Gujarat High Court
Pareshbhai Mahendrabhai Patel vs Bhanuprasad Bhikhubhai on 25 April, 2024
NEUTRAL CITATION
C/AO/302/2018 ORDER DATED: 25/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 302 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/APPEAL FROM ORDER NO. 302 of 2018
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PARESHBHAI MAHENDRABHAI PATEL & ORS.
Versus
BHANUPRASAD BHIKHUBHAI & ORS.
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Appearance:
MR C B UPADHYAYA(3508) for the Appellant(s) No. 1,2,3,4,5,6
MR PREMAL S RACHH(3297) for the Respondent(s) No. 2,3,4,5,6,7
NOTICE UNSERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 25/04/2024
ORAL ORDER
1. The present Appeal From Order has been filed by the present appellants - original plaintiffs under Order XLIII Rule 1 of the Civil Procedure Code, 1908 (hereinafter referred to as "the C.P.C.") by challenging the impugned order dated 01.11.2018 passed below Exh.5 application in Special Civil Suit No.389 of 2016 by the learned Principal Senior Civil Judge, Kathor, Surat, whereby the same same rejected.
2. Brief facts of the case as per the case of the appellants in this appeal are as such that the present Page 1 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined dispute arises from three different pieces of lands and its inheritance i.e. block no.25 in Survey no 26, block no 31 in Survey no 33 and block no.157 in survey no.178 located in Mauje Kathor, Tal: Kamrej, District: Surat.
The lands in question are an agricultural land of old tenure land and was originally owned by Late Shri Durlabhbhai Ratanji Patel. Shri Patel is the great maternal grandfather of the present appellants and they are thus first degree descendants (successors) of Late Shri Patel. The present defendants are children of Late Shri Bhikhubhai Durlabhbhai Patel who was the son of Shri Durlabhbhai Patel and thus are descendants (successors) of the first degree. Late Shri Durlabhbhai passed away on 02.06.1992 intestate and thus the aforementioned property was to be divided as per the provisions of the Hindu Succession Act and the landmark decisions of the Hon'ble Apex Court governing this law.
It is further the case of the appellants in this appeal that Late Shri Durlabhbhai had three children.
Smt. Gangaben, i.e. the grandmother mother of the appellants, Shri Bhikhubhai i.e. the father of the defendants and Smt. Naniben, who waived away rights Page 2 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined over the said property. Thus, as per law, the aforementioned property was to be divided equally between the two remaining successors.
It is further the case of the appellants in this appeal that dispute arose when Late Shri Durlabhbhai passed away in the year 1992. The father of the present defendants i.e. Bhikhubhai deliberately did not enter the name of the grandmother of the appellants Smt. Gangaben as the successor. It is alleged that the Shri Bhikhubhai forged a pedigree and made an application to the revenue authority and entered his name to the revenue entries vide entry no.3425. It is further the case of the appellants in this appeal that Smt. Gangaben and the present appellants had no knowledge regarding the fraud.
It is further the case of the appellants in this appeal that Shri Bhikhubhai passed away on 19/02/2006 and the present defendants got their names entered into the revenue records without informing the present appellants. It is further the case of the appellants in this appeal that the appellants herein came to the Page 3 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined knowledge of this at a very later stage and immediately challenged the revenue entry no. 3425 before the Ld. Collector of Kamrej but the same came to be rejected on the grounds that the same was a civil dispute and thus deserved to be heard by a competent Civil Court and not the Collectors Office by an order dated 10/03/2016. It is clarified that the revision for the same is pending before the concerned authority.
It is further the case of the appellants in this appeal that the plaintiffs had earlier filed a Regular Civil Suit No.24 of 2016, which came to be rejected under Order 7 Rule 11 of the C.P.C. and the same has not been challenged.
Being aggrieved by the same and in order to fight for their rights, the present appellants filed the Special Civil Suit No.389 of 2016 for declaration of succession rights, division and stay order before the Ld. Principle Senior Civil Judge of Kathor along with an interlocutory application for interim order for stay under Order 39 Rule 1 of the C.P.C., which came to be dismissed on 1.11.2018. Being aggrieved by the same, this Appeal Page 4 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined From Order has been preferred by the appellants for the rescue of their legal and succession rights.
3. Heard Mr. C.B. Upadhyaya, the learned counsel for the appellants and Mr. Premal S. Rachh, the learned counsel for the respondents.
4. Considering the fact that the present Appeal From Order has been pending since 2018, the Court has asked from the learned counsels for the parties about the present status of the suit proceedings. It has been reported to the Court that the suit proceedings are at the stage of recording evidence. However, Mr. C.B. Upadhyaya, the learned counsel for the appellants, has submitted that he needs to make some necessary submissions concerning the impugned order passed in response to the Exh.5 application. Therefore, the matter is being taken up for final disposal today.
5.1 Mr. C.B. Upadhyaya, the learned counsel for the appellants, has strongly referred to the impugned order dated 01.11.2018, passed below Exh.5 application in Special Civil Suit No. 389 of 2016 by the learned Page 5 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined Principal Senior Civil Judge, Kathor, Surat, whereby the same has been rejected by the trial court, and by referred that he has submitted that the suit was for partition and that the appellants had a right since their birth under Section 6 of the Hindu Succession Act. He has submitted that the trial court has erred by asserting that the 2005 amendment to Section 6 of the Hindu Succession Act did not apply to cases where the person had died before the amendment was implemented. The trial court noted that Durlabhbhai Ratanji Patel passed away in the year 1992, and, therefore, Smt. Gangaben has no prima facie right in the property in question.
5.2 Furthermore, he has submitted that the trial court has not given cogent and convincing reasons on all the aspects; such as prima facie case, balance of convenience and irreparable loss. He has also submitted that the trial court had erroneously referred to the Article 110 of the Limitation Act, claiming that since the suit was filed almost 23 years after the revenue entry was recorded, it should have been filed within 12 years, as per Article 110 of the Limitation Act. He has pointed out that this finding is also incorrect.
Page 6 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined 5.3 To support his submissions, he has referred to the Hon'ble Apex Court's decision in the case of Prasanta Kumar Sahoo vs. Charulata Sahu, reported in (2023) 9 SCC 641, specifically highlighting paragraphs 60, 71, and 79, and has submitted that the daughter has been recognized and treated as a co-parcener by birth, with equal rights and liabilities as of that of a son.
Furthermore, he has submitted that it is observed by the Hon'ble Apex Court that though the substantive right is created on and from 9-9-2005, it relates back to the incidence of birth of the daughter. Furthermore, he has submitted that it is observed by the Hon'ble Apex Court that it is not necessary that the co-parcener, who daughter is conferred with the right is alive or not on the date of commencement of the Amendment Act, 2005 (i.e., 9.9.2005). Furthermore, he has submitted that it is observed by the Hon'ble Apex Court that it is not necessary that the substantive right would not be available only if the coparcenary property is disposed of or alienated including by any partition or testamentary disposition of property before 20-12-2004.
Page 7 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined 5.4 Regarding the maintainability of the second suit, Mr. Upadhyaya also drew attention to Order VII Rule 13 of the C.P.C., noting that the earlier suit, Regular Civil Suit No. 24 of 2016, filed for the same cause of action and seeking similar relief, was rejected under Order VII Rule 11(d) of the C.P.C. by the trial court. To support his argument, he has cited several decisions of the Hon'ble Apex Court, in the case of (i) Sopan Sukhdeo Sable & Ors vs. Assistant Charity Commissioner & Ors., reported in (2004) 3 SCC 137, (ii) Delhi Wakf Board vs. Jagdish Kumar Narang And Others, reported in (1997) 10 SCC 192, and (iii) Sathyanath and Another vs. Sarojamani, reported in (2022) 7 SCC 644, highlighting relevant paragraph numbers 32, 33, and 34.
5.5 Considering these submissions and the legal positions outlined, Mr. Upadhyaya has prayed for the present appeal to be allowed, asserting that the trial court erred in rejecting the Exh.5 application.
6.1 Per contra, Mr. Premal S. Rachh, the learned counsel for the respondents, has strongly objected to the arguments made by the learned counsel for the Page 8 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined appellants. He has pointed out that the plaintiffs had filed an earlier suit, Regular Civil Suit No. 24 of 2016, which was rejected by the trial court on June 30, 2016, under Order VII Rule 11(d) of the Code of Civil Procedure, on the basis that it was barred by limitation under Article 54 of the Limitation Act. Mr. Rachh has highlighted that the present suit, Special Civil Suit No. 389 of 2016, contains identical prayers and grounds as the previous suit, indicating that it is essentially a repetition of the earlier case. He argued that the trial court's previous dismissal should stand, as the current case is seeking the same relief based on the same cause of action.
6.2 To support his position, Mr. Rachh has referred to the various judgments to emphasize that the present Appeal From Order should be dismissed. He has relied upon the following decisions as relevant precedents:
(i) Asma Lateef vs. Shabbir Ahmad, reported in 2024 (0) AIJEL-SC 72983, particularly emphasizing paragraph 39.
(ii) Anil Kumar vs. Smt. Vijayalakshmi M.V. & Another, Page 9 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined reported in 2006 SCC OnLine Ker 262 (Kerala High Court).
(iii) Sarojamani vs. Sathyanath and Another, reported in 2021 SCC OnLine Mad 10012 (Madras High Court), highlighting paragraphs 2 and 5.
(iv) M/s HKS Private Ltd. vs. Mahendra, rendered in CR No. 3973 of 2014 (O&M), Punjab and Haryana High Court.
(v) Vinod Kumar Singh vs. Devraj Singh & Others, rendered in 2015 AIR CC 2680 (DEL), (Delhi High Court), with a focus on paragraphs 26 and 30.
(vi) Nalla Raji Reddy vs. Venkatanantha Chary, rendered in Civil Revision Petition No. 1874 of 2015.
(vii) Veetrag Holdings Private Ltd. vs. Gujarat State Textile Corporation Limited, reported in 1995 (0) AIJEL-
HC 213663 (Gujarat High Court), especially highlighting paragraphs 8 and 11.
Page 10 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined 6.3 In view of the above, Mr. Rachh has submitted that the present Appeal From Order should be dismissed as the earlier suit, which sought the same relief, had been rejected for being barred by limitation and that order of dismissal was never challenged. Merely by resorting the provisions of Order VII Rule 13, the present suit has been filed, which itself is not maintainable and, therefore, there is no question of granting any injunction.
Additionally, Mr. Rachh has pointed out that now, the suit proceeding is also ripe for final adjudication as evidence of the parties is recorded. Hence, considering this, no fruitful purpose will be served in considering the present Appeal From Order after almost six years after filing of the same as the matter is still pending for consideration from six years and yet not admitted.
Hence, he has prayed to dismiss this Appeal From Order.
7.1 I have considered the arguments presented at the bar by both parties. I have also gone through the plaint filed in earlier suit i.e. Regular Civil Suit No. 24 of 2016, as well as the plaint filed in present suit i.e. Special Civil Suit No. 389 of 2016. The earlier suit, Page 11 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined Regular Civil Suit No. 24 of 2016, was dismissed under Order VII Rule 11(d) of the Code of Civil Procedure, by the trial court, finding that the suit was barred under Article 54 of the Limitation Act due to a 12-year delay in filing of the same. The appellants did not challenge that order since 12 years before any court.
7.2 There is no quarrel about the ratio of the judgments cited at the bar.
7.2.1 It is fruitful to refer the judgment of the Hon'ble Apex Court relied by learned counsel for the respondents in the case of Asma Lateef (supra), particularly paragraph 39 is relevant, as follows:
"39. Although not directly arising in the present case, we also wish to observe that the question of jurisdiction would assume importance even at the stage a court considers the question of grant of interim relief. Where interim relief is claimed in a suit before a civil court and the party to be affected by grant of such relief, or any other party to the suit, raises a point of maintainability thereof or that it is barred by law and also contends on that basis that interim relief should not to be granted, grant of relief in whatever form, if at all, ought to be preceded by formation and recording of at least a prima facie satisfaction that the suit Page 12 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined is maintainable or that it is not barred by law. Such a satisfaction resting on appreciation of the averments in the plaint, the application for interim relief and the written objection thereto, as well as the relevant law that is cited in support of the objection, would be a part of the court's reasoning of a prima facie case having been set up for interim relief, that the balance of convenience is in favour of the grant and non-grant would cause irreparable harm and prejudice. It would be inappropriate for a court to abstain from recording its prima facie satisfaction on the question of maintainability, yet, proceed to grant protection pro tem on the assumption that the question of maintainability has to be decided as a preliminary issue under Rule 2 of Order XIV, CPC. That could amount to an improper exercise of power. If the court is of the opinion at the stage of hearing the application for interim relief that the suit is barred by law or is otherwise not maintainable, it cannot dismiss it without framing a preliminary issue after the written statement is filed but can most certainly assign such opinion for refusing interim relief. However, if an extraordinary situation arises where it could take time to decide the point of maintainability of the suit and non- grant of protection pro tem pending such decision could lead to irreversible consequences, the court may proceed to make an appropriate order in the manner indicated above justifying the course of action it adopts. In other words, such an order may be passed, if at all required, to avoid irreparable harm or injury or undue hardship to the party claiming the relief and/or to ensure that the proceedings are not rendered infructuous by reason of non-interference by Page 13 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined the court."
7.2.2 It is also fruitful to refer the judgment of the Kerala High Court relied by learned counsel for the respondents in the case of Anil Kumar (supra), specifically highlighting paragraph 8, as follows:
"8. The powers provided under Rule 11 of Order VII only enables the court to reject the plaint and not to dismiss the suit. If the plaint is rejected under Rule 11 as defined u/s 2(2) of the Code, it shall deemed to be a decree and Plaintiff is entitled to file an appeal. Plaintiff is also entitled to file a fresh suit in respect of the same cause of action as Rule 13 of Order VII provides that the rejection of the plaint on any of the grounds mentioned earlier shall not of its own force preclude the Plaintiff from presenting a fresh plaint in respect of the same cause of action."
7.2.3 It is also fruitful to refer the judgment of the Madras High Court relied by learned counsel for the respondents in the case of Sarojamani (supra), more particularly, highlighting paragraphs 2 and 5, as follows:
"2. I.A. No. 399 of 2018 was filed under Order 14 Rule 2(2) of CPC to try the following issues as preliminary issues:-Page 14 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024
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1. Whether the suit is not hit by resjudicata and estoppel as claimed by the defendant in the written statement in para-10 & 11.
2. Whether the suit is not hit by resjudicata and estoppel as claimed by the defendant in the written statement in para-12.
3. Whether the suit is not barred by limitation as contended by the defendant in the written statement in para-13.
4. Whether the plaintiffs have deliberately and wantonly abused the process of the court, as contended by the defendant in the written statement in para-15 and 16.
5. Whether the suit is not valued properly and court fee paid is deficient as claimed by the defendant in para-18 of the written statement.
(The aforesaid issued are reproduced as typed in the petition. Issues 1 and 2 are duplication of a single issue as to, Whether the suit is hit by resjudicata and estoppel as claimed by the defendant in the written statement)
3. The case of the petitioner/defendant is that the subject matter of the suit was long back decided in three previous suits and the respondents/plaintiffs have completely suppressed those proceedings. This suit is barred by limitation, principle of resjudicata, estoppel and by abuse of Page 15 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined process of Court. Not only that this suit is undervalued and proper court fee is not paid. Therefore, the above issues have to be decided as preliminary issues. That petition was resisted by the respondents/plaintiffs alleging that the petitioner/defendant filed I.A. No. 1096 of 2016 for rejection of plaint with frivolous allegations. That petition was disposed of on 20.06.2017 with the finding that the suit cannot be rejected for the reasons that the suit is not barred by any law and the relief was claimed on the basis of cause of action. Therefore, respondents/plaintiffs prayed for the dismissal of this petition. Considering the rival submissions, learned trial Judge dismissed the petition. Against the order of dismissal, the present Civil Revision Petition is filed.
4. Learned counsel for the petitioner submitted that title to the suit property was decided in O.S. No. 125 of 2005 by the learned District Munsif, Coimbatore. The settlement deed dated 02.09.2004 executed in favour of respondents/plaintiffs by their mother was set aside. The issues to be tried in this suit were already decided in the earlier suit. Therefore, this suit is barred by the principle of resjudicata and limitation. The respondents have knowledge about the exparte decree even in 2005, but the present suit is filed only in 2016. Thus, it is clear that the suit is barred by limitation. Therefore, an application was filed to try the issues on limitation, resjudicata and estoppel as preliminary issues and the trial Court has wrongly dismissed the petition. Learned counsel for the petitioner/defendant prayed for setting aside the order of the Page 16 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined trial Court and allow this Civil Revision Petition.
5. In response, learned counsel for the respondents submitted that the issues as to whether the suit is barred by limitation, resjudicata and estoppel involve diputed and mixed question of facts and law. Oral and documentary evidence is necessary to decide as to whether the suit is barred by limitation and resjudicata. These issues cannot be decided as preliminary issues. The issue as to the valuation of the suit and payment of court fee is also involved in appreciation of documents and oral evidence to find out whether the suit is properly valued and proper correct court fee is paid. The learned trial Judge has properly considered these issues and dismissed the petition. The learned counsel for the respondents prays to sustain the order of trial Court and to dismiss the Civil Revision Petition."
7.2.4 It is also fruitful to refer the judgment of the Punjab and Haryana High Court relied by learned counsel for the respondents in the case of M/s HKS Private Ltd. (supra), relevant observations are as follows:
"6. After hearing learned counsel for the parties and going through the record, the first question to be considered by this Court would be, "whether the impugned order dated 05.06.2012 rejecting the plaint would amount to a decree or not."Page 17 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024
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7. Section 2 (2) CPC defines a decree, which is reproduced as under:-
"(2) "decree" means the formal expression of an 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 de- termination of any question within 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 of default.
Explanation. A decree is preliminary when further proceedings have to be taken before the suit can be com- pletely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly prelim- inary and partly final."
8. As per definition, the impugned order, where the plaint was rejected would amount to a decree. There- after, under Section 96 CPC, only an appeal is maintainable against the order rejecting the plaint, before the lower appellate Court. Rejection of the plaint would form part of final disposal of the suit. In Molugu Ram Reddy's case (supra), the Full Bench of Andhra Pradesh High Court has held that an order of rejection of plaint would fall under Order 7. Rule 11 CPC and this order/decree would be appealable under Page 18 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined Section 96 CPC. However, after rejection of plaint, subject to law of limitation, the plaintiff can file a fresh plaint in re- spect of the same cause of action, if the rejection was for any curable defect. In paragraph 16 of the judg- ment, it has been held as under-
"16. Insofar as the remedy of appeal under section 96 of the cpc is concerned, there cannot be any distinction between a judgment of the Court dismissing the suit after full trial or the order of the Court rejecting the plaint for any curable or non- curable defects mentioned under Order 7, Rule 11. In either case, the effect would be the same except that under Rule 13 Order 7, the rejection of the plaint shall not of its own preclude the plaintiff from presenting fresh plaint in respect of the same cause of action, subject however to law of limitation, doctrine of ouster of jurisdiction or doctrine of res judicata. If the rejection is for any curable defect, the plaintiff may move the Court seeking time to rectify the defects especially those referred to in Order 7, Rule 11 (b), (c), (e) or (f), and if the request is not acceded to, it would be an order amounting to dismissal of the suit."
9. The Full Bench has further observed that rejection of plaint would amount to dismissal of the suit. It was further held as under:-
"15. The Section 2 (2) of the C.P.C., in its inclusionary part, defines 'decree' as the formal Page 19 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined expression of an adjudica- tion of rejection of plaint as well. Obviously it refers the rejection of plaint under Order 7 Rules 11 and 12 of the C.P.C. Be it also noted that Order 41, Rule 10 (2) also empowers the appellate Court to reject the appeal where se- curity as demanded by it is no furnished. The word 'reject' is not defined in C.P.C. Whether the word 'reject' or the term 'act of rejection' amounts to dismissal of the suit? As a verb 'reject' means dismiss as inadequate or inappro- priate refuse to agree; and as a noun to reject a person or thing dismissed as failing to meet standards or satisfy the tests (see The New Oxford English Dictionary, 2002). Advanced Law Lexicon (Ramanatha Aiyer, 3rd edn.. Book IV) defines the word 'reject'; to refuse to hear, receive or admit; to refuse to grant or accede to; to throw or cast away. To reject the appeal means to refuse to entertain an appeal. Thus to reject the plaint by passing a formal order under Order 7, Rule 12, conclusively means and has the effect of dismissing the suit."
10. The judgments cited by learned counsel for the respondent are directly applicable to the facts of the present. In a suit filed by the petitioner for permanent injunction, defendant-respondent has made an applic ation for rejection of the plaint. Trial Court, while deciding the said application vide order dated 21.03.2012, gave a direction to the plaintiff-petitioner to deposit the Court fee on the relief of specific performance within one month and Page 20 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined in case of non deposit of the Court fee, the plaint would stand rejected. On 05.06.2012, none had appeared for the plaintiff-petitioner as well as defendant-respondent and on account of non compliance of order dated 21.03.2012, the plaint was rejected. As per the said order, for all intents and purposes, rejec tion of plaint/dismissal of suit would amount to a decree as per Section 2 (2) CPC and this order was appeal- able. According to the Full Bench judgment in Molugu Ram Reddy's case (supra), only appeal under Section 96 CPC was maintainable before the lower appellate Court
11. The judgments cited by learned counsel for the petitioner are not applicable in the facts of the present case, as it is not a case that merely on account of absence of the parties, the suit has been dismissed. The peti tioner has tried to make out a case that the impugned order dated 05.06.2012, in the absence of learned coun- sel for the parties, was passed under Order 17 Rules 2 and 3 CPC (as amended by Act 104 of 1976). Order 17 Rules 2 and 3, as amended, is reproduced as under.-
"Order 17, Rule 2: Procedure if parties fail to appear on day fixed: Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit.
Explanation Where the evidence or a substantial Page 21 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined portion of the evidence of any party has already been re- corded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present. Order 17, Rule 3: Court may proceed notwithstanding either party fails to produce evidence, etc. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the at- tendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding, such default,-
(a) If the parties are present, proceed to decide the suit forthwith, or
(b) if the parties are, or any of them is absent, proceed under Rule 2."
7.2.5 It is also fruitful to refer the judgment of the Delhi High Court relied by learned counsel for the respondents in the case of Vinod Kumar Singh (supra), more particularly, highlighting paragraphs 26 and 30, as follows:
"26 The first question which has to be answered by this Court is as to whether the dismissal of the application under Order 7 Rule 11 of the Code was a judgment passed Page 22 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined after hearing and finally deciding the issue in that suit. The dismissal of an application under Order 7 Rule 11 of the Code amounts to a 'decree' within the meaning of Section 2 (2) of the Code and the definition of 'decree' as quoted supra clearly amounts to a final adjudication and determination of the rights inter-se the parties. The aforenoted quote of the order passed on 30.05.2009 clearly shows that the issue of partition inter-se the sons of Prithi Singh and Shivraj Singh had been finally decided and the Court had held that such a suit for partition does not lie.
30 The parties in the instant suit are all descendants of Prithi Singh group. Defendants No. 7 & 8 are proforma defendants. They also relate to the Prithi Singh group. Defendants No. 1 to 6 are the contesting defendants. They are of Shivraj Singh group. The matter in issue in the present suit is the partition of the same suit lands i.e. khasras No. details of which finds mention in para 2 and which is noted supra. The earlier suit also dealt with the same properties. The earlier judgment of 30.05.2009 has set the matter to rest and has categorically held that partition between the parties inter-se already stands effected way back in 1940's and the second suit for partition (in view of the earlier suit i.e. CS (OS) No1299/1985) does not lie. This judgment dated 30.05.2009 has become final."
7.2.6 It is also fruitful to refer the judgment of the Delhi High Court relied by learned counsel for the respondents in the case of Nalla Raji Reddy (supra), the Page 23 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined relevant observations are as follows:
"Order VII Rule 11 C.P.C has dealt with various aspects relating to rejection of plaint and hence, it has spelt out the types of cases in which the plaint shall be rejected. Clause (a) thereof sets out that a plaint is liable to be rejected where it does not disclose any cause of action, inasmuch as, upon a careful and meaningful reading of the plaint as a whole in a non-formal manner and if the same is found to be manifestly vexatious and meritless, in the sense that it failed to disclose a clear right to sue such a plaint is liable to be rejected under Clause (a) of Rule 11 Order VII C.P.C. The rejection in such cases is for want of the necessary cause of action accruing the right to sue or it could be for the reason that it was not disclosed clearly in the plaint. Therefore, if a plaint is rejected once before for want of non- disclosure or for not accruing of cause of action, the provision contained in Rule 13 of Order VII will certainly come to the rescue of such a plaintiff to present a fresh plaint clearly disclosing the cause of action and the right to sue, which may have either occurred prior to the filing of the earlier suit or even thereafter. Therefore, cases where a plaint is rejected in view of Clause (a) of Rule 11 Order VII C.P.C does not present any serious difficulty, for purposes of applicability of Rule 13 of the said order.
Same is the case with Clauses (b), of Rule 11 which deal with cases where the relief claimed is undervalued and inspite of being required by the Court to correct the valuation, within a time fixed by the Court, the plaintiff Page 24 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined fails to do so and in such cases, the plaint itself is liable to be rejected. In such cases, upon proper valuation of the relief claimed, perhaps, the issue relating to the pecuniary jurisdiction of the Court will get settled and hence, even in cases of rejection of plaint under Clause (b) of Rule 11 would not come in the way for presentation of a fresh plaint in respect of the same cause of action in terms of Rule 13 of the same order.
Clause (c) of Rule 11 deals with cases where the relief claimed is properly valued by the plaintiff but however, the plaintiff inspite of being required by the Court to sufficiently stamp it within the time prescribed, fails to do so, then the plaint is liable to be rejected. In such cases, there would be no difficulty whatsoever for presentation of a fresh plaint properly valuing the relief claimed therein and also properly stamping it. Therefore, the principle contained in Rule 13 of Order VII would present no difficulty whatsoever.
But, however, when it comes to the rejection of a plaint where it appears to have been barred by any law, can such a plaint be liable to be presented once again, is the question that is required to be addressed. It will be important to notice the fact that Section 3 of the Limitation Act, 1963, has clearly spelt out that every suit instituted after the prescribed period shall be dismissed although limitation has not been set-up as a defence. Thus, the language employed in Section 3 of the Limitation Act, 1963, is in mandatory terms. When once, the prescribed time for Page 25 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined institution of a suit for a particular relief sought for therein has expired, such a suit shall be dismissed irrespective of the fact whether limitation has been set-up as a defence or not. In the instant case, the petitioner earlier instituted a suit seeking an identical relief, i.e. O.S.S.R.No.1156 of 2007 (later on numbered as O.S.No.7 of 2008) and that was found to have been barred by the Supreme Court by its judgment on 27.02.2009 in Civil Appeal No.1322 of 2009. A Review Petition (C) No.1079 of 2013 moved therein was also dismissed by the Supreme Court on 16.07.2013. Therefore, the suit for specific performance of the agreement of sale dated 25.01.1992 by the plaintiff herein, if it is barred in the year 2006 itself, the question of the same plaintiff presenting another civil suit for an identical relief on 12.03.2009 would not simply arise. Once, the period of limitation commences, it does not stop, unless, by a statutory provision it has been done so. In cases where a plaint is rejected once before on the ground that the relief claimed therein is barred by limitation, the provision contained under Rule 13 of Order VII C.P.C would not come to the rescue of such a plaintiff for presentation of a fresh plaint for the reason that the period of limitation which has expired earlier remains to be the same even on the subsequent occasion and consequently, the subsequent plaint is also bound to be rejected. A time barred relief cannot be got enforced through the process of the Court.
The order of the Supreme Court in Delhi Wakf Boards case, referred to supra, has been rendered in a different context. That is a case where the fresh plaint presented on Page 26 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined the second occasion was rejected by the Trial Court on the ground that a similar plaint was rejected earlier. In that context, the Supreme Court clarified that rejection of a plaint earlier once before does not prevent the plaintiff to present a suit afresh, as per the provision contained under Rule 13 of Order VII C.P.C. But, in the instant case, the earlier plaint in O.S.S.R.No.1156 of 2007, (numbered as O.S.No.7 of 2008) has been rejected on the ground that it was already barred by time. But, such a bar would work in perpetuity against the present plaintiff/petitioner. Therefore, the ratio in Delhi Wakf Boards case would not get attracted to the cases of rejection of plaint under Clause (d) of Rule 11 of Order VII C.P.C, Therefore, I do not see any merit in this revision and it is accordingly dismissed, but however without costs."
7.2.7 It is also fruitful to refer the judgment of this Court relied by learned counsel for the respondents in the case of Veetrag Holdings Private Ltd. (supra), more particularly, highlighting paragraphs 8 and 11, as follows:
"8. Even so, in any case, inasmuch as this contract was terminated on 6th December 1993, it was expected of the appellant to move for specific performance at the earliest, if they were serious about the same. The appellants certainly cannot be non-suited on the ground of limitation inasmuch as their suit is within time. However, when it comes to grant of equitable relief when the suit is filed after such a Page 27 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined lapse of time, it cannot be said that the remedy of interim injunction was the necessary remedy and there was no other remedy available to the party concerned in this behalf. Shri Gupta relied upon the Apex Court judgment rendered in Dalpat Kumar and Anr. v. Prahlad Singh and Ors. thereof the Courts are cautioned and required to exercise sound judicial discretion. They are required to find out that no other remedy is available to the party concerned and then as stated by the Honourable Supreme Court (and again relied upon by Shri Gupta) in para 20 of the judgment of the Apex Court rendered in State of Maharashtra v. Digambar ; for approaching a Court of equity, the blameworthy conduct of a person approaching a Court of equity, for obtaining discretionary relief disentitles him for grant of such relief. Para 20 of the above judgment reads as under:
Laches or undue delay, the blameworthy conduct of a person in approaching a Court of equity in England for obtaining discretionary relief which disentitled him for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. v. Hurd, thus:
Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though Page 28 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy.
11. In these circumstances, I am of the view that there is no error in the order passed by the learned Judge of the City Civil Court, Ahmedabad and hence this Appeal is dismissed. There will be no order as to costs. Although the Appeal is being dismissed, the observations herein are on the basis of the documents on record at the stage of interim application and when it comes to hearing of the suit, the learned Judge will certainly decide the matter on the basis of evidence that will be placed before him and will not be influenced by these observations if the same have no bearing on the evidence produced before him. Shri Naik, learned Counsel for the appellant requests for early disposal of the said suit. The request is granted. The Page 29 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined parties will be at liberty to apply to the learned Judge for an early date of hearing and the learned Judge will try to fix up the same at the earliest and endeavour to dispose it of preferably by the end of July 1996."
7.2.8 It is also fruitful to refer the judgment of this Court relied by learned counsel for the appellants in the case of Prasanta Kumar Sahoo (supra), specifically highlighting paragraphs 60, 71, and 79, as follows:
"60. Thus, in Ganduri Koteshwaramma (supra) this Court made the following things explicitly clear:
(i) The equal share given to the daughter of a coparcener governed by Hindu Mitakshara Law along with brothers is by way of a substantive right;
(ii) Though the substantive right is created on and from 9- 9-2005, it relates back to the incidence of birth;
(iii) The substantive right would not be available only if the coparcenary property is disposed of or alienated including by any partition or testamentary disposition of property before 20-12-2004 and;
(iv) If there is disposition of a coparcenary property by any partition, such partition must be by execution of a Deed of Partition duly registered under the Registration Act, 1908 or effected by a decree of the Court.
(v) A preliminary decree of partition only determines the rights and interests of the parties. It is only by a final Page 30 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, if there is any change in law necessitating determination of shares accordingly then, there would be no impediment for the Court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation.
71. The following propositions, amongst others, follow from the abovequoted paragraphs of the decision in Vineeta Sharma (supra):
(A) Sub-section (1) of the substituted Section 6 of the Hindu Succession Act, 1956 recognises a joint Hindu family governed by Mitakshara law.
(B) The coparcenary must exist on 9.9.2005, i.e., the date of commencement of the Amendment Act, 2005. (C) The daughter has been recognised and treated as a coparcener by birth, with equal rights and liabilities as of that of a son.
(D) It is not necessary that a coparcener whose daughter is conferred with the rights is alive or not on the date of commencement of the Amendment Act, 2005. The daughter would step into the coparcenary as that of a son by birth. (E) Though the daughter would step into the coparcenary as that of a son by birth whether the daughter is born before the commencement of the Amendment Act, 2005 or after the commencement of the Amendment Act, 2005, but the Page 31 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined daughter born before the commencement of the Amendment Act, 2005 can claim coparcenary rights only with effect from the date of the amendment, i.e., 9.9.2005 with saving of past transactions as provided in the proviso to Section 6(1) read with Section 6(5).
(F) In case a coparcener living on the date of commencement of the Amendment Act, 2005 (i.e., 9.9.2005) dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted Section 6(3).
79. This Court in Vineeta Sharma (supra) clarified the entire position as follows:
"107. Once the constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actual partition. The shares will have to be determined in changed scenario. The severance of status cannot come in the way to give effect to statutory provision and change by subsequent event. The statutory fiction of partition is far short of actual partition, it does not bring about the disruption of the joint family or that of coparcenary is a settled proposition of law. For the reasons mentioned above, we are also of the opinion that mere severance of status by way of filing a suit does not bring about the partition and till the date of the final decree, change in law, and changes due to the subsequent event can be taken into consideration.
Xxx xxx xxx Page 32 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined
114. In the instant case, the question is different. What has been recognised as partition by the legislation under Section 6, accordingly, rights are to be worked out. This Court consistently held in various decisions mentioned above that when the rights are subsequently conferred, the preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have no hesitation to reject the effect of statutory fiction of the proviso to Section 6 as discussed in Prakash v. Phulavati [(2016) 2 SCC 36 : (2016) 1 SCC (Civ) 549] and Danamma [Danamma v. Amar, (2018) 3 SCC 343 : (2018) 2 SCC (Civ) 385]. If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of time."
APPLICATION OF THE AFORESAID PRINCIPLES OF LAW TO THE FACTS OF THE PRESENT CASE"
7.2.9 It is also fruitful to refer the judgment of this Court relied by learned counsel for the appellants in the case of Sopan Sukhdeo Sable & Ors (supra), specifically highlighting paragraphs 20 and 21 as follows:
"20. There is distinction between 'material facts' and 'particulars'. The words 'material facts' show that the facts Page 33 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. The distinction which has been made between 'material facts' and 'particulars' was brought by Scott, L.J. in Bruce v. Odhams Press Ltd. (1936) 1 KB 697 in the following passage :
The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word "material" means necessary for the purpose of formulating a complete cause of action; and if any one "material" statement is omitted, the statement of claim is bad; it is "demurrable" in the old phraseology, and in the new is liable to be "struck out" under R.S.C. Order XXV, Rule 4 (see Philipps v. Philipps or "a further and better statement of claim"
may be ordered under Rule 7.
The function of "particulars" under Rule 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim - gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the Page 34 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined defendant on his guard as to the case he had to meet and to enable him to prepare for trial.
The dictum of Scott, L.J. in Bruce case (supra) has been quoted with approval by this Court in Samant N. Balkrishna v. George Fernandez (1969 (3) SCC 238), and the distinction between "material facts" and "particulars" was brought out in the following terms:
The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet.
Rule 11 of Order VII lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word 'shall' is used clearly implying thereby that it casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule Page 35 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13.
21. According to Mr. Mohta appearing for the appellants, as noted above, the reliefs are separable and merely because some of the reliefs cannot be granted by the Civil Court it would entail an automatic rejection of the old plaint. In fact he submitted that some of the reliefs would be given up by the plaintiffs in the suit itself. It is true as contended by Mr. Savant learned counsel appearing for the respondent-trust by ingenious drafting a cause of action in the nature of red herrings cannot be brought into judicial arena. But a reading of the reliefs shows that some of them can only be considered by the Civil Court."
7.2.10 It is also fruitful to refer the judgment of this Court relied by learned counsel for the appellants in the case of Delhi Wakf Board (supra), specifically highlighting paragraphs 4 and 5 as follows:
"4. Order VII Rule 13 reads as under:
"13. Where rejection of plaint does not preclude presentation of fresh plaint. The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action."Page 36 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024
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5. In view of the said clear rule, we hold that the present Buit is not barred by the earlier order rejecting the plaint in the earlier suit. We express no opinion on any other question. The trial court may consider the ex- peditious disposal of the suit according to law. The appeal is allowed accordingly. No costs."
7.2.11 It is also fruitful to refer the judgment of this Court relied by learned counsel for the appellants in the case of Sathyanath and Another (supra), highlighting paragraph numbers 32, 33, and 34, as follows:
"32 A perusal of the said judgment would show that only issue Nos. 5 and 6 were decided relating to res judicata and limitation as preliminary issues by judgment dated 3.2.2006. This Court set aside the finding on the preliminary issue by judgment dated 23.9.2021 i.e., almost more than 15 years later when the matter was remanded back to the trial court. The absence of the decision on all issues have necessitated the matter to be remanded back, defeating the object of expeditious disposal of lis between the parties. The conclusion in Para 62(i) is that the plea of res judicata in appropriate cases may be determined as preliminary issue when it is neither a disputed question of fact nor a mixed question of law and fact. Such finding is what this Court held in Ramesh B. Desai.
33. We find that the order of the High Court to direct the learned trial court to frame preliminary issue on the issue Page 37 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined of res judicata is not desirable to ensure speedy disposal of the lis between parties. Order XIV Rule 2 of the Code had salutary object in mind that mandates the Court to pronounce judgments on all issues subject to the provisions of sub-Rule (2). However, in case where the issues of both law and fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that suit first, if it relates to jurisdiction of the Court or a bar to the suit created by any law for the time being in force. It is only in those circumstances that the findings on other issues can be deferred. It is not disputed that res judicata is a mixed question of law and fact depending upon the pleadings of the parties, the parties to the suit etc. It is not a plea in law alone or which bars the jurisdiction of the Court or is a statutory bar under clause (b) of sub-Rule (2).
34. The objective of the provisions of Order XLI Rules 24 and 25 is that if evidence is recorded by the learned Trial Court on all the issues, it would facilitate the first Appellate Court to decide the questions of fact even by reformulating the issues. It is only when the first Appellate Court finds that there is no evidence led by the parties, the first Appellate Court can call upon the parties to lead evidence on such additional issues, either before the Appellate Court or before the Trial Court. All such provisions of law and the amendments are to ensure one objective i.e., early finality to the lis between the parties."Page 38 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024
NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined 7.4 It is also fruitful to refer to various legal provisions in this context, as under:
(i) Section 6 of the Hindu Succession Act, as under:
"Section 6 in The Hindu Succession Act, 1956:-
6. Devolution of interest in coparcenary property. -- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other Page 39 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;
and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation. --For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been Page 40 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect--
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation. --For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the Page 41 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined commencement of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
Explanation. --For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court."
(ii) Order XXXIX Rules 1 and 2 of the C.P.C., as under:
"1. Cases in which temporary injunction may be granted.-- Where in any suit it is proved by affidavit or otherwise--
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors,
(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make Page 42 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.
2. Injunction to restrain repetition or continuance of breach.
(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.
* * * * * 2A. Consequence of disobedience or breach of injunction.--
(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the Page 43 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.
(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto."
(iii) Order VII Rules 11 and 13 of the C.P.C., as under:
"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;Page 44 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024
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(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-paper, 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.
13. Where rejection of plaint does not preclude presentation of fresh plaint.--The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action."
(iv) Order XLIII Rule 1 of the C.P.C., as under:
"1. Appeal from orders.--An appeal shall lie from the following orders under the provisions of section 104, namely:
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court except where the procedure specified in rule 10A of Order VII has been Page 45 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined followed.
* * * * *
(c) an order under rule 9 of order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;
* * * * *
(f) an order under rule 21 of Order XI; * * * * *
(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale; ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable;]
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
* * * * *
(n) an order under rule 2 of Order XXV rejecting an Page 46 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;
* * * * *
(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of order (XXVIII);
(r) an order under rule 1, rule 2 1 [rule 2A], rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1, or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re- admit, or under rule 21 of Order XLI to re-hear, an appeal;
(u) an order under rule 23 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
* * * * * (w) an order under rule 4 of Order XLVII granting an application for review."
Page 47 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined 7.5 Now, considering the facts of the present case, it clearly transpires that, the impugned order is passed in the year 2018, rejecting the impugned injunction application in Special Civil Suit No. 389 of 2016. It is evident that first suit i.e. Regular Civil Suit No.24 of 2016 was dismissed on 30.06.2016 by placing reliance upon the provisions of Order VII Rule 11(d) of the C.P.C.
7.6 Now, the question is that whether such second suit is maintainable under the eyes of law or not, is yet to be decided by the trial court. However, the fact remains that the trial court has considered various aspects in deciding the case of the plaintiffs as well as the defendants, and has come to the conclusion that the plaintiffs have failed to establish their strong prima facie case, and they have also failed to establish the factor of balance of convenience or irreparable loss. Additionally, considering the conduct of the plaintiffs, it transpires that the view taken by the trial court is a possible view and also, is found correct view in the facts and circumstances of the present case. The trial court has not committed any illegality or perversity in dealing with Page 48 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined below Exh.5 application by rejecting the same by way of impugned order.
7.7 The judgment in the case of Wander Ltd. And Anr.
V/s Antox India Pvt. Ltd. Reported in 1990 Supp SCC 727, it is held in paragraph 14 as under:
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of Page 49 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined discretion. After referring to these principles Gajendragadkar, J. In Printers (Mysore) Private Ltd. v. Pothan Joseph [(1960) 3 SCR 713 : AIR 1960 SC 1156] : (SCR 721) "... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130] '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'."
The appellate judgment does not seem to defer to this principle."
It is also fruitful to refer to the judgment of the Hon'ble Apex Court in the case of Suraj Land and Industries Pvt.Ltd. V/s State of Haryana reported in 2012(1) SCC 656, paragraphs 16, 18 and 19 as under:
"Scope of an agreement of sale
16. Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam [(1977) 3 SCC 247] observed: (SCC pp. 254-55, paras 32-33 & 37) Page 50 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined "32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Ram Baran Prasad v. Ram Mohit Hazra [AIR 1967 SC 744 : (1967) 1 SCR 293] .) The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.
33. In India, the word 'transfer' is defined with reference to the word 'convey'. ... The word 'conveys' in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership.
***
37. ... that only on execution of conveyance, ownership passes from one party to another...."
18.It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
Page 51 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined
19.Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter."
7.8 In view of above discussion and the aforesaid judgments as well as in totality of the facts and circumstances of the present case, I am of the opinion that the trial court has not committed any error in coming to its conclusion as the trail court has exercised its discretion in judicious manner. The view taken by the trial court is possible view and I found that the findings given by the trial court is in consonance with the law as well as with the materials available on record.
Considering the fact that now the suit is also ripe for final adjudication, even no fruitful purpose will be served in deciding the application below Exh.5, which is otherwise decided in accordance with law. Hence, the Page 52 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024 NEUTRAL CITATION C/AO/302/2018 ORDER DATED: 25/04/2024 undefined present Appeal From Order is found merit-less and is required to be dismissed.
8. Accordingly, the present Appeal From Order is dismissed with no order as to costs. Notice stands discharged. Civil Application is also disposed of accordingly.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 53 of 53 Downloaded on : Thu Apr 25 20:51:23 IST 2024