Gujarat High Court
Ramilaben D/O Bhavanbhai Koladiya And ... vs Chandanben D/O Dayaram Maganbhai And ... on 12 December, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1752 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/FIRST APPEAL NO. 1752 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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RAMILABEN D/O BHAVANBHAI KOLADIYA AND W/O VINUBHAI
HARIBHAI MALAVIYA
Versus
CHANDANBEN D/O DAYARAM MAGANBHAI AND W/O THAKORBHAI
BHULABHAI PATEL
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Appearance:
MR.PERCY KAVINA, SENIOR ADVOCATE WITH MR. VIRAL K. SALOT,
ADVOCATE(3500) for the Appellant(s) No. 1,2,3
for the Defendant(s) No. 1,3,6
MR.SHALIN MEHTA, SENIOR ADVOCATE WITH MR. A.B.MUNSHI
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NEUTRAL CITATION
C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023
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ADVOCATE(1238) for the Defendant(s) No. 10,7,8,9
MR.S.N.SOPARKAR, SENIOR ADVOCATE WITH MR. MANAN A SHAH,
ADVOCATE (5412) for the Defendant(s) No. 4,5
NOTICE SERVED BY DS for the Defendant(s) No. 2
MR.ANSHIN DESAI, SENIOR ADVOCATE WITH MS. VENU H.
NANAVATY, ADVOCATE (7458) for the Defendant(s) No. 3.1,3.2,3.3
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 12/12/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI) [1] By way of present First Appeal under Section 96 of the Code of Civil Procedure, 1908, the appellants - original plaintiffs have challenged the legality and validity of an order dated 04.05.2021 passed by the learned 2nd Additional Senior Civil Judge, Surat in Special Civil Suit No.717 of 2014 below Exh. 82 & 86.
[2] The brief facts which has given rise to the present appeal are that the appellants - original plaintiffs have filed Special Civil Suit No.717 of 2014 before the learned Principal Senior Civil Judge, Surat contending inter alia that the land bearing Page 2 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined Block No.58 (Original Survey Nos. 60, 61, 68, 69 and 70) of Village - Kumbhariya, Taluka - Choryasi, District - Surat was originally belonged to defendant No.1 who alongwith defendant No.2 have agreed to sell the said land to the appellant Nos. 1 and 2 by executing an agreement to sell on 04.07.2003 on the terms and conditions which are stated therein. According to appellants, with a view to keep away from contractual rights of the appellants got entered the names of defendant Nos. 3 to 5 in the revenue record and tacitly time limit sought to be extended of 20 months as incorporated in agreement. In furtherance of an agreement to sell, defendant No.1 has also executed a power of attorney in favour of appellant No.3 and though the amount of full consideration as agreed have been paid, the defendants evaded to fulfill their part of the allegations and has not executed a sale deed in favour of appellant Nos.1 and 2. [2.1] It is the case of the appellants that since the Regular Civil Suit No. 510 of 2003 which was filed by defendant No.6 and 7 against defendant No. 1 and 2 is pending and the interim order was operative dated 15.02.2006, the appellants were not in a Page 3 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined position to get the sale deed executed from defendant Nos.1 and 2 but defendant Nos. 1 and 2 have assured many times to the appellant that they will definitely execute the sale deed. One more litigation in the form of Special Civil Suit No.269 of 2006 which was filed by defendant Nos. 1 to 5 against defendant Nos. 6 and 7 and others for seeking partition of the HUF properties and even the said litigation was financed by appellants as per the agreement to sell dated 04.07.2003. The said Civil Suit 2006 came to be settled and withdrawn by defendant Nos. 1 to 5 on 18.05.2013, but then upon further inquiry, it was noticed that defendant Nos. 1 to 5 have executed a deed of confirmation on 29.05.2013 in favour of Vikash Hasmukhbhai Ahir and Hasmukh Ravjibhai Ahir and persistently though the appellants have requested the defendants to execute the sale deed pursuance to their agreement to sale dated 04.07.2003, no response came from the side of defendants which has ultimately led the appellants to institute Special Civil Suit No.717 of 2014 for the seeking specific performance of an agreement dated 04.07.2003 and for seeking permanent injunction and in the alternative for damages. This Civil Suit was being proceeded, in Page 4 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined the meantime, according to the appellants, at a belated stage, an application was moved by defendant Nos. 3/1 to 3/3 at Exh.82 by contending that there is no cause of action and suit is barred by law of limitation and the said application which was submitted on 24.02.2020 alongwith the other applications filed by other defendants at Exh.86. Both applications were clubbed together and after hearing both the sides, the learned 2 nd Additional Senior Civil Judge, Surat vide order dated 04.05.2021 was pleased to allow the application submitted by defendants and by exercising jurisdiction under Order 7 Rule 11 (a) and (d), the plaint came to be rejected and it is against this judgment and order passed by the learned Judge, as indicated above, the present First Appeal has been submitted.
[3] The First Appeal was entertained by the Court wherein the Division Bench of this Court on 27.10.2021 was pleased to issue notice for final disposal and during the passage of time, the same has come up for considering before this Court wherein learned senior advocates appearing on behalf of both the sides after drawing attention to the aforesaid order have requested to Page 5 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined take up the matter finally for its disposal. Hence, with this background, the Court heard the matter.
[4] Heard Mr. Percy Kavina, learned senior advocate appearing with Mr. Viral K. Salot, learned advocate for the appellants, Mr. S. N. Soparkar, learned senior advocate appearing with Mr. Manan A. Shah, learned advocate for defendant Nos.4 and 5, Mr. Shalin Mehta, learned senior advocate appearing with Mr. A. B. Munshi, learned advocate for the defendant Nos. 7, 8, 9 and 10 and Mr. Anshin Desai, learned senior advocate appearing with Ms. Venu H. Nanavaty for defendant Nos. 3/1 to 3/3.
[5] Mr. Percy Kavina, learned senior advocate appearing with Mr. Viral K. Salot, learned advocate for the appellants has vehemently contended that the order passed by the court below is not only unjust and arbitrary but reflects clear non application of mind, hence, the same is required to be quashed and set aside. Mr. Kavina, learned senior advocate has further submitted that the learned Judge has also not perused the evidence on record while coming to the conclusion and as such Page 6 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined the finding arrived at by the court below is perverse to the record. It has been submitted that application has been submitted at a much belated stage after filing of the suit and thereto the same has been filed by the legal heirs of original defendant No.3 and as such, the learned Judge ought to have dismissed the application. It has been contended that learned trial Judge while passing the impugned order has misread the provisions contained under Order 7 Rule 11 and the principle underlying therein is ignored. Substantially the plaint has been rejected on the count there is no cause of action but perusal of the averments contained in the plaint, according to Mr. Kavina, learned senior advocate, disclosing clearly the cause of action and as such it is erroneous on the part of learned Judge to come to a conclusion that there is non disclosure of cause of action. [5.1] Mr. Kavina, learned senior advocate has further submitted that while passing an order under Order 7 Rule 11, the learned Judge has adopted a process as if a suit is to be disposed of on merit. What is to be seen in Order 7 Rule 11 is merely whether a remote cause of action discloses or not and according to Mr. Page 7 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined Kavina, learned senior advocate, when a specific cause of action is stipulated in the plaint itself, the corroborative averments made in the plaint ought not to have been ignored. Further it has been submitted that the suit is not merely for the purpose of specific performance, it is also alternatively for seeking damages as well and as such overall rejection of the plaint would seriously result in miscarriage of justice. It has been submitted that apart from that the specific conclusion which has been arrived at in paragraph 20 of the order would clearly in- conflict with the specific assertion made in the plaint itself and as such keeping in view the reasons which are assigned, the impugned order is not sustainable in the eye of law. [5.2] Mr. Kavina, learned senior advocate has further submitted that apart from the aforesaid fact the said agreement in question is entangled in series of litigation and on the contrary, the donation has also been made by the appellants as per the desire of the defendants and huge amount was invested and defendant Nos.1 and 2 have accepted all the transactions including the agreement to sale and the same having been Page 8 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined admitted in written statement at Exh.44 which was filed in another suit i.e. Regular Civil Suit No.510 of 2003 there was no earthly reason for learned Judge to ignore all the circumstances. Resultantly, the impugned order is required to be set aside in the interest of justice. According to Mr. Kavina, learned senior advocate, the application ought to have rejected solely on the ground that appellants have filed an application at Exh.222 on 04.07.2015 for being impleaded as party respondent in suit i.e. Regular Civil Suit No.510 of 2003 and the same is pending till date. When that we so, there was no reason for disposal of the present suit by exercising discretion under Order 7 Rule 11. Additionally, it has been submitted that issues have framed on 29.06.2016 at Exh.51 and without examining and deciding crucial issue, namely, issue nos.1, 2 and 3 no power could have been exercised under Order 7 Rule 11. Hence, a serious error is committed by the court below in exercising discretion. [5.3] Mr. Kavina, learned senior advocate has further submitted that though no doubt the time limit was prescribed of performance under the agreement of 20 months i.e. agreement Page 9 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined dated 04.07.2003 but the said time limit by conduct is impliedly extended perpetually by way of accepting consideration from the appellants. Hence, it is difficult to digest the reasons which are assigned in the impugned order. Hence, the order requires to be quashed and set aside.
[5.4] Mr. Kavina, learned senior advocate has further submitted that in view of the decisions delivered by Hon'ble Apex Court reported in (2018) 6 SCC 422, (2006) 5 SCC 638 and (2007) 15 SCC 52, the exercise undertaken by the court below under Order 7 Rule 11 is nothing but clear misreading of provisions itself. Hence, the order being not sustainable in the eye of law, deserves to be quashed. No other submissions have been made. [6] As against this, Mr. Anshin Desai, learned senior advocate appearing with Ms. Venu H. Nanavaty for defendant Nos. 3/1 to 3/3 who submitted an application has vehemently opposed the stand of Mr. Kavina, learned senior advocate and has categorically submitted that cause of action which has been reflected in the plaint is merely illusory, irrelevant and based on factual in correction and as such the learned trial Judge has Page 10 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined rightly exercised the direction while rejecting the plaint. It has submitted that as averred in the plaint about meeting etc. are not the circumstances reflect real cause of action on the contrary it is nothing but a smart pleading on the basis of which hopelessly time barred suit is tried to be set within the period of limitation.
[6.1] Mr. Desai, learned senior advocate has further submitted that agreement undisputedly dated 04.07.2003 contains a 20 months time for performance and further the said agreement is unregistered agreement whereas the suit in the present form is submitted only in December, 2014 i.e. almost after a period of 11 years. Hence, on this count alone, the order is justified in the eye of law. Apart from this, even the Revenue Entry No.2408 which has been asserted to have been made on 11.06.2011 then also counting this date also, is placing the plaintiff outside the period of limitation. It has further been contended that when the main prayer itself is not sustainable in the eye of law, it is not gainsaid to say that since alternative prayed is made, the suit deserves to be sustained though it is Page 11 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined hopelessly time barred. Such proposition is not in consonance with the law laid down. It has been further contended that an agreement is dated 04.07.2003 and the 20 months period has already elapsed on 04.03.2005. Even according to appellants, if without admitting assumed that last payment made on 19.08.2006 then also the attempt to raise grievance in the year 2014 is outside the period of limitation clearly. Further the appellants were undisputedly well within the knowledge of pending litigation right from the year 2006 and still has chosen to wait for a pretty long period and as such, such a belated vexatious and irrelevant cause of action rightly has been dealt with by the learned trial Judge by passing the impugned order. [6.2] To strengthen the submission, Mr. Desai, learned senior advocate has relied upon and referred to following decisions:-
(i) In the case of Raghwendra Sharan Singh versus Ram Prasanna Singh (Dead) by Legal representatives reported in (2020) 16 SCC 601.
(ii) In the case of Dahiben versus Arvindbhai Kalyanji Bhanusali (Gajra) Dead through legal representatives and others reported in (2020) 7 SCC 366.Page 12 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023
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(iii) In the case of Canara Bank versus P. Selathal and others reported in (2020) 13 SCC 143.
(iv) In the case of Rajnikant Bhogilal Patel versus Bhudarbhai Hakkabhai Bhrambhatt Lh of Decd reported in 2022 (0) AIJEL_HC 244105.
(v) In the case of Harshadkumar Kantilal Bhalodwala versus Ishwarbhai Chandubhai Patel reported in 2009 (0) AIJEL_HC 222967.
(vi) In the case of Khimjibhai Harjivanbhai Patadia versus Patel Govindbhai Bhagvanbhai reported in 2006 (4) GLR 3058.
(vii) In the case of Khimjibhai Harjivanbhai Patadia versus Patel Govindbhai Bhagvanbhai passed in Special Leave to Appeal (Civil) No.2900 of 2007 on 23.02.2007.
(viii) In the case of Becharbhai Zaverbhai Patel versus Jashbhai Shivabhai Patel reported in 2013 (1) GLR
398.
(ix) In the case of Rajpal Singh versus Saroj (Deceased) through LRs and another reported in 2022 SCC OnLine SC 638.
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NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined As such, Mr. Desai, learned senior advocate has requested to dismiss the present First Appeal. [7] In support of the submissions made by Mr. Anshin Desai, learned senior advocate, Mr. S. N. Soparkar, learned Senior advocate appearing with Mr. Manan A. Shah, learned advocate for the defendant Nos.4 and 5 have submitted that suit itself is hopelessly time barred when undisputedly an agreement contains a specific time limit of 20 months. The period of limitation begins from laps of said period of 20 months i.e. from 04.03.2005 onwards. Mr. Soparkar, learned Senior advocate has drawn the attention to Section 9 of Limitation Act and has submitted that since the time begin to run subsequent even may not of that significance, and in addition thereto, as also pointed out the provisions contained under Article 54 of Limitation Act and after reading the same has submitted that when the date is fixed or the period is fixed in the agreement itself second part of the provisions would not be of any relevance. Hence, in no stretch of imagination, the suit proceedings are sustainable in the law and no error is committed by the court below while passing the impugned order.
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NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined [7.1] Additionally, Mr. Soparkar, learned Senior advocate has submitted that cause of action which has been pleaded is not so germane which would revive the dead cause of action which has already been elapsed and therefore, the circumstances which are stated in the plaint are of no significance to maintain the suit and further granting of injunction or continuing the injunction in a different proceeding would not automatically revive the dead cause of action or to extend the period of limitation and by referring to Section 15, Mr. Soparkar, learned Senior advocate has submitted that there appears to be no error committed by the court below while passing the order. It has further been submitted that by virtue of observations made in paragraphs 74, 75 and 76 in a decision reported in (2022) 12 SCC 321 and also the observations made in paragraph 15 in a decision reported in (2020) 13 SCC 143 in respect of submission of learned senior advocate appeal must fail. [8] In addition to this, Mr. Shalin Mehta, learned senior advocate appearing with Mr. A. B. Munshi, learned advocate for the defendant Nos.7, 8, 9 and 10 has submitted that learned Page 15 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined trial Judge has rightly exercised the discretion especially when the cleaver drafting would not come to rescue the appellants - original plaintiffs and for that purpose has made a reference to a decision reported in (2020) 7 SCC 366 precisely paragraph 24. According to Mr. Shalin Mehta, learned senior advocate, on the contrary, an attempt has been made to create to fresh cause of action as can be seen from paragraph 12 on page 26. Further more it has submitted that Block No.58 was not even a part of the schedule of property in Civil Suit No.269 of 2006 and therefore also, the assistance from the proceedings cannot be taken by appellants to maintain the suit and apart from that the said Civil Suit i.e. 269 of 2006 was already withdrawn on 18.05.2013 and therefore, there is no reason to set aside the impugned order which is passed in exercise of discretion. It has been further submitted that in the suit i.e. Special Civil Suit No.510 of 2003 an application was filed under Order 1 Rule 10 in the year, 2015 which was rejected on 15.09.2022 and against which the Special Civil Application No. 4840 of 2023 which was filed here in the High Court which also got dismissed on 17.04.2023 and further by virtue of Articles 58 and 59 of Page 16 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined Limitation Act, in any case, the suit has to be filed within a period of 3 years from the lapse of 20 months period which has already been incorporated. Hence, there is hardly any reason to make a grievance about the impugned order which has been passed. In addition thereto, Mr. Shalin Mehta, learned senior advocate has submitted that even the injunction application below Exh.5 was also disposed of by virtue of order dated 15.02.2006 in the suit of 2006 and as such even from that date had the suit being filed probably some stand might have been taken into consideration but undisputedly, in the year, 2014 itself, the suit has been filed which has rightly been dealt with by the court below. Hence, a request is made to dispose of present First Appeal.
[9] Having heard learned senior advocates appearing for the respective parties and having gone through the material on record, in the context of submissions which have been made by the appellants, first of all before dealing with the contentions, the conclusion which has been arrived at by the learned court below on the basis of material available on record and upon Page 17 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined submissions of learned advocates and as such the same being relevant to the issue, the Court deems it proper to reproduce the said part of the conclusion hereunder which is based upon analysis of material on record and in exercise of discretion vested in the statute:-
"10. Now on bare reading of the plaint, it is the contention of plaintiffs that they entered with an agreement to sell of suit property Block No.58 on Dtd.4/7/2003 and they paid earnest amount worth of Rs.50,005/- to owner on Dtd.22/5/2003 and the amount worth of Rs.65,00,000/- paid on Dtd.4/7/2003. It was mentioned in the agreement that suit property was not running on the name of seller alone and revenue proceedings were going on for the contest of right in suit property. Plaintiffs were aware of the facts and they were agreed to pay for the all litigations which were running of would be in the future. The time period of performance was decided as 20 months. It is also mentioned in the plaint that after the execution of the sale agreement, defendant No.6 and No.7 filed RCS No.510/2003 against defendant No.1 and No.2 hence, despite of full payment of consideration, plaintiffs were not in the position to get execution of registered sale deed from the defendants. Plaintiffs alleged the payment all the costs and engagement of advocates for defendants in litigation. They further alleged that filing of Spl.C.S. No.269/2006 by defendants No.1 to 5 against defendant No.6 and No.7. Plaintiffs alleged the payment of all the costs for that suit also and alleged that defendant No.1 to 5 withdrawn that suit without informing them as to injure the right of plaintiffs, hence, they contested it as the breach of agreement Page 18 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined and filed this suit Plaintiffs filed some plaints of alleged litigations.
i. Mark 3/28 is the plaint of Spl.C.S. No.269/2006, which is filed for the property of deceased Vallabhbhai Maganbhai as the coparcener from her father Dayarambhai i.e. son of Vallabhbhai. But the suit property was not involved in it.
ii. Mark 3/38 is the plaint of RCS No.510/2003. It was filed for the suit property on Dtd.26/12/2003.
iii. Mark 3/39 is only half document. It is the order passed under Ex.5 in RCS No.510/2003 on Dtd.15/2/2006. The application and first order passed under Ex.5 is not placed together of this order. But it is revealed from the order that some order of restriction was passed under Ex.5 on Dtd.26/12/2003. Thus, it is obvious for this court to peruse document filed at mark 29/13 by defendant No.6. It is the full copy of Ex.47 of RCS No.510/2003. It is written in that it was filed by present defendant No.1 and No.2 in the suit for the change of order of status quo passed under Ex.5 at the time of filing of the suit.
11. Therefore, at the time of alleged payment made by the plaintiff during the Dtd.6/1/2004 to 19/8/2004 for the amount worth of Rs.1,68,50,000/- was made during the order of status quo passed by the appropriate court having jurisdiction to deal all the dispute relating suit property. It is not the contention of plaintiffs that they were not aware of that litigation, but they confirmed the knowledge with the contention of assisting the present defendants in that suit by appointing advocate and Page 19 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined providing all monetary assistance. Therefore, no it can not be the contention of plaintiff side that they were not aware of the status quo passed and in the argument of plaintiffs as well as written reply filed by the plaintiff, they admitted the existence of injunction order for any transfer of suit property since 2006 to till today.
12. Now the question before this court is the existence of any cause of action for the filing of the suit. It is cleared that suit of RCS No.510/2003 is still pending and injunction regarding the transfer is still in continuance. There is no other order of any Higher Court. Thus, if the court think the existence of cause of action on today, there is no cause of action is in support of plaintiffs because they knew it even though, as per their contention, they paid remaining handsome amount to defendants. Now they are afraid that defendants will do compromise against their interest, hence, they filed this suit.
13. The second question before this court that if the court believes all the contention of plaintiffs' suit without entering in to evidence or without perusal of the defence, even though, whether the court is in condition to pass any decree in favour of plaintiff due decree in favour of plaintiff due to existence of injunction on suit property? The answer is in negative. The suit is purely pre-mature and without having cause of action at this time.
14. It is also necessary to note here that all this situations are in the knowledge of plaintiffs and despite of having knowledge they did all the transaction of payment and other in the breach of injunction order of one court. The suit filed by defendant No.7 as Page 20 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined RCS No.510/2003 is not the suit which can not be affected the right of plaintiffs. It is totally in conflict with plaintiffs' right, even though, they are still silent in RCS No.510/2003. If the court passes the decree in RCS No.510/2003 in favour of the plaintiff of that suit and denied any right of present defendant No.1 and No.2 on suit property, then where is the cause of action before present plaintiff?
15. The most important thing is the relief asked in the present suit. Plaintiffs asked the injunction against the defendants as to restrain any transfer or any act done contrary to the right of present plaintiff on suit property. Whether this court is empowered to grant such relief as the suit property is sub-judice in other matter and that suit was filed before filling of this suit and between different parties and on different subject matter? The answer is in negative.
16. Plaintiffs asked second relief of execution of registered sale deed but during the pendency of injunction order of RCS No.510/2003, this relief is not possible to grant as this court is not the appellant court of the court which passed the injunction order in RCS No.510/2003.
17. Plaintiff asked optional relief in second relief for the recovery of their amount paid with amount of compensation but the transfer is restricted and it is true that present defendant No.1 and No.2 are contested the disputed agreement, even at this juncture, this Court is not in the position to allow any relief to plaintiff due to filing of the suit without having cause of action.
18. It is also revealed from the document of plaintiffs filed at Page 21 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined mark at 3/26 that the suit property was running on the joint name of defendant No.1 and Vasantbhai Ishwarbhavi i.e. defendant No.7 and Arvindbhai Naranbhai (not joint as the party in the suit) and Hemangbhai Kalyanbhai (Not joined as the party in the suit) from Dtd.10/1/1996. Whether the court is in position to allow the relief against only present defendants? The answer is in negative.
19. Plaintiff asked relief No.5 as to pass restriction order of having any decree from any court in RCS No.510/2003 as to injure the right of plaintiff. Whether the court is empowered to do so? The answer is in negative.
20. The suit filed is clearly barred by the provision of Civil Law as well as without cause of action and on suppression of material facts. It is in the knowledge of this court that at this juncture merely the plaint as whole and documents filed by the plaintiffs should be considered and this court has done same. But on the bare reading of the plaint, the suit seems as not maintainable due to the relief asked and material not disclosed by the plaintiffs. Their pleading says one thing and their document says other thing. Therefore, the plaint is liable to reject under Order 7 Rule 11 (a) and (d) as the suit is not having cause of action during the continuance of RCS No.510/2003 and the relief asked in the suit regarding the injunction and restring of parties to getting any decree in RCS No.510/2003 are contrary to law, hence, reliefs asked in the suit are barred by law. Thus, suit is not maintainable.
21-i. It is necessary to note here, that as per the provision of section 2(2) the " "decree" mans the formal expression of Page 22 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within xxx section 144, but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."""
21-ii. In Shamshe Singh v. Rajender Prasad, the Hon'ble Supreme Court categorically held that an order rejecting a plaint under Order 7, Rule 11(d) is an appealable decree. 21-iii. It is held by Hon'ble Andhra Pradesh High Court in case of Sompalli Venkatarathnam And Ors. vs Kilari Lingaiah and Ors. on 24 June, 2004 reported in 2004 (4) ALD 558, 2008 (2) ALT 598 that "The definition of 'Decree', as given in the Code of Civil Procedure, indicates that rejection of a plaint is covered within the term 'decree' and as such, in my view, there should not have been any further formal recording of the decree to enable the appellant to make an appeal." (See Purnamasi Yadav v. Narbedeshwar Tripathi, AIR 1998 All. 260)"
[10] The aforesaid conclusion which has been arrived at by the court below if to be looked into context of the submissions and material pointed out by the learned senior advocates of either Page 23 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined sides, the said conclusion appears to be clearly in consonance with the material on record and as such it is not possible for us to construe such conclusion as perverse or illegal or irregular in any manner. Hence, we are of the opinion that the submission that order passed by the learned trial Judge is not in consonance with relevant record and or perverse is not possible to be accepted by us. Hence, a contention tried to be raised by the appellants is not acceptable.
[11] Now on the basis of material on record, a perusal of the cause of action paragraph of the plaint of present Special Civil Suit No.717 of 2014 is indicating that the same is not a sound cause of action which can be easily acceptable. The said cause of action is reflecting a cleaver drafting if it is to be tested in consonance with the relevant other record. A bare perusal of unregistered agreement to sell which is dated 04.07.2003 is clearly indicating a condition of 20 months period of fulfillment and the said payment schedule and the condition of 20 months is a special condition and only in exceptional circumstance as narrated in paragraph 3 of the said agreement, the same can be extended but here this period 20 months is already over on Page 24 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined 04.03.2005 and apart form the record does not indicate in any form that he said period is extended at any point of time.
Hence, it is not possible to construe that cause of action reflected in plaint is the real cause of action. If the sequence of events further to be looked into, it transpires that even the last payment appears to have been made way back in the month of August, 2006 which is also part of the record of compilation submitted before the Court. Further it is not in dispute that the appellants were not within the knowledge of pending litigation which was already reflecting on record from 2006 and as such when that we so, there is hardly any possibility to believe that the appellants are innocent persons, having no knowledge at all.
Apart from that, even the entry which has been made being Entry No.2408 is also of 11.06.2011. Hence, even from that day also, a position is to be taken a cause of action reflects a cleaver drafting or an attempt is made to create a dead cause of action.
Furthermore, the suit of 2006 i.e. Special Civil Suit No.269 of 2006 was already withdrawn on 18.05.2013 but then Block No.58 was never a part in the said suit proceedings and as such a conjoint effect of these sequence of events if to be looked into Page 25 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined which is reflecting from the record and has rightly been analyzed by the court below that there is hardly any reason for this Court to substitute the finding which has been arrived at by the court below on clear analysis on evidence on record. Even the conclusion which has been arrived at is a well reasoned conclusion which need no interference in our considered opinion.
[12] At this stage, we may remind ourselves to the proposition of law laid down about the scope of First Appeal while exercising jurisdiction under Section 96 of CPC and since we have considered the same, we deem it proper to quote relevant observations from the following decision:-
(i) In the case of V. Prabhakara versus Basavaraj K. (Dead) By Legal Representative and Another reported in (2022) 1 SCC 115:
"22. The first appellate court while exercising power under Section 96 can re-do the exercise of the trial court. However, such a power is expected to be exercised with caution. The reason being, the trial court alone has the pleasure of seeing the demeanor of the witness. Therefore, it has got its own advantage in assessing the Page 26 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined statement of the witnesses which may not be available to the appellate court. In exercising such a power, the appellate court has to keep in mind the views of the trial court. If it finds that the trial court is wrong, its decision should be on the reasoning given. A mere substitution of views, without discussing the findings of the trial court, by the appellate court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court. While adopting reasoning in support of its findings, the appellate court is not expected to go on moral grounds alone.
23.The aforesaid views expressed by us are nothing but a reiteration of the settled principle of law as could be seen through the following paragraphs of the decision rendered by this Court in the case of Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497:
"28. At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanor of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well- established principles of law or unreasonable.Page 27 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023
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29. Before more than a century, in Coghlan v. Cumberland [(1898) 1 Ch 704 (CA)] Lindley, M.R. pronounced the principle thus;
"Even where the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the Judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions and when the question arises which witness is to be believed rather than another; and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the Court in differing from the Judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen.Page 28 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023
NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined " (See also observations of Lord Thankerton in Watt v. Thomas, [1947 AC 484])
30. In Sara Veeraswami v. Talluri Narayya [AIR 1949 PC 32] the Judicial Committee of the Privy Council, after referring to relevant decisions on the point, stated (Quoting from Watt v Thomas, [(1947) 1 All ER 582, pp.583 H-584 A]): "...
but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given."
31. This Court also, before more than half a century in Sarju Pershad v. Jwaleshwari, Pratap Narain Singh [AIR 1951 SC 120] stated:
"8. The question for our consideration is undoubtedly Page 29 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined one of fact, the decision of which depends upon the appreciation of oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact."
35. Yet in another decision in Madhusudan Das v. Narayanibai [(1983) 1 SCC 35], this Court said:
"8. ...At this stage, it would be right to refer to the general principle that, in an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in Page 30 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. ...The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact."
(emphasis supplied)
36. Three requisites should normally be present before an appellate court reverses a finding of the trial court:
(i) it applies its mind to reasons given by the trial court;
(ii) it has no advantage of seeing and hearing the witnesses; and
(iii) it records cogent and convincing reasons for disagreeing with the trial court.
37. If the above principles are kept in mind, in our judgment, the decision of the High Court falls short of the grounds which would allow the first appellate court to reverse a finding of fact recorded by the trial court. As already adverted Page 31 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined earlier, the High Court has 'virtually' reached a conclusion without recording reasons in support of such conclusion. When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial court or conclusions arrived at were not in consonance with law."
(emphasis in original)
24. Thus, we have no hesitation in holding that though the first appellate court is the final court of fact and law, it has to fall in the line with the scope and ambit of Section 96 of the Code."
[13] From the aforesaid conclusion, we are of the opinion that a well supported reasoned order needs no interference in the absence of any distinguishable material and especially when no perversity is reflecting there is hardly any reason to call for any interference.
[14] In the background of aforesaid discussion and in view of the aforesaid proposition of law, the decisions which have been tried to be relied upon by learned senior advocate appearing for Page 32 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined the appellants are since in the back drop of different facts and circumstance, we are of the opinion that the said proposition is of no assistance to the appellants. As it has been pointed out that while exercising jurisdiction under Order 7 Rule 11 of the C.P.C. only averments contained in the plaint to be looked into. This proposition is not in dispute but at the same time when the documents attached to the plaint and the averments and cause of action asserted in the plaint if not sounding any confidence to the learned Judge as to whether suit reflects real cause of action or not or is within the period of limitation, the said averments have been considered by the court below in the present background. Hence, we are of the opinion that the such sound principle is not ignored by the learned trial Judge while exercising discretion. Further regarding cause of action a decision is tried to be relied upon by the appellants in the case of Jageshwari Devi and others versus Shatrughan Ram reported in (2007) 15 SCC 52 for said proposition there is no quarrel at all, but then, when the cause of action here, in the present proceeding itself is illusory or attempt to create a dead cause of action is made, which can be easily inferred and rightly Page 33 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined been inferred by the court below, we are of the opinion that the said decision is of no assistance to the appellants. Hence, appeal lacks merit.
[15] In the context of aforesaid situation, if we peruse the contents of decision which is relied upon by learned senior advocate appearing on behalf of contesting respondents one of the decision which is in the case of Canara Bank (supra) the paragraph 15 of the said decision to some extent has clearly supported the stand taken by the defendants and since the said observations, we found it relevant, we quote hereunder:-
"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 such vague averments, plaintiffs cannot get out of the law of limitation. There must be specific pleadings and averments in the plaints on Page 34 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined 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."
[16] Simultaneously, the decisions which have been relied upon by the Mr. Anshin Desai, learned senior advocate are well supported the stand taken by then since we are clearly of the opinion that no case is made out by the appellants to call for any interference and we desist ourselves from overburdening the present order by discussing those decisions at length. But in summary, we say that the decision which is in case of Raghwendra Sharan Singh (supra) on the issue of limitation paragraphs 7, 8 and 9 are relevant to apply here on the case on hand. Similarly the decision which has been relied upon in the case of Canara Bank (supra) a perusal of the relevant paragraphs 9.4 and 9.5 clearly laid down a proposition that there must be a real cause of action to be set out in the plaint and if it is found to be illusory, the jurisdiction under Order 7 Page 35 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined Rule 11 can be exercised. A cleaver drafting of the plaint has created an illusion regarding cause of action, the Court will nip it in the bud at earliest so that bogus litigation will end at the earlier stage. We deem it proper to quote hereunder paragraphs 9.4 and 9.5:-
"9.4 In Sopan Sukhdeo Sable (supra) in paras 11 and 12, this Court has observed as under:
"11. In I.T.C. 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 (supra)."
9.5 In Madanuri Sri Rama Chandra Murthy (supra), this Court has observed and held as under:
"7. The plaint can be rejected under Order 7 Rule 11 if Page 36 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined 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 suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."
[17] Similar is the reiteration of the principle as can be seen from the decision in the case of Rajnikant Bhogilal Patel Page 37 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined (supra) in which paragraphs, 13, 22, 23, 32 and 34 we peruse and applied here.
[18] Though large number of other decisions have been pressed into service but since we are of the clear opinion that no case is made out by the present appellants to call for any interference as we have said earlier herein before, we have not expensively dealt with the decisions cited by learned senior advocates appearing on behalf of the respondents. [19] Yet another decision which has been pressed into service is of a recent time delivered by Division Bench of this Court dated 19.06.2023 in First Appeal No.4905 of 2018 wherein also the entire scope of Order 7 Rule 11 is examined and analyzed and the order of the trial court was maintained and the law on the issue was discussed at length in various paragraphs from paragraph 6.3 onwards and as such keeping the aforesaid observations and various decisions as indicated therein, we are of the opinion that case is not made out by the appellants to entertain the appeal and appeal lacks merit. Hence, we deem it proper to dismiss hereunder by confirming the order dated Page 38 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023 NEUTRAL CITATION C/FA/1752/2021 CAV JUDGMENT DATED: 12/12/2023 undefined 04.05.2021 passed by the learned 2nd Additional Senior Civil Judge, Surat in Special Civil Suit No.717 of 2014 below Exh. 82 & 86.
[20] Since the main First Appeal is dismissed, connected Civil Application also does not survive for consideration and stands disposed of accordingly.
Sd/-
(ASHUTOSH SHASTRI, J.) Sd/-
(DIVYESH A. JOSHI, J.) DHARMENDRA KUMAR Page 39 of 39 Downloaded on : Thu Dec 14 20:39:50 IST 2023