Gujarat High Court
Isakbhai Sulemanbhai Kachava vs Saiyadvalibhai Patel on 3 December, 2025
NEUTRAL CITATION
C/CRA/277/2017 CAV JUDGMENT DATED: 03/12/2025
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Reserved On : 20/11/2025
Pronounced On : 03/12/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 277 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
YES
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ISAKBHAI SULEMANBHAI KACHAVA
Versus
SAIYADVALIBHAI PATEL & ORS.
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Appearance:
MR SP MAJMUDAR(3456) for the Applicant(s) No. 1
RUSHABH H MUNSHAW(8958) for the Applicant(s) No. 1
MR MOHMEDSAIF HAKIM(5394) for the Opponent(s) No. 2,3,4
NOTICE SERVED for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. Rule. Learned advocate for the respondent waives service of Rule.
A. PROLOGUE:-
2. The petitioner, invoking the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure, 1908 (for short, "the Code"), calls in question the judgment and order rendered below Exh.18 in Special Civil Suit No.36 of 2015, whereby the application preferred under Order VII Rule 11 of the Code came to be rejected by the learned 8th Additional Senior Civil Page 1 of 14 Uploaded by MANISH MISHRA(HC01776) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:00 IST 2025 NEUTRAL CITATION C/CRA/277/2017 CAV JUDGMENT DATED: 03/12/2025 undefined Judge, Vadodara.
B. LITIGATION HISTORY:-
3. Shorn of non-essential details, the relevant factual matrix of the lis in hand is adumbrated thus: The applicant, original defendant in Special Civil Suit No.36 of 2016, had instituted an application below Exh.18 under Order VII Rule 11(a) and (d) of the Code of Civil Procedure, 1908, seeking rejection of the plaint on the ground that the suit was ex facie not maintainable. The dispute pertains to land bearing Revenue Survey No.187/2 paiki situated at Village Tandalja, admeasuring 0-49-58 sq. mtrs. The respondents-original plaintiffs alleged that the applicant had, pursuant to an agreement to sell dated 10.01.2003 executed with the original owner, obtained development permissions, Rajachithi, and N.A. permission, and thereafter carved out 72 plots on the said land.
3.1. It is the case of the respondents that in August 2008, the applicant entered into an oral agreement to sell 63 out of the 72 plots to them for a total consideration of Rs.52,30,000/-, and that payments aggregating to Rs.22,00,000/- were made between 19.08.2008 and 27.10.2008. They further averred that although the applicant subsequently settled the pending litigation with the original owner and obtained a registered sale deed in his own favour on 20.09.2010, he refused to execute sale deeds for the 63 plots agreed to be sold and instead commenced a development scheme styled "Afia Park Duplex."
Page 2 of 14 Uploaded by MANISH MISHRA(HC01776) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:00 IST 2025NEUTRAL CITATION C/CRA/277/2017 CAV JUDGMENT DATED: 03/12/2025 undefined 3.2. The applicant, however, contends that the aforesaid averments are wholly false, contrary to the established legal position. It is asserted that title to the land vested in him only upon execution of the registered sale deed in 2010; ergo, the alleged oral agreement of 2008 is void ab initio in light of the trite principle nemo dat quod non habet, as well as the provisions of the Transfer of Property Act, 1882 and the Indian Contract Act, 1872. It is his further case that the suit filed in 2015 is ex facie barred by limitation and that the plaint, bereft of any sustainable cause of action, deserved rejection under Order VII Rule 11 of the Code. The learned Additional Senior Civil Judge, however, vide impugned order dated 30.12.2016, rejected the application below Exh.18, giving rise to the present revision under Section 115 of the Code.
C. SUBMISSION OF THE PETITIONERS:-
4. Learned advocate, Mr. S.P. Majmudar, appearing for the petitioner, has vehemently contended that the plaintiff has instituted the civil suit seeking specific performance of an alleged oral contract purportedly entered into between the parties. A consequential relief of permanent injunction has also been sought, the plaintiff asserting that the cause of action for instituting the suit first arose sometime in the years 2009-2010.
4.1. It is further submitted that, upon a plain, meaningful, and holistic reading of the plaint, the suit instituted in the year 2015 for Page 3 of 14 Uploaded by MANISH MISHRA(HC01776) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:00 IST 2025 NEUTRAL CITATION C/CRA/277/2017 CAV JUDGMENT DATED: 03/12/2025 undefined specific performance of the purported oral agreement concerning the disputed property is ex facie barred by limitation, Article 54 of the Limitation Act, 1963 being squarely attracted to the factual milieu of the lis. Learned advocate urges that the plaintiff, by resorting to deft, nay, adroit draftsmanship, has attempted to project that the cause of action arose only on 20.09.2010, when the defendant executed a registered sale deed in favour of a third party and when construction of the project styled as 'Afia Park Duplex' commenced thereupon--events which, according to the plaintiff, signified an explicit refusal by the defendant to honour the alleged agreement to sell.
4.2. Learned advocate Mr. Majmudar submits that the suit is, ergo, hopelessly barred by limitation, having been instituted nearly five years after the alleged accrual of the cause of action. It is further urged that the plaintiff has, in the alternative, sought refund of the money purportedly paid, as delineated in paragraph 2 of the plaint, together with compensation. The said paragraph meticulously enumerates the occasions on which such payments are claimed to have been tendered to the defendant, even that has to be read. Since the suit for recovery of amount was also hit by the principle of limitation, the alternative relief in the nature of suit for recovery of money is also hit by the principle of limitation.
4.3. In the aforesaid circumstances, it is contended that the learned Trial Court has committed a manifest, nay, a grave error in Page 4 of 14 Uploaded by MANISH MISHRA(HC01776) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:00 IST 2025 NEUTRAL CITATION C/CRA/277/2017 CAV JUDGMENT DATED: 03/12/2025 undefined declining to reject the plaint under Order VII Rule 11(d) of the Code. Learned advocate, thus, asserts that the present petition deserves to be allowed.
4.4. In fortification of his submissions, the learned advocate appearing for the petitioner has placed reliance upon the authoritative pronouncement of the Hon'ble Supreme Court in Fatehji and Company and Another v. L.M. Nagpal and Others, (2015) 8 SCC 390; the recent dictum rendered in Umadevi v. Anand Kumar, 2025 (0) AIJEL-SC 75007; and the judgment of this Court in M/s Goga Enterprise v. Ahmedabad Municipal Corporation, 2023 (0) AIJEL-HC 245991. Ergo, it has been entreated that the ratio decidendi of the aforesaid decisions, in tandem with the factual milieu of the present case, indubitably sub-serves the cause espoused by the petitioner.
D. SUBMISSION OF THE RESPONDENTS:-
5. Contrariwise, learned advocate Mr. Mohmedsaif Hakim, appearing for the original plaintiff, adverting to the averments in the plaint, has contended that, in terms of Article 54 of the Limitation Act, 1963, the period of limitation for instituting a suit for specific performance commences only from the date on which the refusal to perform the contract is unequivocally communicated to the promisee.
5.1. It is further urged that the plaint, when read as a whole in a meaningful and purposive manner, discloses a clear, complete, and justiciable cause of action for specific performance, the alternative Page 5 of 14 Uploaded by MANISH MISHRA(HC01776) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:00 IST 2025 NEUTRAL CITATION C/CRA/277/2017 CAV JUDGMENT DATED: 03/12/2025 undefined prayer for refund being merely ancillary and incidental to the principal relief. The plea of limitation, it is submitted, constitutes a mixed question of fact and law, incapable of being adjudicated at the threshold stage under Order VII Rule 11(d) of the Code. In light of the aforesaid legal position, it is asserted that the learned Trial Court has, with propriety, rightly declined to reject the plaint. 5.2. In aid of his submission, he has placed reliance upon the judgment of this Court in Dilipkumar Jayantilal Shah v. Yasinbhai Faridbhai Hokabaj, 2022 (0) AIJEL-HC 244690, and has, ergo, entreated that the present petition deserves to be dismissed at the very threshold.
E. FINDINGS, ANALYSIS AND CONCLUSION OF THE COURT:-
6. Heard the learned advocates for both sides. This Court has scrupulously examined the impugned order passed by the learned Trial Court, as also the entirety of the material forming part of the record.
6.1 At the very outset, it would be apposite to advert to the provisions of Order VII Rule 11 of the Code, which read thus:"
"The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is 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;Page 6 of 14 Uploaded by MANISH MISHRA(HC01776) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:00 IST 2025
NEUTRAL CITATION C/CRA/277/2017 CAV JUDGMENT DATED: 03/12/2025 undefined
(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."
6.2. A plaint is liable to be rejected where it does not disclose a cause of action or a clear right to sue; where the relief claimed is undervalued and the plaintiff, despite being afforded an opportunity by the Court to rectify the valuation within the stipulated period, fails to do so; where the plaint is insufficiently stamped and the plaintiff, upon being directed to supply the requisite court-fee within the time fixed by the Court, defaults in compliance; or where, from the statements contained in the plaint, the suit appears to be barred by the provision of law.
7. In this context, it would be profitable to advert to the seminal pronouncement of the Hon'ble Supreme Court on the subject. In T. Arivandandam v. T.V. Satyapal & Another, (1977) 4 SCC 467, the Hon'ble Supreme Court has enunciated 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 Page 7 of 14 Uploaded by MANISH MISHRA(HC01776) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:00 IST 2025 NEUTRAL CITATION C/CRA/277/2017 CAV JUDGMENT DATED: 03/12/2025 undefined examining the party searchingly under Order 10 CPC. an activist Judge is the answer to irresponsible law suits."
8. In the case of Sopan Sukhdeo Sable v. Charity Commissioner, (2004) 3 SCC 137, the Hon'ble Supreme Court has been pleased to enunciate as 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 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].)"
9. In the case of Madanuri Sri Rama Chandra Murty v. Syed Jalal, (2017) 13 SCC 174, the Hon'ble Supreme Court has been pleased to aureately enunciate as 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 Page 8 of 14 Uploaded by MANISH MISHRA(HC01776) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:00 IST 2025 NEUTRAL CITATION C/CRA/277/2017 CAV JUDGMENT DATED: 03/12/2025 undefined 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 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."
10. In the case of Ram Singh v. Gram Panchayat, Mehal Kalan, (1986) 4 SCC 364, the Hon'ble Supreme Court has been graciously pleased to observe and expound as under:-
"when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by Page 22 of 26 means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation. Similar view has been expressed by this Court in the case of Raj Narain Sarin (supra)."
11. In the case of Ramisetty Venkatanna v. Nasyam Jamal Saheb, [2023-JT-4-530], the Hon'ble Supreme Court, after an adroit survey of the aforesaid precedents and upon a holistic conspectus of the governing principles, has been pleased to enunciate the following Page 9 of 14 Uploaded by MANISH MISHRA(HC01776) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:00 IST 2025 NEUTRAL CITATION C/CRA/277/2017 CAV JUDGMENT DATED: 03/12/2025 undefined propositio:-
"6. Applying the law laid down by this Court in the aforesaid decisions on the applicability of Order VII Rule XI to the facts of the case on hand, we are of the opinion that the plaint ought to have been rejected in exercise of powers under Order VII Rule XIa) and (d) of CPC being vexatious, illusory cause of action and barred by limitation. By clever drafting and not asking any relief with respect to partition deed dated 11.03.1953, the plaintiffs have tried to circumvent the provision of limitation act and have tried to maintain the suit which is nothing but abuse of process of court and the law."
12. Applying the aforesaid ratio to the facts of the present case, a plain and meaningful reading of the plaint, coupled with the statements contained therein, reveals that the plaintiff has instituted the suit for specific performance of an alleged "oral contract"
pertaining to the disputed land bearing Revenue Survey No.187/2 paiki, admeasuring Hectare-Are 0-49-58 sq. metres, asserting that the defendant was obliged to obtain the requisite N.A. permission from the Collector and thereafter sale deed was to be executed in favour of the plaintiff.
12.1. What is striking--nay, conspicuous--is that although the plaintiff seeks specific performance of an oral agreement, he has deliberately refrained from disclosing the date on which such oral agreement was purportedly executed, the persons in whose presence it was allegedly entered into, and on which precise terms and conditions governing the arrangement between the parties. Even the date fixed, if at all, for performance of the alleged contract finds no mention in the plaint.
12.2. What, therefore, can indubitably be inferred is that the plaint is Page 10 of 14 Uploaded by MANISH MISHRA(HC01776) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:00 IST 2025 NEUTRAL CITATION C/CRA/277/2017 CAV JUDGMENT DATED: 03/12/2025 undefined bereft of the necessary and foundational averments. It remains sub silentio on the specific dates and circumstances surrounding the alleged oral agreement, and instead contains only general, vague, and specious assertions concerning the purported oral contract. The plaintiff avers that he last paid an amount towards the alleged sale consideration on 27.10.2008 and that the refusal to perform the oral agreement became manifest on 20.09.2010. Notwithstanding these dates, the suit has been instituted only in the year 2015.
12.3. It is axiomatic that the limitation for filing a suit for specific performance is three years from the date fixed for performance, or, in the absence of such a date, from the point in time when the plaintiff first becomes aware of the defendant's refusal to perform. Judged against this statutory mandate, the suit is, ex facie, barred by limitation.
13. The governing provision of limitation for instituting a suit for specific performance is Article 54 of the Limitation Act, 1963, which reads as under:-
Article Description Of Suit Period Of Time From Which Period Begins Limitation To Run
54. For specific Three year The date fixed for the performance, performance of a or, if no such date is fixed, when the contract. plaintiff has notice that performance is refused.
14. In the plaint, the plaintiff has, quite purposefully, abstained from stating the date, if any, fixed for performance of the alleged contract. The plaintiff asserts that the refusal to perform the contract became evident on 20.09.2010, when, according to him, the original Page 11 of 14 Uploaded by MANISH MISHRA(HC01776) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:00 IST 2025 NEUTRAL CITATION C/CRA/277/2017 CAV JUDGMENT DATED: 03/12/2025 undefined owner alienated the disputed property to a third party and construction of the project styled as 'Afia Park Duplex' commenced thereon. Notwithstanding this asserted date of refusal, the suit for specific performance came to be instituted only in the year 2015 and is, thus, hopelessly barred by the law of limitation.
15. In paragraph 8 of Fatehji and Company (supra), the Hon'ble Supreme Court has observed as under:-
"8. The plaintiffs averred in the plaint that the last and final cause of action accrued and arose to them after August 1991 when the defendants succeeded in hiding themselves and started avoiding the plaintiffs and the cause of action being recurring and continuous one, they filed the suit on 29-
4-1994. As already seen the original cause of action became available to the plaintiffs on 2-12-1973, the date fixed for the performance of the contract and thereafter the same stood extended till 1-2-1977 as requested by the defendants. Though the plaintiffs claimed that oral extension of time was given, no particulars as to when and how long, were not mentioned in the plaint. On the other hand even after knowing the dishonest intention of the sons of the second defendant with regard to the suit property in the year 1985, the plaintiffs did not file the suit immediately. The suit having been filed in the year 1994 is barred by limitation under Article 54 of the Limitation Act."
16. It is apt to note that, in paragraph 9 of the plaint, the plaintiff has, in the first instance, sought the relief of specific performance of the alleged oral agreement. In the alternative, the plaintiff has prayed that the sum of Rs.22,00,000/-, purportedly paid to the defendant, be refunded along with compensation and interest. The particulars of the alleged payments, stated to have been made in cash, are set out in paragraph 2 of the plaint and are sought to be corroborated by the documents appended thereto. However, none of these assertions disclose, even prima facie, that the alleged payments were made Page 12 of 14 Uploaded by MANISH MISHRA(HC01776) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:00 IST 2025 NEUTRAL CITATION C/CRA/277/2017 CAV JUDGMENT DATED: 03/12/2025 undefined towards any fixed or ascertained sale consideration under the purported oral agreement.
17. Be that as it may, even assuming the correctness of the averments in paragraph 2 of the plaint, the plaintiff himself states that the last of such paymeDescription of suitnts was made on 27.10.2008. The claim for recovery of the said amount has been instituted only in the year 2015--manifestly after a lapse of nearly seven years. Article 113 of the Limitation Act governs the period of limitation for a suit seeking recovery of money paid by the plaintiff for the use of the defendant. The prescribed period of limitation is three years, which commences from the date on which the money is paid. The Article reads thus:-
Article Description Of Suit Period Of Time From Which Period Begins To Limitation Run
113. Any suit for which no Three years When the right to sue accrues.
period of limitation is provided elsewhere in this Schedule.
18. In the present case, the plaintiff has instituted the suit for recovery of the alleged amount nearly seven years after the last payment said to have been made to the defendant. Applying the statutory mandate, this Court finds that the cause of action pleaded by the plaintiff stands hopelessly barred by the principles of limitation. Whether the relief sought pertains to specific performance of the purported oral agreement or to the recovery of the money alleged to have been paid, both claims are squarely interdicted by the law of limitation. The plaintiff, by resorting to clever, nay, dexterous Page 13 of 14 Uploaded by MANISH MISHRA(HC01776) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:00 IST 2025 NEUTRAL CITATION C/CRA/277/2017 CAV JUDGMENT DATED: 03/12/2025 undefined drafting, has attempted to circumvent and camouflage the bar of limitation; however, such artifice cannot be countenanced by a court of law. The suit, on the face of the plaint itself, is patently time- barred. The learned Trial Court has, therefore, committed a manifest error in declining to reject the plaint.
19. Insofar as the judgment in Dilipkumar Jayantilal Shah (supra), relied upon by learned advocate Mr. Hakim, is concerned, the factual matrix therein is wholly distinguishable and offers no sustenance to the plaintiff's case.
20. For the foregoing reasons, the petition succeeds. The impugned order is hereby quashed and set aside. Special Civil Suit No.36 of 2015 pending before the learned Senior Civil Court, Vadodara, stands rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908. The learned Trial Court shall pass all consequential orders to give effect to this decision.
21. Rule is made absolute.
(J. C. DOSHI,J) MANISH MISHRA Page 14 of 14 Uploaded by MANISH MISHRA(HC01776) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:00 IST 2025