Gujarat High Court
Mahipatbhai Ramabhai Thakor vs Deceased Vinubhai Shamalbhai Thakarda ... on 20 February, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/CRA/83/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 83 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI
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1 Whether Reporters of Local Papers may be allowed
to see the order ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the order ?
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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MAHIPATBHAI RAMABHAI THAKOR....Applicant(s)
Versus
DECEASED VINUBHAI SHAMALBHAI THAKARDA & 3....Opponent(s)
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Appearance:
MR JIGAR M PATEL, ADVOCATE for the Applicant(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 20/02/2017
ORAL ORDER
1. The order under challenge is the order dated 22.12.2016 passed by the 12th Additional Civil Page 1 of 8 HC-NIC Page 1 of 8 Created On Sun Aug 13 19:39:28 IST 2017 C/CRA/83/2017 JUDGMENT Judge and J.M.F.C., Vadodara (hereinafter referred to as "the trial Court") below Exh. 14 in Regular Civil Suit No.1042/2015, whereby the trial Court has rejected the application preferred by the petitioner (original defendant No.4), seeking rejection of the plaint, under Order VII Rule 11 of CPC.
2. It is sought to be submitted by the learned Advocate Mr.Jigar Patel that the suit filed by the respondents - plaintiffs is barred by the law of limitation, and that the plaint does not disclose any cause of action. Relying upon the decision of the Supreme Court in the case of Fatehji and Company and Anr. Vs. L. M. Nagpal and Ors., reported in AIR 2015 SC 2301 and the decision of this Court in the case of Kanjibhai Bhagwanjibhai Patel Vs. Nanduben Shamjibhai Sorathiya through P.O.A., Dharmesh P. Trivedi, reported in 2013 (1) GLR 51, he submitted that the plaint could be rejected under Clause (d) of Order VII Rule 11, if the suit is ex facie barred by law of limitation. According to Mr.Patel, the respondents - plaintiffs had deemed knowledge of the execution of the sale deed from the date on which sale deed was registered in the year 2010 and the suit having been filed in the year 2015, the suit was patently barred by law of limitation. He also submitted that the averments made in the plaint with regard to the cause of action are also vague, and therefore also, the plaint is liable to be rejected under Order VII Page 2 of 8 HC-NIC Page 2 of 8 Created On Sun Aug 13 19:39:28 IST 2017 C/CRA/83/2017 JUDGMENT Rule 11.
3. Having heard the learned Advocate for the petitioner and having gone through the impugned order passed by the trial Court, it appears that the respondents - plaintiffs have filed the suit seeking partition of the suit property and seeking declaration to the effect that the registered sale deed dated 16.12.2010 executed by the defendant Nos.1 to 3 in favour of the defendant No.4 was null and void, as no consent of the plaintiffs, who were also the co-owners of the suit property, was taken before selling the suit property. The present petitioner, who is original defendant No.4 in the suit had moved an application Exh.14, for rejection of the plaint under Order VII, Rule 11 mainly on the ground that the suit was barred by law of limitation. The said application having been rejected by the trial Court, the present petition has been filed under Section 115 of CPC.
4. It can not be gainsaid that the plaint could be rejected under Clause (a) of Order VII, Rule 11, if the plaint does not disclose any cause of action, and under Clause (d) thereof, if the suit appears from the statement in the plaint to be barred by any law. In the instant case, the respondents - plaintiffs have filed the suit alleging that the suit property was an ancestral property and they had an undivided share in the same. According to the plaintiffs, the defendant Page 3 of 8 HC-NIC Page 3 of 8 Created On Sun Aug 13 19:39:28 IST 2017 C/CRA/83/2017 JUDGMENT Nos.1 to 3 had sold out the suit property to defendant No.4 without their knowledge and consent. In paragraph 4 of the plaint, the plaintiffs have stated that they filed the suit as soon as they came to know about the said sale. The plaintiffs thus have categorically stated about the cause of action, and hence it could not be said that the plaint did not disclose any cause of action. It is true that if on a meaningful - not formal - reading of the plaint, it is manifestly found to be vexatious and meritless, not disclosing a clear right to sue, the Court should exercise its power under Order VII Rule 11, CPC, taking care to see that the ground mentioned therein is fulfilled, and that if clever drafting has created the illusion of a cause of action, the Court should nip it in the bud at the first hearing by examining the party searchingly under Order X CPC, as held by Supreme Court in case of T. Arivandandam Vs. T. V. Satyapal and Anr., reported in AIR 1977 SC 2421. However, the Court is not competent to make an elaborate inquiry into the doubtful or complicated question of law and fact, to ascertain whether the allegations are true or not or whether the plaintiffs would succeed or not in the suit, while deciding the application under Order VII, Rule 11. It has been observed by the Supreme Court in case of Liverpool & London S. P. & I. Association Ltd. Vs. M. V. Sea Success I and Another, reported in (2004) 9 SCC 512 that -
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C/CRA/83/2017 JUDGMENT
"146. It may be true that Order 7 Rule 11(a) although authorises the court to reject a plaint on failure on the part of the plaintiff to disclose a cause of action but the same would not mean that the averments made therein or a document upon which reliance has been placed although discloses a cause of action, the plaint would be rejected on the ground that such averments are not sufficient to prove the facts stated therein for the purpose of obtaining reliefs claimed in the suit. ..."
5. In the instant case, the plaintiffs having clearly stated about the cause of action in paragraph 4 of the plaint, the suit could not be rejected under Clause (a) of Order VII, Rule 11.
6. So far as the rejection of plaint under Clause
(d) of Order VII, Rule 11 is concerned, it is to be noted that the statement in the plaint must show without addition or subtraction that it is barred by any law. In case of C. Natarajan Vs. Ashim Bai and Anr., reported in AIR 2008 SC 363, the Supreme Court while dealing with the issue whether the plaint could be rejected on the ground of being barred by law of limitation, held in paragraphs 7 and 8 as under:-
"7. An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the Page 5 of 8 HC-NIC Page 5 of 8 Created On Sun Aug 13 19:39:28 IST 2017 C/CRA/83/2017 JUDGMENT court would not be entitled to consider the case of the defence. {See [Popat and Kotecha Property v. State Bank of India Staff Association [(2005) 7 SCC 510]}.
8. Applicability of one or the other provision of the Limitation Act per se cannot be decisive for the purpose of determining the question as to whether the suit is barred under one or the other article contained in the Schedule appended to the Limitation Act."
7. In yet another judgement of Supreme Court in case of Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust & Ors., reported in (2006) 5 SCC 658, it has been observed as under:-
"After hearing counsel for the parties, going through the plaint, application under Order VII Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. ..."
8. In Popat and Kotecha Property Vs. State Bank of India Staff Association, reported in (2005) 7 SCC 510, the Supreme Court opined inter alia that
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"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 Page 6 of 8 HC-NIC Page 6 of 8 Created On Sun Aug 13 19:39:28 IST 2017 C/CRA/83/2017 JUDGMENT 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 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13."
9. In case of Fatehji and Company and Anr. Vs. L. M. Nagpal and Ors. (supra), the Supreme Court, considering the facts of the case, upheld the order of trial Court rejecting the plaint under Order VII, Rule 11, on the ground that the suit for specific performance of an agreement was patently barred by limitation under Article 54 of the Limitation Act.
10. In the light of afore-stated legal position, if the averments made in the plaint are appreciated, then it appears that though the sale deed in question was registered in the year 2010 and the suit was filed in the year 2015, it would be a matter of evidence as to when the plaintiffs came to know about the said execution of the sale deed. From the statements made in the plaint, it could not be said that the suit was barred by law of limitation.
11. In that view of the matter, there being no Page 7 of 8 HC-NIC Page 7 of 8 Created On Sun Aug 13 19:39:28 IST 2017 C/CRA/83/2017 JUDGMENT infirmity in the order passed by the trial Court, the present Civil Revision Application deserves to be dismissed, and is therefore, dismissed in limine.
(BELA M. TRIVEDI, J.) vinod Page 8 of 8 HC-NIC Page 8 of 8 Created On Sun Aug 13 19:39:28 IST 2017