 135D was served on the Plaintiffs, to which no objection was raised. The name of Respondent No. 1 was Page 26 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 entered into the revenue records, which was certified by the Revenue Officer."
22. Based upon on the observations and findings of the Hon'ble Apex Court, it clearly appears that the Suit was barred by limitation as per Article 54 of the Limitation Act. The plaintiffs had filed a Civil Suit on 22.09.2006 inter alia questioning the sale deed executed in the year 1996. The plaintiffs have not averred anything in the plaint as regards when cause of action had arisen for filing the Suit and whereas there is no averment as regards the reasons for the Suit being beyond the period of limitation. Having regard to the same and having regard to the questions of law raised by the plaintiffs - appellants herein, this Court is of the considered opinion that no substantial questions of law have been raised by the appellants, which requires interference by this Court.
23. In any case, in the considered of this Court, it also appears that the Suit is utterly vexatious, more particularly, the ancestors of the plaintiffs including parents of the plaintiff No.3 as well as father of the plaintiff Nos.1 and 2 had been arrayed as defendants in a Civil Suit preferred by defendant Nos.9,10,11 and 12 being Special Civil Suit No.349 of 1996 and whereas the parents of the plaintiff No.3 and father of the plaintiff Nos.1 and 2 had Page 27 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 along with their entire family members settled the issue with the plaintiffs therein and whereas an affidavit had been filed by all the defendants therein including father of the plaintiff Nos.1 and 2 and parents of defendant No.3 whereby they had confirmed the fact of having sold the land and having received consideration for the same, such affidavit having been submitted to the learned Trial Court. That the parents of the plaintiff No.3 and father of the plaintiff Nos.1 and 2 had also stated in the said affidavit that the said affidavit would be binding of all the defendants of 21 members of the family and they have further mentioned that they had received complete consideration of the land in question. It would be pertinent to mention that the fact of the said Civil Suit having been preferred and affidavit being filed stated as above was conveniently not mentioned in the suit, more particularly, when it was averred in the plaint that the cause of action for Suit has arisen when the plaintiffs became major and received information from ancestors (Parents) that the defendant Nos.1 to 9 and 13 to 15 had snatched away their ancestral property.
24. Having regard to the same, this Court is of the opinion that the Suit was absolutely vexatious and there was suppression of the material facts and therefore, the Second Appeal is required to be Page 28 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 dismissed with costs, which is quantified at Rs.25,000/-.
(III) Second Appeal No.105 of 2020:
25. This Second Appeal arising from Special Civil Suit No.546 of 2013 originally filed by Amababen Wd/o. Ramchandra Ranchhodbhai Barot and whereas since said Amababen had expired during the pendency of the Civil Suit, Hasmukhbhai Ramchandra Barot and Arunaben Barot continued the Civil Suit as legal heirs of Ambaben.
25.1. The said Civil Suit had been preferred challenging the registered sale deed dated 06.09.1999 in so far as the same deals with the land belonging to the share of the original plaintiff and for restraining the defendants from dealing with the said land. The said Suit had been preferred inter alia contending that the agreement to sell as regards the land bearing Survey No.479 prepared on stamp dated 21.04.1997 was bogus. It was contended that as regards the land bearing Survey No.487, the same had been sold on the basis of Power of Attorney dated 12.12.1991 and whereas on the date of sale i.e. 06.09.1999, husband of the original plaintiffs had expired and since the plaintiffs had not given any Power of Attorney to Page 29 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 the original Power of Attorney Holder, therefore, he could not have sold the land as far as share of the plaintiff was concerned. It was further submitted that though the Power of Attorney Holder contained that the plaintiff had given her power to the Power of Attorney on 02.09.1999 and whereas according to the plaintiff, the same was bogus in so far as the land bearing Survey No.4826 had been sold by Power of Attorney holder illegally. It is further mentioned in the Suit that son of the plaintiff along with the original plaintiff had preferred Civil Suit No.706 of 2003 before the learned Civil Court for the very same relief as prayed for with regard to the land which was declared as excess. It is further stated that since the plaintiffs were not getting appropriate relief in the said Civil Suit, therefore, fresh Civil Suit had been preferred. The defendants had appeared before the learned Civil Court and vide application at Exhibit 18 had submitted an application for rejection of the plaint under Order VII, Rule 11 of Code of Civil Procedure.
25.2. The learned Trial Court had rejected the Civil Suit on the ground that the plaintiffs had failed to mention any specific cause of action for preferring the Suit in question and whereas the plaint had also been rejected on the ground of limitation. The said order passed by the learned Page 30 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 Civil Court had been challenged by the plaintiffs before the learned Appellate Court and whereas the learned Appellate Court vide judgment and order dated 26.04.2019 had been pleased to confirm the findings of the learned Trial Court. Learned Appellate Court had inter alia held that while the Suit did not mention any specific cause of action and whereas learned Appellate Court had confirmed the decision of the learned Trial Court. The appellants being aggrieved by the same have approached this Court and whereas following questions have been formulated as being substantial questions of law and have been raised in the memo of Second Appeal:
a) Whether the learned Appellate Court failed in holding that the Regular Civil Suit as well as Regular Civil Appeal preferred by the appellants are barred by Limitation?
b) Whether the learned Appellate Court failed in holding that the appellant herein in not in possession of the Suit property?
c)Whether the learned both Courts below has committed an error in allowing the application below Exhibit - 18 and rejecting the plaint by holding that the suit is barred by limitation as per the provisions of Order VII, Rule 11 of Page 31 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 CPC?
26. Learned Advocate Shri Hiren Modi had tried to assail the concurrent findings of the learned Courts below and whereas as such learned Advocate could not point out any error committed by the learned Courts below, more particularly, on the aspect of there being absence of any cause of action in plaint itself and the plaint being barred by limitation.
27. Upon perusal of the decision rendered by learned Trial Court as well as learned Appellate Court, relying upon the findings of this Court in Second Appeal Nos.103 and 104 of 2020 hereinabove as regards the aspect of absence of cause of action and the Suit being barred by law of limitation, in the considered opinion of this Court, no substantial questions of law are raised in present Second Appeal which would require interference by this Court. At this stage, it also requires to be mentioned that in plaint, the original plaintiffs had inter alia mentioned about the settlement arrived at between the entire family members of the original sellers as well as the defendants in Regular Civil Suit No.349 of 1996 and whereas the plaintiffs had attempted to rescind from an affidavit of withdrawal and settlement submitted before the learned Trial Court dated 24.04.1997.
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28. It would be pertinent to mention here that there is nothing on record to show that from 1997 i.e. from 24.04.1997 on which date, the plaintiffs by way of an affidavit had confirmed that the entire family had sold the entire parcel of the land admeasuring 15728 Sq. Mtrs. including 4288 Sq. Mtrs. for which the suit in question was preferred and have taken any steps to question the affidavit. Furthermore, in affidavit, the original plaintiff has clearly admitted about having entered in the transaction and having received consideration for her share, therefore, in the considered opinion of this Court, the Suit itself is vexatious and an abuse of process of Court. Under such circumstances, while this Court rejects the Second Appeal and more over since this Court is of the opinion that present litigation is an abuse of process of Court, therefore, costs quantified at Rs.25,000/- are imposed upon the appellants.
(IV) Second Appeal No.106 of 2020:
29. This Second Appeal arises from Regular Civil Suit No.281 of 2010 preferred by Hasmukhbhai Ramchandra and Ambaben Ramchandra who had expired during the proceedings. The issue raised in the Suit was with regard to excess land admeasuring 4288 Sq. Mtrs. and whereas prayer was for declaration that the plaintiff be declared as Page 33 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 rightful owner of land in question and for holding that the possession of the land is with the plaintiff and that the defendants be restrained from dealing with the share of the plaintiff in the land in question.
29.1. The defendants had appeared before learned Trial Court and vide an application at Exhibit 8 had prayed for rejection of the plaint under Order VII, Rule 11 of Code of Civil Procedure. Learned Trial Court vide Order dated 26.03.2014 had been pleased to reject the plaint under Order VII, Rule 11 (d) of CPC, more particularly, on the ground of being barred by limitation under Article 56 of Limitation Act. The said Order had been challenged before the learned Appellate Court and whereas learned Appellate Court had been pleased to confirm the order passed by the learned Trial Court, more particularly, holding that the by clever drafting so as to bring the Suit within limitation have not mentioned about filing an affidavit in Regular Civil Suit No.349 of 1996 admitting the transactions and admitting having received consideration. It was held by the learned Appellate Court that inspite of such position, the plaintiffs by not disclosing the said fact had tried to bring the Suit within a period of limitation by clever drafting and hence, learned Appellate Page 34 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 Court had confirmed the order passed by the learned Trial Court. Aggrieved by the said order, the appellant has approached this Court, by formulating the following questions as substantial questions of law:
a) Whether the learned Appellate Court failed in holding that the Regular Civil Suit as well as Regular Civil Appeal preferred by the appellants are barred by Limitation?
b) Whether the learned Appellate Court failed in holding that the appellant herein in not in possession of the Suit property?
c)Whether the learned both Courts below has committed an error in allowing the application below Exhibit - 8 and rejecting the plaint by holding that the suit is barred by limitation as per the provisions of Order VII, Rule 11 of CPC?
30. Learned Advocate Shri Hiren Modi had attempted to assail the order of the learned Trial Court as well as learned Appellate Court, more particularly, by relying upon the contention that the Power of Attorney of original plaintiff No.2 was bogus as such learned Advocate could not assail the finding of the learned Courts below, more particularly, as regards applicability of the law Page 35 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 limitation and whereas the learned Advocate has failed to point out before this Court as to how the plaint would be coming within a time framed stipulated by the Limitation Act.
31. Having regard to the same, since the issue raised in the plaint are near similar to the issue raised in RCS No.774 of 2006, this Court deems it appropriate to rely upon the findings as mentioned in Second Appeal No.104 of 2020, more particularly arising from RCS No.774 of 2006 relying upon the decision on the Hon'ble Apex Court in the case of Dahiben (Supra). In this view of the matter, in the considered opinion of this Court, no substantial questions have been raised by the appellants, which would require interference by this Court.
32. At this stage, it would be pertinent to mention that the original plaintiffs were both defendants in Regular Civil Suit No.349 of 1996 and whereas both the plaintiffs had submitted affidavits before the learned Civil Suit confirming the fact of sale and confirmed the act of having received the consideration. It also appears that from the year 1997 till the date of filing of the Suit i.e. on 09.03.2010, the original plaintiffs had not questioned the affidavit as noted by the learned Appellate Court neither the fact of sale which was well within knowledge of the plaintiff nor the facts Page 36 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022 C/SA/103/2020 JUDGMENT DATED: 20/12/2021 of having submitted an affidavit in nature of settlement purshis was disclosed by the plaintiffs in plaint.
33. Having regard to the same, this Court is of the considered opinion that the litigation starting from the Suit to present Second Appeal are nothing but an abuse of process of law and hence, appropriate costs requires imposed upon the appellant. In view therefore, Second Appeal is dismissed by quantifying the costs of Rs.25,000/- upon the appellants.
34. In view of the order passed in the main Second Appeals, all the Civil Applications in the respective Second Appeals would not survive, and therefore, would stand disposed of accordingly.
Sd/-
(NIKHIL S. KARIEL,J) YNVyas/V.V.P. PODUVAL Page 37 of 37 Downloaded on : Wed Jan 12 12:34:15 IST 2022