Gujarat High Court
Sonbai Jusha Sodha vs Sonalben Velji Harijan on 3 April, 2024
NEUTRAL CITATION
C/SA/156/2024 JUDGMENT DATED: 03/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 156 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 156 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SONBAI JUSHA SODHA & ANR.
Versus
SONALBEN VELJI HARIJAN & ORS.
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Appearance:
JAY R SHAH(8428) for the Appellant(s) No. 1,2
MS POOJA D RAVAL(11867) for the Appellant(s) No. 1,2
for the Respondent(s) No. 1,2,3,4,5,6,7
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 03/04/2024
ORAL JUDGMENT
1. The present Second Appeal under Section 100 of the Page 1 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined Civil Procedure Code, (hereinafter referred to as "the C.P.C.") has been preferred by the appellants - original plaintiffs by challenging the impugned order dated 11.12.2023 passed in Regular Second Appeal No.10 of th 2023 by the learned 4 Addl. District Judge, Gandhidham, Kachchh.
2. Brief facts of the case as per the case of the appellants in this appeal are as such that the appellants are the original plaintiffs of Regular Civil Suit No.126 of 2018,and the respondents are the original defendants.
The land bearing survey no.130, admeasuring hector 1- 71-99 pratiare, situated at - village: Mithirohar, Ta.
Gandhidham was originally owned by the ancestor of the plaintiff i.e. grandfather of the plaintiff namely Sodha Ishaq Visha. That after the demise of the father of the plaintiff i.e. Jusha Ishaq, partition of joint properties in the name of ancestor was carried out and vide entry no.
1526, the said property was mutated only in the name of Haru Jusha Sodha. That Haru Jusha Sodha sold the said property to Velji Govind Harijan (predecessor of respondent no. 1 herein) in the year 1994 and entry no.
1661 was mutated. Thereafter, the said property was Page 2 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined transferred in the name of respondent no. 1 herein and entry no. 2817 was mutated for the same. Thereafter, the respondent no.1 has sold the said property to respondent no. 2 in the year 2005 and entry no. 3365 was mutated for the same. That the respondent no. 2 further sold the said property to respondent no.3 to 7 in the year 2015 and entry no. 5994 was mutated in the revenue record. That after the demise of father of the orig. plaintiff, name of only Haru Jusha Sodha was mutated and therefore, the plaintiff had filed suit for declaration and permanent injunction.
It is further the case of the appellants in this appeal are as such that the orig. defendant nos. 4 to 8 i.e. respondent no. 3 to 7 herein filed an application under Rule 7 order 11 of the C.P.C., below Exh. 24 for rejection of plaint and the same was allowed and the th said suit was dismissed by the learned 5 Addl. Senior Civil Judge, Gandhidham vide judgment and order dated 13.09.2021. Being aggrieved and dissatisfied with the judgment and order dated 13.09.2021 passed by the Ld. th 5 Addl Senior Civil Judge, Gandhidham, the appellants had preferred a Regular Civil Appeal no. 10 of 2023, Page 3 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined u/s.96 of Civil Procedure Code before the Hon'ble District Court, Gandhidham at Kachchh, which was dismissed vide judgment and order dated 11.12.2023 by upholding the judgment and order passed by the trial court in Regular Civil Suit. Hence, being aggrieved and dissatisfied with the impugned judgment, order dated 11.12.2023, passed by the Ld. 4th Additional District Judge, Gandhidham at Kachchh, the present appeal has been preferred.
3. Heard Mr. Jay R. Shah, the learned counsel for the appellants.
4. The following suggested substantial questions of law as framed in the memo of present Second Appeal are as under:
(i) Whether the lower appellate court as well as the Ld. Trial court has erred by coming to the conclusion that suit is barred by law of limitation that is the Limitation Act?
(ii) Whether the lower appellate court as well as the Ld. Trial court has erred in considering the fact that the plaintiff has not disclosed a proper cause of action for Page 4 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined filling the suit?
(iii) Whether the lower appellate court as well as the Ld. Trial court has wrongly come to the conclusion that the relief sought by the plaintiff is not proper?
(iv) Whether the appellate court as well as the Ld. Trial court has failed to consider the law laid down by the hon'ble Apex court?
(v) Whether the impugned judgement and order passed by the courts below is perverse in nature as it has not considered the facts of the case properly?
(vi) Whether the appellate court as well as the Ld. Trial court has failed to consider the fact that while deciding the application under Order 7 Rule 11, the court has to appreciate the fact that law of limitation includes mix question of law and facts?
5. Mr. Jay R. Shah, the learned counsel for the appellants has submitted that the judgment and decree passed by both the courts below is unjust, illegal and against the provisions of law as well as evidence on record. Furthermore, he has submitted that both the courts below had committed grave error of law and fact Page 5 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined by not considering the fact that entry no. 1526 is null and void as name of only one legal heir is mutated and, therefore, no notice under section 135(d) was served to the appellants and, therefore, the appellants could not be aware about the subsequent sale deeds. Furthermore, he has submitted that both the courts below have erred in concluding that the plaintiff has not prayed for relief against the entry no. 1526 in the plaint. It is respectfully submitted that the orig. plaintiffs had challenged the entry no. 1526 before competent authority and the appeal memo was attached with the plaint in the documentary list. Furthermore, he has submitted that both the courts below has wrongly come to the conclusion that the suit is barred by the law of limitation and cause of action is not shown in the plaint.
Furthermore, he has submitted that the plaintiffs have specifically submitted that in 2017, after going through the revenue records, they came to know that such an irregularity is committed by the defendants and, therefore, by not considering the said aspect, both the courts below have committed grave error of law.
Furthermore, he has submitted that the appellate court has wrongly came to the conclusion that the relief Page 6 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined sought by the plaintiff is not proper as such a findings can never be arrived at the stage of application under Order 7 Rule 11 and, therefore, such a finding of the appellate court is perverse and bad in law.
Furthermore, he has submitted that the trail cour has wrongly come to the conclusion that the property in question was first sold by way of registered sale deed in the year 1994 and it would have been in a knowledge of every person concerned. Furthermore, he has submitted that such kind of finding arrived at by the trail court is solely upon its presumption because if we go through the sale deed, which was executed in the year 1994, then it can be seen that the present plaintiff was not party to it and therefore one cannot say that a plaintiff was having knowledge of the same and, therefore also, the courts below have committed grave error of law and fact by passing the impugned judgment and order.
Furthermore, he has submitted that while deciding the application under Order 7 Rule 11, and specially on the ground that the suit barred by law of limitation, in that case, both the courts below have to be vigilant while exercising the powers under the aforesaid provisions of law as many a times it can be seen that the issue Page 7 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined involves mix question of law and facts, which can only be dealt with during the course of trial and, therefore, coming to the facts of the present case, the plaintiffs have specifically stated that, in the year 2017, they came to know about the events, which are stated in the plaint and, therefore, to decide that issue, trial ought to have been conducted by the trail court by not doing so and by confirming the judgment and order passed by the trial court, the courts below have committed grave error of law and fact. Furthermore, he has submitted that even otherwise, the judgment and order passed by both the courts below is illegal, unjust, perverse and improper, against the evidence on recorded and against the settled principal of law. Therefore, he has prayed to allow the present appeal.
6.1 I have heard the submissions made at the bar. I have perused the judgments passed by both the courts below, as well as the copy of the plaint. The plaint is required to be read as a whole. In paragraph No. 4 of the plaint, it is categorically stated that the revenue entry pursuant to the partition has taken place in the name of Haru Jusha as revenue entry No.1526 entered into the revenue record in the year 1994. Thereafter, Page 8 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined pursuant to the sale deed executed on 25.05.1994, entry no.1661 is entered into the revenue record. The claim in question is also converted into old tenure land vide order dated 15.07.1994. It is also averred in paragraph No.5 that by way of registered sale deed No.4551 dated 28.07.2005, defendant No.3 has entered into a sale transaction and had purchased the land in question, and the entry in the revenue record has been effected by revenue entry No.3365 on 01.05.2006. In paragraph No.6 of the plaint, it is further averred that sale deed dated 18.11.2015 registered at No.5445 is executed as the revenue entry no.5994 was also certified. In paragraph No.8 of the plaint, it is stated that this transaction came to the knowledge of the plaintiffs in the year 2017. It is also stated that on 01.04.2017, it came to the knowledge of the plaintiffs, and by challenging the entry by way of revenue appeal, a suit is filed on 11.01.2018, and thereafter, the present suit is filed on 07.09.2018.
Therefore, considering this chronology of events from a bare reading of the plaint itself, it clearly transpires that the suit is filed after much delay from the first transaction; partition whereby the entry is effected in the revenue record is almost after 35 years, and the first Page 9 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined sale deed of the year 1994 is also sought to be challenged almost 24 years after such a registered sale deed.
6.2 I have perused the judgments, which are evidenced.
The issues framed by the trial court are found just and proper, and findings on these issues are also found just and proper. The trial court has specifically found that as per Articles 58 and 59 of the Limitation Act, the suit is required to be filed within three years, and as per Article 113 also, the suit is required to be filed within three years. Consequently, the trial court has rejected the application by resorting to Order VII Rule 11 (a) &
(d) of the C.P.C. in the facts of the case, which was challenged by way of Regular Civil Appeal No.10 of 2023. The lower appellate court has re-appreciated the evidence available on the record, and has referred the judgment of the Hon'ble Apex Court in the cases of (i) Vishwa Vijay Bharati vs. Fakhrul Hassan and Ors.
reported in AIR 1976 SC 1485 (ii) Dahiben vs Arvindbhai Kalyanji Bhanusali reported in AIR 2020 SC 3310 and also other judgments.
6.3 The lower appellate court has considered the Page 10 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined provisions of Section 135 (c) & (d) of the Land Revenue Code, and concluded that as the suit is barred by limitation, the suit is required to be dismissed. The lower appellate court has relied on the judgment of the Honble Apex Court in the case of Dahiben (supra). The lower appellate court has also referred the decision of this Court in the case of Jadavbhai Jerambhai Chavda vs. Koli Savsibhai Amarabhai (deceased) Though Lrs.
reported 2023 (0) AIJEL-HC 247383, and concluded that the trial court has not committed any error as the suit is required to be dismissed under the provisions of Order VII Rule 11 of the C.P.C. and the trial court has rightly exercised its discretion in the present case. Hence, the present appeal is preferred.
6.4 I found that both the courts below have discussed all the relevant aspects in details. It is relevant to refer the provisions of Order VII Rule 11 of the C.P.C., as under:
11. Rejection of plaint.-- The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the Page 11 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9.
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp- aper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
6.5 It is also fruitful to refer the recent judgment of the Hon'ble Apex in the case of Dahiben vs Arvindbhai Kalyanji Bhanusali reported in (2020) 7 SCC 366, more particularly, paragraphs 29.16 to 29.20 are relevant, as under:
Page 12 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined "29.16 . The present case is a classic case, where the plaintiffs by clever drafting of the plaint, attempted to make out an illusory cause of action, and bring the suit within the period of limitation.
Prayer 1 of the plaint reads as :
"1) The suit property being agricultural land of old tenure of Revenue Survey No.610 whose block Number is 573 situated at village Mota Varachha, Sub-district : Surat city, Dis : Surat has been registered by the opponent No.1 of this case in office of the Sub-Registrar (Katar Gam) at Surat vide Serial No.5158 in book No.1. Since, the same is illegal, void, in-effective and since the amount of consideration is received by the plaintiffs, and by holding that it is not binding to the plaintiffs and to cancel the same, and since the sale deed as aforesaid suit property has been executed by the opponent No.1 to the opponent No.2,3, it is registered in the office of Sub-registrar, Surat (Rander) on 01/04/2013 vide serial No.443 which is not binding to we the plaintiffs. Since, it is illegal, void, in-effective and therefore, this Hon'ble Court may be pleased to cancel the same and this Hon'ble Court may be pleased to send the Yadi in that regard to the Sub-registrar, Surat (Karat Gam) and the Sub- Registrar (Rander) in regard to the cancellation of both the aforesaid documents."
29.17. The Plaintiffs deliberately did not mention the Page 13 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined date of the registered Sale Deed dated 02.07.2009 executed by them in favour of Respondent No.1, since it would be evident that the suit was barred by limitation. The prayer however mentions the date of the subsequent Sale Deed i.e. 01.04.2013 when the suit property was further sold by Respondent No.1 to Respondent Nos. 2 & 3. The omission of the date of execution of the Sale Deed on 02.07.2009 in the prayer clause, was done deliberately and knowingly, so as to mislead the Court on the issue of limitation.
29.18 The delay of over 5 and ½ years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. The suit was instituted on 15.12.2014, even though the alleged cause of action arose in 2009, when the last cheque was delivered to the Plaintiffs. The Plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation. The plaint is therefore, liable to be rejected under Order VII Rule 11 (d) of CPC.
29.19. Reliance is placed on the recent judgment of this Court rendered in Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by LRs.15 wherein this Court held the suit would be barred by limitation under Article 59 of the Limitation Act, if it was filed beyond three years of the execution of the registered deed.
29.20. The Plaintiffs have also prayed for cancellation of the Page 14 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined subsequent Sale Deed dated 01.04.2013 executed by Respondent No.1 in favour of Respondent Nos. 2 and 3; since the suit in respect of the 1st Sale Deed dated 02.07.2009 is rejected both under clauses (a) and (d) of Order VII Rule 11, the prayer with respect to the 2nd Sale Deed dated 01.04.2003 cannot be entertained."
6.6 It is also fruitful to refer the recent judgment of the Hon'ble Apex in the case of Ramisetty Venkatanna vs Nasyam Jamal Saheb reported in 2023 SCC Online SC 521, more particularly, paragraphs 23 to 28 are relevant, as under:
"23. We have heard learned counsel appearing on behalf of the respective parties at length. We have also gone through the averments made in the plaint. On going through the averments, it appears that the suit is essentially based upon the premise that there was an error in partition deed dated 11.03.1953 and in partition deed survey number 706/A9 was wrongly mentioned. Therefore, it is the case on behalf of the plaintiffs that Sarambee and other descendants including the vendors of the appellants never had any right to effect transactions in respect of the land in survey number 706/A9. However, it is required to be noted that despite the above, very cleverly the plaintiffs have not sought any relief with respect to partition deed dated 11.03.1953. Deliberately and purposely, the plaintiffs have not prayed any relief with respect to partition deed Page 15 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined dated 11.03.1953 though it is the case on behalf of the plaintiffs that there was an error in partition deed dated 11.03.1953. It is to be noted that pursuant to the partition deed dated 11.03.1953, after the demise of the original land owner Nasyam Jamal Saheb, his five children namely, 1) Nasyam Jafar Saheb; 2) Nasyam Dasthagiri Saheb; 3) Nasyam Ibrahim Saheb; 4) Sarambee; and 5) Jainabee got partitioned the properties under a registered partition deed dated 11.03.1953. Under the registered partition deed, predecessor in interest of plaintiffs, N. Ibrahim Saheb got 1 acre and predecessor in interest of vendors of the appellants Sarambee got 1 acre 16 cents. All the parties to the registered partition deed acted upon the said partition deed. That thereafter, further transaction took place and Sarambee executed a registered gift deed dated 24.01.1968 in favour of her eldest daughter Kareembee - mother of the vendors of the appellants to an extent of lands measuring 58 cents. That thereafter, two sons of Kareebee who became co-owner on the death of Kareembee executed the registered sale deed dated 24.08.2010 in favour of the appellants in Survey No. 706/A9 to an extent of land measuring 58 cents for a valid sale consideration. Since 2010, the appellants are in possession of the land purchased vide registered sale deed dated 24.08.2010. Without challenging partition deed dated 11.03.1953 and even subsequent gift deed dated 24.01.1968, the plaintiffs have instituted the present suit with the aforesaid prayers which is nothing but a clever drafting to get out of the limitation. If partition deed dated 11.03.1953 was to be challenged which as such, the plaintiffs are attempting to do virtually, the suit would be Page 16 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined hopelessly barred by limitation having being instituted after lapse of 61 years from the partition deed.
5. In the case of T. Arivandandam (supra) in paragraph 5 while considering the provision of Order VII Rule XI, this Court has observed 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."
25. In the case of Sopan Sukhdeo Sable Vs. Charity Commr., (2004) 3 SCC 137 in paras 11 and 12, this Court has observed and held as under:
Page 17 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined "11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code.
(See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467].)" 5.3 In the case of Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal, (2017) 13 SCC 174, this Court observed and held as under:
"7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the court at any stage of the suit. The relevant facts Page 18 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."Page 19 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024
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27. In the case of Ram Singh Vs. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364, this Court observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation. Similar view has been expressed by this Court in the case of Raj Narain Sarin (supra).
28. Applying the law laid down by this Court in the aforesaid decisions on the applicability of Order VII Rule XI to the facts of the case on hand, we are of the opinion that the plaint ought to have been rejected in exercise of powers under Order VII Rule XI(a) and (d) of CPC being vexatious, illusory cause of action and barred by limitation. By clever drafting and not asking any relief with respect to partition deed dated 11.03.1953, the plaintiffs have tried to circumvent the provision of limitation act and have tried to maintain the suit which is nothing but abuse of process of court and the law."
6.7 It is also fruitful to refer the judgment of the Hon'ble Apex in the case of T. Arivandandam vs. T.V.
Satyapal and Another reported in 1977 (4) SCC 467, more specifically, paragraphs 5 to 7 are relevant, as under:
Page 20 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined "5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII r. 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C.
An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch. XI) is also resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi "It is dangerous to be too good."
6. The trial court in this case will remind itself of s. 35-A C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no Page 21 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned.
7. We regret the infliction of the ordeal upon the learned Judge of the High-Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the co-operation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts. A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process. We must appreciate Shri Ramasesh for his young candour and correct advocacy."
6.8 It is fruitful to refer the recent judgment of the Hon'ble Apex in the case of Raghwendra Sharan Singh vs. Ram Prasanna Singh (Dead) by legal Page 22 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined representatives reported in (2020) 16 SCC 601, more specifically, paragraphs Nos.7 and 9 are relevant, as under:
"7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed - brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant herein original defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10 plaintiff herein in the year 2001 itself.
Page 23 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant hereinoriginal defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC.
9. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the case of Ram Prakash Gupta (supra), considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC."
Page 24 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined 6.9 It is also relevant to refer the decision of this Court in the case of Becharbhai Jevarbhai vs. Jashbhai Shivabhai Patel and Others reported in 2013 (1) GLR 398, more specifically, paragraphs 6, 6.1 & 6.2 are relevant, as under:
"6. At the outset, it is required to be noted that in the plaint the original plaintiffs have challenged the registered sale deed dated 25.8.1975 which has been executed by the original defendant no.1 in favour of defendants no. 3 and 4 and the said suit has been filed in the year 2010 i.e. after a period of 35 years. It is also required to be noted and even so pleaded / averred in the plaint that name of father of the defendant no.1 was mutated in the revenue record and even thereafter on the death of father of the defendants no.1 and 2 Chottabhai Bhagwanbhai mutated in the revenue record on 11.10.1979 vide mutation entry no.1024. It is also further averred in the plaint that even the name of defendants no. 3 and 4 were also mutated in the revenue record pursuant to the sale deed dated 25.8.1975 vide entry no.1115 and not only that even in 1981 there was partition between defendants no. 3 and 4 and the land bearing Survey No.380 (disputed suit land) has gone into the share of Ambalal Patel - defendant no.4 and his name is mutated in the revenue record vide mutation entry no.1283 dated 10.6.1981. Even considering cause of action pleaded in the plaint in para 8, it appears to the Court that the averments in the plaint are too vague and nothing has been mentioned in the said Page 25 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined para on which date he came to know about the registered sale deed dated 25.8.1975. Even in the entire plaint nothing has been pleaded with respect to limitation. Mere cleaver drafting in the plaint and by such vague averments and the pleading the cause of action in the plaint, the suit which is otherwise barred by law of limitation can not be brought within a period of limitation.
6.1. It is not disputed that while considering application under Order 7 Rule 11 (d) of the Code of Civil Procedure, the Court is required to consider the averments in the plaint and the supporting documents produced along with plaint. However, it cannot be disputed that if on the face of it and even considering the averments made in the plaint, it is found that the suit is clearly barred of law of limitation, the plaint can be rejected in exercise of powers under Order 7 Rule 11 (d) of the Code of Civil Procedure.
Even considering the decision of the Hon'ble Supreme Court in the case of N.V.Srinivasan Murthy vs. Mariyamma (Dead) by proposed Lrs reported in AIR 2005 SC 2897 as well as decision of the Hon'ble Supreme Court in the case of Dilboo (Smt) (Dead) Bij lea (supra), the plaint can be rejected in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure if it is found that even accepting all the averments made in the suit, it is found therefore, the suit is barred by law limitation. Considering the above proposition of law laid down by the Hon'ble Page 26 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined Supreme Court, it is required to be considered whether considering facts and circumstances of the present case and even considering averments made in the plaint and even accepting all the averments made in the plaint as they are, whether the suit is barred by law of limitation or not ?
6.2. As stated above, registered sale deeds was executed by the original defendant no.1 in favour of original defendants no. 3 and 4 (petitioners herein) on dated 25.8.1975. It is also required to be noted and even so pleaded / averred in the plaint that mutation entry in favour of defendant nos. 3 and 4 on the basis of registered sale deed was made in the revenue record vide entry no.1115 and not only that even in 1981 there was partition between defendants no. 3 and 4 and the land bearing Survey No.380 (disputed suit land) has gone into the share of Ambalal Patel defendant no.4 and his name is mutated in the revenue record vide mutation entry no.1283 dated 10.6.1981.As held by the Hon'ble Supreme Court in the case of Dilboo (Smt) (Dead) Bijlea (supra) whenever the document is registered the date of registration becomes the date of deemed knowledge and in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge. Thus when the sale deed dated 25.8.1975 was registered in the year 1975 itself and even the mutation Page 27 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined entry was made in favour of defendants no.3 and 4 on the basis of the registered sale deed immediately thereafter the plaintiff is deemed to have the knowledge of the said transaction and by making such vague averments in the plaint that earlier he had no knowledge and he came to know about the transaction only in the 2010, by such clever drafting the plaintiff cannot be permitted to bring the suit within the period of limitation which otherwise is barred by law of limitation as the suit challenging the registered sale deed dated 25.8.1975 has been filed after a period of 35 years. Under the circumstances and considering the aforesaid, it appears to the Court that learned trial Court has materially erred in rejecting the application Exh.14 and in not rejecting the plaint exercising the power under Order 7 Rule 11(d) of the Code of Civil Procedure. Under the circumstances, the impugned order passed by the learned trial Court cannot be sustained and same deserves to be quashed and set aside."
6.10 It is also fruitful to refer to the judgment of the Hon'ble Apex Court in the case of Smt. Dilboo (Dead) By Lrs. & Ors. vs Smt. Dhanraji (Dead) And Ors.
reported in (2000) 7 SCC 702, wherein, it is observed in paragraph 20, as under:
"20. This Suit was governed by the Limitation Act of 1948. Arts. 134 and 148 read as follows:Page 28 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024
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134. To recover possession Twelve When the transfer of immovable years becomes known property conveyed or to the plaintiff: bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration.
148. Against a mortgagee Sixty When the right to to redeem or to years redeem or to recover possession of recover possession immovable property accrues:
mortgaged.
Thus a Suit for redemption of mortgage could be filed within 60 years. But if the mortgagee had created an interest in excess of the right enjoyed by him then to recover possession against the third party the Suit had to be filed within 12 years of the transfer becoming known to the Plaintiff. The rational in cutting down the period of 60 years to 12 years is clear. The 60 years period is granted as a mortgagee always remains a mortgagee and thus the rights remain the same. However when an interest in excess of the interest of the mortgagee is created then the third party is not claiming under the mortgagee. The position of such a person could not be worse than that of a rank trespasser who was in open and hostile possession. As the title of the rank trespasser would get perfected by adverse possession on expiry of 12 years so also the title of such transferee would get perfected after 12 years. The period of 12 years has to run from the date of knowledge by the Plaintiff of such transfer. It is always for the party who files the Suit to show that the Suit is within time. Thus in cases where the suit is filed beyond the period of 12 years, Page 29 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined the Plaintiff would have to aver and then prove that the Suit is within 12 years of his/her knowledge. In the absence of any averment or proof, to show that the suit is within time, it is the Plaintiff who would fail. Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the Plaintiff because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge."
6.11 Considering the fact that, in the present case, admittedly, the suit is filed after 35 years from the first revenue entry and 24 years after the execution of the first registered sale deed. In view of the settled legal position, the suit is apparently barred by limitation. It is relevant to refer Articles 58, 59 and 113 of the Limitation Act, as under:
Article Description of suit Period of Time from which limitation period begins to run
58. To obtain any other Three years. When the right to declaration. sue first accrues
59. To cancel or set aside an Three years. When the facts instrument entitling the plaintiff or decree or for the to have the rescission of instrument or decree Page 30 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined a contract. cancelled or set aside or the contract rescinded first become known to him.
113. Any suit for which no Three years. When the right to period of limitation is sue accrues.
provided elsewhere in this Schedule 6.12 Considering this, the position of the law is very clear. In the facts of the present case, when the plaint itself is required to be rejected under Order VII Rule 11 of the C.P.C., which is barred by limitation, I found that the concurrent findings given by both the courts below are in consonance with the provisions of law and materials available on the record by appreciating the averments made in the plaint by the plaintiffs as both the courts below have found that the plaint is required to be rejected under Order VII Rule 11 of the C.P.C. No perversity or infirmity is found in the findings of both the courts below.
6.13 It is required to refer the scope of Section 100 Page 31 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined of the Civil Procedure Code, which is as under:
"100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
6.14 It is fruitful to refer the judgment in the case Page 32 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined of Gurbachan Singh (Dead) Through Lrs Gurcharan Singh (Dead) Through Lrs and Others. reported in 2023 SCC Online SC 875 paragraphs 7, 14 and 15 which are reproduced as under:
"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala (2- Judge Bench), it was observed:--
"27. In HeroVinoth v. Seshammal [HeroVinoth v. Seshammal, (2006) 5 SCC 545], this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC Page 33 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined 545] are set out hereinbelow : (SCC p. 554, para 21) "21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means-- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)
(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case.
In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by Page 34 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969] : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314], AIR p. 1318, para 5) '5. ... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.'
28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way." (Emphasis supplied)
14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned Page 35 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined judgment entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are:--
"(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
15. A Bench of three learned Judges, recently in Balasubramanian v. M. Arockiasamy (Dead) Through LRs. , had referred to, with approval judgment rendered in Ramathal v. Maruthathal (two-Judge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the Page 36 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024 NEUTRAL CITATION C/SA/156/2024 JUDGMENT DATED: 03/04/2024 undefined appreciation of evidence "suffers from material irregularity"
the court will be justified in interfering with such findings."
6.15 It is also fruitful to refer to the judgment of the Hon'ble Apex Court in the case of Nazir Mohamed vs J. Kamala reported in AIR 2020 SC 4321, wherein, it is observed in paragraphs 56, 57 and 59 as under:
"56. As held by the Privy Council in Peri v. Chrishold reported in (1907) AC 73, it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner...and if the rightful owner does not come forward and assert his right of possession by law, within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever distinguished, and the possessory owner acquires an absolute title.
57. The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law.Page 37 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024
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59. When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of Section 100 of the CPC."
6.15 In view of the above-all and in totality, this Court has very limited jurisdiction under Section 100 of the C.P.C. and considering above-mentioned judgments, I am of the opinion that no error is committed by the trial court as well as lower appellate court as no perversity or illegality is found from the findings of both the courts below and no substantial question of law is involved and, therefore, the present appeal is required to be dismissed.
7. Accordingly, the present Second Appeal is dismissed at the admission stage only. Civil Application stands disposed of accordingly.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 38 of 38 Downloaded on : Fri Apr 19 21:08:00 IST 2024