Gujarat High Court
Shantilal Shankarbhai Patel Since ... vs Patel Dalsukhbhai Nanabhai (Deceased) on 13 April, 2023
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/FA/1560/2023 JUDGMENT DATED: 13/04/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1560 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/FIRST APPEAL NO. 1560 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHANTILAL SHANKARBHAI PATEL SINCE DECEASED
Versus
PATEL DALSUKHBHAI NANABHAI (DECEASED)
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Appearance:
MR TEJAS S TRIVEDI(5692) for the Appellant(s) No. 1,2,3,4,5
for the Defendant(s) No. 1.1,2,3
DECEASED LITIGANT for the Defendant(s) No. 1
MR RUTVIJ S OZA(5594) for the Defendant(s) No. 4,5,6,7,8
MR UMANG R VYAS(5595) for the Defendant(s) No. 9
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 13/04/2023
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NEUTRAL CITATION
C/FA/1560/2023 JUDGMENT DATED: 13/04/2023
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ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. ADMIT. Learned advocates Mr.Rutvij Oza and Mr.Umang Vyas waives service of notice of admission on behalf of respondent nos.4 to 8 and respondent no.9 respectively.
2. Present First Appeal emanates from the judgment and decree dated 11/05/2017 passed by the learned 15" Additional Civil Judge, Vadodara, whereby learned trial Court has allowed Exh.-26 application under Order 7 Rule 11 of Civil Procedure Code filed by the original Defendant Nos. 4 to 9 and thereby has rejected the suit filed by the present appellants-original plaintiffs being Special Suit no. 129 of 2015.
3. The short facts of the case are that the aforesaid suit was filed by the appellants-plaintiffs against the respondents- defendants for cancellation of Sale Deed and other allied reliefs by alleging that defendants nos. 1 to 3 has wrongly mutated entries of their names in revenue records of land admeasuring 12343 Sq. Meters, bearing Revenue Survey No.
976. It is stated that respondent nos.1 and 2 are the relatives of appellant no.1. It is also stated that in the year 2002 respondent nos. 1 and 2 were in financial crisis and because of that being relatives, the respondent nos.1 and 2 has requested appellant no.1 to transfer the said piece of land in their favour. It is stated that thereafter, they have prepared draft Sale Deed and at that time the appellants came to know that in the said Sale Deed name of respondent no.3 was also there, and being relatives of respondent nos. 1 and 2, the appellants have Page 2 of 11 Downloaded on : Sun Sep 17 18:28:24 IST 2023 NEUTRAL CITATION C/FA/1560/2023 JUDGMENT DATED: 13/04/2023 undefined executed one Sale Deed dated 19/10/2002 without any consideration.
3.1 It is the case of the appellant that the respondent nos. 1 to 3 have filed one application to mutate their names in the revenue record on the basis of the above mentioned Sale Deed and said application is registered as katchcha entry no.5757 in the record and the said application is filed without informing the applicant. It is further stated that, as soon as the appellants came to know about said facts, immediately he has approached to the respondent nos. 1 to 3 and inquired about the same. It is alleged that in response to the same, the respondents have informed that the bank is demanding their names in the revenue records, therefore, they have filed an application to mutate their names in the revenue records, but at that point of time, respondent nos.1 to 3 had given assurance to the appellants that they will not create any third party rights over the said piece of land/property. Thus, the appellants have not initiated any legal action against the respondents.
4. Mr.Tejas Trivedi, learned advocate appearing for the appellants has submitted that learned trial Court failed to appreciate that Respondent no.3 was not an agriculturist when the sale deed was executed, i.e. on 19/10/2002. Further, as respondent no.3 was not agriculturist, therefore, the mutation entry no. 5757 mutating the names of Respondent nos. 1 to 3 was rejected, hence, the execution of the sale deed itself has become void ab initio. It is submitted that respondent nos.1 to Page 3 of 11 Downloaded on : Sun Sep 17 18:28:24 IST 2023 NEUTRAL CITATION C/FA/1560/2023 JUDGMENT DATED: 13/04/2023 undefined 3 have misguided the Court. He has submitted that in fact mischief and cheating has been done by the respondent nos.1 and 3 and specific averment in this regard has been made by the plaintiff in this regard in the Court below, however, without appreciating the same, Court below rejected the plaint by accepting the application filed by the respondents under the provisions of Order 7, Rule 11 of the Civil Procedure Code. Thus, it is submitted that the impugned order may be set aside.
5. Per contra, learned advocate, Mr.Rutvij Oza appearing for respondent nos.4 to 8 and Mr.Umang Vyas appearing for respondent no.9 have submitted that in fact the order does not require any interference as the same is properly passed. It is submitted that in fact by taking false contention with regard to the fraud having been committed by the plaintiff, the plaintiff has sought to challenge the Sale Deed executed on 19.10.2002 and also, subsequent Sale Deed executed and registered on 8.2.2006. It is submitted that after the first Sale Deed was executed between the petitioner and respondent nos.1 to 3 in the year 2002, thereafter subsequently respondent nos.1 to 3 had sold said land to respondent nos.4 to 9 by Sale Deed executed and registered on 8.2.2006. It is submitted that in fact the appellants were well aware about the status of the respondents and, after a period of almost 20 years, now it is sought to be contended by them that they were duped by respondent no.3, since he was not an agriculturist when the Sale Deed was executed on 19.10.2002. Thus, it is submitted that the impugned order may not be Page 4 of 11 Downloaded on : Sun Sep 17 18:28:24 IST 2023 NEUTRAL CITATION C/FA/1560/2023 JUDGMENT DATED: 13/04/2023 undefined interfered.
6. We have heard learned advocates appearing for the parties. The facts are not in dispute that by filing a suit in the year 2015, the appellants have prayed for quashing and setting aside the Sale Deed dated 19.10.2002 entered between them and respondent nos.1 to 3 and subsequent Sale Deed dated 8.2.2006 executed between respondent nos.1 to 3 and respondent nos.4 to 9. The Respondent nos.4 to 9 filed an application below Exh.26 under the provision of Order 7 Rule 11(d) seeking rejection of plaint. By the impugned judgment and order dated 11.05.2017, the trial court accepted the application filed by the respondent nos. 4 to 9 and rejected the plaint, which has given rise to the present appeal.
7. We have perused the contents of the plaint and the application filed below Exh. 26 and also the impugned judgment and order. From the contents of the plaint, it is apparent that the allegations with regard to the cheating and committing of fraud with the plaintiffs have been made in thin air. Very conveniently and in order to frustrate the aforesaid Sale Deeds, the appellants have contended that fraud has been committed in the year 2002 since respondent no.3 has suppressed the fact about the actual status of being not an agriculturist while executing the agreement and executing the registered Sale Deed dated 19.10.2002. A specific contention with regard to cheating is also taken in the plaint. It is also not in dispute that the in the revenue records also the entry of the sale deed was also mutated, soon thereafter on 18.06.2003.
Page 5 of 11 Downloaded on : Sun Sep 17 18:28:24 IST 2023NEUTRAL CITATION C/FA/1560/2023 JUDGMENT DATED: 13/04/2023 undefined Thereafter, the suit land has also changed hands, and the respondent nos. 1 to 3 have sold the same to the respondent nos. 4 to 9 vide registered sale deed dated 8.2.2006. The contents of the plaint reveals that the name of the respondent nos. 4 to 9 were mutated in the revenue record on 16.02.2009. It is averred in the plaint that for the first time, the plaintiffs came to know from the Office of the Collector on 3.01.2012, that the N.A permission was granted to Respondent no.3, hence the suit was filed alleging commission of fraud and cheating in the year 2002, at the time of executing Registered Sale Deed. It is emerging from the contentions and submissions advanced before us that in fact intention behind filing the suit beyond the period of limitation is to frustrate two Sale Deeds and to extract money from the respondents.
8. At this stage, it would be apposite to refer to the judgment in the case of Dahiben (supra). The Supreme Court, while examining the provisions of Articles 58 and 59 of the Limitation Act, 1963 vis-a-vis an application filed under Order VII Rule 11(a) of the CPC seeking rejection of the plaint, has held thus:
"23.13 If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC.
23.14 The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra).Page 6 of 11 Downloaded on : Sun Sep 17 18:28:24 IST 2023
NEUTRAL CITATION C/FA/1560/2023 JUDGMENT DATED: 13/04/2023 undefined 23.15 The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint shall be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint. 24.1 In Swamy Atmanand v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51. this Court held :
"24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded"
(emphasis supplied) 24.2 In T. Arivandandam v. T.V. Satyapal & Anr., (1977) 4 SCC 467. this Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words : -
"5. ...The learned Munsiff must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing ..."
(emphasis supplied) 24.3 Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, (1998) 2 SCC 170, this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint. 24.4 If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal, (2017) 13 SCC 174, held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.
25. The Limitation Act, 1963 prescribes a time limit for the institution of all suits, appeals, and applications. Section 2(j) defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed Page 7 of 11 Downloaded on : Sun Sep 17 18:28:24 IST 2023 NEUTRAL CITATION C/FA/1560/2023 JUDGMENT DATED: 13/04/2023 undefined even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article.
26. Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the period of limitation for filing a suit where a declaration is sought, or cancellation of an instrument, or rescission of a contract, which reads as under :
Description of suit Period of Time from which period limitation begins to run
58. To obtain any other Three years When the right to sue first declaration. accrues.
59. To cancel or set aside an Three years When the facts entitling the Instrument or decree or for plaintiff to have the the rescission of a contract. instrument or decree cancelled or set aside or the contract rescinded first become known to him.
The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues.
27. In Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., (2011) 9 SCC 126, this Court held that the use of the word first between the words sue and accrued , would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.
28. A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh, (1991) 4 SCC 1, held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words "right to sue" means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. Order VII Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected. 29.11 The plea taken in the plaint that they learnt of the alleged fraud in 2014, on receipt of the index of the sale deed, is wholly misconceived, since the receipt of the index would not constitute the cause of action for filing the suit. ... ... ..."
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9. The Apex Court, after survey of various judgments on the analogous issue, has held that the use of the word "first" between the words "suit" and "accrue" would mean that if a suit is based on multiple causes of action, the period of limitation would begun to run from the date when the rights to sue first accrues. It is further held that the right to sue accrues only when the cause of action arises and the suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe such right by the defendant, against whom the suit is instituted. It is held that the courts must be vigilant about the clever drafting of the plaint, and it is held that, if by such clever drafting of the plaint, it has created the illusion of a cause of action, it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Apex Court has also noticed the cause of action mentioned in the plaint in the aformentioned case, and has held that the "The plea taken in the plaint that they learned of the alleged fraud in 2014, on receipt of the index of the sale deed, is wholly misconceived, since the receipt of the index would not constitute the cause of action for filing the suit." In the present case, the plaintiffs, in order to frustrate the limitation period have taken shelter under the pretext of obtaining an information from the Collectors office on 3.1.2012 suggesting that the N.A permission was granted to the Respondent no.3. Thus, the cause of action, as mentioned in the plaint, is an illusory and appears to have been a well- planned action in order to bring the suit challenging the registered sale deeds dated 19.10.2002 and 08.02.2006 by alleging bald allegations of fraud and cheating. The suit will Page 9 of 11 Downloaded on : Sun Sep 17 18:28:24 IST 2023 NEUTRAL CITATION C/FA/1560/2023 JUDGMENT DATED: 13/04/2023 undefined still be barred by limitation since the plaintiffs are blissfully silent on any cause of action after 03.1.2012 since the suit has been filed on 13.04.2012.
10. As held by the Supreme Court in case of Dilboo (Smt.) (dead) by Lrs (supra), whenever a document is registered, the date of registration becomes the date of deemed knowledge. In other cases, where a fact could be discovered by due diligence, then deemed knowledge would be attributed to the plaintiff, because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge. It is held that in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge. The plaintiffs in the plaint, is seeking setting aside of the registered sale deeds . Thus, by a clever drafting and in order to see that the limitation period gets frustrated, the suit has been instituted on a sole reason of obtaining information on 3.1.2012, and they were kept in dark since 2002. Thus, it cannot be said that the plaintiffs have discovered the fact of execution of the registered sale on due diligence by obtaining such information after a period of 10 years. Hence, the suit, which is otherwise barred under the provisions of Articles 58 and 59 of the Limitation Act, by way of clever drafting and by devising the cause of action, by alleging fraud an cheating; the suit only appears to have been instituted to frustrate the rights of the defendants.
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11. Thus, we do not find any infirmity or illegality committed by the trial court in allowing the application filed below Exh.26 by the defendants seeking rejection of plaint under the provisions of Order VII Rule 11. Hence, the First Appeal fails and is hereby dismissed. No order as to costs. In view of above, Civil Application also stands dismissed.
Sd/-
(A. S. SUPEHIA, J) Sd/-
(DIVYESH A. JOSHI,J) R.S. MALEK Page 11 of 11 Downloaded on : Sun Sep 17 18:28:24 IST 2023