Gujarat High Court
Patel Kamlaben D/O. Chaganbhaivenidas ... vs Patel Ambalal Chaganbhai & 18 on 18 January, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/FA/2806/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2806 of 2016
With
CIVIL APPLICATION NO. 12500 of 2016
In
FIRST APPEAL NO. 2806 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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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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PATEL KAMLABEN D/O. CHAGANBHAIVENIDAS AND WD/O. PATEL
MAFATBHAI ISHWARBHAI....Appellant(s)
Versus
PATEL AMBALAL CHAGANBHAI & 18....Defendant(s)
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Appearance:
MR. VIMAL M. PATEL, ADVOCATE with MR HITESH V PATEL, ADVOCATE
for the Appellant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 18/01/2017
ORAL JUDGMENT
Page 1 of 11
HC-NIC Page 1 of 11 Created On Sat Aug 12 13:40:34 IST 2017 C/FA/2806/2016 JUDGMENT
1. The present First Appeal is filed by the Appellant / Original Plaintiff being aggrieved with the judgment and order rendered below Application given under Order 7 Rule 11 (Exh.23) in Special Civil Suit No.305 of 2012 by the learned Principal Civil Judge, Gandhinagar dated 28.9.2016 allowing the Application under Order 7 Rule 11 and dismissing Special Civil Suit No. 305 of 2012 filed by the present Appellant / Original Plaintiff on the grounds stated in the Application under Order 7 Rule 11 particularly the limitation.
2. Heard learned Counsel Shri Vimal M. Patel appearing with learned Advocate Shri Hitesh V. Patel for the Appellant / Original Plaintiff. Learned Counsel Shri Patel has submitted that the court below has traveled beyond the scope of Order 7 Rule 11. He emphasized that the court below has considered the merits of the matter where it has been observed referring to the provisions of the Hindu Succession Act that the deceased father of the Appellant / Original Plaintiff had expired before the amendment in the Hindu Succession Act was made in the year 1956 giving rise to any cause of action of claiming any right by the Appellant / Original Plaintiff. Learned Counsel Shri Patel strenuously submitted that the Application under Order 7 Rule 11 is mainly on the ground of limitation which has been considered. However, he submitted that it is well settled Page 2 of 11 HC-NIC Page 2 of 11 Created On Sat Aug 12 13:40:34 IST 2017 C/FA/2806/2016 JUDGMENT that the Application under Order 7 Rule 11 is required to be considered only on the basis of the averments made in the plaint and is not required to consider any other material including the defence in their written statement. He therefore submitted that while deciding the aspect of limitation, the court has committed an error in not appreciating that it would be a mixed question of facts and law. He submitted that as referred to in the plaint, the cause of action would arise not only from the date of death of the father but subsequent to the execution of the documents, which he has stated, and, as the Appellant / Original Plaintiff is residing abroad, she came to know only in the year 2012, and therefore, from the date of knowledge, the limitation would be counted. Learned Counsel Shri Patel therefore submitted that the impugned order allowing the Application under Order 7 Rule 11 is erroneous. In support of his submission, he had referred to and relied upon the judgment of the Hon'ble Apex Court in case of Popat and Kotecha Property v/s State Bank of Inida Staff Association reported in 2005 (7) SCC 510 and pointedly referred to the observations made in paragraphs 9, 10 and 25. Learned Counsel Shri Patel therefore emphasized that as observed in this judgment that the averments in the plaint are required to be considered in background of the principle set out by various pronouncements by Page 3 of 11 HC-NIC Page 3 of 11 Created On Sat Aug 12 13:40:34 IST 2017 C/FA/2806/2016 JUDGMENT the Hon'ble Apex Court, and therefore, as the Appellant / Original Plaintiff cannot be said to have any knowledge about execution of the document or the entries, the limitation would be from the date of knowledge in the year 2012. He therefore submitted that in stead of non-suiting the Appellant / Original Plaintiff, the court would have permitted the Appellant / Original Plaintiff to contest the suit and the same could have been examined on merits after the evidence is lead. Learned Counsel Shri Patel has also referred to the judgment of the High Court (Coram: S.G.Shah,J) in case of Habibbhai Yusufbhai Gugarkhan v/s Pramodbhai Ramabhai Patel reported in 2015 (0) AIJEL-HC 233442 and also the judgment of the High Court of Gujarat in case of Bahadurbhai Laljibhai Malhotra v. Ambalal Joitaram, heir of Joitaram Ranchhoddas & Ors. reported in 2015 (3) GLR 2760 and emphasized the observations which have been made in paragraphs 10 and 13. Learned Senior Counsel Shri Patel therefore tried to submit that it is the knowledge which would be relevant for the purpose of deciding the limitation, and in the facts of the case, as averred in the plaint, the Appellant / Original Plaintiff came to the knowledge only in the year 2012, and therefore, the judgment and order allowing Application under Order 7 Rule 11 is erroneous.
3. Though the submissions have been made, the moot question is Page 4 of 11 HC-NIC Page 4 of 11 Created On Sat Aug 12 13:40:34 IST 2017 C/FA/2806/2016 JUDGMENT whether the present Appeal deserve consideration and whether the impugned judgment and order passed by the court below at Exh.23 in Special Civil Suit No. 305 of 2012 under Order 7 Rule 11 can be said to be erroneous.
4. The first aspect which has been much emphasized that the court below has traveled beyond the scope of Order 7 Rule 11 is misconceived. The emphasis has been made that while deciding the application under Order 7 Rule 11 mainly the court has considered the aspect of limitation and also considered the merits of the matter. The background of the facts as discussed herein above read with Order 7 Rule 11, would clearly suggest that the court has incidentally considered the facts and focused on the aspect of limitation. The background of the facts which have been discussed are that the Appellant, who is the daughter of the deceased father, has made a claim for the right in the property as per the amendment in the Hindu Succession Act in the year 1956. The father has admittedly expired before 1956. Thus, the right is sought to be based on the amendment under the Hindu Succession Act in the year 1956 and the Suit is filed for claiming such right in the property of the father in 2012 being Special Civil Suit No. 305 of 2012.
The cause of action, which is stated in the plaint, refers to the Page 5 of 11 HC-NIC Page 5 of 11 Created On Sat Aug 12 13:40:34 IST 2017 C/FA/2806/2016 JUDGMENT knowledge in the year 2012. Therefore, it is stated that she came to know about the transactions which have taken place in the year 1993 and 2003 only in the year 2012. It is well settled that the person who claims any right, title, interest, has to be vigilant and cannot be negligent or casual. Therefore, even if it is stated that she is living abroad, would not make any difference, as she would not have been vigilant about the right as well as property in question when she makes a claim on the basis of amendment in the Hindu Succession Act.
5. Therefore, it is in this background, the provisions of Order 7 Rule 11, which has been considered by the court is required to be examined. 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;"
Therefore, the statute provide that the court is obliged to consider the aspect of limitation and should consider whether the suit is barred by any law, meaning thereby, even the law of limitation. For that purpose, the court is required to examine the averments in the plaint itself, and having examined the same, when, prima facie it appears that it is hit by law of limitation, the impugned order is Page 6 of 11 HC-NIC Page 6 of 11 Created On Sat Aug 12 13:40:34 IST 2017 C/FA/2806/2016 JUDGMENT passed. It is required to be noted that while considering the aspect of limitation, the date of knowledge is relevant. However, for considering the knowledge, it has to be considered in background of the facts as well as test of reasonableness and the attitude of a person. The word 'knowledge' is not a magic word which can cure any limitation as it is required to be examined in background of the facts while considering the cause of action, which is a bundle of facts. Therefore, while considering the cause of action as narrated in the plaint itself, the court may examine whether the person can be said to have a knowledge or constructive knowledge or it is also considered as "deemed to have knowledge". A useful reference can be made to the judgment of the Hon'ble Apex Court in a judgment in case of Ram Niwas (Dead) through L.Rs. v. Bano, reported in 2000 (6) SCC 685 referring to the aspect of knowledge. It is also been referred to and quoted in the judgment of the High Court of Gujarat in case of Bahadurbhai Laljibhai Malhotra v. Ambalal Joitaram, heir of Joitaram Ranchhoddas & Ors. (supra).
Moreover, in the judgment of the High Court of Gujarat (Coram:
Akil Kureshi,J) in case of Bahadurbhai Laljibhai Malhotra v. Ambalal Joitaram, heir of Joitaram Ranchhoddas & Ors. (supra) it has been clearly observed that the knowledge of a fact is Page 7 of 11 HC-NIC Page 7 of 11 Created On Sat Aug 12 13:40:34 IST 2017 C/FA/2806/2016 JUDGMENT attributed to a person either when he actually knows that fact, or when, but for willful abstention from an inquiry or search, he ought to have made, or gross negligence, he would have known it. Thus, when the Appellant / Original Plaintiff is making a claim based on the amendment in the Hindu Succession Act in 1956, does not bother to make any inquiry with regard to the property or the status of the property of the deceased father who has expired prior to 1956 and thereafter also does not seem to have made any inquiry though the very basis or the foundation for any right, title or claim in the property is the amendment in the Hindu Succession Act and filed the Suit in 2012 with the averments skillfully drafted in the suit that as she is residing abroad, she came to know in the year 2012 about the subsequent transaction of the sale deed in the year 1993 and 2003. It is in the background of these facts and observations made by the Hon'ble Apex Court reported in case of Popat and Kotecha Property v/s State Bank of Inida Staff Association (supra) which has also been referred to by learned Counsel Shri Vimal Patel, requires consideration. The Hon'ble Apex Court in the said judgment has also observed and quoted referring to the earlier judgment of the Hon'ble Apex Court in case of Sopan Sukhdeo Sable v. Asstt. Charity Commissioner, reported in (2004) 3 SCC 137;
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HC-NIC Page 8 of 11 Created On Sat Aug 12 13:40:34 IST 2017 C/FA/2806/2016 JUDGMENT "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."
In this judgment, the Hon'ble Apex Court, addressing the same issue regarding the scope of Order 7 Rule 11 has made the observations that if clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. It is true that by ingenious drafting a cause of action in the nature of red herrings cannot be brought into the judicial arena. A useful reference can also be made to the judgment of the Hon'ble Apex Court in case of Dilboo (Smt.) (dead) by L.Rs. v. Dhanraji (Smt.) (dead) reported in (2007) 7 SCC 702.
6. Therefore, on analysis of the aforesaid broad guidelines in the judicial pronouncements, it is evident that while exercising the power under Order 7 Rule 11, the defence in the written statement is not relevant. In other words, while considering the application Page 9 of 11 HC-NIC Page 9 of 11 Created On Sat Aug 12 13:40:34 IST 2017 C/FA/2806/2016 JUDGMENT under Order 7 Rule 11, the court has to consider only the averments in plaint and it has a reference to the cause of action which is again a bundle of facts. However, at the same time, the court is obliged to consider the same in a meaningful manner and consider whether it is hit by any statutory provision including the limitation as it is clearly provided in Order 7 Rule 11 (d). In other words, the courts are obliged to consider the evidence closely so that the suit which is filed as an abuse of the process of the court as a bogus irresponsible litigation is not entertained.
7. Moreover, a useful reference can be made to the judgment of the Hon'ble Apex Court in a judgment in case of Dilboo (Smt.) (dead) by L.Rs. And Ors. v. Dhanraji (Smt.) (dead) and Ors. (supra), wherein the Hon'ble Apex Court has made the observation in paragraph 25 referring to the registration of the document and the knowledge about the same. It has been clearly observed that the date of registration will be the date of deemed knowledge. It is also well settled that the person who comes before the court has to be vigil while having recourse for exercise of rights. Therefore, the suit which is filed with the averments in the plaint accepted at the face value clearly reflect about the fact that the suit which has been filed on the cause of action or the so called cause of action is hopelessly time barred and is hit by the provisions of Limitation Page 10 of 11 HC-NIC Page 10 of 11 Created On Sat Aug 12 13:40:34 IST 2017 C/FA/2806/2016 JUDGMENT Act. Therefore, the judgment and order cannot be termed as erroneous, which would call for any interference in the present First Appeal. The present First Appeal along with Civil Application therefore deserve to be dismissed and accordingly stands dismissed.
(RAJESH H.SHUKLA, J.) JNW Page 11 of 11 HC-NIC Page 11 of 11 Created On Sat Aug 12 13:40:34 IST 2017