Gujarat High Court
Ashvinbhai Ashabhai Patel vs Udesinh Bhailalbhai Padhiyar on 19 June, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/FA/4905/2018 JUDGMENT DATED: 19/06/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4905 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In
R/FIRST APPEAL NO. 4905 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
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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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ASHVINBHAI ASHABHAI PATEL
Versus
UDESINH BHAILALBHAI PADHIYAR
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Appearance:
MR CHIRAG B PATEL(3679) for the Appellant(s) No. 1,2
MR MEHUL SURESH SHAH SR. ADVOCATE with MR JIGAR D DAVE(6528) for
the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
MR ANSHIN DESAI SR. ADVOCATE with VENU H NANAVATY(7458) for the
Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 19/06/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. By way of this First Appeal under Section 96 of the Code Page 1 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined of Civil Procedure, the appellants - original plaintiffs have challenged the legality and validity of order dated 06.09.2018 passed by the learned Principal Civil Court, Savli in Special Civil Suit No. 198 of 2017 which was newly numbered as Special Civil Suit No. 268 of 2017.
2. The brief facts leading to rise of present appeal are that the appellants - plaintiffs are the agriculturists and there is a land situated in the sim of Village Shripor Timbi (Taluka & District : Vadodara) bearing land revenue survey no. 27 (new survey no. 36) admeasuring 068.80 sq.mtrs. This land was originally belonging to one Bai Chanchal, wife of Shri Mohan Parshottam and upon death, the land came to be mutated in the name of Shankerbhai Gopalbhai. There was a tenant in the land named as Somabhai Gokalbhai and as such, by virtue of provision contained under Section 32G of the Tenancy Act, the land came to be mutated in favour of Somabhai Gokalbhai and the said change of entry is dated 27.02.1965. After the death of said Somabhai Gokalbhai, on 11.07.1987, it came in the hands of Santokben widow of deceased Somabhai Gokalbhai and Page 2 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined revenue entry no. 270 was also certified on 02.10.1972. Said Santokben executed a 'Will' and divested the property in favour of the Bhailalbhai Somabhai and then widow Santokben executed 'Will' on 25.02.1976 and after the death of said Santokben, the land was mutated in favour of Bhailalbhai Somabhai by way of entry No. 308 on 20.06.1980 and thereby, Bhailalbhai Somabhai became the sole owner of the said land. Though history regarding legal heirs is not that much necessary, but since it has been stated in the plaint, we may quote here the complete factual background. Aforementioned Bhailalbhai Somabhai Padhiyar died on 09.11.2012, leaving behind widow Gajaraben and two daughters, named Ramilaben and Savitaben and both were married. It is stated that both the daughters expired long back and the revenue entries have also been effected and certified on 14.07.2016. After the death of said Bhailalbhai Somabhai Padhiyar, legal heirs were mutated in the revenue records on 14.07.2016 and later on all the legal heirs of deceased Bhailalbhai Somabhai Padhiyar have relinquished their rights from the property in question in favour of defendant no. 1 i.e. Udesinh Bhailalbhai Padhiyar and revenue entry no. Page 3 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023
NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined 659 was also effected to that effect and as such, son Udesinh Bhailalbhai is continued to be owner of the land in question in revenue records.
2.1. It is the case of the appellants - plaintiffs that at the relevant point of time, it was decided that since the appellants - plaintiffs were agriculturists and Bhailalbhai Somabhai Padhiyar was owner and occupier of the land in question, it was decided at that point of time to purchase the land in question for Rs.23 lakhs and all the legal heirs namely, wife as well as son and daughters were also agreeable for the same and since the said concession was prevailing, an agreement of sale (Banakhat) was executed on 21.09.2007 and at that point of time in the presence of all i.e. wife, son, as well as daughters, Bhailalbhai Somabhai had signed and executed the aforesaid Banakhat, which was a notarized sale and signatures were made after accepting an amount of Rs.6 lakhs by way of Bana amount. It is the case of the appellants - plaintiffs that after the death of Bhailalbhai Somabhai Padhiyar and in view of the subsequent change, though a request was made, but still Page 4 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined defendant nos. 1 and 2 along with deceased father who had executed Banakhat as well as possession receipt, were refrained from performing though the appellants - plaintiff were ready and willing to pay the amount. However, it was noticed by the appellants that the registered sale document was executed by defendant no. 1 on 06.05.2017 in favour of defendant no. 3 and after ascertaining the facts from the office of the Sub-Registrar and the revenue records, a cause of action arose for institution of suit which was registered as Special Civil Suit No. 198 of 2017 before the learned Principal Senior Civil Judge, Savli for the reliefs which are set out in the plaint. 2.2. The appellants have stated that pursuant to the summons having been issued upon the defendants, an application was filed under Order VII Rule 11 of Code of Civil Procedure as well under Order VII Rule 11(d) of Code of Civil Procedure by defendant no. 3, requesting the court below to reject the plaint by raising multiple contentions. The said application was contested by the present appellants. However, after hearing the parties, vide order dated Page 5 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined 06.09.2018, the trial court was pleased to reject the plaint and allowed the said application and simultaneously, by recording order at Exhibit-14, decree was drawn about rejection of plaint and it is against this order passed by the trial court, the present substantive appeal is preferred before this Court under Section 96 of the Code of Civil Procedure. It appears that vide order dated 18.12.2018, the co-ordinate Bench of this Court was pleased to admit the appeal and notice was issued in Civil Application and later on, from time to time the matter was adjourned and has come up for consideration finally before this Court in which on 14.06.2023, learned advocate Mr. C.B. Patel has represented the appellants, whereas Mr. Mehul Suresh Shah, learned Senior Advocate assisted by learned advocate Mr. Jigar Dave, represented defendant no. 1 and Mr. Anshin Desai, learned Senior Advocate assisted by learned advocate Ms. Venu Nanavaty represented defendant no.3. Defendant no. 2 though served, did not appear, but then the contesting defendants since were being represented, upon request of learned counsel, the matter was heard finally.
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3. Mr. Chirag B. Patel, learned advocate appearing for the appellants has submitted that a bare reading of the order would clearly indicate that while passing the order, no adequate reasons are assigned and further no opportunity is given to the appellants. Practically, tenor of the order indicates that it is an ex-parte order and as such, the said order deserves to be quashed. It has further been submitted that while passing the impugned order, the trial court has opined that suit is beyond the period of limitation, however, as such, stated that the question of limitation is a mixed question of law and fact and as such, no powers could have been exercised under Order VII Rule 11 of the Code of Civil Procedure. Learned advocate Mr. Patel has further submitted that 24 months' time was granted from the date of necessary permission, so the period prescribed as such so long as the permission is granted, 24 months could not be treated as lapsed and as such, also, when the registered sale document behind the back is executed in favour of defendant no. 3, the cause of action started from at least that period and as such, it cannot be said in any manner that the suit is beyond the period of limitation. Apart from that, Page 7 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined learned advocate appearing for the appellants has further submitted that the cause of action is bundle of facts and the case of action as to why suit was required to be brought is very much mentioned in separate paragraph no. 8 of the plaint, which clearly indicates that proper cause of action arose when the sale document took place on 06.05.2017 in favour of defendant no. 3. Therefore, learned advocate appearing for the appellants has submitted that gross error is committed by the trial court while passing the order. Learned advocate appearing for the appellants has made a reference to two decisions delivered, i.e. one delivered by the Hon'ble Apex Court in the case of Urvashiben & Anr., v. Krishnakant Manuprasad Trivedi reported in (2019) 13 SCC 372 as well as decision of this Court in the case of Bahadurbhai Laljibhai Malhotra v. Ambalal Joitaram Heir of Joitaram Ranchhoddas & Ors., reported in 2015 (3) GLR 2760 and by referring to paragraphs 19 and 20 and also paragraph 13 respectively of those decisions, a contention is raised that since the suit cannot be said to be beyond the period of limitation, the discretion exercised under Order VII Rule 11 of the Code of Civil Procedure is ill founded in Page 8 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined the background of present facts on hand, hence, has requested that these issues can well be examined during the course of adjudication of the suit during trial. Hence, rejection of plaint at the threshold is uncalled for since there appears to be material irregularity in exercise of jurisdiction and by setting aside the impugned order and appeal be allowed.
4. As against this, Mr. Anshin Desai, learned Senior Advocate assisted by Ms. Venu H. Nanavati, learned advocate appearing for defendant no. 3 has vehemently opposed the stand of the appellants and it has been submitted that the land which was originally belonging to Somabhai and then mutated gradually, would clearly indicate that defendant no. 1 was competent to execute sale in favour of defendant no. 3 and it has been submitted that defendant no. 3 has purchased the land lawfully by way of registered sale document on 06.05.2017 by paying full consideration and the said transaction has taken place after proper permission from the competent authority and after payment of full premium which has been determined by the authority. It has been submitted that payments have also been Page 9 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined made towards sale transactions of around Rs.66 lakhs through cheque and as such, when defendant no. 3 has become lawful purchaser after payment of full consideration, there is hardly any case made out by the appellants to call for any interference. 4.1. Mr. Desai, learned Senior Advocate has submitted that it cannot be said in any circumstance that the order is unreasoned order. In fact, apparent reading of the order would clearly indicate that there is strong application of mind on the part of trial court and it becomes rather duty of the Court to examine the plaint as to whether same is tenable or not and when such discretion has been exercised which is vested in law, it was found that the plaint deserves to be rejected, and the order cannot be said to be uncalled for. In addition to this, Mr. Desai, learned Senior Advocate has submitted that the case which is tried to be put up by the appellants is on the basis of mere Banakhat or so-called cash payments and the same is unregistered Banakhat and it is clear proposition of law that unregistered Banakhat would not flow any legal right and that being so, as a matter of right, it was not open for the appellants Page 10 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined to bring the suit. In fact the said Banakhat which is unregistered and is said to have been executed on 21.09.2007 whereas the suit which has been filed for seeking enforcement of said Banakhat is in June, 2017 and as such, apparently, same is clearly barred by law of limitation. Mr. Desai, learned Senior Advocate has submitted that Article 54 of the Limitation Act coupled with Civil Manual provision, more particularly, Rule 8(d) as well as Rule 10 would clearly indicate that the trial court has rightly exercised discretion. For substantiating his submission on this proposition, a reference is made to two decisions delivered by the Hon'ble Apex Court in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through Legal Representatives & Ors., reported in (2020) 7 SCC 366 (paragraphs 23.2, 23.3, 23.6) as also decision delivered by the learned Single Judge of this Court in Second Appeal No. 273 of 2017 decided on 15.10.2018 and by referring to paragraph 76 of the said decision, contention is reiterated that by way of this proposition also, the suit is rightly rejected by resorting to Order VII Rule 11 of Code of Civil Procedure. Page 11 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023
NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined 4.2. Mr. Desai, learned Senior Advocate has further submitted that a bare perusal of the plaint would clearly indicate that sole basis is that of unregistered Banakhat of 2007 as indicated above and apparently the suit is time barred, and as such, in view of the ratio which has been laid down by Hon'ble Apex Court in a recent decision in the case of Sree Surya Developers & Promoters v. N. Sailesh Prasad & Ors., reported in (2022) 5 SCC 736 (paragraphs 11.2, 11.3, and 12), the order cannot be said to be unjust or improper or illegal in any manner and as such, when first appeal lacks merit, the same deserves to be dismissed.
4.3. Yet another submission which has been made by Mr. Desai, learned Senior Advocate appearing for defendant no. 3 that the decisions which have been cited by the learned counsel appearing for the appellants are ex-facie in different background of facts and same cannot be of any assistance. A close perusal of the said background of facts of decision in the case of Urvashiben & Anr., (supra) would clearly indicate that the principle laid down therein is not possible to be pressed into Page 12 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined service here on different background of facts and the proposition is clear on the issue of precedent that if facts are different, even one additional fact may make a world of difference in applying the principle and as such, Mr. Desai, learned Senior Advocate has submitted that since appeal lacks merit, same be dismissed at threshold.
5. As against this in chorus, Mr. Mehul Suresh Shah, learned Senior Advocate assisted by Mr. Jigar Dave appearing on behalf of the contesting defendant no. 1 has also submitted that the order passed by the trial court cannot be said to be erroneous in any form. It has been submitted that the averments contained in the plaint itself would clearly indicate that the said Banakhat which is sought to have been executed is clearly hit by provisions of Section 43 of the Tenancy Act and when it is clear that the very transaction which is sought to be enforced is not recognized in law, there is hardly any relief possible to be granted. In fact the said Banakhat is clearly unenforceable and by referring to relief clause of the plaint, it has been submitted that when the only permission which has been sought is to seek Page 13 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined performance of the said unregistered Banakhat, no further relief is possible to be granted beyond what has been sought for. For the purpose of supporting such submission, Mr. Shah, learned Senior Advocate has referred to a decision dated 10.04.2023 passed in First Appeal No. 1268 of 2022 and by referring to paragraphs 6, 9 and 10, it has been submitted that Banakhat which is sought to be specifically performed is clearly unenforceable. Yet another decision which has been referred to is the decision dated 12.01.2023 passed in First Appeal No. 3517 of 2000 and by referring to paragraphs 97, 102, 107, 108 and 109 it has been submitted that the order cannot be said to be unjust or improper in any form and that being so, the appeal deserves to be dismissed.
5.1. Mr. Shah, learned Senior Advocate has further submitted that Article 54 of the Limitation Act also apparently if to be applied, suit is of the year 2017, deserves to be rejected as it is hopelessly time barred as an unregistered agreement of sale of 2007 is sought to be enforced by filing a suit in the year 2017 and as against that through lawful process registered sale Page 14 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined document is executed on 06.05.2017. Mr. Shah, learned Senior Advocate has further submitted that a curious situation has arisen which is self invited by the original plaintiffs that before filing of the suit, even no notice was given, nor parties were called for to perform the act pursuant to the so called unregistered Banakhat and without even issuing notice, suit came to be filed. So the question of refusal also cannot be said to be so cogently asserted by the plaintiffs. Reading of the plaint as a whole would clearly indicate that no error is committed by the trial court. Mr. Shah, learned Senior Advocate has further submitted that it is not that only when any objection about sustainability of plaint is raised, the same can be examined. On the contrary, law is to the effect that it is the duty of the court to examine apparently whether the plaint deserves to be accepted or nor. Hence, no case is made out by the appellants to call for any interference. Yet another circumstance is pointed out by Mr. Shah, learned Senior Advocate that even the question of getting money back also is not possible to be acceded to in view of the fact that under Section 22(2) of the Specific Relief Act, if relief is not claimed, though the court can grant any prayer Page 15 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined which is not sought for and by referring to prayer clause of the plaint, it has been submitted that in the alternative form, for taking back money is also not sought for and as such, when it has not been pressed before the trial court, in the absence of any prayer, the same may not be considered especially when even in the present appeal also, no such prayer is made nor amended or added. Hence, the alternative submission which has been made is not possible to be granted. Apart from that, the question of payment of Bana amount also appears to be a cash transaction whether it was paid or not. That being so, on every count, according to Mr. Shah, learned Senior Advocate, the order is not possible to be construed as perverse, illegal or irregular in any form. Hence, the discretion which has been exercised by the trial court is perfectly justified. 5.2. Yet circumstance which has been mentioned is that a contention is tried to be raised that 24 months' period to be construed from the date of grant of permission, but then the trial court has also considered that the Additional Collector, Vadodara has refused such permission way back on 01.05.2008 Page 16 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined and the order of the Collector dated 11.09.2011 is also to the effect that conversion has also not been permitted and there is no iota of evidence led by the appellants that the said refusal of permission by the Mamlatdar/Additional Collector and the Collector in further proceedings have been carried out or such refusal of permission is altered. That being so, 24 months period cannot be said to be a period from the date of granting of permission. Hence, permission has been specifically refused and as such, on that count also, when the trial court has considered the said aspect, the order cannot be said to be erroneous in any form. Hence, no case is made out by the appellants to call for interference.
6. Having heard learned counsel appearing for the respective parties and having gone through the material on record, few circumstances are not possible to be unnoticed by the Court. It is not in dispute that the entire suit of 2017 is based upon mere an unregistered notarized document dated 21.09.2007. The said document is said to have been executed in favour of plaintiffs by deceased Bhailalbhai Somabhai Padhiyar, defendant no. 1 as Page 17 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined well as two daughters. The transaction was depending upon permission being granted by the competent authority and upon such permission, balance consideration was to be paid within 24 months. A fact to be noticed that undisputedly, permission to sell had not been granted by the competent authority, way back in the year 2008. The disputed land in question was requested to be converted and consequently sale permission be granted was refused by Mamlatdar, Vaghodia, Additional Collector, Dabhoi on 15.05.2008, mark 9/14 and the Collector, Vadodara for conversion of non agriculture land to residential purpose was also refused on 11.09.2019 i.e. much prior to filing of the suit. Since then, undisputedly, the said orders refusing permission have not been challenged any further and it has become final. So, the fact that unregistered Banakhat dated 21.09.2007 was in conflict with the statutory provisions and illegal transaction and as such, according to defendants, it was unenforceable, hence, specific performance thereof could not be granted.
6.1. It further appears that it is only when the registered sale Page 18 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined transaction with payment of full consideration took place on 06.07.2017, in favour of defendant no.3, (registered on 11.05.2017) it appears that the present suit has been submitted, but undisputedly no notice calling upon the original owners to perform unregistered Banakhat was given. Further fact is not in dispute is that the said registered transaction dated 06.05.2017 was with payment by full consideration of Rs.66,43,000/- and the premium for conversion into non- agriculture was also paid of Rs.26,57,000/- and as such, the said registered sale transaction dated 06.05.2017 is not only registered sale transaction, but transaction with lawful process and after obtaining necessary permission from the competent authority.
6.2. Now in the background of this undisputed position prevailing on record, if we peruse the order passed by the trial court, it was taken note of that towards unregistered Banakhat dated 21.09.2017 of plaintiffs, permission was not granted at all and it was noticed by the trial court that after refusal of the said permission which was communicated on 30.06.2011, no appeal, Page 19 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined no proceedings against the same appears to have been carried out and it was also noticed by the trial court that the suit is ex- facie barred by limitation as well. Hence, after taking note of, an order came to be passed on 06.09.2018 and based upon which, the plaint simultaneously came to be rejected. So one fact that cannot be ignored is that for unregistered Banakhat of the year 2007, the suit was brought in the year 2017 and the said Banakhat was conditionally depending upon the permission being granted which was undisputedly refused. 6.3. In light of the aforesaid circumstances, to examine as to the order passed by the learned trial court is erroneous, irregular or illegal, we deem it proper to postulate some proposition of law laid down on exercise of discretion under Order VII Rule 11 of Code of Civil Procedure. The Hon'ble Apex Court in the recent past in the decision in the case of Dahiben (supra) has propounded a broad proposition on the remote of Order VII Rule 11 of Code of Civil Procedure and the object underlying therein. The relevant observations contained in the said decision, we deem it proper to quote hereunder since Page 20 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined relevant to the issue :-
"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.
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 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.
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NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined 23.6. Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint2, read in conjunction with the documents relied upon, or whether the suit is barred by any law.
6.4. Further, in a very recent decision, the co-ordinate Bench of this Court in the case of Naranbhai Kanjibhai Gajera v. Vinodbhai Shankarbhai Patel rendered in First Appeal No. 1268 of 2022 dated 10.04.2023 has also examined almost similar issue wherein what would be the effect of unenforceable document if sought for to be specifically performed and while examining the issue as to whether agreement to sell in that case dated 30.01.2006 with regard to sale of new tenure land, if hit by Section 43 of the Tenancy Act, whether possible to be performed or not after examining series of decisions, the co- ordinate Bench of this Court had clearly opined that the suit for specific performance based on illegal, invalid agreement of sale is not maintainable and as such, the contract is unenforceable by virtue of bar contained under Section 43 of the Tenancy Act and as such, the plaint is liable to be rejected and after discussing the case law on the issue from paragraph 8 onwards, the Division Bench has opined that there was no infirmity in the Page 22 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined order passed by the trial court while rejecting the plaint under Rule 11(a) and Rule (d) of the Code of Civil Procedure. Since we have considered the said decision, we deem it proper to reproduce certain relevant case laws discussed by the co- ordinate Bench, hence, paragraphs 8 to 21, we deem it proper to quote hereunder :
8. The entire case of the appellant hinges on the order dated 15.11.2017 passed by the Division Bench in First Appeal No.1845 of 2017 in the case of Amarben Wd/o Ramjibhai Desai (supra). The Division Bench, after examining the provisions of Section 43 of the Tenancy Act, has observed thus : -
"13. Coming to the second question of the applicability of section 43 of the Tenancy Act, number of issues would arise. Firstly, sub-section (1) of section 43 of the Tenancy Act inter alia provides that no land or any interest therein purchased by a tenant under section 17B, 32 etc. shall be transferred or shall be agreed by an instrument in writing to be transferred by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector. As per sub-section (2) of section 43 of the Tenancy Act, any transfer or partition or any agreement of transfer or any land or any interest therein in contravention of sub-section (1) shall be invalid. Significantly, section 43 does not make agreement to sale hit by sub-section (1) void.
The applicability of section 43 of the Tenancy Act to the agreement to sale in question and subsequent transactions entered into by the original land owners with respect to such land would be an issue which can be gone into by the Trial Court at the time of trying the suit. Only on this count, the plaint could Page 23 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined not have been rejected."
9. The Division Bench thus has held that the applicability of Section 43 of the Tenancy Act to the agreement to sell in question and subsequent transactions entered into by the original owners with respect to such land would be an issue, which has gone into by the Trial Court at the time of trying the suit and only on this count, the plaint could not have been rejected.
10. In the present case unquestionably the agreement to sell dated 30.01.2006 is hit by the provisions of Section 43 of the Tenancy Act, which are incorporated as under : -
"Section 43 - Restriction on transfer of land purchased or sold under this Act -
(1) No land or any interest therein purchased by a tenant under section 17B, 32, 32F, 32-1, [32- O], [32U, 43-ID or 88E] or sold to any person under 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest therein shall be partitioned without the previous sanction of the Collector.
To sub-sec. (1), the following provisos shall be added, namely: - Provided that, no previous sanction of the Collector shall be required, if the partition of the land is among the members of the family who have direct blood relation or among the legal heirs of the tenant;
Provided further xxxx (2) [Any transfer or partition, or any agreement of transfer, of any land or any interest therein] in contravention of sub-section (1) shall be invalid.]"
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11. After the agreement to sell was executed, subsequently in the year 2021, the land in question was further sold to the defendant No.2 by executing a registered sale deed on 19.02.2021.
12. Since the appellant has pointed out the order of reference dated 13.12.2022 passed in Second Appeal No.208 of 2021, we may also deal with the same. The learned Single Judge has referred the matter to the Larger Bench by observing that there is quite contradictory views taken to the judgment rendered in the case of Ganpatlal Manjibhai Khatri (supra) and hence, the matters are required to be referred to the larger bench. The learned single judge has observed thus : -
"1. The present appeal is referred to the Larger Bench for the following questions. (a) That there are two different opinion of the Hon'ble Division Bench of this Court with regard to the applicability of Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948 wherein the issue involved is that Sub Section (1) of Section 43 of the Tenancy Act inter alia provides that no land or any interest therein purchased by a tenant under Section 17B, 32 etc. shall be transferred or shall be agreed by an instrument in writing to be transferred by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector. As per Sub Section (2) of Section 43 of the Tenancy Act, any transfer or partition or any agreement of transfer or any land or any interest therein in contravention of SubSection (1) shall be invalid. Significantly, Section 43 does not make agreement to sale hit by Sub- Section (1) void. The applicability of Section 43 of the Tenancy Act to the agreement to sale in question and subsequent transactions entered into by the original land owners with respect to such land would be an issue which can be gone into by the Trial Court at the time of trying the suit.Page 25 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023
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2. Subsequently, the said ratio without pointing out to the another Hon'ble Division Bench, the Hon'ble Division Bench in the case of Ganpatlal Manjibhai Khatri Vs. Maguben Babaji Thakor, 2019 (0) AIJEL - HC - 241533 held as under:- "Code of Civil Procedure, 1908 - Or. 7 R. 11(d), S. 96 - Bombay Tenancy and Agricultural Lands Act, 1948 - S. 43 - rejection of plaint - Court below rejected plaint on the ground that suit filed by plaintiff for specific performance of contract based on an agreement to sell is time barred - whether plaint is liable to be rejected on the ground that suit for specific performance of contract based on an illegal or invalid agreement to sell hit by S. 43 of the Act, 1948 is not maintainable - held, for the purpose of rejecting plaint under Order 7 Rule 11, relevant facts for deciding an application thereunder are the averments made in plaint - defence of defendant is inconsequential - averments made in written statement are also inconsequential - it would be within the jurisdiction of Civil Court alone to determine whether agreement on the basis of which suit for specific performance is instituted is a valid agreement or not - plaint is liable to be rejected mainly on ground that suit for specific performance based on an illegal or invalid agreement to sell is not maintainable as such a contract is not enforceable - no interference warranted in first appeal - appeal dismissed."
(b) The next question is that subsequently, the very Hon'ble Division Bench issued notice as the Hon'ble Division Bench has also not aware with regard to earlier unreported decision of the Hon'ble Division Bench of this Court and, therefore, the Court issued notice in the case of Laljibhai Jivrajbhai Aslaliya Vs. Musabhai Yusuf Isufbhai Miya in First Appeal No. 1667 of 2021."
13. The aforesaid terms of reference does not record any contrary decision of the Division Bench, but only refers to Page 26 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined the issuance of notice by the same bench in First Appeal No.1667 of 2021. It is reported to us that the First Appeal No.1667 of 2021 is still pending before this Court, which has been referred in paragraph No.(b). It is pertinent to note that the First Appeal No.1667 of 2021 is already admitted vide order dated 13.09.2021 and hence, there is no contrary decision to the decision of Ganpatlal Manjibhai Khatri (supra) which has been recorded in the order dated 13.12.2022. Hence, in our considered opinion, the order dated 13.12.2022 referring the matter to the Larger Bench was uncalled for.
14. However, learned advocate Mr.Dhruvik K. Patel has placed reliance on the order dated 15.11.2017 passed by the Division Bench in First Appeal No.1845 of 2017, as referred hereinabove and has submitted that the aforesaid observations runs contrary to the decision of Ganpatlal Manjibhai Khatri (supra) wherein the Division Bench after analyzing the provisions of Section 43 of the Tenancy Act, in has held thus : -
"35. In the overall view of the matter, we are of the view that the impugned order passed by the Civil Court, rejecting the plaint on the ground that the suit is time barred, may not be sustainable in law, but at the same time, no interference is warranted in the present first appeal, because in our opinion, the plaint is liable to be rejected mainly on the ground that the suit for specific performance based on an illegal or invalid agreement to sell is not maintainable as, such a contract is not enforceable."
15. The Division Bench specifically held that the plaint is liable to be rejected mainly on the ground that the suit for specific performance based on an illegal and invalid agreement to sell is not maintainable as such a contract is not enforceable. In view of the specific bar of Section 43 of the Tenancy Act.
16. Thus, there are two division bench judgments which took quite contrary views i.e. (1) order dated 15.11.2017 Page 27 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined passed by the Division Bench in First Appeal No.1845 of 2017, and (2) in case of Ganpatlal Manjibhai Khatri (supra).
17. We have noticed that the entire issue of bar of section 43 has be reconsidered, subsequently by the Division Bench in the judgment dated 21.06.2021 passed in First Appeal No.1556 of 2021 in the case of Vijaybhai Shambhubhai Patel (supra), wherein the Division Bench after considering the decision in the case of Gapatlal Manjibhai Khatri (supra) has observed thus : -
"15. In view of the above settled legal position, the Court below has rightly come to the conclusion that the agreement to sell dated 30.9.2003 entered into between the defendants No.1 to 6 and the appellant itself being hit by the bar under Section 43 of the Tenancy Act could be said to be invalid and not enforceable in law. 16. The Trial Court has rightly rejected the plaint by correctly following the ratio as laid down in the various decisions of this Court as well as the Supreme Court as discussed above."
18. Thus, the Division Bench has reiterated that if the agreement to sell is being hit by the bar of Section 43 of the Tenancy Act in that event it could be safely said to be invalid and not enforceable in law and the Trial Court was justified in rejecting the plaint by correctly following the ratio laid down in various decisions of the Supreme Court as well as this Court. Thus, after considering the array of judgments both of the Supreme Court and this Court, the Division Bench in the order dated 21.06.2021 has categorically observed that if the agreement to sell is hit by the bar under Section 43 of the Tenancy Act, the plaint can be rejected only on this ground. The aforesaid judgment was assailed further in the Supreme Court by filing petition being Special leave to Appeal (C) No.5124 of 2022 and by the order dated 10.11.2022, the Supreme Court has confirmed the judgment dated 21.06.2021 passed by the Division Bench by observing thus : - Page 28 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023
NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined "Heard learned senior counsel appearing for the parties.
Having perused the impugned judgment and keeping in view the nature of consideration made by the High Court, we see no reason to interfere with the judgment.
Though we have arrived at the above conclusion, to serve the ends of justice it was suggested to the learned senior counsel for the respondents to refund the amount which had been paid under the Agreement dated 30.09.2003. Without adverting to the legal aspects of the matter about the relief in the suit seeking refund, to provide a quietus to the issue, the learned senior counsel appearing for the respondents on instructions, has submitted that the respondents are agreeable to repay the amount of Rs.1,56,172/with interest @ 6% per annum. In order to avoid confusion with regard to the calculation, it would be appropriate to square of the matter with the respondents paying a sum of Rs.5,00,000/to the petitioner within a period of four weeks from the date of receipt of a copy of this order.
It is made clear that if the amount is not paid within four weeks, the same would attract interest @ 9% per annum, on the expiry of four weeks till payment. All issues between the parties stand concluded, by this order.
The Special Leave Petition is, accordingly, disposed of.
Pending application(s) shall stand disposed of."
19. Thus, the Supreme Court has refused to interfere with the judgment of the Division Bench and while exercising the power under Article 136 of the Constitution of India, further directions are issued directing the respondent to pay sum of Rs.5 lacs to the petitioner. The said directions were issued by the Hon'ble Apex Court with the consensus Page 29 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined of the parties that the respondents were ready and agreeable to repay the amount mentioned in the said order. 20. Thus, the law is well settled as mentioned hereinabove with regard to the provisions of Section 43 of the Tenancy Act and the transfer of any agreement to land is impermissible if it is hit by the provisions of Section 43 of the Tenancy Act, hence the plaint can be rejected and there is no need of full-fledged trial. The decision on which the appellant has placed reliance of the Division bench dated 15.11.2017 passed in First Appeal No.1845 of 2017 can be said to be per incuriam in view of the subsequent decision dated 21.06.2021 passed in First Appeal No.1556 of 2021, confirmed by the Supreme Court. The Division Bench vide judgment dated 21.06.2021 has confirmed the law enunciated by the Division Bench of this Court in the case of Ganpatlal Manjibhai Khatri (supra). Hence, the request of the appellant to adjourn the matter due to pendency of the aforesaid reference is rejected.
21. Accordingly, since the appellant has only placed reliance on the order dated 15.11.2017 passed in First Appeal No.1845 of 2017, and it is contended that even if the agreement to sell dated 30.01.2006 is hit by the bar of provisions of Section 43 of the Tenancy Act, the same would still be triable issue, such submission does not merit acceptance in view of the subsequent decision of the Division Bench confirmed by the Apex Court. Hence, this Court does not find any illegality or infirmity in the order dated 09.02.2022 rejecting the suit being Special Civil Suit No.122 of 2021."
6.5. In addition to this, it has also been brought to our notice the decision of the Hon'ble Apex Court in the case of Sree Surya Developers (supra), in which also Order VII Rule 11 of the Code of Civil Procedure has been considered and it has been propounded that clever drafting would not permit the plaintiff to Page 30 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined make the suit maintainable. The relevant observations contained in paragraphs 11.1 to 12 since considered, are re-produced hereunder :-
"11.1 As held by this Court in a catena of decisions right from 1977 that a mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise would not be maintainable and/or barred by law. It has been consistently held by this Court that 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.
11.2 In the case of T. Arivandandam Vs. T.V. Satyapal, (1977) 4 SCC 467, it is 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 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."
11.3 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 Page 31 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined 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.
12. If we consider the reliefs of declaration of title, recovery of possession, cancellation of revocation of Gift Deed, declaration for DGPA and Deed of Assignment-cum- DGPA, the said reliefs can be granted only if the Compromise Decree dated 13.01.2016 passed in O.S. No.1750 of 2015 is set aside. Therefore, by asking such multiple reliefs, the plaintiff by clever drafting wants to get his suit maintainable, which otherwise would not be maintainable questioning the Compromise Decree. All the aforesaid reliefs were subject matter of earlier suits and thereafter also subject matter of O.S. No.1750 of 2015 in which the Compromise Decree has been passed. Therefore, it is rightly held by the Trial Court that the suit in the present form and for the reliefs sought would be barred under Order XXIII Rule 3A CPC and therefore the Trial Court rightly rejected the plaint in exercise of powers under Order VII Rule 11(d) of the CPC. The High Court has erred in setting aside the said order by entering into the merits of the validity of the Compromise Decree on the ground that the same was hit by Order XXXII Rule 7 CPC, which was not permissible at this stage of deciding the application under Order VII Rule 11 CPC and the only issue which was required to be considered by the High Court was whether the suit challenging the Compromise Decree would be maintainable or not."
6.6. Yet another decision of the learned Single Judge dated 15.10.2018 in Second Appeal No. 273 of 2017 has discussed the entire case law on Order VII Rule 11 of the Code of Civil Procedure at great length. However, with a view to avoid burden on the present decision, we merely quote the paragraph Page 32 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined numbers in which series of case laws have been discussed by the learned Single Judge. The said paragraphs are 26 to 71. The reason of mentioning these decisions is not only to justify, refresh proportion of Order VII Rule 11 of Code of Civil Procedure, but said judgment has taken note of Civil Manual in which when institution of suit is taking place, what would be the process to be undertaken by the trial court is mentioned and dealt with by the learned Single Judge and by quoting the said relevant extract from the Civil Manual, it was observed that it is high time and very necessary that the trial court shall keep in mind what has been highlighted in Civil Manual referred to above and as such, we deem it proper to reproduce paragraphs 76 and 77 hereunder :-
"76. Before I close this judgment, the attention of the Trial Courts is drawn to Chapter II of the Civil Manual (Volume - I). Chapter II of the Civil Manual is with regard to the 'Institution of Suits'. Rules 8, 9, 10, 11 and 12 are relevant. The Rules are reproduced hereinbelow:
"8. The next step is the examination of the plaint in order to determine whether it should be
(a) admitted; or
(b)rejected (Order VII, rule 11), or
(c) returned for presentation to the proper Court (Order VII, rule 10); or
(d) returned for amendment on the ground that it is Page 33 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined not framed as required by law.
This examination should be particularly directed to ascertaining
(i) whether the forms provided in appendix A of the Code are followed as far as is reasonably possible (Order VI, rule 3);
(ii) whether the plaint is properly signed (Order VI. Rule 14):
(iii) whether it is duly verified (Order VI. Rule
15);
(iv) whether it complies with the requirements of Order VII. Rules 2, 4 and 6;
(v) whether it is properly stamped,
(vi) whether the provisions of section 135 H (1) of the Bombay Land Revenue Code, V of 1879, are complied with; or the extract from the Property Register Card is produced or not where the suit is in respect of immoveable property bearing City Survey No.;
(vii) whether the provisions of Order II, rules 4 and 5 are infringed;
(viii) whether the necessary Court fee stamps or the necessary postal charges for the service of the summons on the defendant have been affixed to it;
(ix) whether the document or documents on which the plaintiff sues or the documents in his possession or power are produced along along with the plaint;Page 34 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023
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(x) whether the certificate required by the Pensions Act, XXIII of 1871, is produced in suits to which that Act appears to apply;
(xi) whether the provisions of rules 2 and 4 of Order III as to the production of a power of attorney and Vakalatnama with the plaint are complied with or not;
(xii) whether the plaintiff has filed with the plaint a memo in writing giving an address which service of notice or summons or other process may be made on him;
(xiii) whether a certificate of the Charity Commissioner is filed or not in a suit filed under the Bombay Public Trusts Act as required by section 51(1) of that Act.
9. While examining the plaint; it is also necessary to
(a) verify the list of documents produced along with the plaint; (b) ascertain the correctness of the concise statements, if any (Order VII rule 9); and (c) compare with the original any copy of account book produced under Order VII, rule 17 and mark the relevant entries therein.
The Officer should also see that for every Indian date mentioned in the plaint, the corresponding date according to the Gregorian Calendar has been given.
10. If the Officer examining the plaint finds that it complies with all the requirements and is correct in all respects, he should make the endorsement on the plaint "Examined, and ordered to be registered" with the date and his signature. If he thinks that the Plaint should be returned for amendment or for presentation to the proper Court, or be rejected under Order VII, rule 11, he should Page 35 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined refer the matter to the Judge for orders.
11. Where, upon examination, the plaint is found to be correct and in order, it should be entered in one of the three Registers of Suits according to the category to which it belongs. Three types of Registers should be maintained viz., (i) Regular suits, (ii) Small Cause Suits; and (iii) Special Suits.
12. After examination and registration, the plaint should be placed before the Judge for orders as to the issue of summons or otherwise. It will then be for the Judge to deal with the matter.
[5] When the plaint is found to be defective in any material particular, or not to comply substantially with the requirements of Order VI, it would be competent to the Judge to direct that the necessary amendment should be made."
77. It is high-time and is very much necessary that the Trial Courts keep in mind what has been highlighted in the Civil Manual referred to above."
6.7. Further, additionally one another First Appeal which came to be decided on 12.01.2023 by the Division Bench of this Court presided over by Hon'ble the Chief Justice, then was, in the case of Hanspur Road Co-operative Housing Society Ltd., v. Vithal Mandir Trust, rendered in First Appeal No. 3517 of 2000 in which also some observations with regard to permission and the effect of transaction without any previous permission and what would be the effect is also postulated and as such, we deem it Page 36 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined proper to make a cursory look to the said decision as well. Of course, while dealing with the issue whether decree was to be granted on the basis of illegal agreement which is hit by statute. In one of the decision which has been relied upon by the Division Bench is in the case of Narayamma & Ors., v. Govindappa & Ors., reported in (2019) 19 SCC 42, the observations contained in paragraphs 20 and 28 quoted in the main paragraph 107 since relevant, we deem it proper to quote hereunder :-
"107. The Hon'ble Apex Court in the case of Narayamma and others vs. Govindappa and others - (2019) 19 SCC 42 has held if a decree were to be granted in favour of the plaintiff on the basis of an illegal agreement which is hit by statute, it will be rendering an active assistance by the Court in enforcing an agreement which is contrary to law. It has been further held :
"20. It could thus be seen that, although illegality is not pleaded by the defendant nor is relied upon by him by way of defence, yet the court itself, upon the illegality appearing upon the evidence, will take notice of it, and will dismiss the action ex turpi causa non oritur actio. It has been held, that no polluted hand shall touch the pure fountain of justice. It has further been held, that where parties are concerned in illegal agreements or other transactions, courts of equity following the rule of law as to participators in common crime will not interpose to grant any relief, acting upon the maxim in pari delicto potior est conditio defendetis et possidentis.Page 37 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023
NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined *** *** ***
28. Now, let us apply the another test laid down in the case of Immani Appa Rao (supra). At the cost of repetition, both the parties are common participator in the illegality. In such a situation, the balance of justice would tilt in whose favour is the question. As held in Immani Appa Rao (supra), if the decree is granted in favour of the plaintiff on the basis of an illegal agreement which is hit by a statute, it will be rendering an active assistance of the court in enforcing an agreement which is contrary to law. As against this, if the balance is tilted towards the defendants, no doubt that they would stand benefited even in spite of their predecessor-in-title committing an illegality. However, what the court would be doing is only rendering an assistance which is purely of a passive character. As held by Gajendragadkar, J. in Immani Appa Rao (supra), the first course would be clearly and patently inconsistent with the public interest whereas, the latter course is lesser injurious to public interest than the former."
6.8. Yet another decision which was also referred to while dealing with the issue about prior permission for transaction and it has been held that prior sanction is must as required under Section 36 of the Bombay Public Trusts Act and in the said decision, the Division Bench in paragraph 109, also observed that when the provisions postulate sanction as condition precedent, ex-post facto sanction cannot be obtained after the sale transaction as it is not a sanction in the eye of law Page 38 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined and it would not be valid. The observations contained in paragraph 109 are reproduced hereunder :-
"109. A plain reading of Section 36 of BPT Act would indicate that for sale of property owned by a public trust the condition precedent is previous sanction. Hence, ex post facto sanction cannot be obtained after the sale transaction as it is not a sanction in the eye of law and it would not be valid. Such grant of prior sanction is not technical or procedural, but it affects the very right of the trust and the public who have interest in the suit property. Hence, the agreement of sale cannot be valid unless there is a previous sanction. In fact the Hon'ble Apex Court in the case of Minakshi and other vs. Metadin Agarwal reported in (2006) 7 SCC 470 has held conditional decree cannot be granted when the permission is applied and rejected. It has been further held:
"17. The competent authority under the 1976 Act was not impleaded as a party in the suit. The orders passed by the competent authority therein could not have been the subject-matter thereof. The Plaintiff although being a person aggrieved could have questioned the validity of the said orders, did not chose to do so. Even if the orders passed by the competent authorities were bad in law, they were required to be set aside in an appropriate proceeding. They were not the subject matter of the said suit and the validity or otherwise of the said proceeding could not have been gone into therein and in any event for the first time in the Letters Patent Appeal. 39. Furthermore, Section 20 of the Specific Relief Act confers a discretionary jurisdiction upon the courts. Undoubtedly such a jurisdiction cannot be refused to be exercised on whims and caprice; but when with passage of time, contract becomes frustrated or in some cases increase in the price of land takes place, the same being relevant factors can be taken into Page 39 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined consideration for the said purpose. While refusing to exercise its jurisdiction, the courts are not precluded from taking into consideration the subsequent events. Only because the Plaintiff-Respondents are ready and willing to perform their part of contract and even assuming that the Defendant was not entirely vigilant in protecting their rights in the proceedings before the competent authority under the 1976 Act, the same by itself would not mean that a decree for specific performance of contract would automatically be granted. While considering the question as to whether the discretionary jurisdiction should be exercised or not, the orders of a competent authority must also be taken into consideration. While the court upon passing a decree for specific performance of contract is entitled to direct that the same shall be subject to the grant of sanction by the concerned authority, as was the case in Mrs. Chandnee Vidya Vati Madden v. Dr. C.L. Katilal and Others [AIR 1964 SC 978] and Nirmal Anand v. Advent Corporation (P) Ltd. And Others [(2002) 5 SCC 481]; the ratio laid down therein cannot be extended to a case where prayer for such sanction had been prayed for and expressly rejected. On the face of such order, which, as noticed herein before, is required to be set aside by a court in accordance with law, a decree for specific performance of contract could not have been granted."
7. In light of the aforesaid situation which is prevailing, the order is not possible to be construed as erroneous or illegal in any form since the basic facts have been noticed while exercising jurisdiction under Order VII Rule 11 of the Code of Civil Procedure and it is trite law that if vexatious proceedings Page 40 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined or proceedings which are hit by statute or ex-facie time barred cannot be allowed to be processed further which would consume unnecessary public time and as such, rather it becomes duty of the Court to reject such plaint which is ex-facie untenable and not entertainable and that is purport object of Order VII Rule 11 of Code of Civil Procedure.
8. At this stage, we may also deem it proper to refer to one of the provisions contained under the Specific Relief Act, 1963 since learned counsel appearing for the appellants has made alternative suggestion that the amount which has been paid as Bana amount way back in 2007 may be returned. But perusal of the prayer clause of the suit as well as First Appeal, no such prayer is made to return back the money and as such, it becomes necessary for the Court to refer to one of the provisions contained under the Specific Relief Act, which indicates that no relief shall be granted unless it is specifically claimed. Section 22 of the Specific Relief Act deals with power to grant relief for possession, partition, refund of earnest money, etc., in which sub-section (2) is very relevant to deal Page 41 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined with alternative submission made by counsel appearing for the appellant. Hence, we deem it proper to quote hereunder the said provision :-
Section 22 :- Power to grant relief for possession, partition, refund of earnest money, etc.--
(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for--
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or 1[made by] him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
(3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21."
8.1. We have noticed that neither in the plaint nor in the First Appeal such prayer of refund of earnest money (Bana amount) is claimed nor the same is claimed by way of any amendment Page 42 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined even in the present appeal till the final hearing took place and as such, when no relief is sought for, the same is not possible to be granted. Hence, the alternative submission is not worthy of acceptance and thereto of the said cash amount stated to have been paid way back in 2007 while executing unregistered Banakhat on 21.09.2017 i.e. almost prior to 16 years.
9. Now in the light of the aforesaid circumstances and the proposition of law, a perusal of the decisions cited by the learned counsel appearing for the appellants if to be looked into, it appears that by virtue of recent pronouncement the said decisions are of no assistance to the appellants. We may state that it is a settled position of law that if facts are different, even one additional fact may make a world of difference while applying the ratio as precedent and as such, here the facts which are summarized here before which are undisputed, if to be compared with the facts situation which are prevailing in the decision which are cited before us, we are of the opinion that the decisions are of no assistance to the appellants. In the case of S.Kala Devi v. V.R. Somasundaram & Ors., reported in Page 43 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined AIR 2010 SC 1654, the issue was related to Section 49 of the Registration Act and whether unregistered sale deed is admissible in evidence or not was the central issue before the Hon'ble Apex Court, whereas here, such question is not on hand. Further, in a decision in the case of Bahadurbhai Laljibhai Malhotra v. Ambalal Joitaram heir of Joitaram Ranchhodas & Ors., reported in 2015 (3) GLR 2760 an attention is tried to be made to substantiate the claim by referring to the proposition made by the learned Single Judge in the said case. It is not in dispute at all that while rejecting the plaint on the ground suit being time barred, the Court has to proceed on the basis of the averments in plaint for the purpose of deciding the application under Order VII Rule 11 of the Code of Civil Procedure and here also the said point is not agitated being dehors the averments made in the plaint or the document attached with the plaint or any other material is to be looked into and as such, the proposition is not undisputed, but the ratio laid down therein since is on different facts situation, we are unable to apply the same to grant any relief to the appellants. Yet another decision which is tried to be pressed into service is Page 44 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined in the case of Mahipatbhai Ramabhai Thakor v. Dec. Vinubhai Shamalbhai Thakarda & Ors., reported in 2017 (4) GLR 3160 wherein also, the learned Single Judge then was pleased to hold that in view of the averments made in the plaint in the said case, it could not be said that the suit was time barred by law of limitation. But then, if the facts to be looked into of that reported decision and if to be compared here, there appears to be no similarity of any nature. Here, in the case on hand, undisputedly the situation is with regard to unregistered Banakhat which was hit by statute statue and was sought to be enforced in the year 2017 and that too, when issuance of notice prior to the suit is altogether different circumstance by virtue of which, we are unable to apply the same here in case on hand. A further decision of the Division Bench was also tried to be brought to the notice in the case of Navnithbhai Harmanbhai Patel v. Kalidar Patel Dec. Through his heirs reported in 2018 (0) AIJEL_HC 239410 to canvass the submission. But then, the same was a substantive First Appeal challenging the judgment and decree which has been passed in Special Civil Suit No. 149 of 1993 after full fledged trial and adjudication and Page 45 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined as such, was altogether different and we may notice that one of the Hon'ble Judge who is a party to the said Division Bench has in a very recent decision as quoted herein before has taken a clear view that if any agreement is hit by any statute, the same is invalid, unenforceable and plaint, if based upon it, deserves to be rejected and as such, we are unable to apply the said decision of 2018 which is cited before us. A further decision in the case of Urvashiben & Anr. v. Krishnakant Manuprasad Trivedi reported in (2019) 13 SCC 372 is also referred to before us strenuously to contend that when the time was not fixed in the agreement, limitation would not come in the way. But here, the fact to be noticed that the said unregistered Banakhat for which to conclude permission was sought for conversion which was specifically refused and there was time limit of 24 months and that rejection has not been carried further and in that context, learned advocate appearing for the appellants has tried to submit that 24 months time would start from grant of permission which never exists at his instance and as such, ex-facie, the suit is hopelessly time barred which was rightly rejected by the trial court by resorting to Order VII Rule Page 46 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023 NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined 11 of the Code of Civil Procedure and as such, reliance which has been placed on aforementioned decision of the Apex Court would not come to rescue of the appellants in any manner. Hence, from conjoint reading of these decisions which are brought before us by the learned counsel appearing for the appellants since are not of any assistance to the appellants, we find that no case is made out to call for any interference.
10. Hence, in view of the aforesaid discussion and in view of the proposition of law as discussed at length herein before, we see no error committed by the trial court in any manner and as such, even if the order is not at great length, the same would not be termed as perverse in any form since the said exercise of jurisdiction by the trial court is with proper application of mind and in consideration of the basic facts. Hence, we are not inclined to interfere with the impugned order passed by the trial court. The appeal lacks merit and deserves to be dismissed.
11. Accordingly, the appeal stands dismissed. Page 47 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023
NEUTRAL CITATION C/FA/4905/2018 JUDGMENT DATED: 19/06/2023 undefined Since the main appeal is dismissed, consequently, connected Civil Application also does not survive for consideration and stands disposed of accordingly.
(ASHUTOSH SHASTRI, J) (DIVYESH A. JOSHI,J) phalguni Page 48 of 48 Downloaded on : Sat Sep 16 20:23:03 IST 2023