Gujarat High Court
Hitesh P Sanghvi vs Harshaben Vijay Mehta on 8 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4896 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HITESH P SANGHVI
Versus
HARSHABEN VIJAY MEHTA
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Appearance:
MR. BHADRISH S RAJU(6676) for the Appellant(s) No. 1
SAIRICA S RAJU(8761) for the Appellant(s) No. 1
for the Respondent(s) No. 1
MR DHAVAL M BAROT(2723) for the Respondent(s) No. 2,4
MS MEGHA JANI(1028) for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/02/2024
CAV JUDGMENT
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1. The appellant has challenged the order dated 23.10.2018 passed by City Civil Court, Ahmedabad in Civil Suit No.1758 of 2017, whereby the learned Court was pleased to reject the plaint of the suit, under Order 7 Rule 11 of the Code of Civil Procedure.
2. Heard Mr. Bhadrish S.Raju, Ms. Megha Jani and Mr. Dhaval M.Barot, learned advocate for the respective parties.
3. Advocate Mr. Bhadrish S.Raju for the appellant submitted that the suit was filed by the appellant, as plaintiff before the City Civil Court, Ahmedabad making a prayer for declaration for will dated 04.02.2014 bearing Registration No.707 registered before the Sub-registrar-3 (Memnagar) as well as the Codicil dated 20.09.2014 bearing Registration No.6213 before the same Sub-registrar-3 (Memnagar) as null and void, and, further consequential relief of Page 2 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined permanent injunction restraining the defendants from entering into any transaction in furtherance of the directions in the Will or Codicil; and to declare all consequential action taken in furtherance of the said Will and Codicil as null and void, and further status quo ante was prayed to be restored.
3.1 Referring to the date of presenting the suit as of 21.11.2017, Advocate Mr. Raju submitted that the order impugned is not sustainable under the provisions of law, since the rejection of the plaint has been ordered under Order 7 Rule 11 of CPC as being barred by limitation, where actually the limitation is a mixed question of law and fact, which cannot be decided without leading evidence, and necessary exercise of investigation through the trial must be conducted with regard to the facts of the case pleaded which should be substantiated by way of evidence. Advocate Mr. Raju submitted that the Page 3 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined plaint cannot be read in isolation, where the principles of law, as governs the provisions of Order 7 Rule 11, is to read the plaint in entirety and the documents of the plaintiff to support the plaint. Advocate Mr. Raju submitted that the defence of the defendants cannot be considered, to examine the plaint under Order 7 rule 11 of CPC.
3.2 Referring to the order of the City Civil Court, Mr. Bhadrish Raju submitted that only one line has been picked up from the plaint to conclude that the suit was barred by limitation. Mr. Raju stated that the plaintiff in the plaint had stated that he came to know about the Will and Codicil as defendant nos.1 to 3 had disclosed about it, in the first week of November, 2014, and, only on that pleading Advocate Mr. Raju submitted, that the Court had found that the plaintiff had to file the suit on or before 07.11.2017, but had filed the suit on 21.11.2017. Page 4 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024
NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined 3.3 Advocate Mr. Raju referred to the observation of the learned Judge in regard to the right to sue first accruing to the plaintiff, where the learned Judge has observed that the right to sue first accrue when the Will came into operation on the death of maker of the Will, and so, on that day, right to sue accrues. Advocate Mr. Raju, thus, contends that this observation of the learned Judge is not consistent to the facts on record, since the father died on 21.10.2014, and the knowledge of Will and Codicil becomes attributable to the first week of November, 2014. 3.4 Advocate Mr. Raju submitted that the Court fell in error only by selecting few statements from the plaint and on considering the provisions of Article 58 of the Limitation Act, non-suited the plaintiff.
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NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined 3.5 Advocate Mr. Raju further, referring to the plaint submitted that the father was suffering from Cancer and had long battle, struggling to survive, and the health was constantly deteriorating; deceased father was never fit and was constantly kept failing to one and other ailments, and the treatments were taken by the father from Doctors at various places. 3.6 Advocate Mr. Raju, thus, submitted that the plaintiff has very specifically pleaded that because of constant ailment of the father, defendant nos.1 to 3 was surreptitiously procuring the signature and thumb impression of the deceased father upon various blank papers, deeds and documents, and pursuant to the death of the father, defendant nos.1 to 3 in the first week of November, 2014 disclosed to the plaintiff that the deceased had not only executed a Will, but had even executed a Codicil, and such fact completely surprised the plaintiff, since from Page 6 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined the beginning of 2014, the deceased father was physically, mentally and emotionally not in a position to execute Will or Codicil, and could certainly not have understood the implications of the documents, which were signed by him, or over which his signature or thumb impressions were taken. Advocate Mr. Raju submitted that the plaintiff had specifically pleaded that both, Will as well as Codicil, executed by the deceased are contrary to the testamentary capacity, and being in a weak physical position; he was unable to take any decision in respect of the Will and Codicil.
3.7 Advocate Mr. Raju submitted that the information of Will and Codicil executed by the father, informed by defendant nos.1 to 3 in the first week of November, 2014, has been noted in paragraph no.3(o) of the plaint, and thereafter in para 's', the plaintiff has specifically pleaded that on looking to the contents of the Page 7 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined Will and Codicil, the plaintiff was further surprised, since deceased by virtue of said Will and Codicil had parted with immovable property, which was not owned by him, and thereafter in para 't' had pleaded that the Will as well as Codicil makes aptly clear that the said deeds were not in accordance with the intention of the deceased, since no valid reason has been provided for excluding the plaintiff from the array of beneficiaries, and the plaintiff found the Will and Codicil as vague and uncertain, since it has been noted in the will that the deceased has given away too many properties during his lifetime to the plaintiff; in fact, actually, no such properties have been given to the plaintiff, and that, it was very clearly pleaded that the Will and Codicil are contrary to the testamentary intention of the deceased.
3.8 Advocate Mr. Raju, thus, stated that the learned Judge only on one averment of the plaint, Page 8 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined regarding information given by the defendants of the execution of the Will and Codicil in the first week of November, 2014, had made a ground for considering the limitation; oblivious of the further pleadings of the plaint. 3.9 Mr. Raju, learned advocate for the appellant further submitted that the learned court had concluded that the plaintiff was required to file the suit on or before 07.11.2017; but has not taken into consideration the pleadings, that only after having heard about the Will and Codicil in the first week of November, 2014, thereafter only the plaintiff could read the content of Will and Codicil. The Will and Codicil were in possession of the defendants, and, thus Mr. Raju submitted that the plaintiff was required to be granted opportunity to provide evidence so that he could have informed the court during the trial, as to when and under what circumstances, he could read the Page 9 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined contents of the Will and Codicil; thus, stated that if the pleadings are read in its totality, then the suit is completely within the limitation as had been filed on 21.11.2017. 3.10 Mr. Raju submitted that Article 58 of the Limitation Act, would be invoked to consider three years period to obtain relief of declaration when the right to sue first accrues. Mr. Raju, thus, stated that the Court has not granted opportunity to plaintiff to provide evidence to establish the fact of the right first accrued to the plaintiff for filing the suit. 3.11 In support of his contention, Mr. Raju has relied on the judgment of Kum. Geetha, D/o Late Krishna & Ors. Vs. Nanjundaswamy & Ors. rendered by the Hon'ble Supreme Court in Civil Appeal No.7413 of 2023, and stated that the Hon'ble Apex Court has reiterated the principles of law, that the plaint cannot be rejected in Page 10 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined part under Order 7 Rule 11 of the C.P.C., and in the said judgment the Court placing much emphasis on the principles being well established and continuously followed since 1936, has clarified that the Court had committed error in rejecting the plaint in part and such is impermissible. Mr. Raju submitted that knowledge of the Will and having full knowledge of the Will is completely two different aspect, and in the present matter the pleadings are to both the facts of the knowledge and thereafter of real and full knowledge of the Will and Codicil. Advocate Mr. Raju submitted that the interregnum period has been sufficiently explained.
3.12 Advocate Mr. Raju further submitted that the prayer is not only for declaration of the Will and Codicil as null and void, but also prayer has been made to declare all the subsequent action taken in furtherance of the Will and Codicil as null and void and for status Page 11 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined quo ante, as specific pleading has been raised in para (ee) that the plaintiff got the knowledge that the defendant nos.1 and 3 have purportedly defrauded their mother and have transferred or attempted to transfer her private properties in their names and have even transferred or attempted to transfer the properties bequeathed by virtue of the Codicil upon the plaintiff's mother in their own name; such transfer or attempted transfer has created a doubt on the genuineness of the Will and Codicil. 3.13 Advocate Mr. Raju referred to the order dated 28.02.2022 in R.T.S. Appeal Case No.80 of 2018 before the Deputy Collector, Dhanduka Court, Dhanduka, to state that the dispute has been raised by the plaintiff and observation has been made, which supports the pleading of the plaintiff.
4. Advocate Mr. Dhaval M.Barot for Page 12 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined respondent nos.2 and 4 relying on the judgment of Ganga Prasad Vs. Munna Lal And Ors., decided by High Court of Allahabad (Lucknow Bench), on 21.12.2017 in Second Appeal No.451 of 2000, submitted that Article 59 of the Limitation Act lays down the period of three years for cancelling or setting aside an instrument when the facts entitling the plaintiff to have the instrument cancelled or set aside first become known to him, thus, stated that the Chamber summons were filed by defendants before the City Civil Court under Order 7 Rule 11 of the C.P.C. bringing to notice of the Court that the suit is barred by law of limitation, since plaintiff came to know about Will and Codicil in the first week of November, 2014, and, thus supporting the order of the learned City Civil Court, Mr. Barot submitted that no suit should be permitted, if Article 59 of the Limitation Act gets attracted to the cause of the suit.
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5. Ms. Megha Jani, learned advocate for respondent no.3, placing reliance on a judgment of High Court of Delhi in case of Minu Chibber And Ors. Vs. LT. Col. (Retd.) S.S. Chibber, reported in 2014 SCC OnLine Del 7726, and the judgment of Division Bench of this Court in case of Pintoobhai Ashokkumar Patel Vs. Sukhdevbhai @ Navinchandra Nathibhai Patel & Ors., rendered in First Appeal No.2343 of 2015, contended that the cause of action has been noted in paragraph no.3(o) of the plaint, which is to be considered as a date of knowledge and there cannot be any extension of limitation period in such suit, nor such delay can be condoned, and submitted that the suit was required to be filed within the said period, and the plaintiff cannot take the advantage of any action of the defendants when the plaintiff himself had taken the benefit of the Will and Codicil, and when the Will and Codicil have been implemented, no challenge can Page 14 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined be given to the instruments, and, if at all, then should be within the limitation.
6. Heard learned advocates on record and perused the order challenged.
7. The learned Judge in the impugned order has relied on para 3(o) and para 4 of the plaint, while the learned Judge has not referred to any other paragraphs, which were subsequent pleadings.
7.1 The cause of action, as was raised by the plaintiff in paragraph no.4 was noted by the learned Judge in the order, which is reproduced hereinunder:
"The cause of action has arisen on 04.02.2014, when the Will bearing Registration No.707 was registered before the Sub-Registrar-3 (Memnagar), which was executed by the father of the plaintiff Shri Pramodray Sanghavi and the cause of Page 15 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined action further arose on 20.09.2014, when Codicil to the said Will bearing Registration No.6213 was executed before the Sub-Registrar-3 (Memnagar). The cause of action also arose on 21.10.2014, when the father of the Plaintiff expired and thereafter, the Will and Codicil of the father of the Plaintiff came to the knowledge of the Plaintiff. The said Will and Codicil are absolutely illegal, false and fabricated and therefore, are required to be declared as null and void. Further, an injunction is required to be ordered against the defendants for not to sell, transfer or alienate any of the properties as per the directions of the Will and to maintain status quo till the final disposal of the Suit. Hence, the present Suit."
7.2 The cause of action, preceded with the pleadings and the facts leading to filing of the suit, has been noted in para-3 from sub-para (a) to (z) and (aa) to (ii). The plaint appears to be Page 16 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined rejected under Clause (d) of the Order 7 Rule 11 of the C.P.C. finding it barred by the Limitation Act.
8. In Kum. Geetha, D/o Late Krishna & Ors. (supra), the question which was called upon to be decided by the Supreme Court was about the true and correct application of the principle underlying the rejection of plaint under Order 7 Rule 11 of the C.P.C. and the second question was relating to the legality of rejection of a plaint in part. In the judgment, the Hon'ble Apex Court referred the principles explained in Dahiben V. Arvindbhai Kalyanji Bhanusali, reported in (2020) 7 SCC 366, and to be more specific, importance has been given to para 23.2 to 23.15. On bare reading of the relevant paragraphs, it could be concluded that the remedy under Order 7 Rule 11 is the independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, if, it is satisfied that Page 17 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined the action should be terminated on any of the grounds contained in the proviso. If suit is barred by limitation under Rule 11(d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit, and in such a case, it was observed that it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted. 8.1 Referring to the various judgments of the Supreme Court, it was observed that the purpose of conferment of powers under Order 7 Rule 11 of the C.P.C., is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court. The said was expressed in following words:
"12. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not Page 18 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined be permitted to occupy the time of the court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the court readily exercises the power to reject a plaint, if it does not disclose any cause of action."
8.2 Nonetheless, it is required to be noted about the further observation that under order 7 Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint read in conjunction with the documents relied upon, or whether the suit is barred by any law. In exercise of the power under the provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out, and at this stage, the pleas taken by the Page 19 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration. The test for exercising the power under order 7 Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same, result in a decree being passed, and it has been also observed that whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not, must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed. 8.3 The observation made therein would clearly indicate that it is the substance, and Page 20 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words, and if the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry, whether the allegations are true in facts. Thus, provision of Order 7 Rule 11 is mandatory in nature, but for the purpose, the true test is to first read the plaint meaningfully, and as a whole, taking it to be true, as observed in Kum. Geetha, D/o Late Krishna & Ors. (supra).
9. Here, in the present matter, the learned Judge in the impugned order has referred to Para 3(o) and Para 4 to come to a decision that the suit is barred by law, as it is hit by Article 58 of the Limitation Act. It appears that the learned Chamber Judge has only referred to those facts, which were stated in Chamber Summons, Exh.25, 28 and 33, which were given by defendant Page 21 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined nos.2 to 4 respectively. The learned Judge has only picked the content of the pleading to observe that in the first week of November, 2014, the plaintiff got the information about execution of the Will or Codicil by the father. There is a difference between 'having knowledge' and 'full knowledge' of execution of Will or Codicil. The cause of action is based on the fact that defendant nos.1 to 3 had informed the plaintiff about the father's Will or Codicil in the first week of November, 2014, and thereafter the plaintiff has averred in para 's' and 't' that after looking to the content of the Will or Codicil, he was surprised, since he found that the father had parted with immovable property that was not owned by him, and the plaintiff, thus, found it that the disposition were not in accordance with the intention of the deceased, and it was only after looking by the recital of the Will or Codicil, he found that there were Page 22 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined vague and uncertain assertions. 9.1 The plaintiff has also made a reference in para (dd), which reads as under:
"(dd) Even otherwise, defendant nos.1 to 3 have without procuring an affirmation of the Honourable Court in form of a probate (though not mandatory) have begun undertaking transaction under the said Will as well as the Codicil. The defendants and the other beneficiaries have not even propounded the said Will as well as the Codicil and have failed to discharge the burden of proof."
9.2 Thereafter, in para (ee), the plaintiff has also pleaded that deceased by virtue of the purported codicil bequeathed all his properties upon the plaintiff's mother, but surprisingly, defendant nos.1 and 3 have purportedly defrauded their mother and have transferred or attempted to transfer properties declared by virtue of Codicil upon their mother in their names. The facts were Page 23 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined also pleaded, which shows that after being informed by the defendants of execution of the Will in first week of November, 2014, then the plaintiff subsequently read the Will and had the full knowledge of the contents of the Will. The learned judge was required to deal with all the pleadings to exercise the discretion prior to the rejection of the plaint.
10. In case of Minu Chibber And Ors. (supra), referred by learned Advocate Ms. Megha Jani, it has been observed that the suit was instituted on 10.12.2010, where the Will was dated 16.05.1993, and relinquishment deed dated 18.12.2003, where it was observed that relinquishment deed proceeded on the premise that there was no Will, hence, the suit for declaration of the Will being forged, false, null and void, were found to be beyond limitation. 10.1 In Kum. Geetha, D/o Late Krishna & Ors. Page 24 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024
NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined (supra), the Hon'ble Apex Court has laid down the principles with regard to the provision of Order 7 Rule 11 to observe that the plaint cannot be rejected in part. This principle is well established and has been continuously followed since 1936 decision in Maqsud Ahmad V. Mathra Datt & Co., reported in AIR 1936 Lahore 1021, and observed that this principle is also explained in a recent decision of the Supreme Court in Sejal Glass Ltd. V. Navilan Merchants (P) Ltd., reported in (2018) 11 SCC 780, which was again followed in Madhaw Prasad Aggarwal v. Axis Bank Ltd., reported in (2019) 7 SCC 158. The relevant paragraphs of Madhaw Prasad Aggarwal (Supra) have been quoted in Kum. Geetha, D/o Late Krishna & Ors. (supra), which are reproduced hereunder for ready reference:
"10. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that Page 25 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power under Order 7 Rule 11(d) CPC. Indeed, the learned Single Judge rejected this objection raised by the appellant(s) by relying on the decision of the Division Bench of the same High Court. However, we find that the decision of this Court in Sejal Glass Ltd. [Sejal Glass Ltd. v. Navilan Merchants (P) Ltd., (2018) 11 SCC 780 : (2018) 5 SCC (Civ) 256] is directly on the point.
In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) CPC stating that the plaint disclosed no cause of action. The civil court held that the plaint is to be bifurcated as it did not disclose any cause of action against the Director's Defendant(s) 2 to 4 therein. On that basis, the High Court had opined that the suit can continue against Defendant 1 Page 26 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined company alone. The question considered by this Court was whether such a course is open to the civil court in exercise of powers under Order 7 Rule 11(d) CPC. The Court answered the said question in the negative by adverting to several decisions on the point which had consistently held that the plaint can either be rejected as a whole or not at all. The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) and/or properties, Order 7 Rule 11(d) CPC will have no application at all, and the suit as a whole must then proceed to trial.
12. Indubitably, the plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) CPC on account of non-compliance with mandatory requirements or being replete with any institutional deficiency at the time of Page 27 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part..."
10.2 In case of Pintoobhai Ashokkumar Patel (supra), the reference is about having clear knowledge of the Will, wherein the challenge was given to agreement to sell and a registered sale deed, and Will to be declared as illegal, null and void and ineffective. The Will was dated 18.01.1988 and the public notice was issued on 25.12.2009. The judgment referred is distinguishable on the facts and could not be applicable to the present matter.
11. The Division Bench of this Court in case of Bardoli Shreerang Exhibitors Private Limited Vs. Maheshbhai babubhai Hirpara in First Appeal 1774 of 2020, on 28.09.2021, has dealt with the Page 28 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined aspect of provision of Order 7 Rule 11, and relevant observations with respect to rejection of plaint on the ground of barred by limitation requires a special mention herein:
"35. Time and again, this Court has, in many orders, explained stating that a plea of limitation cannot be decided as an abstract principle of law divorced from the facts as in every case the starting point of limitation has to be ascertained, which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question, whether the words 'barred by law' occurring in Order 7 Rule 11(d) CPC would also include the ground that it is barred by law of limitation, has been considered by the Supreme Court in the case of Balasaria Construction Pvt. Ltd. vs. Hanuman Seva Trust and others, decided on 8th October 2005), held as under:
"After hearing counsel for the parties, going through the Page 29 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the paint it cannot be held that the suit is barred by time."
36. What is a pure question of fact or of law or of a mixed question of law and fact and how the court should approach and decide them have been set at rest by the Supreme Court in Sree Meenakshi Mills' case [1957] 31 ITR 28. On all these aspects, Venkatarama Ayyar J., speaking for the court, has expressed thus (at p. 39):
"Considering the question on
principle, when there is a
question of fact to be
determined, it would usually be Page 30 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined necessary first to decide disputed facts of a subsidiary or evidentiary character, and the ultimate conclusion will depend on an appreciation of these facts. Can it be said that a conclusion of fact, pure and simple, ceases to be that when it is in turn a deduction from other facts ? What can be the principle on which a question of fact becomes transformed into a question of law when it involves an inference from basic facts ?
To take an illustration, let us suppose that in a suit on a promissory note, the defence taken is one of denial of execution. The court finds that the disputed signature is unlike the admitted signatures of the defendant. It also finds that the attesting witnesses who speak to execution were not, in fact, present at the time of the alleged execution. On a consideration of these facts, the court comes to the conclusion that the promissory note is not genuine. Here, there are certain Page 31 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined facts which are ascertain, and on these facts, a certain conclusion is reached, which is also one of fact. Can it be contended that the finding that the promissory note is not genuine is one of law, as it is an inference from the primary facts found ? Clearly not. But it is argued against this conclusion that it conflicts with the view expressed in several English decisions, some of them of the highest authority, that it is a question of law that inference is to be drawn from facts. The fallacy underlying this contention is that it fails to take into account the distinction which exists between a pure question of fact and a mixed question of law and fact, and that the observations relied on have reference to the latter and not to the former, which is what we are concerned with in this case."
37. In between the domains occupied respectively by question of fact and of law, there is a large area in which both these question run into Page 32 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as the mixed question of law and fact. These question involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained..."
40. The Issue of limitation may be addressed by us from a different perspective. So far as the law of limitation is concerned, it does not bar the institution of the suit, it merely bars the remedy. As a piece of substantive law, it may result in extinguishment of the right if the action is not commenced within a particular time, or as a piece of procedural law, it may merely bar the claim. Where a party to the suit sets up the plea of limitation, the court is required to consider (a) the cause of action in the suit; (b) when the cause of action commenced; Page 33 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024
NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined and (c) the result of non-action by the plaintiff. In these premises, the question of limitation cannot be called a pure question of law, it would rather be mixed question of law and fact.
12. This Court is also of the view that the learned City Civil Judge has rejected the plaint by considering the pleadings in part. The relief prayed was also to be kept in mind before applying the provision of Article 58 of the Limitation Act. The Court has to first decide the disputed facts of subsidiary evidentiary character and the ultimate conclusion, thus, will depend on an appreciation of these facts. Learned Chamber Judge has only referred to selective paragraphs of the plaint shown by the defendant, but had failed to read the plaint as a whole. 12.1 A reference was made of the provision of Article 59 of the Limitation Act by the Advocate of the plaintiff, but the learned Judge was of an Page 34 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined opinion, in view of the relief, which has been prayed and admissions by the plaintiff in the plaint that, the said period of limitation of Article 110 would not be attracted, and the plaintiff had known regarding the Will, he was required to file suit within the period of three years. The learned Judge has also considered that the question of limitation is a mixed question of law, in spite of that only referring to paragraph 3(o) and paragraph 4 of the plaint concluded that the plaint is barred by limitation. 12.2 The learned judge has failed to provide opportunity to adduce evidence to those averments, which plaintiff had made in the plaint to prove his case, to show that the suit has been filed within the limitation. The learned Chamber Judge has even observed that some averments have been made by the plaintiff to bring the suit within limitation, however, did not find it tenable in view of the averments of the plaint, Page 35 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined which as per the opinion of this Court in view of the tenor of the order, was only limited to paragraph 3(o) and Paragraph (4). The Court was thus required to call the plaintiff to prove his case, if he could aver that his suit falls within limitation.
13. In view of the reasons given herein above, First Appeal is allowed. In the result, the impugned order dated 23.10.2018 passed by Chamber Judge, City Civil Court, Ahmedabad below Exh.25, 28 and 33 and the decree are quashed and set aside. Civil Suit (CCC) No.1758 of 2017 is ordered to be restored on the file of the concerned City Civil Judge, and is directed to be conducted in accordance to the law by providing sufficient opportunity to all the parties to the litigation by framing the required issues.
(GITA GOPI,J) Page 36 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024 NEUTRAL CITATION C/FA/4896/2019 CAV JUDGMENT DATED: 08/02/2024 undefined Further Order After the pronouncement of the judgment on behalf of learned Advocate Ms. Megha Jani for respondent no.3, stay was prayed on the operation of the present judgment. To the reasons noted in the judgment, the prayer is disallowed.
(GITA GOPI,J) Pankaj Page 37 of 37 Downloaded on : Thu Feb 08 20:52:18 IST 2024