Gujarat High Court
L H Of Decd. Bhil Mafaji Dharmaji vs L H Of Decd. Ratansing Devji Thakor on 27 March, 2024
NEUTRAL CITATION
C/SA/357/2023 JUDGMENT DATED: 27/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 357 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 357 of 2023
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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L H OF DECD. BHIL MAFAJI DHARMAJI & ORS.
Versus
L H OF DECD. RATANSING DEVJI THAKOR & ORS.
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Appearance:
MR P S DATTA(11324) for the Appellant(s) No. 1,1.1,1.2,1.3
MR UMANG R SHAH(12013) for the Appellant(s) No. 1,1.1,1.2,1.3
for the Respondent(s) No. 1,1.1,1.2,1.3,1.4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 27/03/2024
ORAL JUDGMENT
1. The present Second Appeal is filed by the appellants - original plaintiffs under Section 100 of the Page 1 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined Civil Procedure Code, 1908 (hereinafter referred to as "the C.P.C.") by challenging the judgment and decree dated 18.08.2015 passed in Regular Civil Suit No.203 of 2015 by the learned Addl. Senior Civil Judge, Deesa as well as the judgment and order dated 10.02.2023 passed th in Regular Civil Appeal No.21 of 2015 by the learned 6 Addl. District Judge, Deesa.
2. Heard Mr. S.P. Majmudar, the learned counsel with Mr. P.S. Datta, the learned counsel for the appellants.
3. The suggested substantial questions of law are as under:
A. Whether both the Hon'ble below have committed Courts substantial error of law in rejecting the plaint of the appellants in exercise of powers under Order VII Rule 11 of the Code of Civil Procedure Code, 1908?
B. Whether the learned Trial Court as well as the learned First Appellate Court have gravely and materially erred in Failing to Appreciate that limitation is a mixed question of law and fact and is to be decided Page 2 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined only after evidence is adduced as held by the Hon'ble Supreme Court.
C. Whether the learned Trial Court has gravely and materially erred in applying the principle that registration is deemed knowledge, relying upon the decision of this Hon'ble Court, in the case of Becharbhai Zaverbhai Patel Vs. Jashbhai Shivabhai Patel, reported in 2013 (1) GLR 398 while failing to consider Hon'ble the decision Court of this in Bahadurbhai Laljibhai Malhotra Versus Ambalal Joitaram Heirs of Joitaram Ranchhoddas reported in 2015 (3) GLR 2760 wherein it is specifically held that such deemed knowledge under section 3 of the Transfer Property Act is imputed to the person acquiring such property or any share or interest in such property and that such provision therefore, cannot be applied in case of a subsequent sale of immovable property to impute deemed knowledge of such transaction on the erstwhile purchaser/owner merely on the strength of section 3 of the Transfer of Property Act?
D. Whether the learned Trial Court as well as the Page 3 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined learned First Appellate Court have gravely and materially erred in failing to appreciate that the plaintiff is claiming an antecedent title in the Suit properties and therefore, the principle of deemed notice under section 3 of the Transfer of Property Act, 1882 would not apply in the present case?
E. Whether the learned Trial Court as well as the learned First Appellant Court have gravely and materially erred in failing to appreciate that the plaintiff had clearly stated in the plaint that they obtained knowledge about the fact that the document dated 26.05.1980 was an illegal sale deed and not a deed of mortgage on obtaining a certified copy thereof on 01.08.2015?
F. Whether the learned Trial Court as well as the learned First Appellant Court have gravely and materially erred in failing to appreciate that an application for rejection of plaint is to be heard on demurrer and hence assertions in the plaint must be assumed to be true for the purposes of determining whether plaint is liable to be rejected under Order VII, Page 4 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined Rule 11 (d) of the Code of Civil Procedure, 1908? G. Whether the learned Trial Court as well as the learned First Appellant Court have gravely and materially erred in failing to appreciate that the case of the plaintiff was that there was misrepresentation character of a fraudulent as regards the the document which would render it void ab initio as opposed to voidable?
H. Whether the learned Trial Court as well as the learned First Appellant Court have gravely and materially erred in failing to appreciate that in any event, the document dated. 26.05.1980 was executed with Ratansing Devji Thakor when he was a minor and was void ab initio as per section 11 of the Indian Contract Act, 1872 as held in the matter of Mathai Mathai V. Joseph Mary & Ors. reported in (2015) 5 SCC 622 ? I. Whether the learned Trial Court as well as the learned First Appellant Court have gravely and materially erred in failing to appreciate that Article 91 of the Limitation Act, 1907 presupposes that a suit is Page 5 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined necessary under law to set aside an instrument, but were an instrument is void ab initio as in the present case, there is, under law no duty upon a person to get the instrument set aside and hence both the courts below gravely and materially erred in applying Article 59 to the facts of the present case ?
J. Whether the learned Trial Court as well as the learned First Appellant Court have gravely and materially erred in failing to appreciate that one of the prayers in the plaint was for recovery of possession on the strength of an antecedent title and permanent injunction, neither of which could be said to be time- barred since the possession of the Defendants on the strength of a void document could never become adverse to the plaintiff ?
K. Whether the learned Trial Court as well as the learned First Appellant Court have gravely and materially erred in failing to appreciate that the Hon'ble Supreme Court in held in Sejal Glass Ltd. V. Navilan Merchants (P) Ltd., (2018) 11 SCC 780 and reiterated in Madhav Prasad Aggrawal V. Axis Bank Ltd., Reported in Page 6 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined (2019) 7 SCC 158 that where it appears that the plaint cannot be proceeded with some part but it can be proceeded in another part, Order VII Rule 11 has no application and whole suit must proceed to trial ? L. Whether the learned Trial Court as well as the learned First Appellant Court have gravely and materially erred in failing to appreciate that on a meaningful reading of the plaint it is evident that there are clear and specific allegations of fraud and fraudulent misrepresentation which require the leading of evidence? oral and documentary M. Whether the learned Trial Court as well as the learned First Appellant Court have gravely and materially erred in failing to appreciate that section 92 of the Indian Evidence Act, 1872 permits the appellants to lead oral evidence to prove any fact which may invalidate any document or which would entitle the Plaintiff to any decree or order relating thereto including allegations of Fraud ?
N. Whether the learned Trial Court as well as the Page 7 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined learned First Appellant Court have gravely and materially erred in failing to appreciate that the Hon'ble Supreme Court in Smt. Gangabhai V. Smt Chhabubai reported in (1982) 1 SCC 4 has held that evidence to show that a document executed was not intended to be operative and a different transaction, in this case a mortagage, was intended was also admissible under section 92 of the Indian Evidence Act, 1872 ? 4.1 Mr. S.P. Majmudar, the learned counsel with Mr. P.S. Datta, the learned counsel for the appellants, has submitted that the impugned orders passed by both the courts below are contrary to law and illegal, and are also contrary to the evidence on record and against the provisions of Order VII Rule 11 of the Code of Civil Procedure. Furthermore, he has submitted that the plaint of the appellants was not barred by law. Furthermore, he has submitted that clear cause of action was mentioned in the plaint of the appellants. Furthermore, he has submitted that the pleadings in the plaint were not vague. Furthermore, he has submitted that there was no question of any clever drafting in the present case, and in any case, such aspect cannot be considered under Page 8 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined Order VII Rule 11 of the C.P.C. Furthermore, he has submitted that the stand of the defendants cannot be considered by the court below while passing the impugned judgments, orders and decrees. Furthermore, he has submitted that the ratio of decisions cited at the bar has not been properly appreciated while passing the judgments. Furthermore, he has submitted that both below the Courts below have committed jurisdictional error while passing the impugned orders. 4.2 He has submitted that the trial court, erroneously exercised the suo motu powers under Order VII Rule 11 of the C.P.C. by dismissing the suit. Subsequently, the lower appellate court also erred by considering the defendants' defence in the appeal, which is impermissible under the law regarding Order VII Rule 11 of the C.P.C. Additionally, he has argued that the trial court improperly picked and chosen certain averments from the plaint and concluded erroneously that the plaintiff drafted it cleverly. By relying on the judgment of the Hon'ble Apex Court in the case of T. Arivandandam vs T. V. Satyapal & Another reported in AIR 1977 SC 2421, the trial court determined that the plaint needed Page 9 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined purposeful reading, followed by issuing summons--and it is also erroneous in the facts and circumstances of the present case. Furthermore, he has submitted that the issue of limitation was also dealt with improper manner by considering irrelevant aspects. Therefore, he has submitted that both lower courts has erred in law, as the issue of limitation involves a mixed question of law and fact, as per various judgments.
4.3 He has placed reliance upon the various judgments of the Hon'bel Apex Court as well as this Court, as under:
(i) Shaukathussain Mohammed Patel vs. Khatunben Mohmmedbhai Polara reported in (2019) 10 SCC 226.
(ii) Mathai Mathai vs. Joseph Mary @ Marykkutty Joseph reported in 2014 (0) AIJEL-SC 55375.
(iii) Chhotaben vs. Kiritbhai Jalkrushnabhai Thakkar reported in (2018) 6 SCC 422.
(iv) 2022 (0) AIJEL SC 68608.
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NEUTRAL CITATION
C/SA/357/2023 JUDGMENT DATED: 27/03/2024
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(v) Shantibhai Somabhai Patel vs. Deceased
Ranchhodbhai Pujabhai Padhiyar reported in 2019 (0) JX(Guj) 1996 : 2019 (0) AIJEL HC 240338.
4.4 He has submitted that the considering all these judgments, the Court has errored in allowing the application under Order VII Rule 11 of the C.P.C. He has also referred to the proposed substantial questions framed in the memo of appeal and has submitted that the present appeal is required to be considered as both the courts below have committed error in law and the findings of both the courts below are perverse and, therefore, he has prayed to admit this appeal. 5.1 I have considered the abovementioned submissions made at the bar by the learned counsel for the appellants in detail. I have also perused the impugned judgments passed by both the courts below. It transpires that the trial court has specifically found that at the time of issuance of process, the learned Judge has applied his mind and resorted to provisions of Order VII Rule 11 of the C.P.C., as under:
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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 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.
5.2 It is required to refer the scope of Section 100 Page 12 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined of the Civil Procedure Code, which is as under:
"Section 100.
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.
STATE AMENDMENT Kerala.Page 13 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024
NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined In sub-section (1) of section 100 of the Principal Act, after clause (c), the following clause shall be added, namely:
(d) the finding of the lower appellate court on any question of fact material to the right decision of the case on the merits being in conflict with the finding of the Court of first instance on such question."
5.3 It transpires that the plaintiff has filed the suit on 12.08.2015 before the trial court, seeking quashing and setting aside the sale deed executed on 26.05.1984 for the land of Revenue Survey No.68+69 Hissa No.1 Acre 20-00 gutha. It further comes to light that the land was previously held under the name of Dharmabhai Suranabhai Bhil, who has passed away. Subsequently, the names of his heirs were recorded in the revenue records on 17.06.1971, with certified on 17.08.1971. It is apparent that the names of six different heirs were recorded in the revenue record under entry no. 283. Owing to water scarcity and the necessity for well digging on their lands, they sought a loan of Rs.20,000/- from Sarpanch Vikhaji Thakor. The mortgage deed was executed in the name of Mr. Ratansinh Thakor, the grandson of Sarpanch Vikhaji Thakor. Based on these assertions, the suit was filed, and both the mother and Page 14 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined other brothers executed the sale deed. 5.4 The trial court has referred to the provisions of Order VII Rule 1 of the C.P.C., which is relevant to refer for ready reference, as under:
"1. Particulars to be contained in plaint.--The plaint shall contain the following particulars:--
(a) the name of the Court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed, or relinquished; and
(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits."
5.5 The trial court also made reference to the assertions laid out in paragraph 4.2 of the plaint, wherein the Page 15 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined plaintiff stated that "...recently the plaintiff went to the defendants for releasing the land in question by paying the amount of mortgage, and at that point in time, the defendants threatened the plaintiff and informed that the said agricultural land is sold to Ratansinh..." Consequently, the term "recently" was used, which the trial court duly noted, observing that there was no specific mention in the plaint regarding the date of knowledge. Consequently, the trial court has concluded that the challenge to the sale deed was sought after a period of 35 years, 02 months, and 06 days from the date of the sale deed. As per the provisions of Section 58 and 59 of the Limitation Act, for the cancellation of a sale deed, the suit should be filed within three years from the date of knowledge. However, the date of knowledge remains undisclosed in the records. Furthermore, the trial court made reference to the judgment in the case of Becharbhai Jevarbhai vs. Yashbhai Patel reported in 2013 1 GLR 398. In that case, the Court has held that the date of knowledge should be considered from the date of the sale deed. Consequently, the suit is mandated to be filed within three years from that point. Here, in the present case Page 16 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined also, the sale deed is executed on the basis of registered sale deed. The entries are also mutated in the revenue record, which are also certified. Hence, it is to be considered that the plaintiffs have constrictive knowledge and, therefore, the Court has rightly come to the conclusion that the suit is barred by limitation. 5.6 The trial court has made reference to the judgment in the case of T. Trivandam vs. T.V. Satyapal and Another reported in 1977 (4) SCC 467, which is regarding clever drafting to show the cause of action. The Court has also referred to the judgment in the case of Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman versus Ponniamman Education Trust represented by its Chairperson / Managing Trustee reported in AIR 2012 SC 3912, whereby it is observed that when real cause of action was not arisen, the Court can reject the plaint under Order VII Rule 11 of the C.P.C. The trial court has also referred to the judgment in the case of Kanjibhai Bhagwanjibhai Patel v. Nanduben Shamjibhai Sorathiya reported in 2013 (1) GLR 51, where the Court has discussed about the clever drafting of the plaintiff Page 17 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined for bringing the suit within the period of limitation. The Court has also referred to the judgment of this Court in the case of Chinubhai Babaldas Chauhan vs. Shardaben Somaji Thakor rendered in First Appeal No.3407 of 2013 dated 03.02.2014, whereby the court observed that under Article 59 of the Limitation Act, for the cancellation of a sale deed, the suit must be filed within three years. The trial court has has also referred to the judgment in the case of Saleem Bhai And Ors vs State Of Maharashtra And Ors reported in AIR 2003 SC 759. The trail court has also referred to the judgment in the cases of (i) T. Arivandandam (supra), (ii) Laxman Prasad vs Prodigy Electronics Ltd. & Anr reported in AIR 2008 SC 685,
(iii) Church Of North Of India vs Lavajibhai Ratanjibhai & Ors reported in AIR 2005 SC 254, (iv) reported in AIR 2008 SC 316, whereby the trail court has come to the specific conclusion that suit is required to be dismissed for non-disclosure of cause of action and on the ground of limitation.
5.7 The judgments cited by the learned advocate for the appellants are as under:
(i) Shaukathussain Mohammed Patel (supra).Page 18 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024
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(ii) Mathai Mathai (supra).
(iii) Chhotaben (supra).
(iv) Sejal Glass Ltd. (supra)
(v) Madhav Prasad Aggrawal (supra).
There is no dispute regarding ratio of the aforesaid judgments. But looking to the facts of the case, it clearly transpires that these judgments are not helpful to the appellants in view of the facts of the present case. 5.8.1 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 lega 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 Page 19 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined 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. 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 Page 20 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined 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."
5.8.2 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:
"29.16 . The present case is a classic case, where the plaintiffs by clever drafting of the plaint, attempted to Page 21 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined 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 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 Page 22 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined 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 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 Page 23 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined 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." 5.8.3 It is also fruitful to refer the recent judgment of the Hon'ble Apex in the case of Canara Bank vs P Sellathal (Dead) Thr Lrs reported in (2020) 13 SCC 143, more particularly, paragraphs 12 to 15 are relevant, as under:
"12. Having considered the pleadings and the averments in the suits, more particularly the allegations of fraud, we find that the allegations of fraud are with respect to the partnership deed and there are no allegations at all with respect to mortgage created by the Guarantor - Shri Kallikutty and that too with respect to the deed of guarantee executed by the Guarantor. Much reliance is placed upon the judgment and order passed by the learned Magistrate holding the partners of the firm guilty. However, it is required to be noted that even in the said judgment passed by the learned Magistrate there is no reference to the deed of guarantee and/or the mortgage created by the Guarantor. Even the bank is not a party to the said proceedings. It is reported that against the judgment and order passed by the learned Magistrate, further appeal is pending. Be that as it may, considering the pleadings/averments in the suits and the allegations of fraud, we are of the opinion that the allegations of fraud Page 24 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined are illusory and only with a view to get out of the judgment and decree passed by the DRT. We are of the opinion that therefore the suits are vexatious and are filed with a mala fide intention to get out of the judgment and decree passed by the DRT.
13. As observed hereinabove, the plaintiffs are claiming right, title on the basis of the sale deeds dated 30.01.1996 and 10.03.1997 respectively executed by Shri Kallikutty as power of attorney holder of the original owner. However, according to the averments in the plaints, they have purchased the suit property from their vendor which is factually incorrect. On a bare reading of the sale deeds, it appears that the sale deeds are executed by Shri Kallikutty as power of attorney holder of the original vendor. As observed hereinabove, even in the year 2008, when the said Kallikutty filed interlocutory application before the DRT to quash and set aside the exparte judgment and decree passed by the DRT, he did not disclose that he has already sold the property in favour of the original plaintiffs. As observed hereinabove, even the sale consideration is alleged to have been paid in cash. Before the execution of the sale deeds dated 30.01.1996 and 10.03.1997, the lands were already put as a security by way of mortgage with the appellantbank by Shri Kallikutty.
14. Thus, considering the overall facts and circumstances of the case, the suits filed by the original plaintiffs are vexatious, frivolous and nothing but an abuse of process of law and court. Therefore, considering the law laid down by Page 25 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined this Court in the aforesaid decisions, more particularly in the case of T. Arivandandam (supra), the suits being vexatious and frivolous, the plaints are required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC. As pointed out by Krishna Iyer, J. in T. Arivandandam (supra), the ritual of repeating a word or creation of an illusion in the plaint can certainly be unravelled and exposed by the court while dealing with an application under Order 7 Rule 11(a). As observed by this Court, such proceedings are required to be nipped in the bud. Even otherwise as observed hereinabove, without exhausting the remedy of appeal provided under the RDDBFI Act, the suits with the basic relief of challenging the decree passed by the DRT were liable to be dismissed, as observed and held by this Court in the case of O.C. Krishnan and others (supra).
15. At this stage, it is also required to be noted that the suits have been filed after a period of 15 years from the date of mortgage and after a period of 7 years from the date of passing of the decree by the DRT. In the plaints, it is averred that the plaintiffs came to know about the mortgage and the judgment and decree passed by the DRT only six months back. However, the said averments can be said to be too vague. Nothing has been averred when and how the plaintiffs came to know about the judgment and decree passed by the DRT and the mortgage of the property. Only with a view to get out of the law of limitation and only with a view to bring the suits within the period of limitation, such vague averments are made. On Page 26 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined such vague averments, plaintiffs cannot get out of the law of limitation. There must be specific pleadings and averments in the plaints on limitation. Thus, on this ground also, the plaints were liable to be rejected. As observed hereinabove, the plaints are vexatious, frivolous, meritless and nothing but an abuse of process of law and court. Therefore, this is a fit case to exercise the powers under Order 7 Rule 11 (d) of the CPC. Both the courts below have materially erred in not rejecting the plaints in exercise of powers under Order 7 Rule 11(d) of the CPC. Both the courts below have materially erred in not exercising the jurisdiction vested in them."
5.8.4. 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 Page 27 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined 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 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 Page 28 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined 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 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 Page 29 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined 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:
"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:Page 30 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024
NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined "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 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 Page 31 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined 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."
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."
5.8.5 It is also fruitful to refer the judgment of the Page 32 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined Hon'ble Apex in the case of T. Trivandam (supra), more specifically, paragraphs 5 to 7 are relevant, 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, be should exercise his power under Or. VII r. 1 1 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."Page 33 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024
NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined
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 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." Page 34 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024
NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined 5.8.6 It is also relevant to refer the decision of this Court in the case of Emrald Co Operative Housing Society Ltd vs Decd. Gulamkadar S/O Gulam Husain reporte in 2019 (2) GLH 559.
5.9 In view of above, the order passed by the trial court is found perfectly justified as the suit is barred by limitation, rendering it not maintainable. The lower appellate court has also appreciated the entire evidence afresh and has given cogent and convincing reasons. The trial court has also come to the definite conclusion that such suit is time-barred and has exercised its suo motu power, which is also properly dealt with by the lower appellate court by giving cogent and convincing reasons by adding some more judgments in support of the finding of the trial court. Moreover, the court has also considered the arguments advanced by the respondents regarding the legality and validity of the trial court's judgment, which does not amount to considering the defendants' defence, as argued by the appellant. Therefore, none the questions of law has arisen for consideration of the present matter. I found that both the courts below have rightly come to the conclusion that Page 35 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined the suit is barred by limitation and also hit by the provisions of Order VII Rule 11 of the C.P.C. Accordingly, the trial court has dismissed the suit. The concurrent findings of both the courts below are not required to be disturbed by this Court by exercising the powers under Section 100 of the C.P.C. 5.10 It is also required to refer the recent judgment of the Hon'ble Apex Court in the case of Gurbachan Singh (Dead) Through Lrs. vs. Gurcharan Singh (Dead) Through Lrs and Others reported in (2023) SCC OnLine SC 875, more specifically, paragraph 7, 14 & 15 are relevant, 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. Kamala6( 2 Judge Bench), it was observed:
"27. In HeroVinoth v. Seshammal [HeroVinoth v. S eshammal, (2006) 5 SCC 545] , this Court referred to Page 36 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined 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 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 : (192728) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law" as it Page 37 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined 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 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.' Page 38 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined
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 judgement 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 and Anr. v. M. Arockiasamy (Dead) Through LRs., had referred to, with approval judgement Page 39 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024 NEUTRAL CITATION C/SA/357/2023 JUDGMENT DATED: 27/03/2024 undefined rendered in Ramathal v. Maruthathal & Ors (twoJudge 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 appreciation of evidence "suffers from material irregularity" the court will be justified in interfering with such findings."
5.11 In view of the above discussions and totality of the facts and circumstances of the case, I am of the opinion that both the courts below have rightly exercised its powers in judicious manner and no infirmity, illegality and perversity is found in the findings of both the courts below. The findings given by both the courts below are on the basis of materials available on record and are also found in consonance with law. Therefore, no interference is required to be called for by this Court.
6. Resultantly, the present Second Appeal is dismissed with no order as to costs. Civil Application stands disposed of accordingly.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 40 of 40 Downloaded on : Fri Apr 05 21:42:23 IST 2024