Khimji Mavji Kunvarji Varsani vs Harji Mavji Kunvarji Ramji ...
2021 Latest Caselaw 16660 Guj

     C/CRA/87/2019                                  JUDGMENT DATED: 25/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CIVIL REVISION APPLICATION NO. 87 of 2019


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1    Whether Reporters of Local Papers may be allowed                     No
     to see the judgment ?

2    To be referred to the Reporter or not ?                              No

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 ?

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                       KHIMJI MAVJI KUNVARJI VARSANI
                                    Versus
                     HARJI MAVJI KUNVARJI RAMJI VARSANI
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Appearance:
MR AR THACKER(888) for the Applicant(s) No. 1
MR ANKIT SHAH(6371) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 10,11,2,3,4,5,6,7,8,9
==========================================================
    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                     Date : 25/10/2021
                     ORAL JUDGMENT

1. Rule. Mr.Ankit Shah, learned advocate, waives service of notice of Rule for respondent No.1. Though notice was served to respondent Nos.3 to 11, they did not choose to appear before this Court.

2. Since the petition is pending since 2019, with the consent of the learned advocates appearing for the parties, the same is taken up for final disposal.

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3. This application is filed under Section 115 of the Code of Civil Procedure, 1908 ("the Code" for short) for quashing and setting aside the order dated 17.07.2019 passed by the learned Principal Senior Civil Judge, Kutch at Bhuj below Exh.32 in Regular Civil Suit No.163 of 2017.

4. Heard Mr.A.R. Thacker, learned advocate for the applicant and Mr.Ankit Shah, learned advocate for respondent No.1.

5. Learned advocate for the applicant submitted that present respondent No.1 is the original plaintiff, who has filed Regular Civil Suit No.163 of 2017 before the concerned Civil Court against the present applicant and others for cancellation of the Sale Deeds and for permanent injunction. It is submitted that in the said suit, the plaintiff has prayed that the registered Sale Deed dated 24.05.1994 and other subsequent Sale Deeds executed thereafter between the concerned parties be cancelled. It is submitted that the present applicant - defendant No.1 filed an application Exh.32 before the Civil Court under Order VII Rule 11 of the Code and prayed that the plaint filed by the plaintiff be rejected. However, the concerned Civil Court vide the impugned order dated 17.07.2018 rejected the said application and, therefore, the present application has been filed.

5.1 Learned advocate for the applicant would submit

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that there is a gross delay in filing the Civil Suit. It is pointed out from the record that the Sale Deed was executed between the concerned defendants on 24.05.1994 which is duly registered before the competent authority and, thereafter, subsequent Sale Deeds were executed between the concerned defendants in the year 2016 as well as in the year 2017. All the said Sale Deeds are registered Sale Deeds and, therefore, it can be said that the plaintiff was having deemed knowledge about the transaction which had taken place in the year 1994 between the concerned defendants. It is submitted that the Suit is barred by law of limitation and, therefore, the concerned trial Court ought to have allowed the application filed by the applicant - defendant No.1 under Order VII Rule 11 of the Code.

5.2 Learned advocate for the applicant has placed reliance upon the following decisions:

(1) Becharbhai Zaverbhai Patel Vs. Jashbhai Shivabhai Patel reported in (2013) 1 GLR 398

(2) Kanjibhai Bhagwanjibhai Patel Vs. Nanduben Shamjibhai Sorathiya Through P.O.A., Dharmesh P. Trivedi reported in (2013) 1 GLR 51

(3) Order dated 01.10.2021 passed in Civil Revision Application No.122 of 2016 in the case of Patel Dhanjibhai Ambaram Vs. Navindchandra Vrajlal Ved and Ors.

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(4) Order dated 20.10.2021 passed in Civil Revision Application No.503 of 2019 in the case of Keshavbhai Gandabhai Vs. Urmilaben D/o.

Vallabhbhai Nathubhai and W/o. Navinbhai Chimkabhai Patel

5.3 Learned advocate for the petitioner has, therefore, urged that this application be allowed by quashing and setting aside the impugned order passed by the concerned Civil Court and thereby the plaint filed by the plaintiff be rejected.

6. On the other hand, learned advocate for respondent No.1 herein - original plaintiff has opposed this application. He has referred the averments made in the plaint and also pointed out the cause of action and the reliefs prayed for in the plaint. It is submitted that the trial Court has rightly rejected the application filed by the present applicant - defendant No.1 by observing that question of limitation is a mix question of law and fact and the same can be decided at the time of trial. In support of the said contention, learned advocate has placed reliance upon the following decisions:

(1) Balasaria Construction (P) Limited Vs. Hanuman Seva Trust reported in (2006) 5 SCC 658

(2) Judgment dated 09.06.2016 passed in First Appeal No.57 of 2016 in the case of Parmar Narmadaben Wd/o. Vithalbhai Ramabhai and others

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Vs. Amratlal Motibhai Prajapati and others

(3) P.V. Guru Raj Reddy Rep. By Gpa Laxmi Narayan Reddy Vs. P. Neeradha Reddy & Ors. Etc.

reported in (2015) 8 SCC 331

(4) Ramesh B. Desai Vs. Bipin Vadilal Mehta reported in (2006) 5 SCC 638

6.1 It is, therefore, urged that this application be dismissed.

7. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that respondent No.1 - original plaintiff has filed Regular Civil Suit No.163 of 2017 before the concerned Civil Court against the present applicant and others for cancellation of the Sale Deeds and for permanent injunction. If the reliefs prayed for in the Suit are carefully examined, it is revealed that the plaintiff has challenged registered Sale Deed dated 24.05.1994 executed between the applicant - defendant No.1 and other defendants. The said Sale Deed is a registered Sale Deed. It is not in dispute that the Suit is filed on 16.06.2017. Thus, the Suit is filed after a period of twenty-two years from the date of execution of the registered Sale Deed in the year 1994. This Court, in the recent judgment dated 20.10.2021 passed in Civil Revision Application No.503 of 2019, has after considering various decisions rendered by the

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Hon'ble Supreme Court and this Court, observed in paragraphs-6 to 11 as under:

"6. In the case of Becharbhai Zaverbhai Patel Vs. Jashbhai Shivabhai Patel (supra), this Court has observed in Paragraphs-6, 6.1 and 6.2 as under:

"6.0. At the outset, it is required to be noted that in the plaint the original plaintiffs have challenged the registered sale deed dated 25.8.1975 which has been executed by the original defendant no.1 in favour of defendants no. 3 and 4 and the said suit has been filed in the year 2010 i.e. after a period of 35 years. It is also required to be noted and even so pleaded / averred in the plaint that name of father of the defendant no.1 was mutated in the revenue record and even thereafter on the death of father of the defendants no.1 and 2 - Chottabhai Bhagwanbhai mutated in the revenue record on 11.10.1979 vide mutation entry no.1024. It is also further averred in the plaint that even the name of defendants no. 3 and 4 were also mutated in the revenue record pursuant to the sale deed dated 25.8.1975 vide entry no.1115 and not only that even in 1981 there was partition between defendants no. 3 and 4 and the land bearing Survey No.380 (disputed suit land) has gone into the share of Ambalal Patel -defendant no.4 and his name is mutated in the revenue record vide mutation entry no.1283 dated 10.6.1981. Even considering cause of action pleaded in the plaint in para 8, it appears to the Court that the averments in the plaint are too vague and nothing has been mentioned in the said para on which date he came to know about the registered sale deed dated 25.8.1975. Even in the entire plaint nothing has been pleaded with respect to limitation. Mere cleaver drafting in the

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plaint and by such vague averments and the pleading the cause of action in the plaint, the suit which is otherwise barred by law of limitation can not be brought within a period of limitation.

6.1. It is not disputed that while considering application under Order 7 Rule 11 (d) of the Code of Civil Procedure, the Court is required to consider the averments in the plaint and the supporting documents produced along with plaint. However, it cannot be disputed that if on the face of it and even considering the averments made in the plaint, it is found that the suit is clearly barred of law of limitation, the plaint can be rejected in exercise of powers under Order 7 Rule 11 (d) of the Code of Civil Procedure. Even considering the decision of the Hon'ble Supreme Court in the case of N.V.Srinivasan Murthy vs. Mariyamma (Dead) by proposed Lrs reported in AIR 2005 SC 2897 as well as decision of the Hon'ble Supreme Court in the case of Dilboo (Smt) (Dead) By Lrs. (supra), the plaint can be rejected in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure if it is found that even accepting all the averments made in the suit, it is found therefore, the suit is barred by law limitation. Considering the above proposition of law laid down by the Hon'ble Supreme Court, it is required to be considered whether considering facts and circumstances of the present case and even considering averments made in the plaint and even accepting all the averments made in the plaint as they are, whether the suit is barred by law of limitation or not ?

6.2. As stated above, registered sale deeds was executed by the original defendant no.1 in favour of original defendants no. 3 and 4 (petitioners herein) on dated 25.8.1975.

It is also required to be noted and even so pleaded / averred in the plaint that

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mutation entry in favour of defendant nos. 3 and 4 on the basis of registered sale deed was made in the revenue record vide entry no.1115 and not only that even in 1981 there was partition between defendants no. 3 and 4 and the land bearing Survey No.380 (disputed suit land) has gone into the share of Ambalal Patel - defendant no.4 and his name is mutated in the revenue record vide mutation entry no.1283 dated 10.6.1981.As held by the Hon'ble Supreme Court in the case of Dilboo (Smt) (Dead) Bij lea(supra) whenever the document is registered the date of registration becomes the date of deemed knowledge and in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge. Thus when the sale deed dated 25.8.1975 was registered in the year 1975 itself and even the mutation entry was made in favour of defendants no.3 and 4 on the basis of the registered sale deed immediately thereafter the plaintiff is deemed to have the knowledge of the said transaction and by making such vague averments in the plaint that earlier he had no knowledge and he came to know about the transaction only in the 2010, by such clever drafting the plaintiff cannot be permitted to bring the suit within the period of limitation which otherwise is barred by law of limitation as the suit challenging the registered sale deed dated 25.8.1975 has been filed after a period of 35 years. Under the circumstances and considering the aforesaid, it appears to the Court that learned trial Court has materially erred in rejecting the application Exh.14 and in not rejecting the plaint exercising the power under Order 7 Rule 11(d) of the Code of Civil Procedure.

Under the circumstances, the impugned order passed by the learned trial Court cannot be

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sustained and same deserves to be quashed and set aside."

7. In the case of T. Arivandandam Vs. T.V. Satyapal and another (supra), the Hon'ble Supreme Court has observed in Paragraph-5 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, 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, be should exercise his power under Or. VII r. 1 1 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 by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch. XI) is also resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi "It is dangerous to be too good."

8. In the case of Hardesh Ores (P) Ltd. Vs. Hede and Company (supra), the Hon'ble Supreme Court has observed in Paragraphs-25, 40 and 41

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as under:

"21. The language of Order 7 Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that "law" within the meaning of clause (d) of Order 7 Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint if taken to be correct in their entirety a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause

(d) of Rule 11 of Order 7 is applicable. 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. As observed earlier, the language of clause (d) is quite clear but if any authority is required, one may usefully refer to the judgments of this court in Liverpool & London S.P. & I Association Ltd. Vs. M.V. Sea Success I and another and Popat and Kotecha Property Vs. State Bank of India Staff Association."

xxx xxx xxx

40. Mr. Nariman contended that this case was governed not by Article 58 of the Limitation Act but, if at all, by Article 113 thereof because there is no specific

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article provided for enforcement of positive or negative covenants. We shall assume that he is right in contending that Article 113 may apply where enforcement of a positive or negative covenant is sought in a suit for injunction. However, in this case we have found that the real foundation for the suit was that the earlier agreement stood renewed automatically containing the same terms and conditions as in the original agreement including the negative covenants. There is neither a document to prove that the agreement stood renewed nor is there a declaration by a court that the agreement stood renewed automatically on exercise of option for renewal by the appellants. The basis for claiming the relief of injunction, namely, a subsisting renewed agreement did not exist in fact. In its absence, no relief as prayed for in the suit could be granted by the clever device of filing a suit for injunction, without claiming a declaration as to their subsisting rights under a renewed agreement, which is apparently barred by limitation.

41. We are, therefore, satisfied that the Trial Court as well as the High Court were justified in holding that the plaint deserved to be rejected under Order VII Rule 11 CPC since the suit appeared from the statements in the plaint to be barred by the law of limitation. We, therefore, find no merit in these appeals and the same are accordingly dismissed. No order as to costs."

9. In the case of Liverpool & London S.P. & I Association Ltd. Vs. M.V. Seva Success I and Another (supra), the Hon'ble Supreme Court has observed in Paragraph-142 as under:

"142. In the instant case the 'Club' not

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only annexed certain documents with the plaint but also filed a large number of documents therewith. Those documents having regard to Order 7 Rule 14 of the Code of Civil Procedure are required to be taken into consideration for the purpose of disposal of application under Order 7 Rule 11(a) of the Code of Civil Procedure. The 'Club' in its plaint pleaded:

"The Plaintiff is a Protection & Indemnity Association incorporated under the laws of the United Kingdom and carries on business through its Managers, Liverpool & London P&I Management Ltd. at Liverpool, UK. The Plaintiff is a mutual association of ship- owners and offers insurance cover in respect of vessels entered with it for diverse third party risks associated with the operation and trading of vessels. This insurance is commonly known as Protection & Indemnity (P&I) cover in respect of various risks associated with the vessels in their maritime adventure. The 1st Defendant vessel m.v. "Sea Success I" is a sistership of the vessels "Sea Ranger" and "Sea Glory" which were entered for P&I risks with the Plaintiff Association. The said two vessels were entered into the Plaintiff's Association for the policy year 1999-2000 by Defendant No. 2, Singapore Soviet Shipping Co. Pte. Ltd. who, as per the terms of the insurance and Rules of the Plaintiff Association, were recognized and considered to be the owners of the said two vessels and the assured under the policy of insurance. The 1st Defendant vessel is

through its wholly owned 100% subsidiary, Singapore Soviet Shipping Corporation Inc., Monrovia. The 1st Defendant vessel is presently at the port and harbour of Mumbai within the territorial waters of India and within the Admiralty jurisdiction of this Hon'ble Court. The 2nd Defendant is the owner of the 1st Defendant and is also

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inter alia the party liable in personam in respect of the Plaintiff's claim. The Plaintiff submits as more particularly stated in paragraph 1 above, that the 1st Defendant vessel is a sistership of the two vessels "Sea Glory" and "Sea Ranger" in view of the beneficial ownership, management of all three vessels having vested in Defendant No. 2. The Plaintiff further submits that Defendant No. 2 is liable in personam in respect of the unpaid insurance premium in respect of the two vessels "Sea Glory" and "Sea Ranger". Consequently, the Plaintiff is entitled to arrest any other vessel in the ownership of Defendant No. 2. The 1st Defendant vessel is owned by Defendant No. 2 through it's 100% subsidiary S.S. Shipping Co. Inc. In the circumstances, the Plaintiff submits that they are entitled to proceed against the Defendant vessel in rem and are entitled to an order of arrest, detention and sale of the vessel for recovery of their outstanding dues in respect of insurance premium as more particularly stated above. The Plaintiff is, therefore, entitled to have the Defendant vessel along with her hull, gear, engines, tackle, machinery, bunkers, plant, apparel, furniture, equipments and all appurtenances thereto condemned and arrested under a warrant of arrest of this Hon'ble Court for realization of the Plaintiff's dues. The Plaintiff is further entitled to have the Defendant vessel sold under the orders and directions of this Hon'ble Court and to have the sale proceeds thereof applied towards the satisfaction of the Plaintiff's claim in the suit. The Plaintiff is entitled to an order of arrest of the Defendant vessel as arrest is the only method of proceeding against the said vessel in rem. The Plaintiff submits that if such an order of arrest is not granted, irreparable harm and injury will be caused

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to the Plaintiff inasmuch as the Plaintiff's suit will be rendered infructuous. There is no other alternative efficacious remedy available to the Plaintiff."

10. From the aforesaid decisions rendered by the Hon'ble Supreme Court as well as this Court, it can be said that whenever the document is registered, the date of registration becomes the date of deemed knowledge and in other cases where the fact could be discovered by due diligence, then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge about the transaction.

11. It is further revealed from the aforesaid decisions rendered by the Hon'ble Supreme Court that the plaint can be rejected on the ground of limitation only where the Suit appears from the statement in the plaint to be barred by any law. The words "any law" include the law of limitation as well. From the aforesaid decisions, it is further clear that the documents annexed with the plaint are required to be taken into consideration for disposal of the application filed under Order VII Rule 11 of the Code."

8. From the aforesaid observations made by this Court, it can be said that whenever a document is registered, the date of registration becomes the date of deemed knowledge and in other cases where a fact could be discovered by due diligence, then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge about the transaction. The plaint can be

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rejected on the ground of limitation only where the Suit appears from the statement in the plaint to be barred by any law. The words "any law" include "law of limitation" as well.

9. This Court in another judgment dated 01.10.2021 passed in Civil Revision Application No.122 of 2016 has considered the decisions rendered by the Hon'ble Supreme Court as well as this Court and observed in paragraphs-7 and 8 as under:

"7. In the case of Dilboo (Smt) (Dead) By Lrs. and others Vs. Hanraji (Smt) (Dead) and others (supra), the Hon'ble Supreme Court has held that where transfer is by registered document, the date of registration becomes the date of deemed knowledge. It was further held that in cases where fact could be discovered by due diligence, plaintiff would be deemed to have the necessary knowledge.

8. In the case of Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead by Lrs (supra), the Hon'ble Supreme Court has observed in Paragraph- 7 as under:

"7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother.

The deed of gift was a registered gift deed. The execution of the gift deed is not

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disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed - brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant herein - original defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10-plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein - original defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC."

10. The decisions upon which reliance is placed by learned advocate for respondent No.1 would not be

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applicable to the facts of the present case.

In the facts of the present case, it is clear from the averments made in the plaint itself that the registered Sale Deed was executed on 24.05.1994 and subsequently, the Sale Deeds were executed in the year 2016-17. Thus, the plaintiff is having deemed knowledge about the registration of the Sale Deed. In spite of that, Suit is filed in the year 2017 i.e. approximately after a period of twenty-two years.

11. Thus, keeping in view the aforesaid decisions rendered by the Hon'ble Supreme Court as well as this Court, if the facts of the present case are examined, this Court is of the view that the trial Court has committed an error while rejecting the application Exh.32 filed by the applicant herein under Order VII Rule 11 of the Code. Accordingly, the impugned order dated 17.07.2018 passed by the learned Principal Senior Civil Judge, Kutch at Bhuj below Exh.32 in Regular Civil Suit No.163 of 2017 is quashed and set aside. The plaint being Regular Civil Suit No.163 of 2017 stands rejected.

12. The application is allowed. Rule is made absolute. Direct Service is permitted.

(VIPUL M. PANCHOLI, J) piyush