Gujarat High Court
Kalyannagar Cooperative Housing Soc ... vs Lh Of Babubhai Karshanbhai on 7 July, 2023
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/FA/4234/2021 JUDGMENT DATED: 07/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4234 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/FIRST APPEAL NO. 4234 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KALYANNAGAR COOPERATIVE HOUSING SOC LTD THROUGH VICE
PRESIDENT RAMJIBHAI MOHANBHAI KAPDIA
Versus
LH OF BABUBHAI KARSHANBHAI
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Appearance:
ANSHUL N SHAH(8540) for the Appellant(s) No. 1
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1
DECEASED LITIGANT for the Defendant(s) No. 1
MR PJ KANABAR(1416) for the Defendant(s) No. 1.1
MS ADITI P KANABAR(5650) for the Defendant(s) No. 1.1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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NEUTRAL CITATION
C/FA/4234/2021 JUDGMENT DATED: 07/07/2023
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Date : 07/07/2023
ORAL JUDGMENT
1. Heard learned advocate Mr. S.P. Majmudar for the appellant - plaintiff and learned senior advocate Mr. Mihir Thakore with learned advocate Mr. P. J Kanabar for the respondents- defendants in Special Civil Suit No. 36 of 1999.
2. Feeling aggrieved by the order under Order VII Rule 11(a) and
(d) of the Code of Civil Procedure,1908 (for short "the Code") below application Exh. 205 and Order in application Exh. 243 under Order 47 Rule 1 read with section 151 as well as order below Exh 1 in Special Civil Suit No. 36 of 1999 rejecting the suit passed by the Principal Senior Civil Judge, Amreli, the appellant-original plaintiff has preferred this appeal.
3. Brief facts of the case are that the appellant-plaintiff entered into an agreement for sale on 06.09.1983 which was registered in Book No.1 at Serial No. 1497 before the Sub-Registrar, Amreli. The agreement to sale was made by one Babubhai Karshanbhai Senjaliya in favour of the President Manohardas Karsandas Singada in respect of the proposed Kalyannagar Co-operative Housing Society. Page 2 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023
NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined 3.1 The appellant- Kalyannagar Cooperative Housing Society was registered under section 9 of the Gujarat Co-operative Societies Act,1961, by the Registration Officer, Amreli vide Registration No. GJ-9234.
3.2 As per the terms recorded in the agreement for sale the defendant-respondent herein agreed to sale the land admeasuring 9 Acres i.e. 36422 sq.mtrs of Survey No. 120/2 Paiki which is estimated to 15 Vighas 06 vasa for consideration of Rs. 20,000/- per vigha. Total consideration is noted as Rs. 3,06,000/- out of which, Rs. 3,000/- was paid to the original owner as a part consideration towards the agreement to sale and the remaining amount of Rs. 3,03,000/- was paid afterwards.
3.3 The agreement for sale further records that the remaining amount would be paid within three years as and when it is convenient to the plaintiff financially and defendant would execute sale deed as per the say of the plaintiff and possession would be handed over at that time only.
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NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined 3.4 It appears that as per the terms of the agreement, the plaintiff- society was to make an application for obtaining permission under section 63 of the Gujarat Tenancy and Agricultural Land Act,1943 as the plaintiff-society was not an agriculturist. Accordingly, the application was made before the Deputy Collector who by order dated 10.06.1984, granted permission to the plaintiff-society to purchase the land and a permission was also granted to the original owners to sell their land i.e. total area of 11 Acres 17 Gunthas comprising of 9Acre of Revenue Survey No. 122/2 and 2 Acres 17 Gunthas of Survey No. 120/4 with certain terms and conditions. 3.5 Thereafter, it appears that the sale deed dated 16.07.1984 was executed by Babubhai Karsanbhai Senjaliya in favour of Manohardas Karsandas Singada, President of the plaintiff-society with consideration of Rs. 1,31,000/- by registered sale deed for land admeasuring 3 Acre and 33 Gunthas of Survey No. 120/2 i.e. 6 vighas and 11 vasa, 15479 sq.mtrs situated on Varsada road of Amreli and possession of the said land was handed over to the President of the plaintiff-society.
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NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined 3.6 It appears that thereafter, on 29.06.1984, the Special Land Acquisition Officer, Amreli, wrote a letter to the Executive Engineer, Gujarat Housing Board, intimating him to remain present for acquisition of the land including the land of Survey Nos. 120/2 and 120/4 comprising land admeasuring 9 Acres was agreed to be sold to plaintiff-society.
3.7 Revenue Entries No. 504 was mutated in village Form No. 6 with regard to registered sale deed executed on 16.07.1984 for land admeasuring 3 Acres 33 Gunthas in favour of the plaintiff-society of Survey No. 120/2.
3.8 It is pertinent to note that another suit being No. 37/1999 was filed before the same Court for enforcement of Agreement of Sale for 2 Acres and 17 Gunthas of Survey No. 120/4 which was running in the name of son of the defendant-original owner by the plaintiff society. The defendant preferred application under Order VII Rule 11 of the Code which was also rejected by the Court below against which the appeal is pending before the District Court as the suit value was less than the prescribed limit.
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NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined 3.9 It appears that thereafter, the plaintiff as well as the defendant challenged acquisition of the land including the land in question before this Court wherein a compromise was arrived at between the plaintiff and the original owner-defendant that the Gujarat Housing Board and the plaintiff-society paid and deposited Rs. 67,000/- towards establishment and miscellaneous expenses of Rs. 6,000/- towards legal expenses in Current Account No. 3981 of Executive Engineer of Gujarat Housing Board, Bhavnagar as a condition precedent to withdraw the acquisition proceedings. 3.10 By letter dated 19.06.1996 written by the Housing Commissioner, Gujarat Housing Board to Special Land Acquisition Officer, it was informed that the Board in its meeting dated 11.10.1990 vide Resolution No. 2214 has resolved to exempt the land of Survey No. 120 Paiki from the acquisition with any other Government land available at Amreli.
3.11 The Land Acquisition Officer, by letter dated 30.06.1994 addressed to defendant informed that the land of Survey No. 120 Page 6 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined Paiki is exempted from acquisition as per order dated 21.03.1994 of the Revenue Department.
3.12 It appears that thereafter the Collector, Amreli, by order dated 10.10.1994 ordered to convert the land situated Survey Nos. 120/2 and 120/4 into non-agriculture land for residential purpose and permission was granted to construct the residential house on the application dated 24.11.1993 filed by the President of the plaintiff- society for land admeasuring 5 Acres 4 Gunthas. 3.13 It appears that thereafter, the suit was filed in the year 1999 for specific performance of the Agreement to Sale executed on 06.09.1983 along with the documents which are referred to here-in- above by the plaintiff.
3.14 It also emerges from the record that the plaintiff thereafter amended the plaint twice, once in the year 2000 and thereafter in the year 2007 which was allowed by the Court below by passing a reasoned order at the relevant time. The issues were framed by the Court below on 15.01.2010.
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NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined 3.15 It appears that application Exh 205 preferred by the respondent-defendant under Order VII Rule 11(a) and (d) of the Code was rejected by the Court below initially on the ground that readable copy of the amended plaint was not provided by the defendant. However, thereafter, an application was made under Order 47 read with section 151 of the Code being application Exh. 243 which was considered without disturbing the order passed below Exh. 2057 and application Exhibits 205 and 243 were again heard and disposed of by the impugned order by allowing the same by rejecting the suit under Order VII Rule 11(a) and (d) of the Code.
4. Learned advocate Mr. S.P.Majmudar appearing for the appellant- original plaintiff submitted that the learned Judge has committed a grave error in allowing the application Exhibits 205 and 243 together by depriving the appellant from challenging the order of recall before the appropriate forum as originally the application under Order VII Rule 11 of the Code was already dismissed by the Court below and without recalling that order, the Court could not have again passed the order allowing such applications nor a Page 8 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined common order could have been passed and therefore, the impugned order suffers from vice of procedural lapses on the part of the Courts below.
4.1 It was further submitted that even on merits of the case for rejecting the suit, provisions of Order VII Rule 11 (a) and (d) of the Code would not apply in the facts of the case as the suit cannot be said to be barred by law more particularly, when on bare perusal of the plaint as well as the documents in connection therewith raises a mixed question of fact and law with regard to enforceability of the Agreement for Sale which was alleged to have been executed by a proposed society coupled with other documents produced on record which ratified such agreement for sale by subsequent conduct of the defendant permitting the appellant-society to make an application for permission under section 63 before the Deputy Collector for conversion of the land into non-agriculture the land in question which was already granted after arriving at compromise with the Gujarat Housing Board to get the land exempted from the acquisition etc. Page 9 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined 4.2 It was therefore submitted that the Court below could not have rejected the suit at threshold after more than 20 years by not giving liberty to the plaintiff to lead the evidence to prove its case, more particularly, when the issues are already framed by the Court. 4.3 It was also pointed out that the made by the Court below is arbitrary and contrary to the documents produced on record by the plaintiff in support of the averments made in the plaint. It was submitted that even if the amendments made in the plaint are not taken into consideration, the original plaint itself would be sufficient as averments made in the original draft of the plaint along with the documents produced therewith would go to show that the plaintiff has a very good arguable case before the amendment also which can be proved by leading oral and documentary evidence. 4.4 In support of his submissions he has relied upon the following judgements:
Salim D. Agboatwala & Ors vs. Shamalji Oddhavji Thakkar reported in 2021 SCC Online SC 735;Page 10 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023
NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined Pushpaben Yogendraprasad Mahant vs. Ravirajsingh Kiritsingh Jhala in First Appeal No. 884 of 2020;
Shaukathussain Mohammad Patel vs. Khatunben Mohmmedbhai Polara reported in (2019) 10 SCC 226;
Sejal Glass Ltd vs. Navilan Merchants Pvt. Ltd reported in 2018 11 SCC 780;
Girishbhai Natwarbhai Patel vs. Prabhavati Cooperation Housing Society Ltd.;
The Trust of Shri Laxmi Narayan Deve Temple & its Subordiante Temple and ors vs. Ajendrapasadji Narendraprasadji Pande & Anr; [First Appeal No. 1521 of 2012 dated 22.04.2013] Khodaji Mangaji Thakor vs. Legal Heirs of Deced. Virambhai Ukabhai Bharvad [ 2018 JX(Guj) 740]
5. On the other hand, learned Senior Advocate Mr. Mihir Thakore with the learned advocate Mr. Kanabar submitted that the application under Order VII Rule 11 of the Code can be preferred at any stage of the trial and therefore the contention raised on behalf of the appellant herein that it was filed after more than 20 years is of no consequence. It was further submitted that the plaint is covered Page 11 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined under the provision of Order VII Rule 11 (a) and (d) of the Code and therefore, the same can be rejected by the Court at any stage. 5.1 Learned Senior Advocate Mr. Thakore invited attention of the Court to the amendments made in the plaint in the year 2000 as well as in year 2007 by the plaintiff to point out that the such amendments were made so as to wriggle out of the settled legal position that no agreement for sale could have been made by the proposed society and such Agreement for Sale is void ab initio and therefore, the same cannot be enforced by way of specific performance. It was further submitted that amendments in paras 1A, 1B and 1C when read together, the stand taken by the plaintiff is contradictory to each other. In para 1A it was averred that the plaintiff relied upon the contract between the parties which was carried out in the year 2000 and thereafter wisdom has prevailed upon the plaintiff by further amendment of the plaint by inserting para 1B which is again taking a stand that there was a deemed registration of the society when the application for registration was made by the society in the month of June 1983, prior to the date of Page 12 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined Agreement for Sale on 06.09.1983 whereas further contradictory stand is taken in para 1C raising contention of oral agreement between the parties. It was therefore submitted that the plaintiffs have from time-to-time changed their standby amending the plaint and therefore, the entire plaint is distorted and no decree of specific performance can be passed on the basis of the bare perusal of the averments made in the plaint.
5.2 Learned Senior Advocate Mr. Thakore also referred to averments made in para 4 of the plaint to point out that vague averments are made by the plaintiff with regard to refusal on part of the defendants to execute the sale deed in the year 1999 so as to overcome the question of limitation. It was submitted that it is nothing but a piece of clever drafting by the plaintiff and as per the settled legal position, the plaintiff cannot take advantage of such clever drafting so as to avoid the action by the Court under Order VII Rule 11 of the Code.
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NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined 5.3 It was also submitted by learned advocate Mr. Thakore that the documents produced along with plaint clearly shows that the plaintiff has played a mischief with the Court by producing only first page of the registered Sale Deed dated 16.07.2019 at Mark 4/5 whereas the entire sale deed was produced by the defendant later on at Exh 22. It was submitted that as such sale deed produced by the defendant cannot be looked by the Court for deciding the application under Order VII Rule 11 of the Code, the same is not referred to however, suffice is to say that the plaintiff, for the reasons best known to it, did not produce entire sale deed on record as it may be possible that there was only sale of 03 Acres and 33 Gunthas and not 9 Acres of Survey No. 120/2 for which the registered Agreement to Sale was executed with the proposed society which cannot be enforced as per the settled legal position. 5.4 It was further pointed out by learned Senior Advocate Mr. Thakore that the Court below has therefore rightly came to the conclusion that the suit is barred by law under Order VII Rule 11(d) of the Code as no decree of specific performance can be granted in Page 14 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined favour of the plaintiff on the basis of the Agreement to Sale in favour of the proposed society by relying upon the various decisions of this Court as well as the Hon'ble Supreme Court. 5.5 In support of his submissions, Senior Advocate Mr. Thakore referred to and relied upon the following decisions:
Canara Bank vs. P. Selathal and ors reported in (2020) 13 SCC 143:
"8. Therefore, the short question which is posed for consideration of this Court is, whether the suits filed by the plaintiffs were liable to be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC or not?
9. While considering the aforesaid issue/question, few decisions of this Court on exercise of powers under Order 7 Rule 11(d) of the CPC are required to be referred to and considered.
9.1 In the case of T. Arivandandam (supra), 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:Page 15 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023
NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined "5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly 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...."
9.2 In the case of Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust (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 possible accrue."Page 16 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023
NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined 9.3 In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem (supra), 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 is not 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."
9.4 In the case of Sopan Sukhdeo Sable (supra) 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.Page 17 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023
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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. (See T. Arivandandam (supra)."
9.5 In the case of Madanuri Sri Rama Chandra Murthy (supra), 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 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 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.Page 18 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023
NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined 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."
9.6 In the case of Ram Singh v. Gram Panchayat Mehal Kalan (1986) 4 SCC 364, this 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." Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra) dead through Legal representatives and ors reported in (2020) 7 SCC 366:
"23.1 We will first briefly touch upon the law applicable for deciding an application under Order VII Rule 11 CPC, which reads as under:
"11. Rejection of plaint.- The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;Page 19 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023
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(b) where the relief claimed in 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 to comply with the provisions of rule 9 Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevent by any cause of exceptional nature for correction the valuation or supplying the requisite stamp-paper, 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." 23.2 The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.
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NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined 23.3 The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.
23.4 In Azhar Hussain v. Rajiv Gandhi1 this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be 11986 Supp. SCC 315 Followed in Maharaj Shri Manvendrasinhji Jadeja v. Rajmata Vijaykunverba w/o Late Maharaja Mahedrasinhji, (1998) 2 GLH 823 permitted to waste judicial time of the court, in the following words :
"12. ...The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action."
23.5 The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.
23.6 Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action Page 21 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined by scrutinizing the averments in the plaint2, read in conjunction with the documents relied upon, or whether the suit is barred by any law.
23.7 Order VII Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under :
" 14: Production of document on which plaintiff sues or relies.- (1)Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2)Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3)A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4)Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory."
23.8 Having regard to Order VII Rule 14 CPC, the documents filed alongwith the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the Page 22 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
23.9 In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
23.10 At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration.
23.11 The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V.Sea Success I & Anr.,4 which reads as :
"139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed."
23.12 In Hardesh Ores (P.) Ltd. v. Hede & Co.5 the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked Page 23 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact.
23.13 If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC.
23.14 The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra).
23.15 The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.
24.1 In Swamy Atmanand v. Sri Ramakrishna Tapovanam this Court held :
Page 24 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023
NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined "24. A cause of action, thus, means every 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"
24.2. In T. Arivandandam v. T.V. Satyapal & Anr.9 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 clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing ..." (emphasis supplied) 24.3 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.
29.16 The present case is a classic case, where the plaintiffs by clever drafting of the plaint, attempted to make out an illusory cause of action, and bring the suit within the period of limitation.Page 25 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023
NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined Prayer 1 of the plaint reads as :
"1) The suit property being agricultural land of old tenure of Revenue Survey No.610 whose block Number is 573 situated at village Mota Varachha, Sub-district :
Surat city, Dis : Surat has been registered by the opponent No.1 of this case in office of the Sub-Registrar (Katar Gam) at Surat vide Serial No.5158 in book No.1. Since, the same is illegal, void, in-effective and since the amount of consideration is received by the plaintiffs, and by holding that it is not binding to the plaintiffs and to cancel the same, and since the sale deed as aforesaid suit property has been executed by the opponent No.1 to the opponent No.2,3, it is registered in the office of Sub- registrar, Surat (Rander) on 01/04/2013 vide serial No.443 which is not binding to we the plaintiffs. Since, it is illegal, void, in-effective and therefore, this Hon'ble Court may be pleased to cancel the same and this Hon'ble Court may be pleased to send the Yadi in that regard to the Sub-registrar, Surat (Karat Gam) and the Sub- Registrar (Rander) in regard to the cancellation of both the aforesaid documents."
Shri Ramji Mandir Narsinhji and ors vs. Narshinh Nagar Co-operative Housing Society Ltd, Navsari and ors reported in AIR 79 Guj 134:
"22. These decisions to which Mr. Shah has invited our attention lay down the principle that a contract between a non-existent company on whose behalf Page 26 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined someone purports to act is a nullity and gives rise to no cause-of-action. In order to make good his contention that such a contract is valid and enforceable at law, Mr. Vyas has invited our attention to some provisions of the Gujarat Cooperative Societies Act, 1961. S. 2(13) defines "member" as a person joining in an application for the registration of a co-operative society which is subsequently registered, or a person duly admitted to membership of a society after registration and includes a nominal, associate or sympathiser member. S. 2(19) defines "society" which means a co-operative society registered or deemed to be registered, under this Act. A reference to a society "deemed to be registered " appears to be in the context of sub-see. (2) of S. 169. Sub-section (2) of S. 169 provides as follows:-
"All societies registered or deemed to be registered under the said Act the registration of which was in force immediately before the commencement of this Act, shall on such commencement be deemed to be registered under this Act; and all proceedings pending immediately before such commencement before any Registrar, Arbitrator, liquidator or tribunal or other officer, authority or person under the provisions of the said Act shall stand transferred where necessary, to the Registrar, arbitrator, liquidator or tribunal or other corresponding officer, authority or person under this Act, and if no such officer, authority or person exists or if there be a doubt as to the corresponding officer, authority or person to such officer, authority or person as the State Govt. may designate and shall be continued and disposed of Page 27 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined by such officer, authority or person in accordance with the provisions of this Act."
These three provisions to which Mr. Vyas has invited our attention do not warrant the conclusion that the society before it is registered and comes into existence can act through its promoter. Sec. 37 throws light on this aspect. It reads as follows:-
"A society on its registration shall be a body corporate by the name under which it is registered,
-w1th perpetual succession and a common seal, and with power to acquire, hold and dispose of property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all such things as are necessary for the purpose for which it is constituted."
It is clear, therefore, that a co-operative society becomes a legal person after it is registered and it is after its registration that it acquires the capacity to enter into contracts. No provision in the Act has been pointed out to us under which the promoters of a society can act on behalf of the society before it has been registered and has come into existence.
Jayantilal Hansraj Shah and ors vs. Hemakuwarben Dolatraj Dave and ors reported in 1996(1) G.L.H. 893:
"10. In view of the above quoted binding decision of the Division Bench, I am of the view that the agreement Page 28 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined for sale executed by Late Maharaja Shri Indravijaysinhji in favour of the petitioners who are members of the proposed Vijay Co-operative Housing Society is a nullity and creates no right in favour of the petitioners. As the agreement to sell dated July 10, 1980 is nullity, it cannot be specifically enforced and, therefore, even a suit for specific performance of the said agreement cannot be brought by the petitioners in a competent Court. In view of this legal position, it is evident that it cannot be said that the petitioners are adversely affected by consent decree dated November 18, 1993 passed in Regular Civil Suit No. 740 of 1986 so as to entitle them to get permission to file an appeal against the said decree."
6. Order VII Rule 11 of the Code provides for rejection of the plaint and reads as under:
"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 returned 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;Page 29 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023
NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined
(d) where the suit appears from the statement in the plaint to be barred by any law:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper 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 form correcting the valuation or supplying the requisite stamp- paper, 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."
7. Clause (a) of Rule 11 of Order VII of the Code provides that the plaint shall be rejected where it does not disclose a cause of action and clause (d) provides that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law.
8. It is pertinent to note that the application under Exh 205 was filed by the defendant-respondent on 12.08.2018 i.e. almost after 19 years from the date of filing of the suit. It is true that such application can be filed at any stage of the trial but at the same time conduct of the parties is also required to be considered. The issues Page 30 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined were already framed by the Court in the year 2010 and considering the same also the application Exh 205 was filed after 8 years.
9. The learned Judge after considering the documents produced along with plaint while again disposing application Exh 205 along with Exh 243 held that admittedly Agreement to Sale is of 1983 and when it was executed the plaintiff-Co-operative Society was only proposed society and was not registered under section 9 of the Gujarat Co-operative Societies Act, at the same time it is observed that thereafter the proceedings in respect of the land acquisition procedure one of which lasted up to 1994 and thereafter the suit was filed in 1999. However, the learned Judge has failed to consider the fact that the documents produced along with the plaint together with the averments made in the plaint prima facie shows that both the parties in effect has proceeded with the terms of the Agreement for Sale that is to say applying for permission before the Deputy Collector to purchase the land and thereafter even NA permission was granted on the application made by the plaintiff-society. Therefore, as per the settled legal position as analyzed here-in-below Page 31 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined the question which arises for consideration is as to whether the suit can be said to be barred by law as per clause (d) of Rule 11 of Order VII of the Code would be a mixed question of fact or law or pure question of law arising from the averments made in the plaint together with the documents produced therewith.
10. The Trial Court has recorded the conclusion in paras 17 to 20 as under:
"17. Though, it is strongly argued by the Ld. Advocate of plaintiffs that issue of limitation is a mixed question of law & fact and it cannot be decided at this stage without recording the entire evidences, but this Court is firmly of the opinion that generally issue of 1\limitation is a mixed question of law and fact, but when facts and circumstances themselves clear, it is a pure question of law only, it deserves to be rejected. And facts and circumstances of present suit are such, which clear that issue of limitation is a pure question of law. When the suit and plaint itself clears that it is barred by the law and specifically the Law of Limitation and the Gujarat Co-operative Societies Act, 1961, it cannot be allowed to remain the present suit for further years in the Court.
18. No new fact is brought on record by the present application. At the stage of deciding the application of 0.7 R.11, Court has to see the plaint and documentary evidences produced along with it only. Plaint and the evidences produced by the plaintiff along with the plaint and afterwards, clear that present suit is barred by the provisions of Law of Limitation, the Gujarat Co- operative Page 32 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined Societies Act.1961 and for the want of legal cause of action. Cause of action mentioned in the present suit is illusory, false, vexatious and artificial. Hence, present suit deserves to be rejected under 0.7 R.11 (a) and (d).
19. Arguments led by the Ld. Advocate of the defendant are tenable and arguments led the Ld. Advocate of plaintiff are not tenable for the above mentioned reasons. Though, this Court had dismissed the Exh.205 earlier for want of legible copy of the plaint on record but if defendant was not producing that and failed to produce that before this Court then plaintiff could produce that but it was no followed so. Hence, it was not only the fault of defendant who move present applications but also fault on the part of the plaintiff. Because, Exh.205 was not decided on merits, then this Court finds no infirmity in allowing the application moved at Exh.243 under Order-47, Rule-1 r/w Section 151 of the Code. The scheme of the said provision does not violate in any manner, if the said application is allowed. And accordingly Exh.205 too, as discussed above.
20. In view of the above discussion, this Court is strongly of the opinion that present suit deserves to be rejected under the provisions of 0.7 R.11 (a) & (d) of the Code and hence, applications under Order 7, Rule 11(a) &
(d) and under Order-47, Rule-1 r/w. Section 151 of the Code deserves to be allowed. Hence, following order is passed under Exhs.205, 243 and Exh. 1:-
::ORDER::
(1) Application at Exh.243 moved under Order-47, Rule-1 r/w Section 151 of the Civil Procedure Code, 1908 is hereby allowed.Page 33 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023
NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined (2) Application at Exh.205 moved under Order 7, Rule 11(a) & (d) of the Civil Procedure Code, 1908 is also allowed.
(3) Present suit bearing Special Civil Suit No. 36/1999 is hereby rejected under Order 7. Rule 11 (a) & (d) of the Civil Procedure Code, 1908. (4) Copy of this order shall be kept along with the plaint of the suit."
11. On perusal of the above conclusion the only observation made by the Trial Court is that when the suit and plaint itself declares that it is barred by law and specifically by law of limitation and provision of the Gujarat Co-operative Societies Act, it cannot be allowed to continue. However, while arriving at such conclusion the Trial Court has failed to consider the facts emerging from the plaint and the documents annexed therewith to the effect that the subsequent events from 1983 till the date of filing of the suit reflected from the averments and documents annexed with the plaint clearly shows that Agreement for Sale which is sought to be enforced under the provisions of the Specific Relief Act and the issue as to whether the suit is barred by limitation requires leading of evidence as it involves the mixed question of facts as well as law inasmuch as merely on bare perusal of the averments made in the plaint and the documents Page 34 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined annexed therewith, the Court could not have come to the conclusion that the suit is barred by law under Order VII Rule 11 (a) and (d) of the Code.
12. Learned advocate for the appellant has relied upon the decision of the Apex Court in case of Salim D. Agboatwala and ors vs. Shamalji Oddhavji Thakkar reported in 2021 SCC online SC 735 wherein the Apex Court, after considering the provisions of sections 25 and 25A of the Maharashtra and Agricultural Lands Act, 1948 as well the question of limitation has held as under:
"25. But the above contention of Shri Joshi overlooks an important facet of the case set up by the plaintiffs. According to the plaintiffs, the Estate was in the administration of the Court Receiver and that in collusion between the Court Receiver and the Revenue authorities, the sale as well as mutation took place without any notice to any of the interested parties. Collusion and fraud are the main planks on which the plaintiffs have built up their case. The question whether the order of the ALT and the sale certificate issued thereafter are the product of fraud and collusion, cannot be determined by the appellate or revisional authority under the Act. In any case it is contended by the learned counsel for the appellants that by virtue of Section 88B(1)(d) of the Act, none of the provisions of the Act, except a few, are applicable, "to lands taken under management temporarily by the Civil, Revenue or Criminal Courts by themselves, or through Page 35 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined receivers appointed by them, till the decision of the title of the rightful owners". The 7 AIR 1972 Bombay 122 veracity of such argument has not been tested before the Trial Court or the High Court. We do not know whether the exemption under Section 88B was raised at all by the appellants/plaintiffs. But it is a legal issue which goes to the root of the matter. Therefore, the Civil Court's jurisdiction cannot be said to have been ousted completely. The Civil Court was obliged to see at least whether the appointment of a Receiver for the administration of the Estate of a deceased person would actually fall within the mandate of Clause(d) of Subsection(1) of Section 88B.
26. Therefore, we are of the considered view that the Trial Court as well as the High Court were clearly in error in rejecting the plaint under Order VII Rule 11(d). Hence, the appeal is allowed, the judgment and decree of the Trial Court as well as the High Court are set aside and the suit is restored to file. There will be no order as to costs."
13. The Division Bench of this Court in First Appeal No. 884 of 2020 in case of Pushpaben Yogendraprasad Mahant vs. Ravirajsingh Kiritsingh Jhala decided on 19.07.2021 held as under:
"14.1 The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a Page 36 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. 14.2 In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order VII Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff- appellants.
14.3 The Hon'ble Supreme Court in Hardesh Ores (P) Ltd., vs. Hade and Company (2007) 5 SCC 614 in Para 25 observed as under:-
"25. The language of Order VII Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that "law" within the meaning of Clause (d) of Order VII Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint if taken to be correct in their entirety a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 Page 37 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. As observed earlier, the language of Clause (d) is quite clear but if any authority is required, one may usefully refer to the judgments of this Court in Liverpool and London S.P. and I Association Ltd. v. M.V. Sea Success I and Anr. (2004)9SCC512 and Popat and Kotecha Property v. State Bank of India Staff Association (2005)7SCC510. "
14.4 It appears that the Court below has not been able to understand the fine distinction between the plea that there was no cause of action for the suit and the plea that the plaint does not disclose a cause of of action. In the case on hand, on a fair reading of the application Ex.18 filed by the defendants under Order VII Rule 11 of the Civil Procedure Code it is clear that the case of the defendants is that the plaintiffs have no cause of action to file the suit. It is not specifically pleaded by the defendants that the plaint does not disclose any cause of action. The trial Judge has also not recorded any specified finding to this effect. It could be said that while adjudicating the application for rejection of plaint the trial Judge has actually adjudicated the entire suit, in other words the right, title and interest of the plaintiffs in the suit property. It is very unfortunate to note that the trial Court proceeds on the footing that the plaintiffs have not been able to establish their right, title or interest in the suit properties on the basis of or on the strength of the revenue records i.e. the entries in the revenue records. The trial Judge seems to be oblivious of the fact that the entries in the revenue records even otherwise do not confer any right, title or interest. How does the trial Judge expect the plaintiff to make good his case or establish his title on the basis of the revenue Page 38 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined records while deciding the application for rejection of the plaint at the instance of the defendants.
14.5 From the averments made in the plaint, it is clear that the plaintiffs have pleaded a cause of action for filing the suit seeking the reliefs stated in it i.e. not to say that the plaintiffs have cause of action to file the suit for the reliefs sought, that question is to be determined on the basis of materials (other than the plaint) which may be produced by the parties at appropriate stage in the suit. For the limited purpose of determining the question whether the plaint is to be rejected under Order VII Rule 11 or not the averments in the plaint are only to be looked into. 14.6 The Court below observed that in absence of further revenue record prima facie title to the property cannot be accepted to be established. According to the Court below, the plaint does not disclose that Mahant Narandas was ancestor of Yogendraprasadji and the sale deed cannot be challenged on the ground that plaintiffs were successors by inheritance to the property. It is important to note that the issue for adjudication of rights in connection to the said plaint will be with regards to the original transfer of rights by Yogendraprasadji, Ramdasguru Bhagwandas, Mahant Narandas to the plaintiffs. The said issue for adjudication of rights flowing from the Will dated 1937 cannot be shut merely on the ground that there are no further revenue records reflecting the rights of the plaintiffs. 14.7 The suit is yet to go for trial and plaintiffs will have to prove by producing evidence to establish that they are successors of the subject property. The original entry no. 253 will be relevant for the plaintiffs to establish their right to the property by succession. It is drastic to reject the suit Page 39 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined at this stage, while considering the averments in the plaint which raises various issues as to flowing from the Will and inclusion of subject property in the Will."
14. The Hon'ble Supreme Court in case of Shaukathussain Mohammad Patel vs. Khatunben Mohmmedbhai Polara reported in (2019) 10 SCC 226 has held that the averment in the plaint have to be taken into account in their entirety and considering such evidence if the case is required to be considered on merits, rejection of plaint is not justified as it is well settled that for the purposes of the provision of Order VII Rule 11 of the Code, the entirety of the averments in the plaint is to be taken into account and going by the version of the appellant as detailed in the plaint, there was element of deception and fraud which was practiced upon him as a result of which the document concerned got entered into. In the facts of the said case and considering such averments made in the plaint and the fact that the plaintiff-appellant was always in possession of the property in question the issue raised in the matter was required to be considered on merits.
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15. In case of Sejal Glass Ltd vs. Navilan Merchants Pvt. Ltd reported in 2018 11 SCC 780 while examining the relative scope and applicability of Order VII Rule 11 of the Code read with Order VI Rule 16 of the Code it was held that if the condition mentioned in Order VII Rule 11 of the Code are fulfilled entire plaint is to be rejected. However, where it appears that plaint cannot be proceeded with in some part but it can be proceeded in another part, Order VII Rule 11 of the Code has no application and then suit as a whole must proceed to trial.
"20. In the case of Ahmed Hossein vs. Mt. Chembelli and others reported in AIR 1951 Cal 262, a decision relied upon by Mr. Thakore, the suit was on a dishonoured cheque. The plaint did not state that any notice of dishonour had been given or that any circumstances existed which rendered it unnecessary to give such notice. The plaintiff subsequently sought to introduce these statements in the plaint by an amendment. The application was opposed by the defendants on the ground that by reason of the absence of these allegations, the plaint as it stood then, disclosed no cause of action and hence it must be rejected under O. 7, R. 11 (a) of the Code and the Court had no power to allow the amendment. The plaintiff's answer was two fold : First the plaint disclosed a cause of action in spite of the omission to state anything with regard to the notice of dishonour and secondly, that O. 7, R. 11, does not take away the Court's power to order amendment of Page 41 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined the plaint. With regard to the first point, the plaintiff's contention was that the facts relating to the notice of dishonour were not part of the cause of action on a dishonoured cheque but were mere conditions precedent necessary for the case on the cheque, the performance or occurrence of which is to be implied in the plaint under O. 6, R. 6 of the Code. Sarkar J (as His Lordship then was) did not accept this contention. His Lordship made the following observations in this connection:
"A cause of action is that bundle of facts which would, if left to itself, create in law a right or obligation, while a condition precedent is something which prevents the right or obligation which would have otherwise sprung out from those facts from springing out. A condition precedent has thus been described in the notes to O. 19, R. 14 in the White Book:
"Cases constantly occur in which, although everything has happened which would at common law prima facie entitle a man to a certain sum of money, or vest in him a certain right of action there is yet something more which must be done or something more which must happen in the particular case before he is entitled to sue either by reason of the provisions of some statute, or because the parties have expressly so agreed; this something more is called a condition precedent. It is not of the essence of such a cause of action, but it has been made essential. It is an additional formality superimposed on the common law."
I would in the above quotation add to the words "common law" the words "or statute." Now the liability of the drawer of a cheque arises under S. 30, Negotiable Instruments Act, and except as laid down in that section the drawer of a dishonoured cheque has no liability. This Page 42 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined is because the whole law as to cheques is contained in that Act and the only section dealing with the liability of the drawer of a cheque is S. 30. The section provides that the drawer of a cheque shall be liable to compensate the holder in case of dishonour "provided due notice of dishonour has been given to, or received by, the drawer as hereinafter provided." Sections 91 to 98 of the Act lay down the provisions relating to the manner of the giving of the notice of dishonour and the cases where the giving of the notice is excused. The only way therefore in which liability on a cheque may arise is when (1) the cheque is dishonoured and (2) notice of such dishonour has been given or circumstances exist which render it unnecessary to give such notice. It is not a case where if no provisions as to notice of dishonour had been laid down, a right would have arisen in the holder on the dishonour of the cheque and where the only effect of those provisions is to prevent such right from springing up. The notice of dishonour as the law as to cheques stands is a part of the cause of action on a dishonoured cheque. In Fruhauf v. Grosvenor and Co., (1892) 67 I. T. 350: (61 L. J. Q. B. 717), Lord Coleridge C. J., expressed himself in these words:
"The obligation upon the drawer of a cheque to pay does not arise until notice of dishonour thereof has been given to him, and therefore the statement of the case against the defendant here is not full and complete without either an allegation of notice of dishonour of the cheque having been given to the defendant the drawer of it, or of facts excusing the plaintiff from giving such notice."
It was decided in this case that in the absence of the allegations as to the notice of dishonour, the plaint on a dishonoured cheque would not disclose a cause of action."
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21. We respectfully agree with the above view. In the case before us, if we apply the above principles, the permission of the Charity Commissioner is not of the essence of a cause of action, but it has been made essential. It is an additional formality superimposed which prevents the right or obligation which would have otherwise sprung out from those facts from springing out. Thus, by taking aid of the above decision it cannot be legitimately contended that grant of permission is the cause of action like dishonour of a cheque in an action for dishonour of cheque; on the other hand, it is a condition precedent for enforcement of the right which is the subject-matter of the suit and thus, Order 6 Rule 6 clearly applies."
16. From the above conspectus of law, it emerges that while considering the Order VII Rule 11 of the Code only the averment made in the plaint is required to be considered along with the documents produced with the plaint and it has to be borne out from the facts of the case that the entire suit is barred by law including the limitation and no cause of action could be disclosed from the averments made in the plaint.
17. In the facts of the case however it is difficult to come to the conclusion that there is no cause of action averred in the plaint, more particularly, in view of the events which have taken place from 1983 Page 44 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined till 1999 before filing the suit i.e. from the date of Agreement for Sale till date of filing of the suit as it is reflected from the averments as well as the documents annexed with the plaint which requires scrutiny on merits after giving opportunity to the both the sides to lead the evidence. In such circumstances, reliance placed by learned Senior Advocate Mr. Thakore on the decision of the Hon'ble Apex Court in case of Dahiben vs. Arvindbhai Kalyanji Bhanusali (supra) and Canara Bank vs. P. Selathal (supra) and the decision of this Court in case of Shri Ramji Mandir Narsinhji vs. Narsinh Nagar Co- operative Housing Society Ltd. (supra) would not be applicable. In case of Dahiben vs Arvindbhai Kalyanji Bhanusali (supra), the Apex Court has held that it was a case of a classic clever drafting of the plaint attempted to make out an illusionary cause of action and bring the suit within the period of limitation whereas in the facts of the case, even if the subsequent amendments are not taken into consideration, it cannot be said that it is case of clever drafting inasmuch as the averments made in the plaint requires to be considered after providing an opportunity to both the sides to lead the evidence. Similarly, in case of Canara Bank vs. P. Selathal Page 45 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined (supra) considering the facts of the case and the averments made in the plaint as the specific remedy was provided under the provisions of the Recovery of Debts and Bankruptcy Act, 1993 and there was inordinate delay of 15 years in challenging the action of the bank, in such circumstances, it was held by the Apex Court that the suit was barred by law under Order VII Rule 11 of the Code. Whereas in the present case, merely because it is alleged by the defendant that the suit is barred by law as the Agreement for Sale is prior to the date of registration of the plaintiff-society, the suit could not have been rejected as such contention is required to be tested by leading evidence.
18. In view of the foregoing reasons, the impugned order passed by the Principal Senior Civil Judge, Amreli dated 05.08.2021 below Exhibit 205 is hereby quashed and set aside without adjudicating as to whether the Court below could have re-decided Exh 205 simultaneously, while considering the review application filed under Order 47 read with section 151 of the Code and allowing the application Exh 243 and dismissing the suit by allowing the Page 46 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023 NEUTRAL CITATION C/FA/4234/2021 JUDGMENT DATED: 07/07/2023 undefined application Exh 205 which was already dismissed earlier. As the suit is of the year 1999, the Trial Court is directed to decide the same as expeditiously as possible preferably within 12 months from the date of receipt of order after giving an opportunity of leading evidence to both the sides without being influenced by any observation made in the impugned order passed below Exh 205 as well as the order passed by this Court. Appeal stands partly allowed accordingly in terms of the aforesaid directions.
19. Registry to send back records and proceedings of the case to the Trial Court forthwith.
20. In view of the disposal of the appeal, Civil Application would not survive. The same is disposed of.
(BHARGAV D. KARIA, J) JYOTI V. JANI Page 47 of 47 Downloaded on : Sat Sep 16 21:00:08 IST 2023