Gujarat High Court
Girishbhai Natvarbhai Patel vs Prabhavati Cooperation Housing ... on 16 October, 2015
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/CRA/290/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 290 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any
order made thereunder ?
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GIRISHBHAI NATVARBHAI PATEL....Applicant(s)
Versus
PRABHAVATI COOPERATION HOUSING SOCIETY LIMITED &
ORS.
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Appearance:
Mr Mihir Thakore, learned Senior Advocate, assisted by
M/s Bhargav Karia & Associates for the Applicant
Mr Shalin Mehta, learned Senior Advocate, assisted by
Mrs Nisha M Parikh for the Opponent
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 16/10/2015
CAV JUDGMENT
The petitioner in this revision application filed under Section 115 of the Civil Procedure Code, 1908 has challenged order dated 8th August 2014 passed by the learned 4th Page 1 of 16 HC-NIC Page 1 of 16 Created On Sun Oct 18 03:06:29 IST 2015 C/CRA/290/2014 JUDGMENT Additional Senior Civil Judge, Gandhinagar below Exhibit 37 in Special Civil Suit No.35 of 2003 whereby the application preferred under Order VII Rule 11(d) of the CPC by the petitioners came to be rejected. The aforesaid suit was filed by respondent No.1 filed in the court of the learned 4th Additional Senior Civil Judge, Gandhinagar for a declaration that the sale deed executed by defendants Nos.1 to 3 on 5th July 1999 in favour of defendants Nos.4 to 8 whereby the land bearing Survey No.239/1 of village Motera, District Gandhinagar admeasuring 23027 gunthas = 14872 square meters was sold to defendants Nos.4 to 8 unauthorisedly.
2 The short facts giving rise to the present revision are that the first respondent - original plaintiff is a cooperative housing society, registered under the provisions of the Gujarat Cooperative Societies Act, 1961. It is the case of the respondent - defendant no.1 that the land bearing Survey No.239/1 of village Motera was agreed to be sold to the Society vide agreement for sale dated 8.2.1980 and the price of the land was fixed at Rs.15 per square meter and Rs.27,000/- was paid towards advance. It is the case of the plaintiff society that they have paid the entire sale consideration of Rs.1,95,000 in installments and thereafter they have time and again requested original defendants Nos.1 and 2 to execute the sale deed in favour of the society. It is the case of the respondent society that defendants Nos.1 and 2 have failed and neglected to do so on one pretext or the other and has sold the land to defendants Nos.4 to 8 on 5th July 1999 illegally and uauthorisedly. Therefore, the Society had filed Regular Civil Suit No.29 of 2000 on 24.4.2000 for specifc performance of the aforesaid agreement for sale dated Page 2 of 16 HC-NIC Page 2 of 16 Created On Sun Oct 18 03:06:29 IST 2015 C/CRA/290/2014 JUDGMENT 8.2.1980, which is pending before the civil court at Gandhinagar. Thereafter, the plaintiff has filed the suit being Special Civil Suit No.35 of 2003 inter alia praying that the the sale deed executed in favour of defendants Nos.4 to 8 by defendant Nos.1 to 3 in respect of the land bearing Survey No.239/1 of village Motera, District Gandhinagar admeasuring 23027 gunthas = 14872 square meters be cancelled and also prayed for a permanent injunction for restraining the defendants from selling, transferring or in any manner alienating in favour of third parties.
3 Respondent No.6 herein preferred an application below Exhibit 37 under Order 7 Rule 11(d) of the Civil Procedure Code to reject the said suit as the same being barred by law. The learned 4th Additional Senior Civil Judge, by the impugned order dated 8th August 2014 rejected the said application below Exhibit 37.
4 The present petitioner, who is the original defendant No.4 in the suit has challenged the impugned order of the learned trial Judge in this revision application.
5 Heard Mr Mihir Thakore, learned Senior Advocate, assisted by Mr Bhargav Karia, learned advocate for the petitioner and Mr Shalin Mehta, learned Senior Advocate, assisted by Ms Nisha Parikh, learned advocate for Respondent No.1.
6 Mr Mihir Thakore, learned Senior Advocate assisted by Mr Bhargav Karia, learned advocate for the petitioner has contended that Respondent No.1 Society was undisputedly Page 3 of 16 HC-NIC Page 3 of 16 Created On Sun Oct 18 03:06:29 IST 2015 C/CRA/290/2014 JUDGMENT registered on 24.8.1996. It is his further contention that an agreement dated 8.2.1980 was entered into between Respondent No.1 Society and Respondent No.2 when the Respondent No.1 Society was not registered and therefore such an agreement is not enforceable being nullity and the Society has no locus to file the suit. In support of his contention he has relied upon judgment of this Court in the case of Jayantilal Hansraj Shah & Ors. v Hemkunverben Dolatrai Dave & Ors., 1996 3 GLR 522 (paragraph 9), which reads as under:
"9. The petitioners are claiming that the consent decree dated November 18, 1993 passed in Regular Civil Suit No.740 of 1986 would adversely affect their rights created in their favour under the agreement for sale dated July 12, 1980 and, therefore, leave to appeal should have been granted to them. This claim has no substance. It may be noted that Late Maharaja Shri Indravijaysinhji Jadeja had executed an agreement to sell dated July 12, 1980 in favour of a non-existent cooperative society, i.e., proposed Vijay Co-operative Society Ltd. And its so called members. The question as to what is the effect of a contract between the non- existent Cooperative Society and the other party came to be considered by the Division Bench of this Court in the cas eof Ramji Mandir Narsinhji & Ors. v. Narsinh Nagar Alias Tekri Co-op. Housing Society Ltd. & Ors., 1979 GLR 801. In the said case, an agreement of lease was entered into between a Trust on one hand and a non- existent Cooperative Society on the other hand. After examining the scheme of Gujarat Cooperative Societies Page 4 of 16 HC-NIC Page 4 of 16 Created On Sun Oct 18 03:06:29 IST 2015 C/CRA/290/2014 JUDGMENT Act, 1961 in detail and relevant provisions of the Specific Reliefs Act, 1963, the Division Bench has held that a contract between a non-existent society on whose behalf someone purports to act, is a nullity and gives no rise to cause of action. It is ruled in the in the said case that in view of Sec.37 of the Gujarat Cooperative Societies Act it is clear that a cooperative society becomes a legal person after it is registered and it is after its registration that it acquires the capacity to enter into contracts. On interpretation of the language of Sec. 37 of the Gujarat Cooperative Societies Act, 1961 and Rule 3 of the Gujarat Cooperative Societies Rules, 1965, the Court held therein that agreement of lease entered into between the Trust on one hand and a non-existent cooperative society on the other hand was a nullity and gave no rise to cause of action for the society and, therefore, it could not be specifically enforced against the Trust."
In support of the said contention, Mr Mihir Thakore has also relied upon the decision of this Court in the case of Ashokkumar J. Pandya v. Suyog Cooperative Housing Society Limited & Ors., 2002 (3) GLR 2521 more particularly paragraph 15 thereof, which reads as under:
15. I have considered the rival contentions of learned advocate for both the parties. On taking into dispassionate consideration of submissions made by learned advocates for both the parties, this Court is of the view that following two points are required to be considered.
[a] Admittedly, defendant No.1 is an owner of the Page 5 of 16 HC-NIC Page 5 of 16 Created On Sun Oct 18 03:06:29 IST 2015 C/CRA/290/2014 JUDGMENT suit land described in para-2 of the plaint. It is not in dispute that defendant No.1 executed an agreement for sale dated 31/1/1978 (Mark-3/2) (pages-53 to 59 of the paper-book supplied by the appellant) in favour of four different persons, who were, as per the case of the plaintiff promoters of one proposed housing society namely, Shree Suyog Co-operative Housing Society. In Mark-3/2, which is an agreement for sale, two parties are stated, first party i.e. the person in whose favour that agreement for sale was executed and the second party i.e. a person, who agreed to sell, the suit land to first party. It may be noted that the four persons representing first party of Mark-3/2 have signed (Mark-3/2) in their individual capacities and not as promoters of Housing Society (Proposed), which later on came to be registered, on 30/3/1978 vide copy of registration certificate issued by the Assistant District Registrar, Co-operative Housing Societies, Ahmedabad (page-118 of the paper-book). So, the present plaintiff, which is a registered Co-operative Housing Society came into existence for the first time on 30/3/1978 i.e. after about two months from the date of Mark-3/2. The present plaintiff, which is a registered Co-operative Housing Society has filed this suit mainly for decree for specific performance of aforesaid agreement for sale i.e. Mark-3/2 and consequential relief for decree for perpetual prohibitory injunction restraining defendant No.1 from transferring, selling, assigning or alienating the said suit land by way of sale, mortgage, gift or any other mode, to any third party. Of course, alternatively, plaintiff has prayed for a money decree to recover Rs.15,000/--, which were paid as earnest money by promoters of Housing Society (Proposed) to defendant No.1 together with an amount of Rs.1,32,26,000/-- as damages for breach of contract. Thus, the entire suit is based on Mark-3/2 dated 31/1/1978, which is an agreement for sale. The plaintiff has started to make a construction of the suit on the basis of plinth of Mark-3/2.
As argued by Mr. S.M.Shah, learned advocate for the appellant this Mark-3/2 is a nullity contract or so to say a void contract. As per his arguments, on the basis of such contract, no cause of action has arisen in favour of the present plaintiff i.e. a registered Housing Page 6 of 16 HC-NIC Page 6 of 16 Created On Sun Oct 18 03:06:29 IST 2015 C/CRA/290/2014 JUDGMENT Society, which came into existence for the first time on 30/3/1978. When the Division Bench of this Court has held in the case of Ramji Mandir Narsinhji & Ors. v. Narsinh Nagar Alias Tekri Co.op Housing Sociey Ltd. & Ors., reported in (1979) 20 G.L.R. 801, that in view of Section 37 of the Gujarat Co-operative Societies Act,1961, it is clear that a co-operative society becomes a legal person after it is registered and it is after its registration that it acquires the capacity to enter into contracts. When the proposed housing society through its four promoters had no capacity to enter into a contract with defendant No.1, it can certainly be said that Mark-3/2 is a void contract. Such type of contract is described by this Court as a nullity contract and such nullity contract gives rise to no cause of action for the registered society, which came into existence two months after execution of Mark-3/2. The aforesaid case Ramji Mandir Narsinhji & Ors. v. Narsinh Nagar Alias Tekri Co.op Housing Sociey Ltd. & Others (Supra) has been confirmed by the Hon'ble Supreme Court by its judgment dated 1/8/2001 rendered in Civil Appeal No.4398 of 1997, a xerox copy of certified copy of judgment has been submitted by Mr.S.M.Shah for perusal of this Court. This case is now reported in 2002 (1) G.L.H. 290 (S.C.) Thus, now, it is a settled principle of law as laid down by the Hon'ble Supreme Court that any agreement entered into by a proposed Housing Society is a nullity contract or so to say a void contract. If this is a legal position, then such type of void contract cannot be enforced by any Court of law. No relief can be granted even at the end of trial on the basis of such void contract. This Court is of the view that when plaintiff, which is a registered Co-operative Society is not entitled to get such type of void contract enforced even at the end of the trial of the suit, plaintiff is not entitled to any decree for specific performance of this contract Mark-3/2. This Court refrains from making any observation on the point as to whether the plaintiff is entitled to a money decree to obtain damages for breach of contract on the basis of such contract. As this appeal has arisen from the impugned order passed below Ex.5 in Special Civil Suit No.236 of 1993, this Court is examining only that impugned order and when that impugned order is being examined by this Court. This Court expresses its view that interim injunction on the basis of Page 7 of 16 HC-NIC Page 7 of 16 Created On Sun Oct 18 03:06:29 IST 2015 C/CRA/290/2014 JUDGMENT agreement for sale Mark-3/2 cannot be granted."
7 Mr Mihir Thakore has also relied upon the decision of the Apex Court in the case of Maneklal Mansukhbhai Co.Op. Housing Society Limited, 2002 (1) GLH 290 more particularly paragraphs 3 and 4 thereof, which read as under:
"3. Coming to the legal position, as urged by the learned counsel for the appellant, Section 37 of the Act provides that a Society on its registration shall be a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to acquire, hold and dispose of property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all such things as are necessary for purpose for which it is constituted. Section 170 of the Act excludes the provisions of the Companies Act. Rule 3 of the Gujarat Cooperative Societies Rules, 1965 framed under the Act provides that every application for registration of Society shall be in Form A and shall be accompanied by ---
'(a) xxx xxx xxx
(b) xxx xxx xxx
(c) the scheme showing the details explaining how the working of the Society will be economically sound and, where the scheme envisages the holding of immovable property by the Society, the description of immovable property proposed to be purchased, acquired or transferred to the Society.'
4. The aforesaid provision shows that the Society becomes competent to acquire, hold and dispose of the property only when it is registered and not otherwise.
We have noticed earlier that there was no assignment of the rights of Nanubhai Jogibhai Desai flowing from the agreement in favour of the Society. In absence of such assignment, the Society was not competent to file a suit for specific performance of agreement to sell under the Act."
Page 8 of 16
HC-NIC Page 8 of 16 Created On Sun Oct 18 03:06:29 IST 2015
C/CRA/290/2014 JUDGMENT
8. It is his further contention that the sale deed which is sought to be cancelled is a registered sale deed dated 5th July 1999 while the suit was filed in the year 2003, after 3 years after the registered sale deed and therefore it is clearly barred by limitation. In support of this contention, Mr Thakore has relied upon the decision of the Hon'ble Apex Court in the case of Janardhanam Prasad v. Ramdas, (2007) 15 SCC 174 (paragraph 14) and Dilboo (Smt.) (Dead) by LRS. And Others v. Dhanraji (Smt) (Dead) and Ors., (2000) 7 SCC 702 (paragraph 20), which read as under:
Janardhanam Prasad (supra) "14. The 1st Defendant was a friend of the 2nd Defendant. Admittedly, the usual stipulations were knowingly not made in the agreement of sale dated 11.4.1983. The 1st Defendant may or may not be aware about the agreement entered by and between the respondent herein. But he cannot raise a plea of absence of notice of the deed of sale dated 4.9.1985, which was a registered document. Possession of the suit land by the appellant also stands admitted. Registration of a document as well as possession would constitute notice, as is evident from Section 3 of the Transfer of Property Act, 1882, which is in the following terms :
".... 'a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I. Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all Page 9 of 16 HC-NIC Page 9 of 16 Created On Sun Oct 18 03:06:29 IST 2015 C/CRA/290/2014 JUDGMENT situated in one sub-district, or where the registered instrument has been registered under section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:
Provided that (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under Section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.
Explanation II. Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
Explanation III. A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material :
Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud."
Dilboo (Smt.) (Dead)
20. This Suit was governed by the Limitation Act of 1908. Arts. 134 and 148 read as follows :Page 10 of 16
HC-NIC Page 10 of 16 Created On Sun Oct 18 03:06:29 IST 2015 C/CRA/290/2014 JUDGMENT Description of suit Period of Time from which limitation period begins to run
134. To recover Twelve When the transfer possession of immovable years becomes known to property conveyed or the plaintiff bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration
148. Against a mortgagee Sixty When the right to to redeem or to recover years redeem or to recover possession of immovable possession accrues:
property mortgaged Thus a Suit for redemption of mortgage could be filed within 60 years. But if the mortgagee had created an interest in excess of the right enjoyed by him then to recover possession against the third party the Suit had to be filed within 12 years of the transfer becoming known to the plaintiff. The rational in cutting down the period of 60 years to 12 years is clear. The 60 years period is granted as a mortgagee always remains a mortgagee and thus the rights remain the same. However when an interest in excess of the interest of the mortgagee is created then the third party is not claiming under the mortgagee. The position of such a person could not be worse than that of a rank trespasser who was in open and hostile possession. As the title of the rank trespasser would get perfected by adverse possession on expiry of 12 years so also the title of such transferee would get perfected after 12 years. The period of 12 years has to run from the date of knowledge by the plaintiff of such transfer. It is always for the party who files the Suit to show that the Suit is within time. Thus in cases where the suit is filed beyond the period of 12 years, the plaintiff would have to aver and then prove that the Suit is within 12 years of his/her knowledge. In the absence of any averment or proof, to show that the suit is within time, it is the plaintiff who would fall.
Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due Page 11 of 16 HC-NIC Page 11 of 16 Created On Sun Oct 18 03:06:29 IST 2015 C/CRA/290/2014 JUDGMENT diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge."
9 Mr Thakore has further contended that no cause of action in favour of Respondent No.1 has arisen to file the suit as the suit is not barred by law as the agreement dated 8.2.1980 between Respondent No.1 and Respondent No.2 is a nullity. In support of his contention, Mr Thakore has relied upon the decision in the case of The Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman Vs. M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, (2012) 8 SCC 706. The Honourable Supreme Court in the said judgment has observed as under in paragraph 11 of the said judgment:
"11. Mr. K. Parasaran, learned senior counsel by taking us through Form Nos. 47 and 48 of Appendix A of the Code which relate to suit for specific performance submitted that inasmuch as those forms are statutory in nature with regard to the claim filed for the relief for specific performance, the Court has to be satisfied that the plaint discloses a cause of action. In view of Order VII Rule 11(a) and 11(d), the Court has to satisfy that the plaint discloses a cause of action and does not appear to be barred by any law. The statutory forms require the date of agreement to be mentioned to reflect that it does not appear to be barred by limitation. In addition to the same, in a suit for specific performance, there should be an agreement by the defendant or by a person duly authorized by a power of attorney executed in his favour by the owner."
10 On the other hand, Mr Shalin Mehta, learned advocate has contended that the suit is not based on agreement dated 8.2.1980 and therefore the judgments of this Court in the Page 12 of 16 HC-NIC Page 12 of 16 Created On Sun Oct 18 03:06:29 IST 2015 C/CRA/290/2014 JUDGMENT aforesaid cases cited are not applicable. He would further submit that the fraud is alleged in the present suit and therefore the question of limitation would not come in this suit as steps to unearth the fraud has taken some time. It is his further submitted that Respondent No.1 Society is in possession of the sui land and therefore when the possession is with the Society, the suit for protection of its possession cannot be said to be barred by limitation. He would also contend that in the peculiar facts of the present suit the question of limitation is a mixed question of law and facts and therefore also the suit cannot be rejected as having been time- barred. Hence, he has urged that the revision application does not require consideration and it should be rejected.
11 At the outset, it needs to be noted that application below Exhibit 37 filed under Order 7 Rule 11(d) of the CPC was filed by defendant No.6 i.e. present Respondent No.6. It is also required to be noted that the rejection of the plaint was sought under Order 2 Rule 2 of the Code, Limitation Act and Specific Reliefs Act. The present applicant who happens to be defendant No.4 had not preferred any application under Order 7 Rule 11 of the CPC. Thus, it is the respondent No.6 who can be said to be aggrieved by the impugned order who has accepted it. I am, therefore, of the view that present revision at the instance of the present applicant is not maintainable.
12 The main contention raised on behalf of the petitioner by Mr Mihir Thakore, learned Senior Advocate is that an agreement to sell between Respondent No.2 - original plaintiff and Respondent No.1 was executed on 8.2.1980 when, admittedly, Respondent No.1 Society was not Page 13 of 16 HC-NIC Page 13 of 16 Created On Sun Oct 18 03:06:29 IST 2015 C/CRA/290/2014 JUDGMENT registered and therefore the suit is not maintainable. However, in the present case Respondent No.1 and Respondent No.3 have executed a Power of Attorney in favour of Respondent No.4 (defendant No.3) in respect of the suit land, but no power is conferred in the said Power of Attorney to sell the suit land. Despite there being no power to sell the said land, Respondent No.4 sold the suit land to Defendants Nos.4 to 8 by registered sale deed dated 5th July 1999. Thus, it becomes manifestly clear that Respondent No.1 - original plaintiff has alleged fraud in execution of the registered sale deed dated 5.7.1999, which is sought to be cancelled in the suit. In view of these facts, it cannot be said that the question of limitation is pure question of law and hence, when the facts emerging from the plaint reveal that though the suit for cancellation of sale deed was filed three years after the registration of the sale deed it becomes question of law and therefore the judgments of the Honourable Supreme Court in the cases Jayantilal Hansraj Shah & Ors. (supra), Ashokkumar J. Pandya v. Suyog Cooperative Housing Society Limited (supra) and Maneklal Mansukhbhai Coop. Housing Society Limited (supra), relied upon by learned advocate for the applicant would have no application to the facts of the present case.
13 Moreover, it is explicitly clear from the plaint itself that Respondent No.1 has filed Special Civil Suit No.29 of 2000 against present Respondent No.2 for a specific performance of the agreement which is still pending in the trial court. It further emerges from the reading of the plaint and paragraphs 6 and 8 in particular that the present suit is not filed on the basis of an agreement to sell of 1980, but the Page 14 of 16 HC-NIC Page 14 of 16 Created On Sun Oct 18 03:06:29 IST 2015 C/CRA/290/2014 JUDGMENT opponent society has discovered from the revenue records that defendants Nos.1 to 3 sold the land to the present applicant and respondent Nos.5, 6, 7 and 8 vide sale deed dated 5th July 1999. It was also prayed to restrain the said opponents from further alienating the subject land. In the backdrop of this factual scenario, the contention raised by learned Senior Counsel Mr Mihir Thakore for the applicant that the suit is filed on the basis of an agreement to sell of 1980 at which point of time the respondent society was not registered and therefore the said agreement to sell was a nullity, cannot be countenanced and therefore also the present plaint is rejected on the ground of limitation.
14 The contention regard agreement dated 8.2.1980 in favour of Respondent No.1 Society, which was not registered at the relevant point of time is concerned, the same has no relevance inasmuch it is very clear from the reading of the plaint that the suit is not based on the agreement to sell dated 8.2.1980 and therefore the judgments relied upon by Mr Mihir Thakore --- are not applicable to the facts of the present case and the plaint cannot be rejected on that ground.
15 As regards the contention of the learned Senior Advocate that the Court is duty bound to reject the plaint if no cause of action has arisen in favour of the plaintiff even if the same is not pleaded in the application under Rule 7 Rule 11(d) is concerned, the same cannot be accepted. A perusal of Order 7 Rule 11 of the CPC makes it very clear that clause (a) thereof provides that the plaint can be rejected when no cause of action is disclosed. The scheme of the Code is very clear and the party has to plead in the application under Order 7 Page 15 of 16 HC-NIC Page 15 of 16 Created On Sun Oct 18 03:06:29 IST 2015 C/CRA/290/2014 JUDGMENT Rule 11 of the CPC that the plaint is not maintainable on the ground that cause of action for filing the suit is not disclosed in the plaint. The duty of rejecting the plaint on the ground of lack of cause of action cannot be fastened on the Court when the provisions of Order 7 Rule 11 of CPC entitle a party to make an application for rejection of plaint on the said ground.
For the aforesaid reasons, the revision application lacks merits and the same is hereby dismissed. No costs.
(A.G.URAIZEE, J.) After passing the aforesaid order, learned advocate Mr. Bhargav Karia appearing for the applicant requests that the implementation and operation of the judgement pronounced by this Court may be suspended for a period of four weeks so as to enable the applicant to approach the Supreme Court. The request is refused as even during pendency of this revision application, no protection was granted to the applicant.
(A.G.URAIZEE, J.) mohd Page 16 of 16 HC-NIC Page 16 of 16 Created On Sun Oct 18 03:06:29 IST 2015