Gujarat High Court
Poonambhai Shanabhai Valand-Decd. & 4 vs Hasmukhbhai Bachubhai Parsana & on 31 January, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SA/193/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 193 of 2016
With
CIVIL APPLICATION NO. 7673 of 2016
In
SECOND APPEAL NO. 193 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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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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POONAMBHAI SHANABHAI VALAND-DECD. & 4....Appellant(s)
Versus
HASMUKHBHAI BACHUBHAI PARSANA & 1....Respondent(s)
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Appearance:
HL PATEL ADVOCATES, ADVOCATE for the Appellant(s) No. 1 - 1.3 , 2 - 5
MS TRUSHA K PATEL, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 31/01/2017
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ORAL JUDGMENT
The present second appeal is filed by the appellants-original plaintiffs challenging the impugned judgment and order by the Addl. District Judge, Ahmedabad (Rural) at Mirzapur in Regular Civil Appeal No. 17/2014 dated 22.4.2016 confirming the judgment and order below Exh. 17 in Special Civil Suit No. 514/2010 by the Sr. Civil Judge, Ahmedabd (Rural) dated 28.12.2014 under O. 7 R. 11 of the Code of Civil Procedure, 1908 for rejection of the plaint on the ground of limitation posing the following substantial questions of law:
(i) Whether the plaintiffs have proved their case independently by showing that the plaint of the plaintiffs discloses the cause of action?
(ii) Whether the plaint of the plaintiffs is time barred and whether it falls within the period of limitation?
(iii) Whether is it possible for the trial court to decide the issue of concoction of power-of-attorney without adjudicating the same?
2. Heard learned counsel Shri Vijay Patel appearing for the appellants and learned advocate Ms. Trusha Patel for respondent No. 1.
3. Learned counsel Shri Patel referred to the background of facts and submitted that both the courts below have committed an error in passing the order under O. 7 R. 11 rejecting the plaint on the ground of limitation. He emphasised that the issue of limitation is a mixed question of law and facts and therefore it would depend upon the evidence and the appellants original plaintiffs should have been allowed an opportunity to lead the evidence and therefore O.7 R. 11 of CPC would not be attracted. He has Page 2 of 9 HC-NIC Page 2 of 9 Created On Sun Aug 13 05:58:14 IST 2017 C/SA/193/2016 JUDGMENT referred to the background of facts as well as the judgments by both the courts below and submitted that as could be seen from the judgment and order of the first appellate court, the appellants original plaintiffs had no knowledge and therefore as explained in the plaint while referring to the cause of action the cause of action arose when the power-of-attorney was misused by creating the documents which came to the notice of the appellants original plaintiffs at a later stage in the year 2007.
4. Learned counsel Shri Patel has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2005) 7 SCC 510 in the case of Popat and Kotecha Property v. State Bank of India Staff Association and submitted that the date of knowledge would be relevant. He therefore submitted that the object of O. 7 R.11 is to keep out of court irresponsible law suits but it should not be a ground to deprive the party to challenge such documents which are executed behind the back. He has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 2015 SC 2485 = (2015) 8 SCC 331 in the case of P.V. Guru Raj Reddy rep. by Gpa Laxmi Narayan Reddy v. P. Neeradha Reddy & ors. He also submitted that the date of knowledge would be relevant and in the facts of the case as the other co-owners have filed the complaint and when it came to the notice in the revenue proceedings the appellants original plaintiffs filed the suit. He therefore submitted that the order passed under O. 7 R. 11 is erroneous and it is a substantial question of law. Learned counsel Shri Patel also tried to submit that the law of limitation would be attracted which could be considered on the basis of appreciation of the material and evidence.
5. Per contra, learned advocate Ms. Trusha Patel referred to the documents and the paper-book supplied by her and submitted that the document/sale deed which is executed in the year 2001 is sought to be challenged by way of the aforesaid Special Civil Suit No. 514/2010 in the Page 3 of 9 HC-NIC Page 3 of 9 Created On Sun Aug 13 05:58:14 IST 2017 C/SA/193/2016 JUDGMENT year 2010. She submitted that the suit is filed on 29.7.2010 for challenging the said sale deed executed on 10th September 2001. She also pointedly referred to the papers and submitted that the date of registration of the document would be the date for the purpose of deemed knowledge of such document as provided in sec. 3 of the Transfer of Property Act. For that purpose she referred to the provisions of sec. 3 of the Transfer of Property Act as well as the Registration Act. She has referred to the order of the first appellate court and submitted that assuming that there were some revenue proceedings and the entries were made in 2002 and admittedly the copies have been obtained by the appellants in May 2007. Therefore, learned advocate Ms. Patel submitted that in any case the suit would be barred as it has been filed on 29.7.2010. She therefore submitted that apart from deemed knowledge or the date of registration of the document the suit would be barred even on this count regarding the actual knowledge on the basis of the revenue entries. She therefore submitted that the present second appeal may not be entertained.
6. In support of her contentions, she has referred to and relied upon the judgment of the Hon'ble Apex Court reported in 1999 AIR SCW 2186 in the case of Bina Murlidhar Hemdev and ors. v. Kanhaiyalal Lokram Hemdev and ors. with regard to the deemed notice. She submitted that the same has been followed in other judgments including the judgment of the Hon'ble Apex Court reported in (2007) 15 SCC 174 in the case of Janardhanam Prasad v. Ramdas. She has also referred to and relied upon the judgment of this High Court reported in 2013 (1) GLR 398 in the case of Becharbhai Zaverbhai Patel & anr. v. Jashbhai Shivabhai Patel & ors. and pointedly referred to the observations made in para 6.2 Therefore, learned advocate Ms. Patel submitted that on any count the suit has been time barred and therefore the application under O. 7 R. 11 given for rejection of the plaint on the ground of limitation has been Page 4 of 9 HC-NIC Page 4 of 9 Created On Sun Aug 13 05:58:14 IST 2017 C/SA/193/2016 JUDGMENT considered.
7. Learned advocate Ms. Patel submitted that the concurrent finding of facts may not be disturbed in exercise of discretion under sec. 100 of CPC and therefore the present second appeal may not be entertained. She submitted that the issue of limitation which could be considered on the basis of material and evidence is one aspect but when the statute provides for deemed knowledge which is a statutory provision, there is no question of explaining or extending the limitation. Therefore, there is no question of any rebuttal of the presumption.
8. In view of these rival submissions, it is required to be considered whether the present second appeal deserves consideration.
9. As could be seen from the background of facts and the rival submissions, the first question which is required to be considered is whether both the courts below can be said to have committed any error while passing the order under O. 7 R. 11 for rejection of the plaint on the ground of limitation.
10. The provisions of O.7 R. 11(d) of CPC provide, "Where the suit appears from the statement in the plaint to be barred by any law"
Thus, when prima facie the suit which has been filed for cancellation of the registered document/sale deed executed in the year 2001 is filed in the year 2010 the court is obliged to consider the aspect of limitation. In fact, the Hon'ble Apex Court has made the observation that it is obligatory for the courts to consider such aspects of limitation while entertaining such application. Therefore, when the suit is found to be hopelessly time-
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barred the submissions made by learned counsel Shri Patel that the issue of limitation is a mixed question of law and fact and therefore it ought to have allowed the parties to lead evidence is misconceived and it cannot be readily accepted.
11. Another facet of the submission is with regard to the cause of action which is stated to arise from the date of knowledge contending that the appellants original plaintiffs had no knowledge and it came to their notice only when the revenue proceedings were brought to their notice. As discussed above, even if it is accepted for the sake of argument it is evident that the copies of entries mutated in the revenue record has been obtained in May 2007 by the appellants original plaintiffs and therefore the suit could have been filed within a period of 3 years as provided in Art. 59 of the Limitation Act. Admittedly, the suit is beyond the period of 3 years. Moreover, as observed in the judgment of the Hon'ble Apex Court as well as the judgment of this court in the case of Becharbhai Zaverbhai Patel & ors. (supra), the registration of document is the deemed notice for the purpose of knowledge.
12. The Hon'ble Apex Court in a judgment reported in (2005) 7 SCC 510 in the case of Popat and Kotecha Property v. State Bank of India Association, while considering the scope of O.7 R.11 has also referred to its earlier judgment reported in (2004) 3 SCC 137 in the case of Sopan Sukhdeo Sable v. Asstt. Charity Commissioner and has observed, "Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by a searching examination of of the party, in case the court is prima facie of the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and irresponsible litigation,the jurisdiction under Order 7 Rule 11 of the Code can be exercised."
Page 6 of 9 HC-NIC Page 6 of 9 Created On Sun Aug 13 05:58:14 IST 2017 C/SA/193/2016 JUDGMENT 13. In the judgment in the case of Sopan Sukhdeo Sable (supra),
addressing the same issue on the scope of O.7 R.11 it has been observed, "The basic question to be decided while dealing with an application filed under Order 7 Rule 11(a) CPC is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get around Order 7 Rule 11. The trial court must remember that if on a meaningful and not formal reading of the plaint is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11(a) taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. It is true that by ingenious drafting a cause of action in the nature of red herrings cannot be brought into the judicial arena."
14. The High Court in the judgment in the case of Becharbhai Zaverbhai Patel & ors. (supra) has clearly observed that when the suit is barred by limitation on a plain reading of the plaint it can be dismissed as it cannot be brought within limitation by vague averments. Reliance has been placed again on the judgment of the Hon'ble Apex Court reported in (2000) 7 SCC 702 in the case of Dilboo (Smt.) (dead) by L.Rs. v. Dhanraji (Smt.) (dead). The same view has been reiterated in another judgment of the Hon'ble Apex Court in the case of Janardhanam Prasad v. Ramdas (supra).
15. Therefore, on analysis of the aforesaid judgments suggesting guidelines, a few aspects have been clarified. While exercising power under O.7 R.11 it has been emphasised that the defence in the written statement is not relevant. In other words, it has been emphasised that while considering exercise of discretion under O.7 R.11, the court has to consider only the averments in the plaint and it has a reference to the Page 7 of 9 HC-NIC Page 7 of 9 Created On Sun Aug 13 05:58:14 IST 2017 C/SA/193/2016 JUDGMENT cause of action which is again a bundle of facts. Therefore, in order to exercise discretion under O.7 R.11, the court has to consider only the averments in the plaint. At the same time, the courts are obliged to consider and read in a meaningful manner the averments in the plaint particularly the cause of action and to consider whether it is hit by any statutory provision including the limitation. As referred to hereinabove, by skilful drafting or misleading facts the party may not be allowed to stretch the limitation so as to create an impression that the suit is within the limitation. It is at that stage the courts are obliged to consider the averments closely so that the suit which is filed as an abuse of the process of the court as a bogus irresponsible litigation is not entertained. A useful reference can also be made to the observations made in a judgment of the Hon'ble Apex Curt reported in(2005) 5 SCC 548 in the case of N.V. Srinivasa Murthy and ors. v. Mariyamma (dead) by proposed LRs and ors.
16. The Hon'ble Apex Court in a judgment reported in AIR 2012 SC 3912 in the case of The Church of Christ Charitable Trust & Educational Charitable Society, rep. by its Chairman v. M/s. Ponniamman Educational Trust rep. by its Chairperson/Managing Trustee has made the observation with regard to the averments in the plaint and the cause of action which is required to be considered. Therefore, taking the averments made in the plaint which is stated to be "cause of action"
which are bundle of facts as narrated by the appellants original plaintiffs at the face value even then it would suggest that it is beyond the prescribed period of limitation. Reliance has also been placed on the judgment of this High Court (Coram: M.R. Shah & A.S. Supehia, JJ.) in First Appeal No. 1095 of 2016 with Civil Application No. 5242 of 2016 dated 13.7.2016.
17. A useful reference can also be made to the judgment of the Hon'ble Page 8 of 9 HC-NIC Page 8 of 9 Created On Sun Aug 13 05:58:14 IST 2017 C/SA/193/2016 JUDGMENT Apex Court reported in (2000) 7 SCC 702 in the case of Dilboo (Smt.) (dead) by LRs and ors. v. Dhanraji (Smt.) (dead) and ors. wherein also observations have been made in para 25 referring to the registration of the document and the knowledge about the same. Thus, it has been clearly observed that the date of registration will be the date of deemed knowledge. It is in this background the concurrent finding of facts on appreciation of material and evidence by both the courts below cannot be said to be erroneous as no substantial question of law can be said to have been involved.
18. The Hon'ble Apex Court in catena of judicial pronouncements has laid down broad guidelines expressing a word of caution while exercising discretion under sec. 100 of CPC in second appeal that normally the concurrent finding of facts may not be disturbed unless substantial question of law is involved. Therefore, having regard to the aforesaid broad guidelines, the present second appeal cannot be entertained and deserves to be dismissed and accordingly stands dismissed.
19. In view of the order passed in the Second Appeal, the Civil Application stands dismissed. Interim relief stands vacated.
(RAJESH H.SHUKLA, J.) (hn) Page 9 of 9 HC-NIC Page 9 of 9 Created On Sun Aug 13 05:58:14 IST 2017