Gujarat High Court
Ramanbhai Ishwarbhai Patel vs Labdhi Builders Pvt Ltd on 17 July, 2025
NEUTRAL CITATION
C/CRA/338/2025 JUDGMENT DATED: 17/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 338 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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RAMANBHAI ISHWARBHAI PATEL
Versus
LABDHI BUILDERS PVT LTD & ORS.
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Appearance:
MR SUNIL S JOSHI(2925) for the Applicant(s) No. 1
DELETED for the Opponent(s) No. 5,6,7,8,9
JENIL M SHAH(7840) 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. Mr.Jenil Shah, learned advocate waives service of notice of Rule on behalf of respondent. With the consent of parties, matter is taken up for final hearing.
2. The present Revision Application has been filed challenging the order dated 21.09.2023, passed by 5th Additional Judicial Magistrate First Class, Ahmedabad Rural whereby in Regular Civil Suit No.322 of 2006, the application below Exh.54 filed by the defendant under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 ('CPC', for short) has been rejected.
3. The parties are referred as per their original status as that in the suit.
Page 1 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:38 IST 2025 NEUTRAL CITATION C/CRA/338/2025 JUDGMENT DATED: 17/07/2025 undefined FACTS :
4. The plaintiff filed suit for specific performance of agreement dated 01.06.1984 whereby predecessor of the defendant no.1 and 2 had agreed to sell the suit property to defendant no.3 and in view of the fact that in the said agreement to sale dated 01.06.1984 there was clause that defendant no.3 can nominate person in whose favour sale-deed can be executed and pursuant to the said assignment deed was executed between defendant no.3 and plaintiff dated 03.10.1996 and, therefore, plaintiff filed suit for specific performance of the agreement dated 01.06.1984 and the assignment deed 03.101996 and also challenged the sale-deed that has been executed by defendant no.1 dated 01.07.2004 and defendant no.2's legal heirs having executed sale-deed on 27.05.2005. The defendants appeared in the said suit and defendant no.4 filed application under the provisions of Order VII Rule 11 of CPC, vide Exh.54 and after taking into consideration the plaint and the document annexed with the plaint, trial Court rejected the said application. Hence, the present Civil Revision Application.
SUBMISSION OF DEFENDANT - PETITIONER :
5.1 Learned advocate for the defendant has mainly argued that plaint is hopelessly time barred, as plaint is not filed within period of limitation and, therefore, trial Court could not have rejected the application.
Learned advocate for the defendant has argued that if the terms and conditions of the agreement to sale dated 01.06.1984 are perused, the same clearly states that the period of agreement to sale is within 12 months and said agreement to sale also states that the title clearance certificate has to be obtained within a period of 12 months. Moreover, said agreement also states that amount of sale consideration is Page 2 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:38 IST 2025 NEUTRAL CITATION C/CRA/338/2025 JUDGMENT DATED: 17/07/2025 undefined Rs.24,000/- per Bigha and that the 60% of the sale consideration has to be paid within 12 months from the date of title clearance obtained by defendant nos.1 and 2 and rest of the 40% has to be paid within three months of sale consideration.
5.2 Learned advocate for the defendant has also argued that the agreement to sale also states that power of attorney has been given by owners to the Director of defendant no.3 and with respect to the assignment that has been stated in para:4 of the Agreement to Sale, learned advocate for the defendant states that the consent of defendant nos.1 and 2 was necessary for assignment and neither any letter nor communication was sent by plaintiff or defendant no.1 for getting title clearance certificate within period of 12 months.
5.3 Learned advocate for the defendant has also argued that the right to sue first accrue in the year 1985 when the agreement to sale executed and therefore in view of Section 9 of the Limitation Act, where once the time has begun to run, no subsequent disability or inability to institute the suit stops it. Therefore, first cause of action that has arisen for plaintiff on or before 01.06.1985 and the present suit that has been filed by the plaintiff is in the year 2006. Moreover, the plaintiff has stated that cause of action to file present suit has arisen in view of public notice for obtaining title clearance certificate in the year 2003 and, therefore, it has been argued that if objection to the title clearance certificate dated 19.07.2003 are perused, the same has been given by the plaintiff, wherein the plaintiff at para:1, has categorically stated that defendant nos.1 and 2 had to comply with the terms and conditions of the agreement to sale dated 01.06.1984 and defendant no.1 and 2 being the original owners of the property have Page 3 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:38 IST 2025 NEUTRAL CITATION C/CRA/338/2025 JUDGMENT DATED: 17/07/2025 undefined not complied with the same and, therefore, defendant no.3, has assigned suit property in favour of the plaintiff on 03.10.1996, therefore, it has been argued that at least on 03.10.1996, the plaintiffs were aware that the original owners have refused to performance of the agreement dated 01.06.1984 and, therefore, the suit had to be filed within three years from the year 1996, the plaintiffs admit that original owners have not complied with and are refusing to perform agreement to sale in the year 1996 and, therefore, in the plaint itself plaintiff has stated that suit property at the time of execution of agreement to sale in the year 1984 was new tenure land 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.
5.4 Learned advocate for the defendant relied on following judgments:
(i) In case of Dhulaji Somaji Thakor vs. Gordhanbhai Hathibhai Patel; 2025(0) AIJEL- HC - 250791;
(ii) In case of Hemendra Ishwarbhai Patel Through Poa Piyush B. Trivedi vs. Gokulbhai Shanabhai -decd. Through Legal Heirs;
2017 (0) AIJEL - HC - 237338;
(iii) In case of Shah Jitendra Nanalal Ahmedabad vs. Patel Lallubhai Ishverbhai, Ahmedabad; 1984 (0) AIJEL - HC - 211134 and
(iv) In case of Kapilaben and others vs. Ashok Kumar Jayantilal Sheth Through POA Gopalbhai Madhusudan Patel and others, (2020) 20 SCC 648.
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argued that while deciding the application under Order VII Rule 11 of the CPC, the Court will have to look only at the plaint and documents annexed with the plaint and from the plain reading of the plaint, it cannot be said that plaintiff is barred by law. It has been argued that on proper interpretation of the agreement to sale it can be clearly established that the payment of sale consideration was to be paid only after title clearance certificate is issued and, therefore, there is nothing on record to establish the fact that defendant nos.1 and 2 being original owners have got title clearance certificate and that the suit has not been filed within a period of three years from the date of title clearance certificate.
6.2 Learned advocate for the plaintiff has also argued that there is nothing on record to show that as on date also, the original owners have got title clearance certificate of suit property and, therefore, it cannot be said that the suit is barred on the ground of limitation.
6.3 Learned advocate for the plaintiff has also argued that in view of the fact that no fixed time was stated for performance of agreement to sale and in view of the fact that there was specific provisions that the amount has to be paid within 12 months from the date of receiving title clearance certificate, there was no date fixed for the performance and, therefore, in view of the fact that the plaintiff original owners had sought for title clearance certificate only in the year 2003 and the fact that defendants executed sale-deed in the year 2004 and 2005, the suit that has Page 5 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:38 IST 2025 NEUTRAL CITATION C/CRA/338/2025 JUDGMENT DATED: 17/07/2025 undefined been filed by the plaintiff is within period of limitation and the same cannot be stated to be barred by law.
6.4 Learned advocate for the plaintiff has relied upon following judgments:
(i) In case of Urvashiben & Anr. Vs. Krishnakant Manuprasad Trivedi ; 2019 (13) SCC 372 ;
(ii) In case of Shanabhai Popatbhai Bharwad vs. Ballard Project Pvt.Ltd.; 2020 (0) AIJEL SC 249; and
(iii) In case of Dilipkumar Jayantilal Shah vs. Yasinbhai Faridbhai Hokabaj; 2022 (0) AIJEL 224690 6.5 It has been argued that the order that has been passed by the trial Court is proper and the present Revision Application cannot be entertained in view of the fact that the said dispute can only be decided after leading oral evidence.
6.6 With respect to the fact that defendant no.3 assigning the property to the plaintiff, learned advocate for the plaintiff has argued that in view of the fact that the same was permitted in agreement to sale dated 01.06.84, the plaintiff's suit cannot be said to be barred by law and in view of said fact it has been argued that present Revision Application is required to be rejected.
ANALYSIS :
7.1 Having heard learned advocate for the parties and having considered the plaint and documents annexed with the plaint and the order passed by the trial Court, following undisputed facts have emerged:Page 6 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:38 IST 2025
NEUTRAL CITATION C/CRA/338/2025 JUDGMENT DATED: 17/07/2025 undefined
(i) An agreement to sale executed between defendant no.1 and 2 and defendant no.3 dated 01.06.1984;
(ii) the important clauses in the agreement to sale are as under :-
(a) the original owners i.e. defendant nos.1 and 2 have to get title clearance certificate from the government approved solicitor within 12 months from the date of execution of agreement;
(b) the time period of the agreement to sale is 12 months ;
(c) sale consideration was Rs.24,000/- per Bigha;
(d) 60% of the sale consideration was to be paid after 12 months, however, in case if title clearance certificate is received within 15 days then the said amount of 60% of the sale consideration was to be paid within 15 days;
(e) rest of the 40% amount was to be paid after three months from the date of sale-deed.
(f) The said agreement also states that power of attorney has been given by the original owner to the director of defendant no.3 company and the said agreement it was also mentioned that the sale-deed will be executed in the name of defendant no.3 or any society, private limited, corporation or person stated by the defendant no.3;
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occupying premises as agriculturists and suit property is an agricultural land;
(iii) Moreover, from the year 1984 till the date of public notice that has been issued in the year 2003, plaintiff or defendant no.3 have not sought for any explanation from original owners to the issuance of title clearance certificate that was to be procured by original owners within a period of 12 months.
7.2 Another important aspect that will have to be considered is that neither plaintiff nor defendant no.3, after an agreement to sale in the year 1984, have communicated till the year 2003, about assignment deed that has been executed by defendant no.3 in favour of plaintiff. Moreover, in the objection that has been raised to the public notice dated 17.07.2003, when the advocate for plaintiff had issued objection dated 19.07.2003 he has categorically stated that, the original owners have not complied with terms and conditions of agreement, thereby it can be stated that defendant nos.1 and 2 ie. original owners have refused performance of their agreement and pursuant to the same, the plaintiff entered into an agreement and thereby all the rights that arose in favour of defendant no.3, pursuant to agreement dated 01.06.1984, have been obtained by plaintiff by an agreement dated 03.10.1996. Therefore, it can be clearly established by the fact that the plaintiff himself has admitted that as the defendant nos.1 and 2 original owners are not ready to comply with terms and conditions of agreement dated 03.10.94 on or about 03.10.1996, and thereafter plaintiff and defendant no.3 entered into agreement dated 03.10.1996. Therefore, it can clearly be established that at least on Page 8 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:38 IST 2025 NEUTRAL CITATION C/CRA/338/2025 JUDGMENT DATED: 17/07/2025 undefined 03.10.1996 the original owners had refused specific performance of agreement and at least from 03.10.96 the cause of action to file suit arose in favour of plaintiff to file suit.
7.3 Moreover, the fact also remains that no amount has been paid by defendant no.3 while executing the agreement dated 01.06.84 and the defendant no.3 have assigned his right in suit property and neither any consent of defendant nos.1 and 2 is taken by defendant no.3 while entering into assignment deed with the plaintiff. Therefore, it can be clearly established that the suit that has been filed by the plaintiff is after `period of limitation and by clever drafting tried to get suit within period of limitation.
Article 54 of the Limitation Act 7.4 In view of the above referred facts Article 54 of Schedule of Limitation Act would be required to be considered.
Article - 54 :
Description of suit Period of limitation Time from which period begins to run 54 For specific Three Years. The date fixed for performance of a the performance, or, if no such date contract. is fixed, when the plaintiff has notice that performance is refused.
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Therefore, what is to be seen is that to obtain a declaratory relief, the limitation starts running from the day that the right to sue first accrues.
7.5 In view of above, the fact remains that when no date is fixed for performance of contract then the limitation will constitute from the date when plaintiff has noticed that performance is refused, in view of the fact that the plaintiff himself in the year 2003, in reply to the public notice has stated that as defendant has not complied with terms of agreement and is not ready to comply with agreement dated 01.06.1984, the plaintiff and the defendant no.3 entered into MoU, that itself states that at least on 03.10.1996, the defendants original owners have refused specific performance of contract and period of limitation would commence at least on or before 03.10.1996 and, therefore, suit that has been filed by the plaintiff is hopelessly time barred.
7.6 The judgment that has been relied upon by plaintiff in the case of Urvashiben & Anr. Vs. Krishnakant Manuprasad Trivedi (supra), more particularly Paras:14, 15 and 16, which read thus:
"14. The trial court has allowed the application filed by the appellant- defendants, by holding a finding that respondent-plaintiff, by clever drafting, has created illusion of cause of action and stated that cause of action has arisen on 25.05.2017, but he failed to give justifiable explanation for unreasonable delay in filing the suit. Trial court further held that when the plaintiff has not taken any action for 25 years, by clever drafting, the plaintiff cannot bring an action within the period of limitation. Therefore, it has held that suit being barred by limitation, attracts rejection under O.VII R.11(d) of CPC. The High Court has set aside the order of the trial court by recording a finding that going by the plain averments in the suit, it cannot be stated that the same is barred by limitation.
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15. It is fairly well settled that, so far as the issue of limitation is concerned, it is a mixed question of fact and law. It is true that limitation can be the ground for rejection of plaint in exercise of powers under O.VII R.11(d) of the CPC. Equally, it is well settled that for the purpose of deciding application filed under O.VII R.11 only averments stated in the plaint alone can be looked into, merits and demerits of the matter and the allegations by the parties cannot be gone into. Article 54 of the Limitation Act, 1963 prescribes the limitation of three years, for suits for specific performance. The said Article reads as under :
Description of suit Period of limitation Time from which
period begins to run
54
For specific Three Years. The date fixed for the
performance of a performance, or, if no
such date is fixed,
when the plaintiff has
contract.
notice that
performance is
refused.
From a reading of the aforesaid Article, it is clear that when the date is fixed for performance, limitation is three years from such date. If no such date is fixed, the period of three years is to be computed from the date when the plaintiff, has notice of refusal. When rejection of plaint is sought in an application filed under O.VII R.11, same is to be considered from the facts of each case, looking at the averments made in the plaint, for the purpose of adjudicating such application.
16. As averred in the plaint, it is the case of the plaintiff that even after payment of the entire consideration amount registration of the document was not made and prolonged on some grounds and ultimately when he had visited the site on 25.05.2017 he had come to know that the same land was sold to third parties and appellants have refused performance of contract. In such event, it is a matter for trial to record correctness or otherwise of such allegation made in the plaint. In the suits for specific performance falling in the second limb of the Article, period of three years is to be counted from the date when it had come to the notice of the plaintiff that performance is refused by the defendants. For the purpose of cause of action and Page 11 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:38 IST 2025 NEUTRAL CITATION C/CRA/338/2025 JUDGMENT DATED: 17/07/2025 undefined limitation when it is pleaded that when he had visited the site on 25.05.2017 he had come to know that the sale was made in favour of third parties and the appellants have refused to execute the Sale Deed in which event same is a case for adjudication after trial but not a case for rejection of plaint under O.VII R.11(d) of CPC."
7.7 The judgment that has been relied upon by plaintiff in the case of Shanabhai Popatbhai Bharwad vs. Ballard Project Pvt.Ltd. (supra), more particularly Paras:14 and 15, which read thus:
"14. The first condition if scrutinized at this stage, the validity of the agreement was 30 months from the date of execution of the agreement to sell, subject to other conditions. It further provides that original land owners had to get appropriate permissions to convert the land from new tenure land (restricted land) to old tenure land since the plaintiff though an agriculturist can purchase such land only if the land is converted to old tenure land. The above condition also makes it obligatory upon the original land owners that they have to remain present before the relevant authorities and are supposed to produce relevant documentary evidence.
15. It is an undisputed fact that the original land owners never supplied any order from the competent authority by which the suit land was converted from new tenure land to old tenure land neither any documents were supplied to the plaintiff. Therefore, even though the validity of the agreement to sell dated 2.5.2007 was of 30 months, the same validity would remain in existence unless all conditions are fulfilled by the respective parties. Therefore, when there is a period mentioned for execution of Sale Deed subject to fulfillment of other conditions, in my opinion, such agreement cannot be said that there was a fixed date for performance of the contract and it also cannot be said that time was the essence of the contract. In condition No.7 of the agreement to sell, it was referred that the possession of the suit land shall be handed over at the time of execution. However, if the supplementary agreement is perused, after receiving the entire amount, the possession of the suit land was handed over to the plaintiff.
It was specifically observed by imposing a condition No.10 by giving a right to the purchaser that the purchaser would be entitled for filing a suit for specific performance if there is delay on the part of the original land owners to abide by the conditions recorded in the Page 12 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:38 IST 2025 NEUTRAL CITATION C/CRA/338/2025 JUDGMENT DATED: 17/07/2025 undefined agreement. Condition No.13 of the agreement also imposes restrictions upon the original land owners to create any third party rights."
7.8 The judgment that has been relied upon by plaintiff in the case of Dilipkumar Jayantilal Shah vs. Yasinbhai Faridbhai Hokabaj (supra), more particularly Paras:14 and 15, which read thus:
"(14) The facts in the case before the Apex Court suggest that it was averred in the plaint by the plaintiff that when he had visited the site on 25.05.2017, he had come to know that the same land was sold to the third parties and the defendants had refused performance. A suit for specific performance was instituted after a period of 25 years and the Apex Court has held that the issue as to when the plaintiff had noticed the refusal, is an issue which cannot be adjudicated after trial and even assuming that there is inordinate delay and latches on the part of the plaintiff, the same cannot be the ground of rejection of the plaint under Order VII Rule 11(d) of the CPC.
(15) Thus, when the plaintiffs have specifically narrated the incident, which had occurred in the year 2012 as cause of action for institution of suit couple with the fact that as per the contents of the receipt dated 08.09.1976, the validity of the agreement to sell was extended by the defendant No.1 till the appropriate permission is obtained under the Land Ceiling Act, the plaint cannot be rejected at the threshold by invoking provisions of Order VII Rule 11 of the CPC. The plaintiffs are seeking specific performance of the execution of the sale deed, after the payment of the entire amount of the sale consideration. The issues with regard to the alleged non-performance of the conditions of the agreement to sell on the part of the defendants and the contents of receipts, the extension of period of validity of agreement to sell, the incident which happened on 21.04.2012, the date of refusal of specific performance on the part of the defendants are all triable issues, which can be adjudicated only in a full-fledged trial."
In the present case, the said judgments will not be applicable to the facts of present case, in view of the fact that at least on 03.10.1996, when the plaintiff entered into agreement with the defendant on 03.10.1996, the plaintiff is aware that the defendants i.e. original owners are not ready to comply with the terms and conditions of the agreement and the said Page 13 of 15 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:38 IST 2025 NEUTRAL CITATION C/CRA/338/2025 JUDGMENT DATED: 17/07/2025 undefined document is very clear wherein plaintiff himself has stated about the said facts of defendant - original owners are not complying with the agreement dated 03.10.1996 and thereafter plaintiff and defendant no.3 entered into agreement dated 03.10.1996, and, therefore, it is clear that the suit that has been filed by the plaintiff is hopelessly time barred.
7.9 The judgments relied upon by learned advocate for the defendant no.1 in the case of i.e. (i) Dhulaji Somaji Thakor vs. Gordhanbhai Hathibhai Patel (supra); (ii) Hemendra Ishwarbhai Patel Through Poa Piyush B. Trivedi vs. Gokulbhai Shanabhai -decd. Through Legal Heirs (supra); (iii) Shah Jitendra Nanalal Ahmedabad vs. Patel Lallubhai Ishverbhai, Ahmedabad (supra) and (iv) Kapilaben and others vs. Ashok Kumar Jayantilal Sheth Through POA Gopalbhai Madhusudan Patel and others (supra), will assist the defendants in view of the fact that under Article 54, the plaint is required to be rejected being barred as the plaintiff had noticed of refusal of specific performance.
8. Considering the aforesaid, the impugned Order is not just and proper but also suffers from material irregularity in exercise of jurisdiction so vested in it. Accordingly, a case for interference is made out by the Defendant.
9. For the foregoing reasons, the impugned order dated 21.09.2023 passed by 5th Additional Judicial Magistrate First Class, Ahmedabad Rural in the application below Exh.54 filed by the defendant in Regular Civil Suit No.322 of 2006 is not sustainable in law and the same deserves to be quashed and set aside.
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10. In view thereof, the present Civil Revision Application is accordingly allowed. The Plaint as mentioned above is liable to be rejected under Order VII Rule 11 of the CPC hence it stands rejected. Rule is made absolute. No order as to costs.
Sd/-
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