Gujarat High Court
Harji Shivji Hirani vs Vishram Harji Hirani on 8 April, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/CRA/405/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 405 of 2018
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HARJI SHIVJI HIRANI & 2 other(s)
Versus
VISHRAM HARJI HIRANI & 1 other(s)
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Appearance:
MR MEHULSHARAD SHAH(773) for the Applicant(s) No. 1,2,3
MR PARESH M DARJI(3700) for the Opponent(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 08/04/2019
ORAL ORDER
1. The present revision application under section 115 of the Code of Civil Procedure is directed against an order dated 19- 4-2018 passed below Exh.14 in Regular Civil Suit No. 235 of 2010 by the learned Additional Civil Judge, Bhuj by virtue of which, the application under Order 7 Rule 11 of CPC came to be rejected.
2. The case in brief is that present respondents herein who are the original plaintiffs have instituted a suit being Regular Civil Suit No. 235 of 2010 for setting aside the sale deed dated 15.7.2008 and also claiming share in the property along with other incidental reliefs and also praying for permanent injunction.
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3. The present petitioners, on the ground that during the subsistence of father as well as grandfather, sale deed had been executed with respect to land bearing Revenue Survey No.195/P admeasuring 5-16-00 RA of Village Ratia, Taluka Bhuj, District Kutch, have asserted that land was never ancestral property and as such, the plaintiffs being the grandsons are not entitled to seek any partition. Based upon this main premise, the written statement also came to be submitted at Exh.22 by raising dispute about the rights of the plaintiffs, dispute about the fact that this land had been partitioned during the life time of Shivji Lalji Hirani way back in 1986 and the names of the plaintiffs even thereafter were never mutated and as such, since on account of necessity, original defendant No.1 executed sale in favour of defendant Nos.2 and 3, no illegality was committed and in the absence of any right, title or interest in the suit property, it was not open for the original plaintiffs to institute suit, hence, contested.
4. The said written statement had been filed but then for proving the contention, an application came to be filed for seeking rejection of plaint under Order 7 Rule 11 mainly on the ground that suit does not disclose any cause of action and Page 2 of 17 C/CRA/405/2018 ORDER is barred by law. Without giving much description, an application came to be submitted which was opposed by the original plaintiffs and after relying upon the decision delivered by Honb'ble Apex Court as well as this High Court, the application came to be rejected vide order dated 19.4.2018 which is made the subject matter of present revision application.
5. Mr. Mehul S.Shah, learned advocate appearing on behalf of the present petitioners has contended that the property in question was belonging to the grandfather Shivji and was partitioned during his life time in the year 1986 and as such, the suit is hopelessly time barred. Secondly, even apart from this issue of limitation, it has been contended that the original plaintiffs are the grandsons and during life of their father, they are not entitled to seek any partition and whatever transaction which has taken place is perfectly well within the authority of law and as such there is no cause of action, hence, on this count alone, the plaint be rejected. It has further been contended that the sale transaction has taken place and two of the petitioners have become bona fide purchasers and as such also, no relief can be sought with respect to sale transaction which has been validly executed. It has further been contended that suit has been filed in the Page 3 of 17 C/CRA/405/2018 ORDER month of July, 2010 and the Shivj, the grandfather has expired on 28.9.2009 after the sale having taken place and, therefore, irrespective of the claim generated by the original plaintiffs, the transaction has taken place during the life time of grandfather as well. It has further been contended that property is the self-acquired property of grandfather and, therefore, the same having been partitioned way back in 1986, the father of the plaintiffs had become absolute owner and as such is free to transact portion of land which has come in his share and further, there is no right of the plaintiffs to seek any partition or challenge the act of the father in disposing of the property. This being the position, the learned Judge ought to have rejected the plaint.
6. To substantiate this contention, learned advocate, Mr. Shah has submitted on the basis of documents of the original plaintiffs that the effect of partition with respect to land bearing Survey No.195 is very much reflected in the village Form No.6 and grandfather Shivji Lalji had divested the property among two brothers Harji Shivji and Lakman Shivji, hence, according to learned advocate, on the basis of documents produced by the plaintiffs, the cause of action does not arise for claiming relief. It has been submitted that according to the Hindu law, it is settled proposition of law Page 4 of 17 C/CRA/405/2018 ORDER right from 1977 in a decision reported in 1977(0) AIJEL-HC 200203 in the case of Aher Hamir Duda Vs. Aher Duda Arjan that right to seek partition cannot be enforced without the consent of the father and cannot ask severance of status without father giving consent. When this be the position of law on the concept of partition, there is hardly any case made out by the original plaintiffs to seek any relief. Additionally, a further judgment is also relied upon which is delivered by the Madhya Pradesh High Court dated 1.11.2017 in Civil Revision Application No.42 of 2017 in which also, it has been propounded that grandson in the Mitaksara Coparcenary property was having birth right but after commencement of Hindu Succession Act, by virtue of section 8 of the Act, property devolves in the grandson by succession which has been stated in it and as such, since birth right concept is already extinguished by virtue of enactment of Succession Act, the grandson cannot claim partition during the life time of his father. Relying upon these decisions, a contention is raised that the property was never an ancestral property, it was a self-acquired property of grandfather which was divested by way of partition in the hands of father and as such, the plaintiffs have no right to seek any relief, hence, the cause of action having been completely missing, there is no Page 5 of 17 C/CRA/405/2018 ORDER question of allowing the suit. No other submissions have been made.
7. To counter to the stand taken by learned advocate for the petitioners, learned advocate, Mr. Jay H. Patel appearing for Mr. Paresh M. Darji, learned advocate for the respondents has submitted that this stand which has been taken and the contentions which have been raised here were never raised before the court concerned and to substantiate that, learned advocate has submitted that in an application under Order 7 Rule 11, no such pleading is coming forthwith and as such, since the contentions have not been raised in the court below, it is not open for the petitioners to make it a new case in revision application filed under section 115 of CPC. Additionally, it has been submitted that what was under
challenge is completely misconstrued by the petitioners' learned advocate, in fact, the close reading of the reliefs would clearly indicate that the suit is well within the period of limitation and further, in what way the cause of action is not reflecting is not spelt out at all in an application and that being so, there is hardly any substance in the contention which has been raised.
8. Mr. Patel has further submitted that looking to the scope Page 6 of 17 C/CRA/405/2018 ORDER contained under Order 7 Rule 11, it is by now quite clear that the averments made in the plaint will have to be examined at this stage and no written statement or defense to be considered. On the contrary, what has been submitted here in the present Civil Revision Application is at the best a defense which will have to be examined during the adjudication of the suit. However, it has been submitted that on the basis of plain reading of the plaint, a clear cause of action is reflecting by the plaintiffs. Hence, no case is made out.
9. Learned advocate, Mr. Patel has further submitted that the case of the present plaintiffs is clearly spelt out in the plaint. It has been specifically asserted that property is ancestral property and family members are members of Joint Hindu Undivided Family. It has been clearly asserted in the plaint that only with a view to see that plaintiffs' right be put to jeopardy though there is no necessity in the absence of original plaintiffs as being outside the country, land had been usurped. The details of productivity of land are also clearly mentioned and it has been further submitted that though the plaintiffs were residing away from the country, the land as well as defendant No.1's maintenance was being taken care of regularly and there was no necessity of any nature to even dispose of the land in question. It has been clearly asserted in Page 7 of 17 C/CRA/405/2018 ORDER the plaint that this property having been ancestral, there was a legitimate right of the plaintiffs entangled in the land in question and apart from that, section 135 notices have not been served upon the original plaintiffs and the land has been disposed of behind the back of the plaintiffs. It has been submitted that the relief which has been claimed is not for the purpose of only seeking partition but there are incidental reliefs as well as and, therefore, the case which has been tried to be made out here at the revision petition is completely misleading the Hon'ble Court and as such at this stage of the proceedings, the defence which has been raised by the petitioners may not be taken as a gospel truth for which a detailed examination of fact and the adjudication deserves to be made.
10. Mr. Patel, learned advocate has further submitted that there is a settled position of law that cause of action is nothing but a bundle of facts and as such, unless and until a clear case is made out by the petitioners, there is hardly any substance in the plaint to be rejected. For that purpose, learned advocate appearing for the petitioners has relied upon the recent decision of Hon'ble Apex Court reported in 2018(5) SCALE 472 in the case of Chhotanben and Anr. Vs. Kiritbhai Lalkrushnabhai Thakkar and Ors. and the Page 8 of 17 C/CRA/405/2018 ORDER decision delivered by the Division Bench of this Court dated 10.7.2018 in First Appeal No.160 of 2018 and after relying upon these two decisions, Mr. Patel has contended that revision petition deserves to be dismissed with costs.
11. Having heard the learned advocates appearing for the parties and having gone through the materials produced on record, ex-facie it appears that plaint which has been submitted is clearly asserting that the property is an ancestral property right from the time of grandfather. It was in joint ownership and possession and by virtue of this ancestral property, the legitimate right of the plaintiffs is asserted in the paint. The land which has been demarcated is a fertile land having electricity connection and further, there was a case put up in the plaint that even maintenance of parents including defendant No.1 is well being taken care of by the plaintiffs who are residing outside the country and, therefore, taking advantage of their absence, the land has been transacted without their notice. The plaint has further asserted that there is a clear apprehension that during the pendency of this suit proceedings, even further sale will be effected by defendant Nos.2 and 3 which would frustrate the legitimate claim for all time to come and as such, a clear assertion is made that land is not of self-acquired property of Page 9 of 17 C/CRA/405/2018 ORDER defendant No.1 in any case. To substantiate and to observe that the maintenance of the land as well as the parents is being taken care of, xerox copy of the passport has also been attached to the plaint. So, in substance, it has been clearly reflected that there is a stiff protest against sale transaction and so much so that for the revenue entry No.990, r a Takrari case is also pending before Mamlatdar, Bhuj being Takrari Case No.123 of 2010 and hence, what has been described about the cause of action is spelt out in para 11. Now these basic averments are clearly reflecting in the case put up by the plaintiffs. Now as against this, the submission which has been given here in the High Court is altogether a plea of partition tried to be projected by way of defense. A further defence is also raised that property of grandfather was divested to father and as such, the father became the absolute owner and, therefore, no case is made out to claim any share in the property. Now these submissions which are made to destroy the case of the plaint are the defenses which are taken out in the written statement and during the course of arguments here.
12. Additionally, it is also reflecting that probably this contention must not have been raised not only since the plaintiffs' advocate is submitting but also looking at the Page 10 of 17 C/CRA/405/2018 ORDER application under Order 7 Rule 11 itself, merely two contentions have been raised in an application which read as under:
"The defendant No.1 above named humbly and respectfully begs to submit as under:
1. That the plaint does not disclose any cause of action.
2. That the suit appears from the statements in the plaint to be barred by law.
3. It is, therefore, humbly and respectfully prayed that this Hon'ble Court may graciously be pleased to reject the plaint with cots in the interest of justice."
13. The petitioners never appeared before the Court to have described in detail as to why there is no cause of action and as to why suit is time barred. The pleadings have got their own effect, impact and implications which will have to be asserted by person taking up a particular stand. A bare reading of the aforesaid grounds of application itself indicates that there is absolutely no description on those two contentions nor there are pleadings to that effect and what has been canvassed before the present Court is appearing to be a defense taken in the written statement. Hence, ex-facie it appears that this defense which has been put up before the revisional court is not permissible more particularly when not pleaded even in an application under Order 7 Rule 11. It Page 11 of 17 C/CRA/405/2018 ORDER appears that this application has been given in a routine format to delay the suit proceedings. Hence, while exercising jurisdiction under Order 7 Rule 11, the learned Judge appears to have not committed any error in passing the order.
14. The law on the subject of Order 7 Rule 11 is time and again reiterated by several decisions of Hon'ble Apex Court propounding that at this stage, the defences cannot be examined nor the written statement and the contentions be considered. A plain reading of the averments contained in the plaint itself to be a yardstick to take a decision on Order 7 Rule 11 application. Keeping this proposition of law in mind, the aforesaid circumstances are clearly indicating that these defenses now put up in revision application by learned advocate appearing for the petitioners are not possible to be examined particularly when the same appear to have not been raised in the court below as well. Hence, the order in question reflects no irregularity nor any illegality material in nature, hence, the order appears to be just and proper. The petitioners cannot at this stage accept that his defense about right of the plaintiffs be examined at the stage of Order 7 Rule 11 that too in revision petition and also cannot expect that simply because the suit on earlier occasion was dismissed for non-prosecution, the said circumstance to be Page 12 of 17 C/CRA/405/2018 ORDER taken as an additional circumstance in favour of the petitioners. May be on account of some circumstances beyond the control, it might have went in non-prosecution but then a fact cannot be unnoticed that suit thereafter has been restored and application under Order 7 Rule 11 came to be contested. The overall circumstances which are reflecting on the record clearly indicate that this is not a case in which in peculiar set of circumstances plaint to be rejected.
15. As such, keeping the aforesaid circumstances in mind, it appears that the decision delivered by the Division Bench of this Court on 10.7.2018 in First Appeal No.160 of 2018 is having a force to apply in favour of the respondents herein. The relevant extract contained in the said decision since relied upon deserves to be quoted hereinafter:
"15. Equally on the ground of either vagueness or bringing cause of action through clever drafting when none exists, the defendants cannot succeed. Here again, their main thrust was on the plaintiff's conduct of having paid the full consideration without insisting on the execution of sale deed and of having waited for 25 years before filing the suit. The defendants coupled these aspects with the allegations that the very document was forged. They tried to establish this allegation, prima facie by pointing out that the early investigation suggests that no such document was executed before the Executive Magistrate as alleged. These are once again issues in the realm of facts based on evidence that may be brought on record. More importantly, these are defenses raised by the defendants in their written statement and documents attached to it. Such references are not referred at this Page 13 of 17 C/CRA/405/2018 ORDER stage and at any rate, cannot form the basis of an order rejecting the plaint. However, if we accept the pleadings in the plaint as it is, it is not possible to state that the suit does not disclose a cause of action. Once again, the disclosure of a cause of action on the face of the plaint and the probability of the averments made in the plaint being established during the trial are two different aspects. Learned counsel for the defendants vehemently contended that allowing such a suit to proceed could give rise to frivolous suits where the plaintiffs by making false documents and averments could prolong the litigation. Mere possibility of misuse would not permit us to expand the scope of proceedings under Order 7 Rule 11 of Civil Procedure Code. In exercise of such powers, the suit gets rejected at the very threshold without any trial. If frivolous suits are instituted and prolonged for long time, sometimes with a hope of making some killing out of litigation, the remedy of such an evil may lie somewhere else, may be in awarding punitive or exemplary costs at the end of the litigation if found to be frivolous or malicious but not under exercise of powers under Order 7 Rule 11 of Civil Procedure Code within the four corners of the grounds specified by the legislature and as interpreted and sometimes expanded by the Courts. One more way to deal with vexatious litigation would be to fast track the trials of cases where it appears to the Court that the plaintiff might take undue advantage of long pendency of the proceedings and prolonging the litigation can be his only purpose. The frivolity of the suit and creation of illusion through a clever drafting must appear on the face of it in order to enable the Court to strike at very threshold and reject the plaint without any further trial.
16. Howsoever strong prima facie the defendants' grounds for opposing the ultimate prayer made in the suit, they cannot be the reason for exercising the powers under Order 7 Rule 11 of the Civil Procedure Code. In a recent judgment in case of Soumitra Kumar Sen v. Shyamal Kumar Sen, reported in (2018) 5 SCC 644 the defendant had prayed for rejection of plaint under Order 7 Rule 11 on the ground of resjudicata. The Courts below had rejected such application. The Supreme Court while upholding the judgments, observed as under:
"12. Before we part with, it is necessary to make Page 14 of 17 C/CRA/405/2018 ORDER certain comments. The appellant has mentioned about the earlier two cases which were filed by respondent no. 1 and wherein he failed. These are judicial records. The appellant can easily demonstrate the correctness of his averments by filing certified copies of the pleadings in the earlier two suits as well as copies of the judgments passed by the courts in those proceedings. In fact, copies of the orders passed in judgement and decree dated March 31, 1997 passed by the Civil Judge (Junior Division), copy of the judgment dated March 31, 1998 passed by the Civil Judge (Senior Division ) upholding the decree passed by the Civil Judge (Junior Division) as well as copy of the judgment and decree dated July 31, 2014 passed by Civil Judge, Junior Division in Suit No. 268 of 2008 are placed on record by the appellant. While deciding the first suit, the trial court gave a categorical finding that as per MoU signed between the parties, respondent no. 1 had accepted a sum of Rs. 2,00,000/and, therefore, the said suit was barred by principles of estoppel, waiver and acquiescence. In a case like this, though recourse to Order VII Rule 11 CPC by the appellant was not appropriate, at the same time, the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide the same in the first instance. In this manner the appellant, or for that matter the parties, can be absolved of unnecessary agony of prolonged proceedings, in case the appellant is ultimately found to be correct in his submissions."
16. Further, on the issue of limitation, recently, Hon'ble Apex Court in Chhotanben(supra) has also propounded that issue of limitation being a triable issue will have to be gone into during the course of trial since the same being a mixed question of law and fact, without much dwelling into it, considering the aforesaid judgment, this plaint does not deserve to be rejected even on the issue of limitation. Page 15 of 17 C/CRA/405/2018 ORDER Resultantly, no case is made out by the petitioners. Each case depends upon its own background of facts.
17. Additionally, the Court while looking at the order under challenge is satisfied about the fact that while exercising discretion vested in the learned Judge, there appears to be an application of mind as well as the same has been passed after due consideration of proposition of law laid down by series of decisions which are mentioned in it and as such, there appears to be no perversity of any nature in passing an order. It has been clearly concluded that these allegations which are made by the defendants are forming part of the written statement and on that basis, the plaint cannot be rejected. Hence, the defense which has been taken during the course of present revision application also is requiring a full- fledged trial, hence, the plaint cannot be rejected which rightly has not been done by the trial court.
18. This being a revision application under section 115 of CPC, looking to the scope which has been spelt out by series of decisions, even if another view is possible, in the absence of any contingencies which are reflecting in section 115 of CPC, even substitution of view is impermissible. Hence, in absence of any jurisdictional error, this Court is unable to Page 16 of 17 C/CRA/405/2018 ORDER accept the revision application and such decisions delivered by Hon'ble Apex Court deserve a reference while disposing of the present revision, which are reported in (2017)13 SCC 409 more particularly para 15 and (2016)12 SCC 544 more particularly para 19.
19. From the aforesaid situation, which is prevailing, the decisions which are referred to and relied upon by the learned advocate for the petitioners are not possible to be applied as a straight jacket formula since these contentions arising out of the said decisions are forming part of the defense of the petitioners which will have to be examined at the trial of the suit. Hence, no case is made out by the petitioners. Accordingly, the revision application stands dismissed with no order as to costs. However, while parting with, it is observed that the suit is expedited without any undue delay.
(A.J. SHASTRI, J) RADHAKRISHNAN K.V. Page 17 of 17