Manibhai Chaturbhai Patel vs Mahendrabhai Chaturbhai Patel
2021 Latest Caselaw 17573 Guj

       C/FA/1226/2020                                ORDER DATED: 23/11/2021



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/FIRST APPEAL NO. 1226 of 2020
                                With
      CIVIL APPLICATION (FOR INJUCTION) NO. 1 of 2019
              In R/FIRST APPEAL NO. 1226 of 2020
===================================================
                 MANIBHAI CHATURBHAI PATEL
                               Versus
              MAHENDRABHAI CHATURBHAI PATEL
===================================================
Appearance:
 for the Appellant(s) No. 1.1,1.2,1.3
JENIL M SHAH(7840) for the Appellant(s) No. 1
PRANAV U RAVAL(9475) for the Appellant(s) No. 1
MR JIGAR P RAVAL(2008) for the Defendant(s) No. 1
MS SHACHI G MATHUR(3069) for the Defendant(s) No. 2,3,4
===================================================
 CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
          and
          HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                              Date : 23/11/2021
                               ORAL ORDER

(PER : HONOURABLE MR. JUSTICE NIRAL R. MEHTA)

1) This appeal is at the instance of the appellant-original plaintiff and is directed against the judgment and order passed by the 17th Additional Senior Civil Judge, Vadodara dated 09.10.2019 below Exhibit: 8 in Special Civil Suit No. 320 of 2017 instituted by the appellant-original plaintiff, by which, the Court below rejected the plaint substantially on the ground that the suit instituted by the appellant-original plaintiff was time-barred.

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2) The facts giving rise to this appeal may be summarized as under:-

2.1 For the sake of convenience, the appellant herein shall be referred to as the original plaintiff and the respondents herein shall be referred to as the original defendants. The Special Civil Suit No. 320 of 2017 instituted by the original plaintiff for the cancellation of the registered sale deed dated 30.09.2014 and Memorandum of Understanding (MoU) dated 17.07.2013 with regard to the land bearing Block No. 279 (Old Survey No. 302), Block No. 280 (Old Survey No. 304), Town Planning Scheme No. 2 Sevasi, O.P. No. 92 and 93, final plot No. 103 and Block No. 662 of village Sevasi, District: Vadodara.

2.2 As per the case of the original plaintiff, the plaintiff and the original defendants are the real brothers. It is the say of the plaintiff that out of the aforesaid land, land bearing survey the Block No. 279 came to be purchased on 31.08.2005 by way of registered sale deed by the plaintiff and the defendant in capacity of deceased Chaturbhai K. Patel (HUF). So far as the land bearing survey No. 280 is concerned, the same came to be purchased on 22.08.2005.

2.3 It is also the case of plaintiff that a company namely M/s Mahendra Patel Builders Pvt. Ltd., came to be formed on 26.05.1992, which is a registered company. The plaintiff and the defendants are the Directors of that company. As

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per the say of the plaintiff, defendants got executed sale deed dated 30.09.2014 for the aforesaid property without any consideration. It is further stated by the plaintiff that taking benefits of no knowledge in the language of English, his resignation from M/s Mahendra Patel Builders Pvt. Ltd., has also been obtained by the defendants fraudulently. It is further stated that by the plaintiff that the defendant No. 1 has also entered the name of his son Harendrabhai Mahendrabhai Patel and Hemantbhai Mahendrabhai Patel as the Directors of the Company. The sum and substance of the case of the plaintiff is that the defendants fraudulently got the sale-deed executed without any sale consideration and is now trying to transfer and/or alienate the same land to a third party. Thus, the present plaintiff has filed the Special Civil Suit No. 320 of 2017 in the Court of Additional Senior Civil Judge, Vadodara for cancellation of sale deed.

3) Upon service of summons, the defendant No.1 had appeared and filed an application at Exhibit 8 under Order VII and Rule 11D of Civil Procedure Code, 1908 ( "the CPC", for short) seeking, inter alia, dismissal of the suit on the ground of limitation as provided under Article 59 of the Limitation Act.

4) The Trial Court appears to have considered two dates i.e.03.10.2017, the date on which the suit came to be instituted and the date of the registered document i.e. 30.09.2014. Having considered the aforesaid two dates, the Civil Court, Vadodara

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came to the conclusion that suit is filed beyond the period of limitation i.e. three years and hence rejected the plaint accordingly.

5) Being aggrieved and dissatisfied by the aforesaid, the original plaintiff is before this Court by way of the present appeal.

6) We have heard Mr. Mehul Sharad Shah, the learned Senior Counsel for Mr.Jenil Shah, the learned advocate for the appellant as well as Mr.Jigar Raval, the learned counsel appearing for the defendant No. 1 and Ms. Sachi Mathur, the learned counsel appearing for the defendants No. 2 to 4.

7) Mr. Mehul Sharad Shah, the learned Senior counsel has vehemently submitted that the impugned order passed by the Court below rejecting the plaint is erroneous and deserves to be quashed and set aside.

7.1 Mr. Shah has submitted that the Court below committed a serious error in holding that the suit instituted by his client is time barred, in view of the period of limitation prescribed under Article 59 of the Limitation Act.

7.2 Mr. Shah has further submitted that it is a case of fraud, whereby, the defendant got the the sale-deed executed without any sale consideration. Mr. Shah further submitted that the plaintiff and defendants are the real brothers, whereby, if, at all, there was an understanding of

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waiving of any right then it would have been in the nature of release-deed, not of by sale-deed. Mr. Shah, the leaned Senior Counsel has further submitted that admittedly there is no consideration paid to his client and thereby it is a fit case where the Trial Court ought to have led an evidence and thereafter decided the suit instead of rejecting it summarily.

7.3 Mr. Shah further submitted that looking to the averments made in the plaint, more particularly, with regard to the fraud and no consideration towards sale-deed, it is a fit case where the same should be decided on merits rather than rejecting it on a very hyper technical ground of limitation.

7.4 Mr. Shah further submitted that Order VII Rule 11D of the CPC, the Trial Court has not understood the scope and ambit of the Order VII and Rule 11D of the CPC, more particularly, the purpose underlying thereof. Mr. Shah, the learned Senior Counsel has further submitted that the purpose behind the Order VII Rule 11D of the CPC to curb the vexatious litigation instituted after inordinate delay.

7.5 Mr. Shah further submitted that this appeal deserves to be allowed by quashing and setting aside the decree passed by the Court below.

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8) Per contra, Mr. Raval, the learned advocate for the defendant No. 1 has vehemently opposed the this appeal.

9) Mr. Jigar Raval, the learned counsel appearing for the defendant No. 1 has submitted that the Trial Court is justified in rejecting the plaint on the ground of limitation as per the Article 59 of the Limitation Act. The suit should have been filed within a period of three years. In the instance case, the sale-deed sought to be challenged was registered on 30.09.2014 and the suit was instituted on 03.10.2017. Meaning thereby, admittedly, the suit was instituted with a delay of 1 day, therefore, the learned Civil Judge, was well justified in rejecting the suit on the ground of limitation.

10) Mr. Jigar Raval, the learned counsel has requested this Court to dismissed the appeal.

11) Having heard the learned advocate appearing for the parties and having gone through the materials on record. The only question that falls for our consideration is that the Court below committed any error in passing the impugned order, so as to consider the aforesaid question, for the sake of convenience, the provision of Order VII and Rule 11D of the CPC is extracted as below;-

"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 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

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plaint is returned 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 prevented by any cause of an exceptional nature from correcting 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)

12) From the facts of the present case, only controversy between the parties appears to be confined to Order VII Rule 11D, as the period of limitation has been used as a tool by the learned counsel appearing for the defendants for getting the plaint rejected.

13) To consider an application for rejection of the plaint under Order 7, Rule 11 CPC especially under clause (d), the averments made in the plaint are only to be looked in. To elaborate further, we may refer to and rely upon the case of Popat and Kotecha Property vs. State Bank of India Staff Association, reported in (2005) 7 SCC 510, wherein it has been held as follows:-

"19. There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal

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canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair- splitting technicalities.

20. Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by searching examination of the party in case the court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised."

14) It would be appropriate to refer to and relied upon the case of Pawan Kumar vs. Babulal since deceased through Legal Representative and others reported in (2019) 4 SCC 367. It has been held therein as follows:

"13. In the present case, the controversy has arisen in an application under Order 7 Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject-matter of assessment at the stage when application under Order 7 Rule 11 CPC was taken up for consideration the case on the matter required fuller and final consideration after the

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evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not."

15) Yet another recent pronouncement of this Court in First Appeal No. 1774 of 2020 with Civil Application (For Stay) No. 1 of 2020 has held thus:-

32. We are of the view that the plaint could not have been rejected on the ground that the suit is time-barred. The plaintiff, in no uncertain terms, has pleaded in the plaint that he came to know about the execution of the sale deeds only when the defendants nos.7 and 8 filed their written-statement Exh.86 in the Regular Civil Suit No.47 of 2011. The court below has gone to the extent of ascertaining the veracity of such statement made in the plaint. The court below imputes bad faith to the plaintiff saying that the plaintiff intentionally has not stated the date of filing of the said writ- statement. The entire approach of the court below, in our view, is not correct. In so far as the rejection of the plaint on the ground of limitation is concerned, it is needless to emphasize that limitation is a mixed question of fact and law. When it is the specific case of the plaintiff that he came to know about the sale deeds at the time when the written statement came to be filed in the civil suit referred to above, such averments may or may not be true, but if the plaintiff succeeds in establishing the above averments, the issue of limitation cannot be put against the plaintiff.

33. The averment made in the plaint appears to be candid and does not intend to camouflage the intention of the plaintiff to circumvent Order 7 Rule 11(d) CPC. The averment made in the plaint on close introspection does not indicate a bogus or a frivolous litigation or an illusory drafting to

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obviate the obstacle of Order 7 Rule 11(d) CPC. The application filed under Order 7 Rule 11 CPC appears to have been done as a matter of course as the averments made in the same suggest.

34. When limitation is a pure question of law and from the pleadings itself it becomes apparent that a suit is barred by limitation, then, of course, it is the duty of the court to decide limitation at the outset even in the absence of a plea. However, in cases like the one on hand, where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved. (see Narne Rama Murthy vs. Ravula Somasundaram, 2005 (6) SCC 614).

16) We are, therefore, of the opinion that the plaint could not have been rejected on the ground that the suit is time-barred, more particularly, when the plaintiff has in no uncertain terms alleged fraud having been practiced on him and by getting sale deed registered that too without any sale consideration thereof. Thus, in our view the Trial Court could not have dismissed the suit by taking hyper technical view of limitation, as in the peculiar facts and circumstances of the present case, when sale deed itself was said to have been executed without any consideration. The entire approach of the Court below, in our view, is not proper. The Court below should have considered the main aspect of fraud, which could have only been dealt with by leading fullfledge evidence rather dismissing the suit on the ground of limitation. The Court below should have properly appreciated the law settled by the Honourable Apex Court as well as this Court with regard to the exercise of powers under

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Order VII Rule 11 when vaxitious litigation with inordinate delay is instituted. However, in the instance case, the institution of suit is not after inordinate delay. Therefore, Trial Court should not have shown his fancy for disposal by rejecting the suit in such a casual manner.

17) In our considered opinion, the Court below should have adopted just and pragmatic view rather becoming so hyper technical. We say so because pleading itself says that fraud has been practiced upon the plaintiffs by the real brothers and his signature was obtained fraudulently on the document of sale deed which itself says without consideration.

18) The registered document itself suggests that the same is without consideration which, prima-facie, seems dubious. Therefore, it would be apt on the part of the Court below, to lead the specific evidence as to under what circumstance, so called, sale deed without consideration came to be executed. More particularly, the Supreme Court in the case of Kewal Krishan v Rajesh Kumar & Ors, considering the Section 54 of the Transfer of property Act held thus:-

" Section 54 of the Transfer of Property Act, 1882 (for short "the TP Act") reads thus: "54. "Sale" defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

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In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

Contract for sale.--A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.

It does not, of itself, create any interest in or charge on such property."

Hence, a sale of an immovable property has to be for a price. The price may be payable in future. It may be partly paid and the remaining part can be made payable in future. The payment of price is an essential part of a sale covered by section 54 of the TP Act. If a sale deed in respect of an immovable property is executed without payment of price and if it does not provide for the payment of price at a future date, it is not a sale at all in the eyes of law. It is of no legal effect. Therefore, such a sale will be void. It will not effect the transfer of the immovable property

19) Thus, the Court below should have not rejected the suit on the ground of limitation instead, in our view, could have kept the issue of limitation open. The Court below has considered only two dates i.e. a date of registration of the sale-deed and the date of filing of the suit, which, in our view, could not have been the only consideration when the pleadings are as regards to fraud in the plaint. Thus, the Court below could not have jumped to the conclusion that the date of knowledge is of 30.09.2014. We say so because on 30.09.2014, admittedly the signature was obtained of the plaintiff before the Registrar.

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However, thereafter, it is the case of the plaintiff that he came to know that his signature was obtained on the sale deed without any sale consideration fraudulently. Thus, it would be a matter of evidence as to on what day and date, the plaintiff came to know about the alleged fraud and that would be the date from where the limitation actual starts. All this could have been looking into and decided only after leading evidence and this is the reason why the issue of limitation is said to be a mixed question of law and fact. Time and again, this Court has, in many orders passed over a period of time explained stating that a plea of limitation cannot be decided as an abstract principle of law divorced from the facts as in every case the starting point of limitation has to be ascertained, which is entirely a question of fact.

20) In the overall view of the matter, we are convinced that the Court below has committed a serious error in rejecting the plaint. Accordingly, we allow the appeal by quashing and setting aside the impugned judgment and order passed by the 17 th Additional Senior Civil Judge, Vadodara dated 09.10.2019 below Exhibit: 8 in Special Civil Suit No. 320 of 2017. The plaint stands restore to the file of the Trial Court to its original number for being proceeded in accordance with law. All the contentions available to both the parties are kept open including the issue of limitation to be decided along with the other issued on the basis of the pleadings.

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21) It goes without saying that the Trial Court while deciding the suit shall not be influenced by the observations made in the present judgment.

22) Consequently, the connected Civil Application stand also disposed of.

Sd/-

(J. B. PARDIWALA, J)

Sd/-

(NIRAL R. MEHTA,J) VISHAL MISHRA