Gujarat High Court
Natvarlal Dayabhai Darji vs State Of Gujarat & 2 on 28 March, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SA/278/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 278 of 2012
With
CIVIL APPLICATION NO. 13200 of 2015
In
SECOND APPEAL NO. 278 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/
=======================================================
1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
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 of India or any NO
order made thereunder ?
=======================================================
NATVARLAL DAYABHAI DARJI
THROUGH POA MANSANGBHAI KANJIBHAI GACHI....Appellant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
=======================================================
Appearance:
MR SP MAJMUDAR, ADVOCATE for the Appellant(s) No. 1
MR VIMAL A PUROHIT, ADVOCATE for the Appellant(s) No. 1
MS MEGHA CHITALIYA AGP for the Respondent(s) No. 1
MR KEYUR GANDHI for NANAVATI ASSOCIATES, ADVOCATE for
the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 2
=======================================================
CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 28/03/2017
ORAL JUDGMENT
Page 1 of 15
HC-NIC Page 1 of 15 Created On Sat Aug 12 08:56:05 IST 2017 C/SA/278/2012 JUDGMENT
1. The present Second Appeal has been filed by the appellantoriginal plaintiff under Section 100 of the Civil Procedure Code being aggrieved with the impugned judgment and order rendered in Regular Civil Appeal No.18/2010 by the Principal District Judge, Jamnagar dated 23.08.2012 as well as the order passed in Regular Civil Suit No.57/2008 by the 6th Additional Sr. Civil Judge, Jamnagar dated 11.01.2010 posing the substantial questions of law as follows: "[1] WHETHER both the courts below have committed substantial error of law in rejecting the plaint of the present appellant under OrderVII Rule11(d) of the Code of Civil Procedure, 1908, more particularly, because cause of action was clearly mentioned in the plaint itself by the present appellant?
[2] WHETHER both the courts below have committed substantial error of law in not properly appreciating that the reliefs prayed for by the present appellant - original plaintiff were not within the domain of revenue authority and, thus, the suit of the appellant was maintainable and was not barred under the provisions of the Bombay Revenue Jurisdiction Act?
[3] WHETHER both the courts below have not properly appreciated that the Civil Court would have jurisdiction to try and entertain the suit of the present appellant under the provisions of Section 9 of the Code of Civil Procedure, 1908?"
2. The background of the facts briefly summarized are as follow: The original plaintiff filed aforesaid Page 2 of 15 HC-NIC Page 2 of 15 Created On Sat Aug 12 08:56:05 IST 2017 C/SA/278/2012 JUDGMENT Regular Civil Suit No.57/2008 for declaration and permanent injunction against the defendants. It is contended that the plaintiff is the owner of the suit land situated at Village : Kanalus, Taluka :
Lalpur, District : Jamnagar. It is also contended that the land was allotted to him by the Government, for which, entry was also made in the revenue record as Entry Nos.814 and 1251. During the pendency of the aforesaid suit which was filed by the plaintiff for declaration and injunction, the respondent no.3original defendant no.3 made an application for joining party, which was rejected and, thereafter as per the order passed by this High Court allowing the prayer for joining party respondent, he has been added as defendant no.3. Thereafter, the respondent no.3original defendant no.3 made an application for rejection of the plaint and the Court below passed an order rejecting the plaint. Therefore appeal being Regular Civil Appeal No.18/2010 came to be preferred, which also came to be dismissed. Therefore, the present Second Appeal has been preferred posing the substantial questions of law as stated above.
Page 3 of 15
HC-NIC Page 3 of 15 Created On Sat Aug 12 08:56:05 IST 2017
C/SA/278/2012 JUDGMENT
3. Heard learned advocate, Shri S.P. Majmudar for the appellant, learned AGP Shri P.P. Banaji for the respondent no.1 and learned advocate, Shri Keyur Gandhi for Nanavati Advocate for the respondent no.3.
4. Learned advocate, Shri Majmudar submitted that the trial court has framed preliminary issues, which was required to be decided after giving an opportunity to all and it could not have entertained the application under Order 7, Rule 11 of the Civil Procedure Code. Learned advocate, Shri Majmudar referred to the provision of Order 7, Rule 11 of the Civil Procedure Code and submitted that the Court cannot consider the defence and the documents of the defendants cannot be considered. Learned advocate, Shri Majmudar also submitted that Section 11 of the Bombay Land Revenue Jurisdiction Act would not be applicable as it could be applicable if some relief is asked in earlier suit between same parties. He therefore submitted that the Court below has failed to appreciate this aspect. He submitted that the proceedings before the SSRD is the revisional proceeding and not the appellate. He, therefore, Page 4 of 15 HC-NIC Page 4 of 15 Created On Sat Aug 12 08:56:05 IST 2017 C/SA/278/2012 JUDGMENT submitted that both the Courts below have committed an error. He referred to the order and submitted that while deciding an application under Order 7, Rule 11 of the Civil Procedure Code, there cannot be any "prima facie evidence" as it is necessary to decide that there is no cause of action and the findings are conclusive finding. He referred to the order passed by the first Appellate Court and submitted that the observations which have been made in Para Nos.7 and 8 are misdirected inasmuch as the application under Order 7, Rule 11(d) of the Civil Procedure Code and bar of the suit under Section 11 of the Revenue Jurisdiction Act are two different things.
He, therefore, submitted that there was confusion with regard to the aspect of jurisdiction and still the order below an application under Order 7, Rule 11 of the Civil Procedure Code came to be passed, which is erroneous and perverse. He also submitted that as it appears, the averments of the respondent, particularly, the respondent no.3 in the written statement is referred to, which is wholly immaterial and could not have been relied upon. In support of his submission, learned Page 5 of 15 HC-NIC Page 5 of 15 Created On Sat Aug 12 08:56:05 IST 2017 C/SA/278/2012 JUDGMENT advocate, Shri Majmudar submitted that while exercising discretion under Order 7, Rule 11 of the Civil Procedure Code, the Court is required to consider that such powers are stringent powers and it has to be considered strictly. In support of this contention, he referred to and relied upon the judgment of the Hon'ble Apex Court in case of P.V. Guru Raj Reddy & Anr. Vs. P. Neeradha Reddy & Ors., reported in (2015) 8 SCC 331 (Para No.5). Similarly he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Popat and Kotecha Property Vs. State Bank of India Staff Association, reported in (2005) 7 SCC 510 (Para No.25). Learned advocate, Shri Majmudar submitted that the Courts below have failed to appreciate that the issue raised by the plaintiff was with regard to the claim for possession on the basis of the adverse possession. He therefore submitted that the cause of action which is bundle of facts could have been appreciated and it cannot be said that there was no cause of action while exercising discretion under Order 7, Rule 11 of the Civil Procedure Code. He submitted that the appellant is in possession since 30 years as the Page 6 of 15 HC-NIC Page 6 of 15 Created On Sat Aug 12 08:56:05 IST 2017 C/SA/278/2012 JUDGMENT land was given in santhali and, therefore, the application under Order 7, Rule 11 of the Civil Procedure Code could not have been entertained.
5. Learned advocate, Shri Keyur Gandhi referred to the background of the facts and submitted that suit has been filed against the Government and there is an admission by the plaintiff that the Government had allotted same land to the respondent no.3original defendant no.3 as the land was declared as vacated by the appellant plaintiff in the year 1980 in case of Sarat Bhang Case No.50/8081 and the competent authority has declared as vacate land as vacated w.e.f. 29.12.1980 and, thereafter, the Collector, Jamnagar had taken permission of the Government and allotted the same to the respondent no.3 original defendant no.3. He, therefore, submitted that certain facts are not properly placed before the Court and the appellant has not come with clean hands. He also referred to the background of the facts with regard to the revenue proceeding and submitted that if there is any order passed by any revenue authority, it would be a revenue proceeding, which could have been pursued there.
Page 7 of 15
HC-NIC Page 7 of 15 Created On Sat Aug 12 08:56:05 IST 2017
C/SA/278/2012 JUDGMENT
He pointedly referred to this aspect and submitted that as per the provision of Section 11 of the Bombay Land Revenue Jurisdiction Act, suit would be barred and the person like the appellant original plaintiff had tried to exhaust the remedy but before the issue is decided finally, suit came to be filed and, therefore, it was without jurisdiction. Learned advocate, Shri Keyur Gandhi submitted that the issue of jurisdiction of the Court or the issue of maintainability and bar of the suit could always be considered. He pointedly referred to the provision of Order 7, Rule 11(d) of the Civil Procedure Code and emphasized the word "barred by any law". Learned advocate, Shri Keyur Gandhi, therefore, submitted that as the suit itself is not maintainable, no relief could have been claimed and by suppression of relevant facts, the appellantoriginal plaintiff filed suit and, therefore, an application came to be filed by the respondent no.3 for impleadment of the party respondent. He, therefore, submitted that there is no question of considering the defence of the respondent. However he pointedly referred to the admission of the plaintiff and submitted that if Page 8 of 15 HC-NIC Page 8 of 15 Created On Sat Aug 12 08:56:05 IST 2017 C/SA/278/2012 JUDGMENT the plaintiff has not disclosed certain relevant facts and if it is born out from the record, an application under Order 7, Rule 11 of the Civil Procedure Code could be considered and, therefore, the impugned order passed is just and proper as the suit itself would not be maintainable. Therefore the suit, which has been filed as and by way of abuse of the process of the Court with complete knowledge about the fact that the land was taken back years back and relief of injunction and possession is sought by way of such suit would not be maintainable. Learned advocate, Shri Gandhi referred to the judgment of this High Court in case of State of Gujarat & Anr. Vs. Kolvada Gram Panchayat, reported in 2001 (2) GLR 1245 and submitted that as observed, remedy as provided has to be first exhausted and civil suit could not be filed unless the remedy of appeal as provided under the statute is exhausted. He, therefore, submitted that the present Second Appeal may not be entertained in view of scope of Section 100 of the Civil Procedure Code.
6. Learned advocate, Shri Gandhi has also referred to the papers including the panchnama and tried to Page 9 of 15 HC-NIC Page 9 of 15 Created On Sat Aug 12 08:56:05 IST 2017 C/SA/278/2012 JUDGMENT emphasis that land was taken back after following procedure in the year 1980 and, thereafter, it has been alloted with possession to the respondent no.3 in the year 2008 and, therefore, suit is filed by the appellantplaintiff with all knowledge about the facts of the year 2008, which would be also barred by limitation.
7. In rejoinder, learned advocate, Shri Majmudar again referred to the background of the facts and submitted that the cause of action is bundle of facts, which are required to be considered on the basis of the material and evidence and, therefore, exercise of power under Order 7, Rule 11 of the Civil Procedure Code would not be justified. He again submitted that it cannot be said that there is no admission. He submitted that the issue with regard to the revenue proceedings before the SSRD and the provision of Section 11 of the Revenue Jurisdiction Act are separate issues and the suit is independent for the purpose of possession and filing of the suit to protect the civil right of possession is a independent issue, which could not be confused with the revenue proceeding. He also submitted that the provision of Section 11 of the Page 10 of 15 HC-NIC Page 10 of 15 Created On Sat Aug 12 08:56:05 IST 2017 C/SA/278/2012 JUDGMENT Revenue Jurisdiction Act only provides that the plaintiff has to exhaust remedy but it does not bar the suit. He, therefore, submitted that word "entertain" has been used. He, therefore, submitted that the present Second Appeal maybe allowed.
8. In view of these rival submissions, it is required to be considered whether the present Second Appeal deserves consideration.
9. The first aspect which has been much emphasis with regard to the scope of Order 7, Rule 11 of the Civil Procedure Code is required to be considered. The background of the facts as discussed hereinabove read with Order 7, Rule 11 of the Civil Procedure Code would suggest that the Court has considered the aspect of cause of action. The person, who claims any right, title, interest has to first establish and when the respondent like the respondent no.3 herein has brought to the notice of the Court not only the issue with regard to the maintainability of the suit in view of the provision of Section 11 of the Revenue Jurisdiction Act but also with reference to the background of the facts, the Court is required to Page 11 of 15 HC-NIC Page 11 of 15 Created On Sat Aug 12 08:56:05 IST 2017 C/SA/278/2012 JUDGMENT consider or rather it is obliged to consider.
10. Therefore, the provision of Order 7, Rule 11(d) of the Civil Procedure Code, which has been considered by the Court is required to be examined closely. The provisions of Order 7 Rule 11 particularly Order 7 Rule 11(d) provide:
"where the suit appears from the statement in the plaint to be barred by any law;"
11. Therefore, the statute provide that the Court is obliged to consider the aspect about the maintainability of the suit including bar of the suit or aspect of limitation. Therefore while considering the cause of action as narrated and stated by learned advocate, Shri Majmudar himself, the Court may examine the background of the facts and as discussed above, when the land is said to have been given to the appellantplaintiff in santhani, which has been taken back years back in the year 1980 pursuant to the proceeding of Sharat Bhang Case and the order dated 29.12.1980 is passed, how the suit for declaration and possession could be entertained.
12. Another facet of matter is that it would be a recourse under the revenue proceeding and the appellantplaintiff had also recourse before the Page 12 of 15 HC-NIC Page 12 of 15 Created On Sat Aug 12 08:56:05 IST 2017 C/SA/278/2012 JUDGMENT SSRD and, therefore, he could have exhausted appropriate remedy instead of filing of the suit and he could not have riden on two horses.
13. The submission made by learned advocate, Shri Majmudar that bar of the suit under Section 11 of the Revenue Jurisdiction Act and the suit filed by the plaintiff for the protection of the civil right are two separate issues and the suit is an independent remedy provided for protecting his possession, is misconceived. The observations made by the Hon'ble Apex Court in a judgment in case of Sopan Sukhdeo Sable v. Asstt. Charity Commissioner, reported in (2004) 3 SCC 137; are required to be considered. It has been observed, "Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by a searching examination of the party, in case the court is prima facie of the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised."
14. Similar view has also been again reiterated in the judgment of the Hon'ble Apex Court in case of Page 13 of 15 HC-NIC Page 13 of 15 Created On Sat Aug 12 08:56:05 IST 2017 C/SA/278/2012 JUDGMENT Dilboo (Smt.) (dead) by L.Rs. v. Dhanraji (Smt.) (dead) reported in (2007) 7 SCC 702.
15. In fact, the submissions which have been made by learned advocate, Shri Majmudar itself reflect that the suit is filed as and by way of abuse of the proceeding. Therefore while considering the submission that such power under Order 7, Rule 11 of the Civil Procedure Code are required to be considered strictly, it also has to be examined with reference to the background of the facts and the Courts are obliged to consider if there is any abuse of the Courts' proceeding. Therefore the submission made by learned advocate, Shri Majmudar referring to the judgment of the Hon'ble Apex Court in case of Guru Raj Reddy (supra) is required to be examined in background of the facts as discussed hereinabove.
16. Therefore the order passed by the Court below cannot be said to be erroneous which would call for any interference and the substantial questions of law posed cannot be said to be any substantial question of law as sought to be canvassed.
17. Further as rightly submitted, if after the Sharat Bhang Case, the possession was taken back, the Page 14 of 15 HC-NIC Page 14 of 15 Created On Sat Aug 12 08:56:05 IST 2017 C/SA/278/2012 JUDGMENT plaintiff could have taken necessary steps including the protection of the possession, which is claimed as civil right at the relevant time in the year 1980 and not as back as in the year 2008 when it was again allotted to the respondent no.3.
18. Moreover, the Hon'ble Apex Court has laid down guidelines with regard to the scope of exercise of discretion under Section 100 of the Civil Procedure Code, particularly, after the Amendment in Civil Procedure Code in 1976. The Hon'ble Apex Court has expressed a word of caution that the discretion under Section 100 of the Civil Procedure Code may be exercised only when there is substantial question of law, which can be said to have been involved. As discussed hereinabove, it would not fulfill the requisite criteria.
19. Therefore, the present Second Appeal deserves to be dismissed and accordingly stands dismissed.
20. In view of the dismissal of Second Appeal, the Civil Application does not survive and stands disposed of accordingly.
Sd/ (RAJESH H.SHUKLA, J.) Gautam Page 15 of 15 HC-NIC Page 15 of 15 Created On Sat Aug 12 08:56:05 IST 2017