Gujarat High Court
Manubhai Mayabhai Ahir vs Hemaben Ashikali Narsi on 26 June, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
C/FA/3791/2019 JUDGMENT DATED: 26/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3791 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/FIRST APPEAL NO. 3791 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MANUBHAI MAYABHAI AHIR
Versus
HEMABEN ASHIKALI NARSI
==========================================================
Appearance:
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1
SHASHVATA U SHUKLA(8069) for the Appellant(s) No. 1
H B SHETHNA(2436) for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 26/06/2023
ORAL JUDGMENT
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C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 (PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI)
1. Admit. Mr.Shethna, learned advocate for the respondent waives service of notice of admission. Since the issue involved in this appeal is in very narrow compass, with the consent of the parties, the appeal is taken up for final hearing. The appellant herein is the original plaintiff and opponent is the original defendant in the suit, therefore, for the sake of brevity, they are referred as "the plaintiff" and "the defendant"
respectively.
2. The plaintiff has filed the suit before the Court of learned Senior Civil Judge, Surat, for seeking specific performance of contract and for declaration and permanent injunction that the defendant does not have right to alienate the suit property, and perpetual injunction against the defendant is sought for not to erect any construction over the suit property and/or not to deal with the property in the manner, which may change the identity of the suit property, and also claimed damages as well as recovery of Rs.1 Crore and 20 Lacs and a plot of 350 sq.yds. Said Suit was registered as Special Civil Suit No.164 of 2018. Learned Principal Senior Civil Judge, Surat, has issued notice, which was duly served upon the defendant. The defendant appeared through her advocate and contested the suit by filing written statement. Thereafter, an application is tendered by the defendant under Order-7, Rule 11 (a) and (d) to reject the suit. After considering the arguments canvassed by both the rival parties, learned 15th Additional Senior Civil Judge, Surat, has passed an order dated 30.3.2019 by allowing the Page 2 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023 C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 application preferred by the defendant under Order 7, Rule 11
(a) and (d) and rejected the suit filed by the plaintiff.
3. Being aggrieved by and dissatisfied with said judgment and order passed by learned 15 th Additional Senior Civil Judge, Surat, the plaintiff has preferred present appeal under Section 16 of the Code of Civil Procedure, 1908 (for short, "CPC") by raising manifold grounds.
4. Mr.S.P.Majmudar, learned advocate for the appellant- plaintiff has submitted that the impugned judgment is bad in law, capricious, vaxatious, erroneous and against the settled provisions of law, He has further submitted that learned trial Judge has not appreciated the documents available on record in its true spirit and proper perspective, while passing the impugned order and the findings are contrary to the provisions of Order 7, Rule 11 of CPC. He has further submitted that learned trial Judge has not properly appreciated the material on record and incorrectly applied the article of limitation and treated the suit as time barred, therefore, the impugned order is required to be quashed and set aside.
4.1 Mr.Majmudar, learned advocate for the appellant has submitted that application of the defendant is considered mainly on three grounds i.e. (i) no cause of auction mentioned in the suit, (ii) suit is barred by law of limitation and (iii) suppression of material facts. He has submitted that, in fact, the plaintiff has mentioned sequence of events in a very lucid manner and there is no concealment on the part of the Page 3 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023 C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 plaintiff. He also submitted that it is settled proposition of law that suppression of material documents cannot be considered as a ground to reject the plaint while deciding an application preferred under Order 7, Rule 11 of CPC. He has submitted that, in fact, there is no suppression on the part of the plaintiff and the plaintiff has produced everything. He has submitted that learned trial Court should strictly adhere to the grounds given in the statutory provision of Order 7, Rule 11.
4.2 Mr.Majmdar, learned advocate for the appellant has submitted that it is an admitted fact that suit of the plaintiff is based on an oral contract, wherein no specific date is fixed between the parties. He submitted that as per Article 54 of the Limitation Act, in such case, period of limitation will start from the date of knowledge of refusal. He also submitted that notice was issued by the plaintiff in the year 2018 to act as per the oral contract, which was duly served upon the defendant. He has submitted that instead of acting as per the terms of the oral contract, the defendant has given vague and evasive reply to the said notice and the cause of action has arisen from that date. He has submitted that considering this date, the suit is filed within period of limitation, which is three years. He has submitted that a period of limitation is not to be counted from the date when the defendant has become the owner of the suit property i.e. from the year 2003 nor it is to be counted from 2010, when the dispute pertaining to the suit property has been compromised by the parties in different suits.
Page 4 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 4.3 To substantiate his arguments, Mr.Majmudar, learned advocate for the appellant has relied upon following decisions:-
(i) Sejal Glass v. Navilan Merchants Private Limited reported in AIR 2017 SC 4477.
(ii) Shantibhai Somabhai Patel v. Ranchodbhai Pujabhai Padhiyar reported in 2019-JX (Guj)-0-196.
(iii) Shaukathussain Mohammed Patel v. Khatunben Mohmmedbhai Polara reported in 2019 (4) GLR 2990.
(iv) Himmatbhai Madhavbhai Rohir v. Gopalbhai Himmatbhai Prajapati reported in 2022-JX (Guj)-0-
933.
(v) Urvashiben v. Krishnakant Manuprasad Trivedi reported in 2018 SCC Online 2833.
(vi) State of Orissa v. Klockner and Company reported in 1996 SCC-8-377.
(vii) Aloka Bose v. Parmatam Devi reported in 2009-SCC-
2-582.
4.4 He vehemently submitted that the principles laid down in the aforesaid judgments are squarely applicable in the facts of the present case. He has also submitted that considering the Page 5 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023 C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 principles enunciated in the aforesaid judgments, this is a fit case wherein First Appeal is required to be allowed by quashing and setting aside the impugned judgment and order.
4.5 Mr.Majmudar, learned advocate for the appellant has further submitted that even an oral agreement to sell is valid and as per Section 10 of the Contract Act, all the agreements are contracts, if they are made by the consent of the parties competent to contract for lawful consideration and with a lawful object and are not expressly declared to be void under the provisions of the Contract Act. He has also submitted that as per the provision of Article 54 of the Limitation Act, when the date is specifically fixed of performance, period of limitation of three years, would start from such date, and if no date is fixed, period of three years is to be computed from the date when the plaintiff has notice of refusal. He has also submitted that it is settled proposition of law that the plaint cannot be rejected on the basis of the allegations made by the defendant in written statement and in an application for rejection of the plaint, the Court has to read entire plaint to find out whether it discloses cause of action and if it is found to be disclosing cause of action, plaint cannot be rejected by the Court exercising powers under Order 7, Rule 11 of CPC and essentially when the plaint discloses cause of action, averments made in the plaint are to be treated as correct.
4.6 Mr.Majmudar, learned advocate for the appellant has further submitted that if any relief sought for in the plaint is barred by law of limitation, entire suit is not be dismissed and Page 6 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023 C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 it can be entertained for other reliefs. He submitted that it is held by Honourable Supreme Court as well as this Court very succinctly that if the suit is barred by limitation partially, in that event, the suit cannot be rejected as a whole. He has submitted that, in the present case, all the reliefs are not barred by law of limitation, therefore, entire suit cannot be thrown out at the threshold. He has also submitted that question of law of limitation is a mixed question of law and facts and evidence is required to be led in the present case. He also submitted that it is settled proposition of law that entirety of averments made in the plaint have to be taken into account for the purpose of Order 7, Rule 11 of CPC, and considering entirety of the circumstances and issues raised in the plaint, matter is required to be considered on merits. He, therefore, prayed that, considering all these aspects, present appeal may be allowed.
5. To meet with the submissions made by learned advocate for the plaintiff, Mr.H.B.Shethna, learned advocate for the defendant has vehemently submitted that the impugned judgment and order is just, fair, reasonable and based upon the sound principles of law. He has submitted that after appreciating the material on record, learned trial Judge has assigned reasons, which may not be interfered by this Honourable Court. He has submitted that the suit is dismissed by allowing the application of the defendant preferred under Order 7, Rule 11 of CPC, mainly on the grounds that no cause of action is made out and the suit is barred by limitation. He also submitted that, learned trial Court has also found that Page 7 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023 C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 there is suppression of material documents and concealment of facts. He has submitted that though such material cannot be considered in every case, at the time of deciding an application under Order 7, Rule 11 of CPC, it is rightly considered in the present case. He has also submitted that, in the entire plaint, nowhere it is pleaded as to when the cause of action has arisen. He has submitted that the plaintiff has miserably failed in pleading the cause of action, which is basic and paramount component to register the suit. He has submitted that mere bald assertion is made that the plaintiff has issued notice in the year 2018 to the defendant for fulfillment of oral contract and it has given rise to cause of action, however, there is no averment as to when and where such oral contract was made and how it was to be executed.
5.1 In the paint also except the averments made in paragraph 9 no other assertion is made by the plaintiff. Learned advocate, Mr.Shethna has further submitted that it is an admitted fact that the defendant has purchased the suit property from the original land owner in the year 2003 by executing registered sale deed and since then the defendant is absolute owner of the suit property. At the time of executing said registered sale deed the defendant has taken help and support of the plaintiff as a broker. The original land owner had subsequently sold said land to other persons in the year 2004. Being the absolute owner of the suit property, as soon as the defendant came to know that the original land owner had sold out the said property to third party without informing her, the defendant was constrained to file a suit against the original Page 8 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023 C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 land owner as well as the third party, who has subsequently purchased the land by executing registered sale deed. These suits are pending before the Court of learned Senior Civil Judge at Surat for adjudication. As per the case of the defendant plaintiff had given assurance to the defendant that as a broker he will assist and support to clear all the dispute pending between the parties and due to constant efforts made by the defendant and plaintiff they have got success to settle the disputes. Accordingly, all the three suits filed before the competent Court have been withdrawn by way of compromise deed being placed on record and as per the Compromise Deed decrees have been drawn. During all these transactions, the plaintiff was in contact with all the parties and as per the agreement brokerage amount of Rs.10 Lacs had been given to the plaintiff by the defendant. The receipt was prepared on the stamp paper of Rs.100/- and such document is part and parcel of the pleadings. As per the agreement, entire amount is received by the plaintiff and the plaintiff has endorsed said receipt by putting signature below it.
5.2 Learned advocate, Mr.Shethna has submitted that admittedly the defendant is an absolute owner of the suit property executed and registered in the year 2003. Therefore, the period of limitation would commence from that date. He has submitted that even if it is assumed for the sake argument that the period of limitation would start from the date of settlement arrived at between the parties in the suit, that is in the year 2010, even then the suit should have been preferred at least by 2013 end, whereas present suit is filed in the year Page 9 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023 C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 2018. Therefore the suit of the plaintiff is filed after a long time and on this ground, it is required to be dismissed as the plaintiff has failed to mention actual date of cause of action.
5.3 Learned advocate, Mr.Sethna has further submitted that, in the year 2016, the plaintiff has sent a notice to the defendant through his advocate. The defendant has also given reply to the said notice through his advocate. Copies of these documents have been placed on record by the defendant along with written statement. Thereafter, in the year 2018, another notice is issued by the plaintiff through his advocate to the defendant. The defendant has given reply to said notice also and said notice and its reply are the part of the documents annexed with the suit. In such reply, the defendant has categorically stated entire sequence of events of incident. The story put forward by the plaintiff in the notice given in the year 2018 is totally different than that mentioned in the notice of the year 2016. The language of this notice of 2018 suggests that the purpose of this notice is to create a fresh cause of action so that suit can be filed on its strength.
5.4 The facts narrated in the notice of 2016 are that for the purpose of purchasing the land of Block/Survey No.303/2, admeasuring 1.39.40 H.A.Sq.Mtr of mouje Village-Vasu, Taluka- Majura, District & Sub-district-Surat, the plaintiff has paid full amount of consideration in piecemeal then also the defendant has not executed registered sale deed. The plaintiff has given an application to measure the land to DILR on 9.2.2010 and after completion of the work of measurement of said land, Page 10 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023 C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 certain questions have remained, which are not answered by the defendant. Whereas contents of notice of 2018 are that the plaintiff is entitled to get Rs.1 crore and 20 Lacs and further a plot of 350 square yards from the land of the defendant, after clearing all the papers as well as handing over peaceful possession of the property mentioned in the sale deed. It is alleged that despite the said notice, the defendant did not turn up and the suit has been filed by the plaintiff. He submitted that the facts mentioned in both the notices are totally different and contrary to each other. He also submitted that at the time of institution of the suit, the plaintiff has not mentioned said facts in the plaint as well as not annexed copy of the notice issued by him and reply given by the defendant in the year 2016. Learned advocate, Mr.Shethna has submitted that by doing so the plaintiff has tried to mislead the Honorable Court as well as played a fraud with the court to get a favourable order and, therefore, considering such mischevious act on the part of the plaintiff to play fraud with the Court, an application under Order 7, Rule 11 is given which was rightly allowed by the Honorable Court. Therefore, present appeal is required to be dismissed with exemplary as per the provisions of Section 35 a of CPC.
5.5 To substantiate his case, learned advocate Mr.Shethna has relied upon following the decisions.
(i) T. Arivandandam v. T.V. Satyapal reported in 1977 SC 2421.
(ii) Raghwendra Sharan Singh v. Ram Prasanna Singh Page 11 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023 C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 (dead) by LRs decided on 13.3.2019 in Civil Appeal No.2960 of 2019
(iii) Bhagirath Prasad Singh v. Ram Narayan Rai and Another reported in AIR 2010 Patna 189.
(iv) Dilboo (Smt) (Dead) by Lrs and Others v. Dhanraj (Smt) (Dead) and Others reported in (2000) 7 SCC
702.
6. Heard learned advocates appearing for the respective parties at length. We have also perused the impugned order of the trial Court dismissing the suit by allowing application preferred under Order 7, Rule 11 of CPC. We have also considered the averments made in the plaint. At the outset, it is required to be noted that the plaintiff has instituted the suit against the defendant for for specific performance of contract and for declaration and permanent injunction that the defendant does not have right to alienate the suit property as well as perpetual injunction against the defendant is sought for not to erect any construction over the suit property and/or not to deal with the property in the manner, which may change the identity of the suit property, and also claimed damages as well as recovery of Rs.1 Crore and 20 Lacs and a plot of 350 sq.yds.
7. Considering the averments made in the plaint, it can be seen that the suit of the plaintiff revolves around oral agreement made between the parties and as per the case of the plaintiff, cause of action has started from the date when the defendant has refused to execute the contract and gave vague and evasive reply to the notice.
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8. It is settled preposition of law that, at the time of deciding an application preferred under Order 7, Rule 11 of CPC, the Court has to look into and appreciate the averments made in the plaint only. At this stage, we would like to reproduce the provisions of law which are as under:-
"ORDER VII
11. Rejection of plaint.-The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails comply with the provision of Rule 9.
Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff."
9. As per the reliefs in the plaint, the plaintiff has sought relief for specific performance of the oral contract and declaration that the defendant has not got any right in the suit property and or perpetual injection against the defendant for Page 13 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023 C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 not erecting any construction over the suit property and not to deal with the property in any manner, which can change the identity of the suit property and also claimed an amount of Rs.1,20,00,000/- (Rupees One Crore & Twenty Lacs) as damages and also a plot of 350 square yards. In short, in the paint the plaintiff has sought five different prayers. The main and the important prayer made by the plaintiff is specific performance of the contract and the other players are declaration and permanent injunction and for recovery of money. Therefore, as per the provisions of the law of limitation, since articles 18, 54 and 58 are relevant, we considered the same. In the plaint, nowhere it is mentioned as to when and where the oral agreement was made between the plaintiff and the defendant. It is also not stated in the paint, as to when the defendant has purchased the suit property from the plaintiff. In paragraph 9 of the suit, the plaintiff has prayed that outstanding money for the work done by the plaintiff is demanded from the defendant but he has not paid the same and the suit property i.e. plot of 350 sq.yds. is demanded and, therefore, the suit is filed.
10. The plaintiff has not mentioned any specific date, time and place where said oral agreement has been entered into between the parties. As per the plaintiff, cause of action would started from the date of issuance of notice or from the date of refusal by the defendant to comply with the said notice and in absence of any other document, material available on record, i.e. pleading and documents filed by the plaintiff at the time of institution of the suit are required to be seen. As per the Page 14 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023 C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 revenue record the defendant is absolute owner and occupant of the suit property. Name of the defendant is entered in the revenue record as an absolute owner and occupier of the property on 15.9.2011. The receipt signed by the plaintiff prepared on the stamp paper of Rs.100 shows that the defendant has paid and amount of brokerage to the plaintiff and spend all the agreed amount between the parties and the same is already paid by the defendant and there is no outstanding between the parties.
11. On the strength of the aforesaid facts, it can safely be said that by way of a registered sale deed of the suit property in the year 2003 from the original owner, the defendant has become absolute owner and occupier of the suit property. Therefore, within a period of 3 years from this date, the plaintiff has to file suit against the defendant for the purpose of fulfillment of the oral agreement. Admittedly, present suit is filed in the year 2018 and it is filed beyond the scope of limitation, therefore, it would not be maintainable and it is not required to be entertained.
12. Even if the argument advanced by the plaintiff that he has facilitated the parties to arrive at compromise in the pending proceedings is considered, then also the period of limitation would start from the date of compromise entered into between the parties that is in the year 2010, and in that event also period of limitation would be extended only upto 2013. Considering the fact that present suit is filed in 2018, it would be barred by the period of limitation and it cannot be Page 15 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023 C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 entertained. As discussed earlier, as per the provisions of law, the period of limitation as per articles 18, 54 and 53 the period of limitation is 3 years. As per column 3 of article 18, the period of limitation would commence from the date when the work is done. In case of article 54, the date for performance of contract or when the plaintiff has notice that the performance is refused is the date for commencement of period of limitation. In case of Article 58, the suit for declaration of title shall be filed within three years of right to sue accrues. It is the settled proposition of law that when a document is registered, the date of registration becomes the date of 'deemed knowledge'. In other cases, where a fact could be discovered by due diligence then 'deemed knowledge' would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge. In the case of of Dilboo (Smt) (Dead) by Lrs and Others (supra), it is very succinctly held by Honourable the Apex Court that where transfer is by registered document, the date of registration becomes date of "deemed knowledge"
and since then such principle is followed. Admittedly, in the present case, the respondent had executed registered Sale Deed in the year 2003 with the original owner and, therefore, it can be safely said that the period of limitation would commence from 2003 and the suit is required to be preferred within three years from that date. Since the suit is filed in 2018, it is required to be dismissed solely on the ground that it is barred by limitation.Page 16 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023
C/FA/3791/2019 JUDGMENT DATED: 26/06/2023
13. Considering aforesaid provisions of law as well as the factual aspect of the present case, by no stretch of imagination, it can be said that the suit is preferred by the plaintiff within the period of limitation. For the purpose of considering scope of Order VII, Rule 11 of CPC, some relevant decisions of the Honorable Apex Court are required to the referred which are as under:-
13.1 In the case of T. Arivandandam v. T.V.Satyapal (1977) 4 SCC 467, while considering the very same provision i.e. Order 7 Rule 11 of the CPC and the decree of the trial Court in considering such application, this Court in para 5 has observed and held as under:-
"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif 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 Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits....."Page 17 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023
C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 13.2 In the case of Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust reported in (2012) 8 SCC 706, this Court in paras 13 has observed and held as under:-
"13. While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the Plaintiff the right to relief against the Defendant. Every fact which is necessary for the Plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue."
13.3 In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies reported in (1989) 2 SCC 163, this Court explained the meaning of "cause of action" as follows:
"12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in 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. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not Page 18 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023 C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
13.4 In the case of Sopan Sukhdeo Sable v. Assistant Charity Commissioner reported in (2004) 3 SCC 137 in paras 11 and 12, this Court has observed as under:-
"11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal [(1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. 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.
13.5 In the case of Madanuri Sri Rama Chandra Murthy v. Syed Jalal reported in (2017) 13 SCC 174, this Court has observed and held as under:
"7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC Page 19 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023 C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint.
Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."
13.6 In the case of Ram Singh v. Gram Panchayat Mehal Kalan reported in (1986) 4 SCC 364, the Apex Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.
14. By applying the principle of law laid down by the Honorable Apex Court in aforesaid decision to the facts of the case on hand, we are of the opinion that the trial Court has correctly applied the principles of law enunciated by the Page 20 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023 C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 Honorable Apex Court as well as by Honorable High Court in exercise of powers under Order 7, Rule 11 of CPC. It is an undisputed fact that the defendant has executed registered sale deed with the original land owner in the year 2003 and the original land owner has subsequently sold away the suit property to a third party and created third party rights. This action of the original land owner has been challenged by the defendant by preferring Special Civil Suit before the competent Court. The plaintiff herein has facilitated the defendant to resolve the dispute, and had become instrumental to bury the differences that have been developed between the parties and at the instance of the plaintiff compromise has been arrived at and due to an amicable settlement between the parties suits have been withdrawn in the year 2010. Therefore, even if the date of settlement between the parties is considered for cause of action, it would end in the year 2013. It is found from the record that the suits have been withdrawn at the behest of the plaintiff and the plaintiff has received brokerage of Rs.10 Lacs from the defendant. Not only that a receipt on stamp paper of Rs.100 is issued by the plaintiff to the defendant and the same is signed by the plaintiff. The admission of signature on the said receipt shows that the plaintiff was aware about the settlement between the parties in the year 2010 and due to that the defendant has become absolute owner and occupier of the suit property and on the strength of such material defendant's name has been mutated in the revenue record. Therefore, it can be inferred that from the year 2010 the plaintiff has knowledge about the said fact and suit should have been filed within three years from that date.
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15. It is also required to be noted that in the year 2016 the plaintiff had issued notice to the defendant and, thereafter, he remained silent for a period of 2 years and, in the year 2018, plaintiff has received another notice issued by the defendant through his advocate. On the strength of this notice, the plaintiff has filed present suit and it seems that this notice was given only with view to bring the suit with in the period of limitation. Therefore, considering the averments made in the plaint, we are of the opinion, that by way of clever drafting the plaintiff has tried to bring the suit within the period of limitation, which was otherwise barred by period of limitation. Therefore, considering the decisions of the Honorable Apex Court as well as the High Courts, more particularly decision in the case of Raghwendra Sharan Singh (supra), the suit is clearly barred by limitation and the plaint is required to be rejected in exercise of powers under Order VII, Rule 11 of CPC. If real cause of action has not been set out in the plaint and something else has been stated with a view to get out of the scope of Order VII, Rule 11 of CPC, and if such clever drafting has created the illusion of a cause of action, such action should be nipped at the bud. If, on a meaningful, not formal reading of the plaint, it is manifestly vexatious and meritless, in the sense, not disclosing clear right to sue, and it has not disclosed actual cause of action, the court has jurisdiction to reject the plaint by exercise of powers under Order VII, Rule 11 of CPC.
16. As per the statutory provisions of the Limitation Act, the limitation period will start from the date fixed for performance Page 22 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023 C/FA/3791/2019 JUDGMENT DATED: 26/06/2023 and within 3 years of that date suit is required to the filed and if no such date is fixed, then the period of 3 years is to be computed from the date when the plaintiff has notice of refusal.
17. From the overall reading of the documents and considering the relevant proposition of law it appears that the present suit is filed after lapse of more than 8 years and it is clearly hit by law of limitation and in view of the proposition of law down by the Honorable Apex Court, present appeal is required to the dismissed and the impugned order is required to be maintained. Accordingly present First Appeal is dismissed. The impugned order dated 30.3.2019 passed by learned 15th Additional Senior Civil Judge, Surat, below Exh.10 in Special Civil Suit No.164 of 2018 is hereby confirmed. In view of above order, Civil Application No.1 of 2019 does not survive and the same is disposed of accordingly.
Sd/-
(ASHUTOSH SHASTRI, J) Sd/-
(DIVYESH A. JOSHI,J) R.S. MALEK Page 23 of 23 Downloaded on : Mon Jun 26 20:44:04 IST 2023