Gujarat High Court
Devesh Metcast Pvt Ltd Through ... vs Girish Nagjibhai Savaliya on 1 May, 2025
NEUTRAL CITATION
C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025
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Reserved On : 21/04/2025
Pronounced On : 01/05/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 288 of 2022
With
R/CIVIL REVISION APPLICATION NO. 289 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANJEEV J. THAKER Sd/-
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Approved for Reporting Yes No
Yes
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DEVESH METCAST PVT LTD THROUGH DIRECTORS & ORS.
Versus
GIRISH NAGJIBHAI SAVALIYA
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Appearance:
MR TATTVAM K PATEL(5455) for the Applicant(s) No. 1,2,3
DHRUVIK K PATEL(7769) for the Opponent(s) No. 1
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CORAMHONOURABLE MR. JUSTICE SANJEEV J. THAKER
:
CAV JUDGMENT
1. The present Civil Revision Applications have been filed challenging the Common Order dated 04.12.2021 passed below Chamber Summonses Exhs. 23-24 [Civil Revision Application No.288 of 2022] and Exhs.26-27 (Civil Revision Application No.289 of 2022) in Civil Suit No.309 of 2015 whereby 19 th City Civil and Sessions Court, Ahmedabad has rejected the applications filed by the petitioner under Order VII Rule 11 of the Code of Civil Procedure, 1908. Rule returnable forthwith. With the consent of parties, the matter is taken up for final Page 1 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025 NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined hearing.
2. For the sake of brevity, the parties herein are referred to as per their original status before the trial Court.
3. The brief facts arising for adjudication of the present Revision Application are as under:
3.1 The Plaintiff has filed Civil Suit No.309 of 2015, on the ground that in view of Bana-chitthi entered into between the Plaintiff and Defendant on 31.07.2006, whereby parties have entered into an agreement and the Defendant has agreed to sell the suit property to the Plaintiff for an amount of Rs.1,40,00,000/-. It is the case of the Plaintiff that at the time of executing Bana-chitthi on 31.07.2006, an amount of Rs. 50,000/- was paid by the Plaintiff to the Defendant by cash and it was decided that an amount of Rs.1,00,00,000/- was to be paid at the time of execution of the sale-deed and further consideration of Rs.
40,00,000/- was to be paid on or before 15.08.2006.
3.2 It is also stated in the Plaint that on 05.08.2006, the Plaintiff has further paid an amount of Rs.4,50,000/-. Therefore, in all Plaintiff has paid Rs.5,00,000/- and as the Defendant was to get title clearance certificate, the sale-deed was not executed.
3.3 Ultimately the suit that has been filed by the Plaintiff is for permanent injunction restraining Defendants from transferring, assigning, mortgaging and / or entering into any agreement with respect to the suit property and restraining the Defendant from Page 2 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025 NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined handing over possession of the property to third party and the Plaintiff has also sought for declaration that act of Defendant is illegal and wrong.
3.4 The Defendant appeared and filed an application vide Exhs.23- 24 (Civil Revision Application No.288 of 2022) and Exhs.26-27 (in Civil Revision Application No.289 of 2022) on the ground that under the provisions of Order VII Rule 11 (a) and (d) of the CPC, it is the case of the Defendant that the suit that has been filed by the Plaintiff is hopelessly time barred and that no cause of action has arisen for the Plaintiff to file suit.
3.5 After taking into consideration the Plaint and the documents annexed with the Plaint and arguments of parties to the suit, the trial Court rejected the said application by order dated 04.12.2021 and aggrieved by the said order, the present Revision Application has been filed.
SUBMISSIONS OF PETITIONER / DEFENDANT:
4. Learned advocate for the Defendant has mainly argued as follows:
4.1 It is submitted that while deciding an application under Order VII Rule 11 of the CPC, the Court will have to look into the Plaint and the documents annexed to the Plaint and it is the Plaintiff's case that Bana-chitthi, entered into between the Plaintiff and Defendant on 31.07.2006, which is produced vide Exh.4/2 specifically states that the amount of Rs.1,00,00,000/-Page 3 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025
NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined was to be paid at the time of executing of the sale-deed and there was specific time that was given for payment of sale consideration to the tune of Rs.40,00,000/- and the said period was till 15.08.2006.
4.2 Therefore, an amount of Rs.40,00,000/- was to be paid on or before 15.08.2006 and it is not the case of the Plaintiff that the said amount of Rs.40,00,000/- has ever been paid by the Plaintiff on or before 15.08.2006. Moreover, specific time has been stated to have been given for execution of sale-deed and the said period that has been mentioned in Bana-chitthi is till 31.10.2006.
4.3 Therefore, the parties to the Bana-chitthi have specifically agreed that the agreement-to-sale will have to be executed on or before 31.10.2006 and amount of Rs.4,50,000/- which Plaintiff claims to have paid is also not paid by the Plaintiff. Moreover, the Plaintiff vide Exh.4/4 has produced the caveat filed by the Defendant, wherein the Defendant had specifically stated that the sale consideration was to be paid on or before 31.10.2006 and the said amount has not been paid by the Plaintiff and, therefore, the Defendant had cancelled the said Bana-chitthi and forfeited the amount of earnest money of Rs.50,000/-, which was deposited by the Plaintiff.
4.4 The Defendant in the said caveat has also stated about the notice that has been issued on 12.12.2006 by the Plaintiff through his lawyer and the caveat is dated 21.05.2006 which has been served on the Plaintiff and learned advocate for the Defendant has relied upon documents produced vide Exh.4/5 which is a notice Page 4 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025 NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined issued by advocate of the Plaintiff wherein the Plaintiff admits of the fact that Defendant has filed caveat under Section 148/A of the Code of Civil Procedure, 1908. Moreover, the Plaintiff has also produced vide Exh.4/7 the objection to the public notice wherein also the Plaintiff has stated about caveat filed by the Defendant. Therefore, it has been argued that the fact that the Defendant had cancelled the Bana-chitthi was in knowledge of Plaintiff when the caveat was served on Plaintiff in the year 2006.
4.5 Learned advocate for the Defendant has also argued that, if the entire Plaint is considered, the Plaintiff in the Plaint has also at para 3 specifically stated that Defendants are not accepting sale consideration. Moreover, at para 3 of the Plaint, the Plaintiff has stated that Defendants are not ready and willing to execute the sale-deed in favour of the Plaintiff and at para 6 of the Plaint, the Plaintiff again states that the Plaintiff is not agreeable in executing the sale-deed in favour of the Plaintiff with respect to the suit property.
4.6 It is submitted that the fact remains that though the Plaintiff is aware that the Defendant is not agreeable to execute the sale- deed in favour of Plaintiff, the suit that has been filed by the Plaintiff is not for specific performance of Bana-chitthi which has been already cancelled by the Defendant and, therefore, relief that has been sought is only with respect to permanent injunction restraining the Defendant to deal with the suit property. The fact remains that Plaintiff is not owner of the property and the Plaintiff only has based his case on Bana- chitthi dated 31.07.2006 which to the knowledge of the Plaintiff Page 5 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025 NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined has already been cancelled by the Defendant.
4.7 Learned advocate for the Defendant has also argued that as the suit is not filed for specific performance and the fact that Plaintiff is relying on Bana-chitthi which is not a registered document, the suit is hit by Section 17 and 49 of the Registration Act. Learned advocate for the Defendant relying on the following judgments has argued that the trial Court could not have rejected the application at Exhs.23-24 under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 and, therefore, order that has been passed by Court below is required to be quashed and set aside and the Plaint is required to be rejected as the same is barred by law.
i. Heirs of Decd Samuel Madhabhai James vs. Sunnykumar Dudhabhai Jadva 2023 (2) GLR 1209 ;
ii. Balram Singh vs. Kelo Devi 2022 LiveLaw (SC) 800 Paras:5 and 6 iii. Raheja Universal Limited vs. Nrc Limited, 2012 (0) GLHEL -
SC 51099 : 2012(4) SCC 148;
iv. Kanjibhai Bhagwanjibhai Patel vs. Nanduben Shamjibhai Sorathiya through POA Dharmesh P. Trivedi 2012 (0) AIJEL- HC - 228986 : 2013 (1) GLR 51;
v. Becharbhai Zaverbhai Patel vs. Jashbhai Shivabhai Patel 2012 (0) AIJEL - HC- 227390 : 2013 (1) GLR 398 Paras:6.3 and 7; vi. Rajhans Infrancon (India) Pvt Ltd vs. Santosh Rameshbhai Rathod rendered in Civil Revision Application No.343 of 2019, para 13:
Page 6 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined vii. T. Arivandandam vs. T.V. Satyapal reported in 1977 (0) AIJEL
- SC 31368 : 1977 (4) SCC 467; and viii. Laxmiben Mafatlal Patel vs. Jayantibhai Mafatbhai Patel & Ors. rendered in Second Appeal No.273 of 2017.
SUBMISSIONS OF RESPONDENT / PLAINTIFF:
5. Per contra, learned advocate for the respondent - original Plaintiff has mainly argued that while deciding the application under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908, the Court will have to look at the Plaint and the Court cannot take into consideration one or two facts stated in the Plaint.
5.1 Learned advocate for the Plaintiff has also argued that while deciding application under Order VII Rule 11 of the CPC, the court will have to look at the Bana-chitthi which is executed on 31.07.2006, wherein reciprocating terms were to be complied with by the parties and unless only oral evidence is led, it can be decided that the breach was committed by the Plaintiff or Defendant and the Court cannot come to conclusion that whether the Plaintiff or the Defendant have not complied with the terms and conditions of Bana-chitthi and, therefore, the fact that the said document i.e. Bana-chitthi talks about, getting title clearance certificate, there is nothing on record to show that the Defendant had got title clearance certificate and, therefore, the Plaint cannot be said to be barred by law of limitation.
5.2 With respect to contention that the suit that has been filed by the Page 7 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025 NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined Plaintiff is not for specific performance, learned advocate for the Plaintiff relies on the provisions of Order II Rule 2 of the CPC and has argued that even by way of amending the Plaint, the Plaintiff will have liberty of seeking specific performance of the contract and in that view of the matter Plaintiff cannot be rejected and hence it has been argued that the order that has been passed by the trial Court is passed after considering the Plaint and documentary evidence filed with the Plaint and, therefore, present Revision Application is required to be rejected.
ANALYSIS :
6. Having heard learned advocates for the respective parties and having considered Plaint and the documents annexed with the Plaint, following are admitted facts:
i. Bana-chitthi has been entered into between the Plaintiff and Defendant on 31.07.2006;
ii. In the said Bana-chitthi amount of Rs.50,000/- has been paid by the Plaintiff to the Defendant;
iii. The amount of Rs.1,00,00,000/- was to be paid at the time of execution of sale-deed;
iv. Amount of Rs.40/- Lakhs was to be paid by the Plaintiff to the Defendant on or before 15.08.2006; v. It has also been stated that if the amount is not received on or before 15.08.2006, the Bana-chitthi will be cancelled;Page 8 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025
NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined vi. Amount of Rs.1,00,00,000/- and execution of sale-deed was to be done within the three months from 31.07.2006 i.e. on or before 31.10.2006;
vii. Caveat is filed by the Defendant wherein the fact of cancellation of Banachitthi has been specifically stated. The said caveat has been filed in the year 2007; viii. Legal notice dated 20.04.2012 the Plaintiff acknowledges receipt of caveat. The civil suit that has been filed by the Plaintiff is of the year 2005.
ix. The Plaintiff has not filed any suit for specific performance and the suit only for injunction and for a declaration that Defendant should not act illegally.
Suit for Permanent Injunction on basis of Unregistered Agreement to Sell 6.1 In view of the above admitted positions, the first point that has to be seen is that the Plaintiff is relying on Banachitthi which is not a registered Banachitthi and the fact also remains that the suit that has been filed by the Plaintiff is not for specific performance of a contract. Therefore, the fact remains that whether the suit that has been filed by the Plaintiff will be protected under the proviso of Section 49 of the Registration Act which reads as under:
"49. Effect of non-registration of documents required to be registered.
- No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882),] [Added by Act 21 of 1929, Section 10.] to be registered shall Page 9 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025 NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
[Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the [Specific Relief Act, 1877] [Added by Act 21 of 1929, Section 10.], [* * *] [The words "or as evidence of part performance of a contract for the purposes of section 53-A of the Transfer of Property Act, 1882 (4 of 1882)" omitted by Act 48 of 2001, Section 6 (w.e.f. 24.9.2001).] or as evidence of any collateral transaction not required to be effected by registered instrument.] 6.2 In view of Section 49 of the Registration Act the Court can receive the evidence of a contract in a suit for specific performance or as evidence of any collateral transaction. The fact also remains that the suit that has been filed is with respect to a right which the Plaintiff claims having arisen by way of Bana-
chitthi that is executed on 31.07.2006 and till filing of the present suit, the Plaintiff has not claimed any right for specific performance and the suit that has been filed is on a document which is required to be registered as per Section 17 of the Registration Act, therefore as the document on which the Plaintiff relies is unregistered document, no right will arise to the Plaintiff to rely on the said document i.e. Bana-chitthi as the suit is not for specific performance of a contract but only seeking permanent injunction and not for specific performance.
6.3 Therefore, the question is whether or not the Plaintiff can seek Page 10 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025 NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined permanent injunction on basis of an unregistered Agreement to Sell? In view of the well settled law, the answer to the said question is in the negative.
6.4 Hon'ble Apex Court in Balram Singh v. Kelo Devi (supra), was dealing with a similar situation. It has been held that if the Plaintiff files suit simplicitor for permanent injunction and does not seek substantive relief of specific performance for agreement to sale which is an unregistered document, on such unregistered document i.e. agreement to sale, no decree for permanent injunction could have been passed.
"17. Having conscious of the fact that the plaintiff might not succeed in getting the relief of specific performance of such agreement to sell as the same was unregistered, the plaintiff filed a suit simplicitor for permanent injunction only. It may be true that in a given case, an unregistered document can be used and/or considered for collateral purpose. However, at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case the relief for specific performance. Therefore, the plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the defendant specifically filed the counter-claim for getting back the possession which was allowed by the learned trial Court. The plaintiff cleverly prayed for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell was an unregistered document and therefore on such unregistered document/agreement to sell, no decree for specific performance could have been passed. The plaintiff cannot get the relief by clever drafting.
6.5 It is therefore clear that no decree for permanent injunction can Page 11 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025 NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined be granted on basis of an unregistered agreement to sell, especially where a prayer for specific performance has not been sought.
6.6 The Plaintiff cannot be permitted to achieve indirectly, what it cannot achieve directly.
6.7 It is well settled that agreement to sell does not confer any right upon the agreement to sell holder per se [See: Munishamappa v. M. Rama Reddy and ors., 2023 SCC Online SC 1701, Para 10, Raheja Universal Limited vs. Nrc Limited (supra)]. The only right available to such agreement to sell holder is to seek specific performance of the said agreement. Moreover, even such agreement to sell is unregistered in the present case. Without seeking specific performance, the agreement to sell cannot culminate into any legal right. Having elected not to see such specific performance, there can be no grant of permanent injunction since there is no right title or interest which the plaintive claims to hold over the suit property.
6.8 The Plaintiff having not filed a suit for specific performance, and in absence of any averment made in the Plaint as regards the readiness of the Defendant to execute the sale deed, cannot seek permanent injunction since the Plaintiffs are very well aware that the Defendant has already cancelled the Bana-chitthi and have refused specific performance of the Bana-chitthi.
6.9 Therefore, the Plaintiff does not have any cause of action to sue the Defendant for permanent injunction and declaration, on Page 12 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025 NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined basis of an unregistered agreement to sell without having sought specific performance thereof. Hence, the Plaint does not disclose a cause of action and is liable to be rejected under Order VII Rule 11 (a) on this count.
Issue of Limitation 6.10 Moreover, after the Defendant having refused specific performance of the Bana-chitthi dated 31.07.2006 and having cancelled the Bana-chitthi, and the said fact was in knowledge of the Plaintiff when the Plaintiff was served with a caveat in the year 2007 and the fact that in the Plaint also the Plaintiff has mentioned that the Defendant is not ready to accept the sale consideration and is not willing to execute the sale deed, there are no averments in the Plaint to suggest that at the time when the suit was filed, the Defendants were ready and willing to execute the sale-deed.
6.11 Therefore, even if the plaintiff had sought specific performance of the banachitthi, it would have been barred by limitation and hence no specific performance could have been granted. Cleverly, the plaintiff has not even sought that. Therefore, the suit is clearly barred by time.
6.12 Therefore, if the prayer that has been sought for by the Plaintiff with respect to specific performance would be barred by limitation in view of the specific fact in the Bana-chitthi that the payment has to be made on or before 15.08.2006 and, therefore, even the suit that could have been filed for specific performance Page 13 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025 NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined itself would be barred by law of limitation. This is because, the date fixed for performance of Bana-chitthi was 15.08.2006 when the amount of Rs.40,00,000/- (Rupees Forty Lakhs Only) was to be paid by the Plaintiff to the Defendant. Further, the date of performance of the Bana-chitthi was also mentioned as 15.10.2006 and, therefore, the right to sue first accrued 15.08.2006 when the last payment was to be made. Assuming for a moment that the plaintiff filed a suit for specific performance, the same was also beyond the period of limitation.
6.13 Therefore, since neither there is a prayer for specific performance of the Bana-chitthi, nor there is any relief to declare the cancellation made by the Defendant of Bana-chitthi to be illegal, the Plaintiff could not have filed a suit for specific performance. Moreover, Article 58 of the Limitation Act provides limitation for three years to institute any suit seeking any declaration from the date of the suit and the right to sue accrues, as stated herein above, from the cause of action in the Plaint which starts from 31.07.2006 and thereafter on 15.08.2006 when the amount was for sale consideration to the tune of Rs.40,00,000/- (Rupees Forty Lakhs Only) was to be paid and as no declaration sought for specific performance of the Bana- chitthi, the Plaintiff could not have filed a suit for permanent injunction. As the Bana-chitthi has already been cancelled. the Bana-chitthi will not create any right on the Plaintiff to seek any injunction.
6.14 Moreover in the judgment relied upon in case of Heirs of Decd Samuel Madhabhai James vs. Sunnykumar Dudhabhai Jadva Page 14 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025 NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined (supra), it has been observed that in absence of any effort seeking declaration for specific performance of execution of sale-
deed in view of agreement to sale, the suit seeking permanent injunction is not maintainable.
6.15 In case of Raheja Universal Limited vs. Nrc Limited (supra) it has been held that a mere contract for immovable property does not create any interest in the immovable property and, therefore, in the facts of present case also no interest could be created in favour of Plaintiff as the Plaintiff is also relying on an unregistered document and the Plaintiff is also not claiming specific performance of the contract.
6.16 In the case of (i) Kanjibhai Bhagwanjibhai Patel vs. Nanduben Shamjibhai Sorathiya through POA Dharmesh P. Trivedi (supra), in the case of (ii) Becharbhai Zaverbhai Patel vs. Jashbhai Shivabhai Patel (supra), in the case of (iii) Rajhans Infrancon (India) Pvt Ltd vs. Santosh Rameshbhai Ratho d (supra), in the case of (iv) T. Arivandandam vs. T.V. Satyapal (supra) and in the case of (vi) Laxmiben Mafatlal Patel vs. Jayantibhai Mafatbhai Patel & Ors. (supra), it has been held that Plaint can be rejected in exercise of powers under Order VII Rule 11 (d) f the Code of Civil Procedure, 1908 if even accepting all the averments made in the Plaint, the suit is barred by law of limitation and in the present case also the suit is hopelessly time barred as Plaintiff is claiming right by virtue of agreement to sale executed on 31.07.2006 which is not within period of limitation.
6.17 The fact remains that the suit that has been filed by the Plaintiff Page 15 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025 NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined is not for specific performance of the Bana-chitthi dated 31.07.2006. The fact is that the said Bana-chitthi has already been cancelled by the Defendant. Moreover, on meaningful reading of the Plaint, if it is found that the suit is vexatious and without any merit and does not disclose right to sue, the Court would be justified in exercising powers under Order VII Rule 11 of the CPC. Articles 54 and 58 of Schedule of the Limitation Act, 1963 prescribes the period of limitation for filing a suit either for specific performance or for declaration which reads as under:
Description Period of Time from which period Articles of suit limitation begins to run The date fixed for the For specific performance, or, if no such performanc 54 Three years date is fixed, when the e of a Plaintiff has notice that contract.
performance is refused.
To obtain When the right to sue first 58 any other Three years accrues.
declaration.
6.18 The period of limitation prescribed under Article 54 is three years from the date fixed for the performance or when the Plaintiff has noticed that performance is refused. In the present case, the Plaintiff has not filed suit for specific performance but even if the suit for specific performance (which has to be a principle relief and efficacious relief that the Plaintiff could have sought and the relief that has been sought by the Plaintiff in the plaint is time barred and the relief for declaration also for that also right to sue first accrued was in the year 2006 when the sale Page 16 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025 NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined consideration amount was to be paid by the Plaintiff to the Defendant.
6.19 The fact remains that Plaintiff neither is in possession of the property nor is the Plaintiff seeking specific performance of the Bana-chitthi. Neither the Plaintiff has on or before 15.08.2006 paid the amount of sale consideration and after the Bana-chitthi has been cancelled. The Plaintiff is merely seeking a relief of injunction against true owner, which cannot be granted when the Plaintiff has no claim over the title [See: Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 SCC Online SCC 258] 6.20 From the facts stated in the Plaint, it can be clearly established that the suit that has been filed are based on vexatious and meritless allegations and not disclosing clear right or materials to sue. It is the duty of the Court to exercise powers under Order VII Rule 11 of the CPC if clever drafting has created illusion of cause of action and the same is required to be nipped in the bud at the first hearing.
6.21 Moreover, in the suit for specific performance, once limitation period commences, it continues to run irrespective of subsequent disability or inability to institute the suit. In the present case, as stated hereinabove, the suit for specific performance had commenced in 15.08.2006 when the payment of Rs.40,00,000/- (Rupees Forty Lakhs Only) was to be paid and when the banachithhi was cancelled. Irrespective of subsequent event, the said period cannot be extended. In view of the said facts, as the suit that has been filed by the Plaintiff is simplicitor for Page 17 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025 NEUTRAL CITATION C/CRA/288/2022 CAV JUDGMENT DATED: 01/05/2025 undefined injunction and for declaration that the Defendant should not act illegally and Plaintiff having not sought any relief for specific performance and the fact that even suit for specific performance is sought for is time barred, the Plaintiff could not seek any permanent injunction against the true owner.
7. Therefore, in view of the aforesaid facts, the Order passed by the Trial Court deserves to be quashed and set aside. The Plaint in the present case does not disclose any cause of action and is also barred by the law of Limitation. Consequently, the Plaint stands rejected under the provisions of Order VII Rule 11 of the CPC. Rule, in each Civil Revision Application, is made absolute. No order as to costs.
Sd/-
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 18 of 18 Uploaded by MISHRA AMIT V.(HC00187) on Thu May 08 2025 Downloaded on : Thu May 08 22:04:12 IST 2025