NEUTRAL CITATION
C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2716 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/FIRST APPEAL NO. 2716 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed Yes 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 ?
========================================================== JADAVBHAI JERAMBHAI CHAVDA Versus KOLI SAVSI AMRA SINCE DECD THROUGH LH ========================================================== Appearance:
MR NAVIN PAHWA, SR. ADVOCATE WITH MS. SANGEETA PAHWA FOR THAKKAR AND PAHWA ADVOCATES(1357) for the Appellant(s) No. 1 for the Defendant(s) No. 1.1,1.2,1.3,2,3 MR DEVAN PARIKH, SR. ADVOCATE WITH MR VIMAL A PUROHIT(5049) for the Defendant(s) No. 2,3 SERVED BY RPAD (N) for the Defendant(s) No. 1.1,1.2,1.3 ========================================================== CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 25/10/2023 CAV JUDGMENT Page 1 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined
1. This First Appeal under section 96 of Code of Civil Procedure takes exception to the order passed below Exh.10 by the learned Principal Senior Civil Judge, Gondal, by which, in exercise of power under Order 7 Rule 11 of CPC plaint of Special Civil Suit No.66 of 2017 has been rejected.
2. For convenience and brevity parties are referred to as per status before the learned Trial Court.
2.2. Facts of the case are as under :-
2.3. Plaintiff - Jadavbhai Jerambhai Chavda as trustee of Swarminarayan Temple Trust, Junagadh filed Special Civil suit No.66 of 2017 before the learned Principal Senior Civil Judge, Gondal (in short 'the learned Trial Court') for cancellation of sale deed No.1743 and sale deed No.1744 dated 09.04.1990 with specific relief that sale deeds are not binding to the plaintiff and sought relief to direct defendant to hand over peaceful and vacant possession of the disputed land. According to the averments made in the plaint, land bearing survey no.205/1 ad- measuring 19 Acres 14 Gunthas and land bearing survey No.205/2 ad-measuring 0 Acres 26 Gunthas situated at village - Padwala, Taluka - Kotdasangani is subject matter (in short "subject land"). According to the plaintiff, this land were donated by Girasdhars of old princely State to Swarminarayan Temple along with other lands. It is further case of the plaintiff that since then land was in possession of Swarminarayan Temple as owner of subject land. One agriculturist viz. Savsi Amara was doing agricultural work on the land. Necessary revenue entries Page 2 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined were mutated in favour of the plaintiff whereby Swarminarayan Temple was shown as occupant along with Savsi Amara. According to plaintiff, subject land was never Girasdar land nor Swaminarayan Temple was Girasdar or Barkhaladar. In short it was case of the plaintiff that Swaminarayan Temple was not Girsadar. Land in question was received by donation and as such it was not Barkhali land. Name of Savsi Amara in the revenue record was shown as person hired to do agricultural work. It was further submitted that promulgation of subject land took place on 14.02.1955. Revenue entry No.31 was mutated. At that time, name of Savsi Amara was mutated as occupier and therefore, possession certificate was issued in favour of Savsi Amara. But this was incorrect promulgation. Since land in question was received by Swaminarayan Temple in donation and it was not Barkhali land, Swaminarayan Temple cannot be considered as Garisdar or Barkhaladar and consequently, there cannot be any tenant for such Garisdar or Bharkhaladar. It is further averred that Revenue Officers have illegally mutated name of legal representatives of Savsi Amara as he was not tenant and therefore proceedings undertaken by the Revenue Officers are illegal and void ab-initio on its face. It is further averred that revenue proceedings do not confer title.
2.4. Basically upon above averments the plaintiff filed the suit challenging legality and valid of registered sale deed no.1743 and no.1744 dated 09.04.1990 executed by legal representative of deceased Savsi Amara.
2.5. Following reliefs were claimed in para 22 by the plaintiff in Page 3 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined the plaint. These reliefs are in vernacular language Gujarati but for understanding they are translated in English as follows :-
"(1) Order be passed allowing this suit with cost.
(2) Order be passed declaring that the Registered Deed No.1743 and Registered Deed No.1744 transferring the lands A.19-14 Gu. and A.0-26 Gu. of Survey No.205/1 and Survey No.205/2 are not binding upon the plaintiff and they are inoperative.
(3) Order be passed that the Respondent No.2 and 3 shall hand over the possession of the land in dispute to the plaintiff. If the Respondent No.1 and 2 do not hand over the possession to the plaintiff even after the order of the Hon'ble Court, it is prayed that the Hon'ble Court should make them hand over the possession through a Court Commissioner.
(4) It is prayed that the order be passed directing the Revenue Officer through a memorandum to make necessary entry in the name of the plaintiff regarding the order passed by the Hon'ble Court in the Village Form No.6 and other forms.
(5) It is prayed that the Sub-Registrar, Gondal be informed through a memorandum to make an entry in the respective form with respect to the order to be passed to consider the impugned deed as inoperative.
(6) It is prayed that the order be passed against the respondents that they shall not create obstruction in any manner and through anyone once the possession of the land in dispute is handed over to the plaintiff."
3. Process of the suit was served to other side. Defendant filed application Exh.10 under Order 7 Rule 11 for rejection of plaint. Learned Principal Senior Civil Judge, Gondal after hearing Page 4 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined learned advocates for both the sides came to conclusion that suit is barred by principle of limitation as well as barred under section 39 of the Saurashtra Bharkali Abolition Act, 1951 (in short "the Act, 1951") and therefore, plaint came to be rejected.
4. Being aggrieved and dissatisfied with the above order and decree rejecting the plaint, unsuccessful plaint has filed First Appeal inter-alia on the grounds stated in the Appeal.
5. Learned Senior Advocate Mr. Navin Pahwa assisted by learned advocate Ms. Sangeeta Pahwa appeared for Thakkar and Pahwa Advocates for the appellant. Though served, none appeared for respondent nos.1.1, 1.2 and 1.3. Learned Senior Advocate Mr. Devan Parikh assisted by learned advocate Mr. Vimal Purohit appeared for respondent nos.2 and 3.
6. Learned Senior advocate Mr. Navin Pahwa for the appellant would mainly submit that learned Trial Court has seriously erred in rejecting plaint under Order 7 Rule 11 of CPC. He would further submit that it is trite law that while exercising power under Order 7 Rule 11 of CPC, the Court was required to see averments made in the plaint and to believe it as true and genuine. He would further submit that only thereafter, if Court finds that suit is barred by provisions of law or no cause of action is made out, then the Court in exercise of power under Order 7 Rule 11 of CPC can reject the plaint. He would further submit that the Court while deciding application under Order 7 Rule 11 of CPC cannot look at the defence raised by the defendant in written statement or application under Order 7 Page 5 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined Rule 11 of CPC for rejection of plaint. It is plaint and alone plaint which can be looked into for deciding application under Order 7 Rule 11 of CPC.
6.1. Learned Senior advocate Mr. Navin Pahwa would submit that plain reading of the plaint of Special Civil Suit indicates that the plaintiff has asked for relief of cancellation of sale deed executed by legal heirs of deceased Savsi Amra without any authority and title as said agricultural land was donated by erstwhile Princely State of Padwala through Garisdar which bestow all title in favour of Swaminarayan Temple. Learned Senior advocate would submit that relief claimed by the plaintiff is available under section 31 of Specific Relief Act. He would submit that whether the plaintiff succeeds in suit or not cannot be taken into consideration at the time of deciding application under Order 7 Rule 11 of CPC. He would further submit that relief of cancellation of sale deed is triable by Civil Court and there is no embargo of law upon Civil Court to decide relief of cancellation of sale deed. He would further submit that plain reading of the plaint indicates that the plaintiff has not challenged proceedings taken under the Act, 1951. In that event, section 39 of Act does not attract to the proceedings but the learned Trial Court jumped to the conclusion that suit is barred by section 39 of the Act, 1951. He would further submit that cause of action is not defined in CPC but general belief is that cause of action means bundle of facts stated in the plaint. He would further submit that if we gather cause of action from the averments made in the plaint, it appears that plaintiff filed the suit for cancellation of sale deed, as soon as plaintiff came to Page 6 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined know about execution of sale deed No.1743 and No.1744, thus suit was filed within three years from the date of knowledge of execution of sale deed. Therefore, suit was not barred by principle of law of limitation. He would further submit that even otherwise question of limitation is mixed question of law and facts, it cannot be decided at threshold to reject the plaint under Order 7 Rule 11 of CPC.
6.2. Learned Senior Advocate Mr.Pahwa referring to interpretation clause stated in section 3 of the Transfer of Property Act, more particularly, expression "a person is said to have notice" of a fact when he actually knows that fact or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it" submitted that plaintiff came to know about execution of sale deed in recent past when application to convert land from agricultural to non agricultural land has been filed in Zilla Panchayat based upon two sale deed and therefore, suit is filed within time limit.
6.3. Upon above submissions, it is submitted that learned Trial fell in error. Learned Trial Court failed to understand provision of Order 7 Rule 11 of CPC and law laid down by higher Courts and as such committed error in rejecting plaint.
6.4. Learned Senior advocate Mr. Pahwa to contend that limitation is mixed question of law and facts, relied upon judgment of this Court in Civil Revision Application No.338 of 2013 [Kanubhai Savabhai Rabari v/s. Runjiben Alias Page 7 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined Shantaben]. He has relied on para 8 of the judgment which reads as under :-
"8. The question of limitation would have to be judged on facts that may be brought on record during the course of trial that whether to such a fraudulent document, if so established, can period of limitation would apply, would itself be a question. Even if one go to apply the period of limitation as provided in the Limitation Act, the question would be, what would be the starting point of such limitation - whether the date of registration of the document or the date of actual knowledge to the Plaintiffs in present state of facts would also be a relevant question. All these issues must be allowed to be tried. The principle of deemed knowledge of registered document to a existing owner cannot be applied mechanically. Both the details cited by the learned Counsel for the Petitioner came for consideration before this Court recently in Civil Revision Application No. 12 of 2015 decided on 26.6.2015, in which following observations were made by this Court:
"13. Upon perusal of the said portion of section 3 of the Transfer of Property Act, it can be seen that knowledge of a fact is attributed to a person either when he actually knows that fact, or when, but for wilful abstention from an inquiry or search, he ought to have made, or gross negligence, he would have known it. Explanation to the said clause interalia provides that where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part thereof, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration. This is subject to the conditions provided in provisios contained to the said explanation. Explanation1 thus refers to deemed notice and relates to the notice of instrument relating to a transaction of immovable property which is required by law and has also been so registered and such deemed knowledge is imputed to the person acquiring such property or any share or interest in Page 8 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined such property. Such provision therefore, cannot be applied in case of a subsequent sale of an immovable property to impute deemed knowledge of such transaction on the erstwhile purchaser/owner merely on the strength of section 3 of the Transfer of Property Act unless facts and attendant circumstances suggest that the person in question was reasonably expected to make search or inquiry which he failed to do, thus suggesting willful act, negligence or lack of due diligence i.e. prudence, expected of a reasonable man. Any such interpretation being quite contrary to the language used in the provision, would also put an unreasonable onus on a owner or a purchaser of an immovable property to be constantly vigilant and apprise himself of any subsequent registered transaction with respect to such immovable property or face unpleasant consequences of his challenge to a totally invalid or even a fraudulent or a bogus sale deed being barred by law of limitation after the statutory period commencing from the date of registration on the principle of deemed knowledge. In plain terms said provision of section 3 of the Transfer of Property Act applies in case of a person acquiring an immovable property or a share or interest therein of a transaction which would be an existing and not a future transaction which by law is required and indeed been registered."
6.5. Learned Senior Advocate Mr. Pahwa has also relied upon following judgment in support of the submissions :-(1) Bardoli Shreerang Exhibitors Pvt. Ltd. v/s.
Maheshbhai Babubhai Hirpara [2022 (2) GLR 1061] (2) Balasaria Construction (P) Ltd. v/s. Hanuman Seva Trust [(2006) 5 SCC 658] (3) P.V.Guru Raj Reddy by GPA Laxmi Narayan Reddy v/ s. P.Neeradha Reddy [2015 (8) SCC 331] Page 9 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined 6.6. Upon above submission, learned senior advocate Mr. Pahwa submits to allow First Appeal and to quash and set aside impugned order and decree to restore Special Civil Suit to its proceedings.
7. On the other hand, learned Senior Advocate Mr. Devan Parikh assisted by learned advocate Mr. Vimal Purohit raised multiple submissions. Firstly, he submitted that plaintiff is Jadavbhai Jerambhai Chavda but in the plaint, nowhere he has mentioned that under which capacity or authority, he has preferred suit on behalf of Swaminarayan Temple, Junagadh. Therefore, plaint was required to be rejected on that count only. Referring para 7 of the plaint, he would submit that plaintiff has categorically stated that defendant of the suit be directed to produce occupancy certificate issued under the Act, 1951 meaning thereby the plaintiff has set cause of action of the suit based upon occupancy certificate issued by the authority under the Act, 1951. He would submit that pursuant to pleadings made in para 7 of the plaint, defendant has produced occupancy certificate issued under section 12 of the Act, 1951 at Mark 9/1. He would submit that though this document is produced by defendant but it could be considered as document of the plaintiff as plaintiff is relying upon said document to contend and claim title over the subject land. Learned Senior Advocate Mr.Parikh would submit that section 39 of the Act, 1951 specifically bars jurisdiction of Civil Court to challenge proceedings carried under the Act, 1951. He would submit that by clever drafting, plaintiff has challenged proceedings which are taken under the Act, 1951 Page 10 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined by the concerned officer. He would submit that whether plaintiff was Garisdar / Barkhaladar or not can be tested by the competent authority under the Act, 1951, it cannot be decided by Civil Court. He would submit that defendant got title of the subject land in operation of provision of the Act, 1951. Occupancy certificate was issued in favour of forefather of the defendant after the proceedings took place under the Act, 1951. Therefore, until that proceedings are upturned or set aside by the competent authority, the Civil Court cannot entertain plaint or suit which indirectly challenging said proceedings. He would submit that thus, the learned Trial Court has rightly taken view to reject the plaint.
7.1. Learned Senior Advocate Mr.Parikh would also submit that relief claimed in the plaint i.e. cancellation of sale deed no.1743 and 1744 dated 09.04.1990 is also time barred as after expiry of 17 years, the plaintiff has filed the suit for cancellation of sale deeds. He would further submit that in view of registration of sale deeds, plaintiff acquired deemed knowledge of registration of sale deeds. He would submit that in view of section 3 of the Transfer of Property Act, the plaintiff who is claiming title in the suit property ought to have made enquiry and search of the title of the subject land but person remain in gross negligence cannot claim that he came to know about execution of sale deed when defendant has sought permission to convert land from agricultural to non agricultural land. Registration of sale deed has effect of deemed knowledge of it. He would further submit that plain reading of the plaint indicates that the plaintiff has nowhere pleaded by particular para that how and when cause of Page 11 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined action of the suit started. He would submit that bundle of facts can be stated as cause of action but for consideration of limitation, the plaintiff has to made certain disclosure in the plaint about issue of limitation but in the present case, the plaintiff has not disclosed averments to name it as disclosure of cause of action. Thus, learned Trial Court has rightly exercised power under Order 7 Rule 11 of CPC as suit was hopelessly time barred. He would further submit that plaintiff has not challenged proceedings taken under the Act, 1951 which is culminated into the occupancy certificate. He would further submit that forefather of the defendant acquired title of the subject land through occupancy certificate issued under the Act, 1951 which transmitted to defendants by way of registered sale deeds. This submission is made to canvass that in absence of challenge to occupancy certificate under the Act, 1951, the plaintiff cannot directly challenge execution of sale deeds. He would further submit that under the clever drafting plaintiff tries to place suit with jurisdiction of the Civil Court, in fact entire proceedings is filed to circumvent proceedings taken before the competent authority.
7.2. Lastly, while supporting impugned order, learned Senior Advocate Mr.Parikh would submit to dismiss First Appeal. He has placed reliance on following authorities in support of his submissions.
(1) Patel Jadav Tapu v/s. Satvara Keshav Vala [GLH (GU)-1990-1-31.
(2) Kantilal Meghaji Sorathiya v/s. Babulal @ Jagdish Page 12 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined Harji [ SCA No.54 of 2015 vide judgment dated 07.07.2015] (3) Madhuben Lalitbhai Patel v/s. Chandrakantaben D/ o. Sampatlal Ayodhyaprasad Jaiswal [SCA No.356 of 2014 vide judgment dated 07.07.2015] (4) Kailasheb Mathurbhai Patel v/s. Gandabhai Mathrubhai Patel [FA No.3168 of 2017 vide judgment dated 06.10.2017] (5) Zoharabibi v/s. Thakorbhai Maganbhai Patel [FA No.791 of 2014 vide judgment dated 28.04.2014] (6) Jilubhai Jamubhai v/s. Bahadurbhai Jamabhai [FA No.236 of 2020 vide judgment dated 26.03.2020] (7) Patel Dhanjibhai Ambaram v/s. Navinhandra Vrajlal Ved [Civil Revision Application No.122 of 2016 vide judgment dated 01.10.2021] (8) Nagjibhai Kanjibhai Patel v/s. Mukesh @ Pappu Chandrapraksh Shukla [2022 Lawsuit (Guj) 6924]. (9) Balasariya Construction (P) Ltd. v/s. Hanuman Seva Trust [2006 (5) SCC 658]
8. No other and further submissions are made.
9. It is settled rule of law that plea of rejection of plaint is founded on the 'Plea of Demurrer'. A person raising such plea under Order 7 Rule 11 of CPC has to take the facts as stated by the plaintiff in plaint as correct. Pleadings which is gathered from the plaint and documents filed by the plaintiff are only to be seen. The defense of the defendant is irrelevant at the stage of deciding application under Order 7 Rule 11 of CPC. To be noted that presumption of prima facie correctness is attached with Page 13 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined plaint. The person intend to reject the plaint at threshold is bestow with the onus to show that despite presumption of prima facie correctness of the plaint still the plaint is not maintainable as it is barred by provision of law or lacking cause of action or barred by other exigences stated under Order 7 Rule 11 of CPC. Despite tentative admission of correctness of the plaint, if plaintiff is not disclosing complete or even partial cause of action or the relief claimed in the plaint or it is barred by law, plaint is liable to be rejected within the provisions of Order 7 Rule 11 of the Code of Civil Procedure. Plain language of this rule shows that for determination of an application under the provision of Order 7 Rule 11 of CPC, the Court has to look alone into the plaint and documents annexed therewith.
10. The language of Order 7 Rule 11 of CPC does not admit any scope for doubt that the written statement filed by the defendant cannot be referred or relied nor averments made in the application for decision. Whether the plaint discloses any cause of action or not or relief claimed in the plaint is barred by limitation, is a question found on the basic cause of action pleaded by the plaintiff in his plaint. It must thus necessarily be construed that language of Rule is circumscribed by the limitation of reading the plaint at best with its supporting documents.
11. It is well settled that a cause of action means every fact which, if traversed, would be necessary for the plaintiff to prove in order to support the right to a judgment in his favor. In other words, it is a bundle of facts which taken with the law applicable Page 14 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined to him gives the plaintiff a right to relief against the defendant. Negatively it does not comprise the evidence necessary to prove the bundle of facts and equally has no relationship whatsoever to the defense, which may be set up by the defendant.
12. In the case of T.Arivandandam v/s. T.V.Satyapal [1977 (4) SCC 467], the Hon'ble Supreme Court has observed as under :-
"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, Page 19 of 26 is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif 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 Order 7 Rule 11 CPC 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 by examining the party searchingly under Order 10 CPC. an activist Judge is the answer to irresponsible law suits."
13. Useful reference can be made to the case of Sopan Sukhdeo Sable v/s. Charity Commissioner [(2004) 3 SCC 137], the Hon'ble Supreme Court has observed under : -
"11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code 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 out of Order 7 Rule 11 of the Code. 12.
The trial court must remember that if on a meaningful and Page 15 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined not formal reading of the plaint it 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 of the Code 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. (See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467].)"
14. Another decision can be pressed is in case of Madanuri Sri Rama Chandra Murty v/s. Syed Jalal [(2017) 13 SCC 174] , the Hon'ble Supreme Court has observed under :-
"7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to.
The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is Page 16 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."
15. What carved from the aforesaid judgment that while exercising power under Order 7 Rule 11 of CPC, the Court is required to see that whether grounds mentioned therein are fulfilled. The Court has to scrutinize the plaint and documents annexed to find out whether there is clever drafting which has created illusion of cause of action or is genuine. The Court is also required to read plaint meaningfully to find out whether the plaint is genuine or illusory, whether it is setting up cause of action, if traversed, is proving in favour of the plaintiff to support right to the judgment.
16. Coming back to the case on hand, reading of the plaint on its face indicates that plaintiff is claiming right to subject land on the ground that it has been donated by the erstwhile Ruler of Village - Padvala. It is further submitted that plaintiff Swaminarayan Temple cannot be considered as Girashdar or Barkhaladar in view of subject land was donated by erstwhile Ruler. Late Savsi Amara forefather of defendant was appointed as only agriculturist - labourer and therefore, no proceedings to declare him tenant can be taken under the Act, 1951. Meaningful reading of para 7 of the plaint shows that the plaintiff is relying upon occupancy certificate issued by the competent authority under the Act, 1951. In fact by pleading, Page 17 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined the plaintiff claimed to direct defendants to produce occupancy certificate issued by competent authority. It is also averred that Swaminarayan Temple was not Garishdhar or Barkalidar and therefore, competent authority cannot decide issue under the Act, 1951. In context to said pleadings, if we read relief claimed by the plaintiff along with cause of action, though not stated by particular paragraph, by reading whole plaint seems that that plaintiff questions proceedings undertaken by the competent authority under the Act, 1951.
17. Since plaintiff is relying upon occupancy certificate issued by the competent authority in favour of deceased Savsi Amra, by necessary averments in para 7, the plaintiff seeks relief to direct defendant to produce said certificate. In view of such occupancy certificate though produced by defendant at mark 9/1, it becomes document of the plaint. Reading mark 9/1 from the paper book it seems competent authority has issued occupancy certificate under section 12 of the Act, 1951 believing that plaintiff was Barkhalidar. Swaminarayan Temple through Kasanbabu had been considered as Barkhalidar and late Koli Savsi Amara was considered as tenant. This proceeding took place on 30.10.1953 before competent authority and Mamlatdar, Gondal. Under clever drafting plaintiff has challenged said proceedings as well as revenue entry which took place on 14.02.1955 vide revenue entry no.31 in favour of Savsi Amra. It appears that by glib drafting plaintiff has challenged the issue which is settled and decided by competent authority and Mamlatdar, Gondal under the Act, 1951. Section 39 of the Act, 1951 is relevant which barricades jurisdiction of Civil Court to Page 18 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined decide the question which has been decided by the Mamalatdar or Collector or Tribunal or Government in exercise of powers under the Act, 1951. Section 39 of the Act, 1951 reads as under :-
"39. Bar of jurisdiction - (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar, the Collector or the Tribunal or by the Government in exercise of their powers or control.
(2) No order of the Mamlatdar, the Collector or the Tribunal made under this Act shall be questioned in any Civil or Criminal Court."
18. Learned Senior Advocate Mr. Navin Pahwa would submit that the plaintiff is not challenging proceedings taken under the Act, 1951 but he is only challenging the registered sale deed which took place in the year 1990. It seems that the plaintiff without asking necessary relief to set aside proceeding taken under the Act, 1951 which bestowed title upon late Savsi Amara, asking relief for cancellation of sale deed executed on strength of occupancy certificate, yet he is claiming title of subject land without asking any relief to negate the proceedings taken under the Act, 1951. This is brainy drafting, manifestly blurring merit- less claim which is disclosing clear right to sue.
19. At this stage, I am refer to the judgment of this Court in the case of Bahadurbhai Laljibhai Malhotra v/s. Ambalal Joitaram [Civil Revision Application No.12 of 2015]. The question of deemed notice of registered document came up for consideration before this Court. Following observations are made Page 19 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined by this Court in this regard :-
"13. Upon perusal of the said portion of section 3 of the Transfer of Property Act, it can be seen that knowledge of a fact is attributed to a person either when he actually knows that fact, or when, but for wilful abstention from an inquiry or search, he ought to have made, or gross negligence, he would have known it. Explanation to the said clause interalia provides that where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part thereof, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration. This is subject to the conditions provided in provisios contained to the said explanation. Explanation1 thus refers to deemed notice and relates to the notice of instrument relating to a transaction of immovable property which is required by law and has also been so registered and such deemed knowledge is imputed to the person acquiring such property or any share or interest in such property. Such provision therefore, cannot be applied in case of a subsequent sale of an immovable property to impute deemed knowledge of such transaction on the erstwhile purchaser/owner merely on the strength of section 3 of the Transfer of Property Act unless facts and attendant circumstances suggest that the person in question was reasonably expected to make search or inquiry which he failed to do, thus suggesting willful act, negligence or lack of due diligence i.e. prudence, expected of a reasonable man. Any such interpretation being quite contrary to the language used in the provision, would also put an unreasonable onus on a owner or a purchaser of an immovable property to be constantly vigilant and apprise himself of any subsequent registered transaction with respect to such immovable property or face unpleasant consequences of his challenge to a totally invalid or even a fraudulent or a bogus sale Page 20 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined deed being barred by law of limitation after the statutory period commencing from the date of registration on the principle of deemed knowledge. In plain terms said provision of section 3 of the Transfer of Property Act applies in case of a person acquiring an immovable property or a share or interest therein of a transaction which would be an existing and not a future transaction which by law is required and indeed been registered."
20. Thus what appears that whenever a document is registered the date of registration becomes the date of deemed knowledge. In other words, a fact could be disclosed by due diligence then deemed knowledge would be attributed to the plaintiff. The party cannot be allowed to extend period of limitation, alter or amend provision of Limitation Act to claim that he had no knowledge. This view is fortified by the judgment of the Hon'ble Apex Court in the case of Dilboo (SMT) (Dead) by Lrs. v/s. Dhanraji (SMT) (Dead) [(2007) 7 SCC 702] which is referred by this Court in the case of Zoharabibi v/s. Thakorbhai Maganbhai Patel (supra) .
21. Regardless of perusing other avermrents made in the plaint about challenge to the proceedings which took place under the Act, 1951, if we peruse relief claimed in para 22(2 and 3), plaintiff is seeking cancellation of sale deed no.1743 and 1744 with clever and artful drafting that it is not binding to the plaintiff. This sale deed is of dated 09.04.1990. Challenge to these sale deeds are made after yawning period of 27 years.
22. Article 59 of the Limitation Act, 1963 provides period of limitation of 3 years. Limitation begins to run from the date Page 21 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined when facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. On perusal of entire plaint, it appears that plaintiff was aware of each proceedings qua subject land starting from 1953 till date. The plaintiff was aware how and when revenue entry was mutated qua subject land in favour of heirs of Savsi Amra. The plaintiff under smart drafting kept hidden as to when he came to know about transfer of title, more particularly qua sale deed executed in favour defendant nos.2 and 3 which are questioned in the plaint.
23. Article 59 of the Limitation Act reads as under :-
Description of suit Period of limitation Time from which period beings to run To cancel or set aside Three years. When the facts entitling an instrument or decree the plaintiff to have the or for the rescission of a instrument or decree contract. cancelled or set aside or the contract rescinded first become known to him.
24. Perusal of above provision of Limitation Act, 1963 viz-a-viz averments made in the plaint, on the face of it, present suit is clearly time barred, even if averments of the plaint are taken to be true.
25. At this stage, I may refer observations of the Hon'ble Apex Court in the case of Dahiben v/s. Arvindbhai Kalyanji Bhanusali (Gajra) [(2020) 7 SCC 366]. Para 23.1 to 28 are relevant which reads as under :-
Page 22 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined "23. We have heard the learned Counsel for the parties, perused the plaint and documents filed therewith, as also the written submissions filed on behalf of the parties. 23.1 We will first briefly touch upon the law applicable for deciding an application under Order VII Rule 11 CPC, which reads 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 in 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 written 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;
(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 prevent by any cause of exceptional nature for correction 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." (emphasis supplied).
23.2 The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.
Page 23 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined 23.3. The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi1 this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words :
"12. ...The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action."
23.4. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.
23.5. Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint2, read in conjunction with the documents relied upon, or whether the suit is barred by any law.
23.6 Order VII Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under :
"Order 7 Rule 14: Production of document on which plaintiff sues or relies.- (1)Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time Page 24 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined deliver the document and a copy thereof, to be filed with the plaint.
(2)Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3)A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4)Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory." (emphasis supplied) 23.8. Having regard to Order VII Rule 14 CPC, the documents filed alongwith the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
23.9 In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
23.10 At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint 15 on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration.
23.11 The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V.Sea Success I & Anr., which reads as :
"139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For Page 25 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed."
23.12. In Hardesh Ores (P.) Ltd. v. Hede & Co. the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact.
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).
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. "Cause of action" means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
24.1 In Swamy Atmanand v. Sri Ramakrishna Tapovanam Page 26 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined 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. 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, 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 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.
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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 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
limitation period beings to
run
58. To obtain Three years. When the right
any other to sue first
declaration. accrues.
59.To cancel or Three years. When the facts
set aside an entitling the
instrument or plaintiff to have
decree or for the the instrument
rescission of a or decree
contract. 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., 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 Page 28 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined 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, 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.
26. In para 22(3), plaintiff has asked relief for possession of suit land. In view of Article 64 and 65 of the Limitation Act, from the date of dispossession, possession can be asked within 12 years.
26.1. Article 64 and 65 of the Limitation Act reads as under :-
Description of suit Period of limitation Time from which
period beings to run
64. For possession of Twelve years. The date of
immovable property dispossession.
based on previous
possession and not on
title, when the
plaintiff while in
possession of the
property has been
dispossessed.
65. For possession of Twelve years. When the possession
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undefined
immovable property or of the defendant
any interest therein becomes adverse to
based on title. the plaintiff.
27. In context to relief claimed by the plaintiff, reading para 7 of the plaint exposes that revenue entry no.31 was posted on 14.02.1955 for the subject land and occupancy certificate in favour of deceased Savsi Amra was issued on 31.10.1953 (mark 9/1). These two facts coming from the averments made in the plaint clearly indicates that plaintiff is not in possession of subject land since 1953. The plaintiff is asking for relief of possession after unexplained delay of 64 years. Again suit is clearly time barred. Cause of action does not survive as per principle of limitation.
28. It was argued by learned Senior Advocate Mr. Navin Pahwa that issue of limitation is mixed question of law and facts and cannot be decided at the stage of deciding application Order 7 Rule 11 of CPC. This is general statement. On plain reading of plaint, it is sufficient to decide the issue of limitation. It can be termed as pure question of law but to decide issue of limitation, the Court is required help of defendants i.e. to consider statement of defence, issue of limitation would be mixed question of facts and law. Entire concept has been comprehensively dealt in case of Dahiben (supra) by Hon'ble Apex Court.
29. In para 22(4), the plaintiff claimed relief to direct the Revenue officers to mutate entry in village form no.6. Section Page 30 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined 135(L) of the Gujarat Land Revenue Code, 1879 provides for bar of suits and exclusion of Chapter XIII. Section 135(L) of the Gujarat Land Revenue Code, 1879 reads as under :-
"135L. Bar of suits and exclusion of Chapter XIII.:- (1) No suit shall lie against the Government or any officer of Government in respect of a claim to have an entry made in any record or register that is maintained under this Chapter, or to have any such entry omitted or amended, and the provisions of Chapter XIII shall not apply to any decision or order under this chapter.
(2) Appeal :- The correctness of the entries in the record of rights and register of mutations shall be inquired into and the particulars thereof revised, by such Revenue Officers and in such manner and to such extent and subject to such appeal as the State Government may from time to time by rules prescribed in this behalf."
30. In view of above, plaint is was not maintainable and relief claimed by the plaintiff is barred by provision of law. Cause of action pleaded by the plaintiff is manifestly vexatious and therefore, it is required to nip into the bud. Clever and astute drafting cannot save suit from operation of Order 7 Rule 11 of CPC. Averments made in plaint explicitly challenges proceedings taken under the Act, 1951. Section 39 of the Act, 1951 clears bars jurisdiction of Civil Court. Relief claimed pursuant to pleadings in the plaint also barred by provision of Limitation Act and Gujarat Land Revenue Code.
31. Another fact required to notice that plaint is missing averment in what capacity plaintiff has filed suit on behalf of Swaminarayan Temple, Junagadh. The plaintiff has not annexed any documents which purports his capacity to file suit on behalf Page 31 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined of Swaminayaran Temple. It is clear that plaintiff has attempted to misuse process of the law. By filing suit without having any locus, plaintiff has made wild venture to grab subject land, title of which has been changed in 1953. This Court must not allow any such attempt by litigant to abuse process of law. Sanctity of judicial process would be gnawed, if such frivolous attempt are not dealt with strong arm. This is fit case to impose exemplary cost. Useful reference can be taken from para 13 and 14 of the judgment of Hon'ble Apex Court in the case of Dnyandeo Sabaji Naik And Anr vs Pradnya Prakash Khadekar [2017 (5) SCC 496] which reads as under :-.
"13. This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth.
14. Courts across the legal system - this Court not being an exception - are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of Page 32 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalizes such behavior. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner."
32. For the foregoing reasons, no error of understanding of facts or law is found in the impugned order and decree. Learned Trial Court has rightly rejected the plaint in exercise of powers under Order 7 Rule 11 of CPC. No interference is called in the impugned order and decree. The First Appeal is dismissed with cost of Rs.5,000/- to be paid in Gujarat High Court Advocates Association Welfare Fund within week from today. Impugned order and decree is confirmed. In view of dismissal of First Page 33 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023 NEUTRAL CITATION C/FA/2716/2022 CAV JUDGMENT DATED: 25/10/2023 undefined Appeal, Connected Civil Application does not survive and accordingly, it is disposed of. Receipt of the cost shall be placed on record of this appeal.
(J. C. DOSHI,J) SATISH Page 34 of 34 Downloaded on : Fri Oct 27 20:40:06 IST 2023