Gujarat High Court
Gitaben W/O Shantilal Kanjibhai vs Nanalal Biharilal Borival on 17 July, 2025
NEUTRAL CITATION
C/CRA/139/2025 JUDGMENT DATED: 17/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 139 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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GITABEN W/O SHANTILAL KANJIBHAI & ORS.
Versus
NANALAL BIHARILAL BORIVAL & ORS.
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Appearance:
VIRAL K SHAH(5210) for the Applicant(s) No. 1,10,11,2,3,4,5,6,7,8,9
MR NM KAPADIA(394) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 17/07/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Mr.Kapadia, learned advocate for the respondent waives service of notice of Rule on behalf of respondent. With the consent of the parties, the present Revision Application is taken up for final hearing.
2. The present Revision Application under Section 115 of the Code of Civil Procedure, 1908 ('the CPC', for short) has been filed challenging the order passed in Special Civil Suit No.62 of 2023, whereby the 18 th Additional Senior Civil Judge, Surat has rejected application below Exh.23, filed by defendant nos.1 to 10 and 12, under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 ('CPC', for short).
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3. The parties are referred as per their original status as that in the suit.
FACTS :
4.1 The brief facts arising in the present revision application are that the plaintiff filed Civil Suit No.62 of 2023 for specific performance of agreement dated 21.05.1996, challenging the sale-deed, executed by defendant no.1 to 12, in favour of defendant no.14 on 27.01.2023 and plaintiff has also sought for relief that pursuant to registered lease deed in the year 2005, the plaintiff is in possession of the property as he is having lease hold rights in the property and for protection of said leasehold rights, the plaintiff has sought for a declaration and injunction to that additionally.
4.2 The defendants appeared in the said suit and defendant nos.1 to 10 and 12 filed an application under Order VII Rule 11 of the CPC below Exh.23, on the ground of suit being barred on the ground of limitation and also on the ground that the suit is hit by Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948 ('the Act, 1948', for short) and, therefore, plaint is required to be rejected.
4.3 The trial Court, after taking into consideration the plaint and documents annexed with the plaint and also after considering the arguments of learned advocates for the respective parties rejected the said application. Hence, the present application.
SUBMISSION OF DEFENDANT - PETITIONER :
5.1 Learned advocate for the defendant has mainly argued that in the
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NEUTRAL CITATION
C/CRA/139/2025 JUDGMENT DATED: 17/07/2025
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plaint itself plaintiff has stated that suit property, at the time of execution of agreement to sale in the year 1996, precisely on 20.05.1996, was new tenure land and, therefore, agreement to sale is void and, therefore, no suit for specific performance could have been filed by the plaintiff and, therefore, trial Court could not have rejected the said application.
5.2 With respect to the fact that plaintiff has filed present suit for seeking specific performance of agreement to sale executed in the year 1996, suit is hopelessly time barred and, therefore, the trial Court could not have rejected the said application. Moreover, it has also been argued that trial Court, though raised point of limitation, in the application under Order VII Rule 11 of CPC, has not dealt with the said contention nor has given any reason for the same and therefore also order of the trial Court requires to be quashed and set aside and the present Revision Application is required to be allowed.
SUBMISSION OF PLAINTIFF - RESPONDENT:
6.1 Learned advocate for the plaintiff has mainly argued that the suit that has been filed by plaintiff is seeking specific performance of agreement, dtd.21.05.1996 and in the said agreement there is no fixed date for seeking specific performance as stated in the agreement to sale and, therefore, date of refusal will have to be considered and in view of the fact that date of refusal is of execution of the sale deed by defendant nos.1 to 12 in favour of defendant no.14 only in the year 2023, the suit filed by the plaintiff is within period of limitation. 6.2 With respect to the contention of the defendant that the suit is hit by Section 43 of 'the Act, 1948', it has been argued by learned advocate for the plaintiff that before execution of agreement to sale i.e. in Page 3 of 9 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:20 IST 2025 NEUTRAL CITATION C/CRA/139/2025 JUDGMENT DATED: 17/07/2025 undefined September, 2005, there is an order passed by Section Officer, Revenue Department, that subject to payment of premium, the suit property is converted from new tenure to old tenure, though no premium was paid till 2023, but the order specifically stated that the said property is converted from new tenure to old tenure. Moreover, it has been argued by learned advocate for the plaintiff that in view of provisions of Section 43 (i) (c) of 'the Act, 1948' , no permission is required under sub-section (i) as the property was to be used for Petrol Pump and the same has to be considered as 'bona fide industrial purpose' and, therefore, permission under Section 43 of 'the Act, 1948' was not required to be taken before entering into agreement to sale in the year 1996.
6.3 Learned advocate for the plaintiff has also argued that the plaintiff and the defendants had entered into lease agreement in the year 2005, whereby the plaintiff has to occupy suit property for a period of 30 years by virtue of the said registered lease-deed and, therefore, contention with respect to the declaration that defendants are not entitled to take over possession of the property by virtue of sale-deed from the plaintiff cannot be said to be barred by law and plaint cannot be rejected partly.
6.4 Learned advocate for the plaintiff has relied upon the judgment in the case of Central Bank of India & Anr. vs. Prabha Jain reported in 2025 (0) AIJEL SC 74615 wherein the Apex Court has held that if some of reliefs survive in the plaint and are not barred by law, there cannot be a partial rejection of plaint under the provisions of Order VII Rule 11 of CPC, in view of the fact that even if one relief survives, plaint cannot be rejected under Order VII Rule 11 of CPC. In the present case, the relief with respect to claim of the plaintiff on the basis of the lease-deed dated Page 4 of 9 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:20 IST 2025 NEUTRAL CITATION C/CRA/139/2025 JUDGMENT DATED: 17/07/2025 undefined 10.08.2005, is an independent relief and the same cannot be said to be barred under Law. It is, therefore, argued that the order passed by the trial Court does not require any interference and the present Civil Revision Application is required to be rejected.
ANALYSIS :-
7.1 Having heard learned advocates for the parties and having considered the judgment and order passed by the trial Court rejecting the application under Order VII Rule 11 of the CPC, the fact remains that the suit that has been filed by the plaintiff is for specific performance of the contract of the year 1996 and also for a declaration with respect to their leasehold right in the suit property by virtue of lease agreement for a period of 30 years from 01.01.2005.
7.2 The plaint states that suit property was of new tenure, but at the same time if provisions of Section 43 (i) (c) of the 'the Act, 1948' are considered and if the registered lease-deed dated 24.01.2006 is perused, the same states that lessee i.e. the plaintiff, desires of setting up a Retail Outlet / Storage Depot / Retail Station on the said property for retailing of petroleum products like MS/HSD/Lubes, allied and other products and services. Therefore, the same falls within meaning of 'bona fide industrial purpose'. The plaintiff has also submitted Circular in which classification of Petrol-pump / Diesel / can be construed as bona fide industrial purpose. Section 43 (i) (c) of 'the Act, 1948' reads as under:
"43. (1) No land or any interest therein purchased by a tenant under section 17B, 32, 32F, 32-I. 6[*], 7[32U, 43-1D or 88E] or sold to any person under section 32P or 64 shall be transferred or shall be agreed by an instrument in writing Page 5 of 9 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:20 IST 2025 NEUTRAL CITATION C/CRA/139/2025 JUDGMENT DATED: 17/07/2025 undefined to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest, therein shall be partitioned without the previous sanction of the Collector:
xxx ...
... xxxx (1C) The land to which sub-section (1) applies and for which no permission is required under sub-section (1) of section 65B of the Bombay Land Revenue Code, 1879 for use of such land for a bonafide industrial purpose may, notwithstanding anything contained in sub-section (1) of this section, be sold without the previous sanction of the Collector under sub-section (1) but subject to payment of such amount as may be determined by the State Government under sub-section (1)."
7.3 Tripartite lease-deed which has been produced vide Exh.3/16 also states that it is registered in the name of plaintiff (lessee) the original owner viz. Chhimiben through its Power of Attorney as lessor and Oil Company ESSAR. Therefore, suit that has been filed is also filed to safe- guard, leasehold right that has been executed in favour of plaintiff and defendant and, therefore, plaint cannot be partly rejected.
7.4 The fact remains that the plaintiff has sought for relief with respect to his leasehold rights and it is elementary that under Order VII Rule 11 of the CPC, the Court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. There cannot be a partial rejection of plaint and if one relief is not barred by law, the Court cannot reject the plaint. Looking to the facts of the present Page 6 of 9 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:20 IST 2025 NEUTRAL CITATION C/CRA/139/2025 JUDGMENT DATED: 17/07/2025 undefined case, when there is a relief seeking right by virtue of lease-deed in the year 2005 whereby the suit property was given on lease for a period of 30 years to the plaintiff, the plaint cannot be said to be barred by law with respect to the said relief.
7.5 It would be apt here to refer to following judgments.
(i) 1999 (0) AIJEL-SC 7090 SC D.Ramachandran Versus R.V.Janakiraman;
(ii) 2017 (0) AIJEL-SC 60738 SC Sejal Glass Ltd Versus Navilan Merchants Pvt.Ltd; and
(iii) 2025 (0) AIJEL-SC 75402 SC Vinod Infra Developers Ltd. Versus Mahaveer Lunia & Ors.
7.6. Hon'ble Apex Court has time and again clarified that there cannot be a part rejection of Plaint and even if a single prayer is maintainable, the suit as whole must go to trial. In Sejal Glass Ltd. v. Navilan Merchants (P) Ltd., (2018) 11 SCC 780 "8. We are afraid that this is a misreading of the Madras High Court judgment. It was only on the peculiar facts of that case that want of Section 80 CPC against one defendant led to the rejection of the plaint as a whole, as no cause of action would remain against the other defendants. This cannot elevate itself into a rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order 7 Rule 11. In all such cases, if the plaint survives against certain defendants and/or properties, Order 7 Rule 11 will have no application at all, and the suit as a whole must then proceed to trial."
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7.7 Further, recently in Vinod Infra Developers Ltd. v. Mahaveer Lunia and Ors., 2025 SCC Online SC the Hon'ble Apex Court held as follows:
"In this context, we may place reliance on the judgment in Central Bank of India(supra), wherein, this Court while examining the jurisdiction of civil courts in disputes involving immovable property and proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, held that a plaint cannot be rejected in its entirety merely because one of the prayers or reliefs sought is legally untenable, so long as other reliefs are maintainable and based on independent causes of action."
7.8 A bare perusal of the Plaint and the prayers thereof would show that the prayers as prayer for in the Plaint are multifold. Not only they are different prayers, even their cause of action from which they arise are different as pleaded.
7.9 The other contention that has been raised by defendant is that plaint is barred by law of limitation. If the agreement to sale executed in the year 1996 is perused, the same does not give any fixed date for execution of agreement to sale and, therefore, as no such date is fixed, the suit can be filed when the plaintiff noticed that performance is refused. In the facts of the present case, the plaintiff has stated that they have come to know about refusal of performance only on issuance of public notice dated 23/02/2023 in Gujarat Mitra. All throughout the plaintiff has stated Page 8 of 9 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:20 IST 2025 NEUTRAL CITATION C/CRA/139/2025 JUDGMENT DATED: 17/07/2025 undefined that even in the year 2019 after Court proceedings were over, the defendants - original owners had given assurance and promises of execution of sale-deed. Moreover, it has also been stated that after paying premium of conversion of nature of property from new tenure to old tenure, the plaintiff had agreed to execute specific performance of contract and, therefore, it cannot be said that plaint is barred by limitation and in view of the fact that it is the plaintiff's case that the plaint falls under the provisions of Section 43 (i) (c) of 'the Act, 1948', the suit cannot be said to be barred by law of limitation from the plain reading of the plaint and the documents annexed with the plaint and, therefore, revision application is required to be rejected.
8. For the reasons recorded above, the present Revision Application is dismissed. Interim relief, continued if any, shall stand vacated. No order as to costs.
Sd/-
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