Gujarat High Court
Nagjibhai Kanjibhai Patel vs Mukesh @ Pappu Chandraprakash ... on 11 October, 2022
Bench: A.S. Supehia
C/CRA/105/2019 CAV JUDGMENT DATED: 11/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO.105 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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NAGJIBHAI KANJIBHAI PATEL
Versus
MUKESH @ PAPPU CHANDRAPRAKASH HARIVANSH SHUKLA
================================================================
Appearance:
MR NAVIN K. PAHWA, SENIOR ADVOCATE, MR NACHIKET A DAVE(5308)
for the Opponent(s) No. 5,7
MR MEHUL S SHAH, SENIOR ADVOCATE, WITH MR AMBRISH V
MR BH SOLANKI(5353) for the Opponent(s) No. 7.3
MR NIRAJ J SHARMA(5389) for the Opponent(s) No. 10,13,2,3,4,5.2,6,8,9
MR PRAKASH JANI, SENIOR ADVOCATE, WITH MR. HARSH K THAKAR
NOTICE SERVED for the Opponent(s) No. 11,12,5.1,5.3,7.1,7.2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 11/10/2022
CAV JUDGMENT
(1) In the present application filed under the
provision of section 115 of the Civil
Procedure Code, 1908 (for short "the CPC"),
the applicant has assailed the order dated
16.01.2019 passed by the learned Principal
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Senior Civil Judge and Additional Chief
Judicial Magistrate, Kathor, Dist.Surat
rejecting the application Exh.102 filed
under Order VII Rule 11 of CPC seeking
rejection of plaint being Special Civil Suit
No.159 of 2017 (old No.639 of 2014) filed by
the applicant-original defendant no.1-
Nagjibhai Kanjibhai Patel.
(2) Brief facts emerging from the memo of
Revision Application are as under:
2.1) On 28.02.2005, the applicant-original
defendant No.1 purchased a land bearing
Block No.391/1 by a registered sale deed
from defendant no.3-Jigneshbhai Batukbhai
Patel for a valuable consideration.
2.2) In the month of October, 2014, the plaintiff
Mukeshbhai Prakashbhai Shukla instituted
Special Civil Suit No.639 of 2014 for
specific performance of an agreement to sell
dated 10.01.2005, executed pursuant to a
Power of Attorney (PoA) dated 02.09.2004 and
in the alternative to award a compensation
of Rs.20 crores. The plaintiff has also
prayed for cancellation of various sale
C/CRA/105/2019 CAV JUDGMENT DATED: 11/10/2022
deeds, including the sale deed dated
28.02.2005 in favour of the applicant-
defendant no.1.
2.3) It is the case of the defendant no.1 that on
02.09.2004, a forged and fabricated PoA was
created in favour of Shri Ramesh Manjibhai
Davra,respondent-defendant no.7 fraudulently
shown to have been executed by the defendant
no.1 and some of other original defendants
giving authority to the PoA for dealing in
various parcels of land, including the suit
lands. The PoA - Shri Rameshbhai Davra has
passed away on 05.10.2011 before institution
of the suit and he is represented through
his legal heirs being defendant nos.7(A) to
7(C).
2.4) It is alleged that on 10.01.2005, based on
the fabricated PoA, an agreement to sell is
created on a non-judicial stamp paper of
Rs.50/- between the plaintiff and the PoA
(and not with any of the land owners or) for
and on behalf of the land owners) for sale
of the suit lands for a consideration of
Rs.1.60 Crores. It is stated in the document
that an amount of Rs.80 Lakhs is paid by
cash by the plaintiff to the PoA (not to the
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land owners) and balance amount of
Rs.80,00,000/- will be paid after the PoA
arranges for a clear and marketable title of
the suit lands.
2.5) In the year, 2005, the defendant no.1 filed
a complaint in the Court of Judicial
Magistrate, First Class (JMFC), Kathor
against Shri Rameshbhai Davra, PoA and other
accused for various criminal offences. The
concerned Magistrate made an order under
Section 156(3) of the Criminal Procedure
Code, 1973 (Cr.P.C.) directing the police to
investigate into the matter and submit a
report. After the registration of the
criminal complaint, on 27.04.2005, before
and after conducting investigation, the
accused were arrested by the Investigating
Officer. The documents were also sent to the
Forensic Science Laboratory (FSL),
Gandhinagar.
2.6) On 31.01.2006, the FSL, Gandhinagar gave a
report observing that the PoA is bogus and
fabricated. On 25.09.2006, the Investigating
Officer filed charge-sheet in the Court,
which led to the registration of Criminal
Case No.3571 of 2006.
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2.7) In the month of October, 2014, the plaintiff
instituted Special Civil Suit No.639 of
2014. On 17.08.2015, the trial Judge
rejected application below Exh.5 in Special
Civil Suit No.639 of 2014 by observing that
prima facie, the PoA as also the agreement
to sell is bogus and fabricated, and no
evidence was shown that payment of
Rs.80,00,000/- is made. It appears that an
Appeal From Order against the aforementioned
order is filed before this Court, however,
there is no interim relief granted therein
by this Court.
2.8) On 10.07.2018, an Application Exh.102 is
filed by the defendant no.1 under Order VII
Rule 11 of the CPC seeking rejection of the
plaint. On 16.01.2019, the Trial Court
rejected application Exh.102 along with
another application Exh.103 filed under
Order VII Rule 11 of the CPC. The same is
subject matter of challenge in the present
revision application.
SUBMISSIONS:
(3) Learned Senior Advocate Mr.Pahwa with
learned advocate Mr.Nachiket Dave appearing
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for the applicant-defendant no.1 has
submitted that as can be seen from the
records, the applicant became the owner of
the suit land by virtue of the registered
sale deed dated 28.02.2005, whereas the suit
is instituted in the month of October, 2014
which is almost after a period of 9 years,
hence the same is barred by limitation. He
has submitted that the plaintiff had
knowledge of the sale deed in view of the
fact that after the applicant learnt about
the fraudulent PoA dated 02.09.2004 and
agreement to sell dated 10.01.2005, since
the applicant initiated prosecution against
the original plaintiff and all the concerned
persons by filing a criminal complaint,
which culminated in Criminal Case No.3571 of
2006. It is submitted that in the
interregnum, the FSL report dated 31.01.2006
has established that the PoA is bogus and
fabricated. It is submitted that the
plaintiff therefore had complete knowledge
of the transaction from the year 2005. It is
submitted that without prejudice, the
plaintiff also had the deemed knowledge by
virtue of the registered sale deed having
been executed on 28.02.2005.
C/CRA/105/2019 CAV JUDGMENT DATED: 11/10/2022
3.1) In support of his submissions, he has placed
reliance on the judgments of this Court in
the case of Hemendra Ishwarbhai Patel
through PoA vs. Gokulbhai Shanabhai-
deceased through Legal Heirs, (2018) 1 GLR
688, Becharbhai Zaverbhai Patel vs. Jashbhai
Shivabhai Patel, (2013) 1 GLR 398, on the
judgments of the Supreme Court in the case
of Dahiben vs. Arvindbhai Kalyanji Bhanusali
(Gajra) (D) Through Lrs., (2020) 7 SCC 366,
and in the case of Raghwendra Sharan Singh
vs. Ram Prasanna Singh, (2020) 16 SCC 601.
3.2) Learned Senior advocate Mr.Pahwa has
submitted that in the facts of the present
case, the FSL report has found that the PoA
is bogus and fabricated. It is submitted
that the agreement to sell is executed by
the PoA holder based on this bogus PoA. It
is submitted that the consideration
mentioned in the agreement to sell is by
cash. It is submitted that the Trial Court,
while rejecting the injunction application,
has accepted that the claim of the
respondent-original plaintiff is fraudulent.
It is submitted that the Trial Court
therefore was obliged to examine the
application under Order VII Rule 11 of the
C/CRA/105/2019 CAV JUDGMENT DATED: 11/10/2022
CPC in this context and ought to have
rejected the plaint. Thus, it is submitted
that the impugned order may be quashed and
set aside and the plaint may be rejected.
(4) A fortiori, learned Senior Advocate Mr.Mehul
Shah appearing for the respondent no.1-
original plaintiff, at the outset has raised
the bar of res judicata in filing the
present revision application. He has
submitted that the order impugned is a
common order passed below two applications,
Exh.102 and Exh.103 before the lower Court
seeking rejection of plaint on the same
grounds filed by the different defendants.
He has submitted that the lower Court, by
hearing all the parties and considering the
similar issues involved in both the
applications and by recording common
findings applicable to all the parties,
rejected both the applications. He has
submitted that the applicant-defendant no.1
has challenged and filed the present
application only against the order passed
below Exh.102 application and has not at all
challenged the order passed below application
Exh.103. Thus, it is submitted that the
order below Exh.103 has attained finality
C/CRA/105/2019 CAV JUDGMENT DATED: 11/10/2022
qua all the parties, including the present
applicant. It is submitted that though the
applicant aggrieved by the said order, has
given up the challenge to the same. It is
submitted that accordingly as per the
settled position of law, the order and the
findings recorded in the order below
Exh.103 can be treated to be a former
unchallenged adjudication and the
application Exh.103 itself can be treated
to be "former application / proceedings"
qua the present applicant in the present
proceedings challenging Exh.102 order.
Therefore, it is submitted that the present
proceedings are clearly hit by the
principles of res judicata as such the same
is not maintainable as otherwise it may
lead to inconsistent/conflicting orders.
4.1) In support of his submissions, he has
placed reliance on the judgments of the
Supreme Court in the case of Sri Gangai
Vinayagar Temple vs. Meenakshi Ammal, (2015)
3 SCC 624, in the case of Premier Tyres
Limited vs. Kerala State Road Transport
Corporation, AIR 1993 SC 1202, in the case
of Darayas Bamanshah Medhora Versus Nariman
Bamansha Medhora, 2002 (1) GLR 474, Harbans
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Singh Versus Sant Hari Singh , (2009) 2 SCC
526.
4.2) Learned Senior Advocate Mr.Shah has
submitted that it is also settled
proposition of law that principles of res
judicata are applicable even qua two stages
of the same proceedings and he has placed
reliance on the decisions of the Supreme
Court in the cases of Y.B.Patil vs.
Y.L.Patil, AIR 1977 SC 392, Uttar Pradesh
State Road Transport Corporation vs. State
Of Uttar Pradesh, AIR 2005 SC 446, and
Erach Boman Khavar Versus Tukaram Shridhar
Bhat, AIR 2014 SC 544.
4.3) Learned Senior Advocate Mr.Shah has
submitted that pending the present
proceedings, the contesting parties,
including the applicant have entered into
Memorandum of Understanding (MoU) dated
05.05.2022 settling the disputes and the
said MoU is duly signed by all the parties
and duly notarized, which inter alia
provides for withdrawal of the present
revision. It is submitted that the parties,
including the present applicant, have also
filed respective affidavits confirming the
C/CRA/105/2019 CAV JUDGMENT DATED: 11/10/2022
settlement and hence, the cause to
prosecute the present revision does not
survive. It is submitted that the notice by
the applicant allegedly cancelling the MoU
has no effect in the eyes of law inasmuch
as duly executed the written MoU cannot be
unilaterally cancelled by just a notice and
that too without any specific reason. It is
submitted that the respondent no.1 by his
reply to the said notice has already
clarified the position of subsistence of
the MoU and called upon the applicant and
the respondent No.14 to comply with the MoU
in its letter and spirit and this conduct
also disentitles the applicant to claim any
equitable relief.
4.4) Learned Senior Advocate Mr.Shah has
submitted that the lower Court has
correctly followed the principles for
exercising the powers under Order VII Rule
11 of the CPC and has given cogent reasons
by following ratio of various decisions of
the Supreme Court for refusal to reject the
plaint. It is submitted that there is no
error of jurisdiction committed by the
lower court, which requires interference
under Section 115 of the CPC and mere wrong
C/CRA/105/2019 CAV JUDGMENT DATED: 11/10/2022
decision assuming without admitting the
same by the lower court is no ground for
interference as per the settled law.
4.5) Learned Senior Advocate Mr.Shah has
submitted that as per the settled position
of law, for applicability of Order VII Rule
11 of the CPC, only the averments in the
plaint and the documents produced by the
plaintiff are required to be looked into
and are required to be considered as true
and correct at this stage. The defence or
the documents of the defendants or even the
averments made in the application under
Order VII Rule 11 of the CPC are wholly
irrelevant at this stage and cannot be
looked into. It is submitted that the
plaint clearly and categorically states all
the facts inter alia execution of agreement
to the PoA in favour of the deceased-
defendant no.7, execution of agreement to
sell in favour of plaintiff dated
10.01.2005, the payment of consideration of
Rs.80,00,000/- by the plaintiff, sign of
the executive magistrate before whom the
agreement was executed, preconditions for
getting the sale deed executed, readiness
and willingness of the plaintiff,
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fraudulent execution of subsequent sale
deeds without the knowledge of the
plaintiff, facts leading to accrual of
cause of action lis pendens transfer to
defendant no.14 and specific prayers for
specific performance, damages, challenging
the sale deeds and permanent injunction.
It is submitted that as on date the case as
set-up in the plaint is required to be
believed at least for the purpose of
adjudication of application under Order VII
Rule 11 of the CPC. It is submitted that
even the Defendant No.2 and Defendant
Nos.7(A) to 7(C) have filed the written
statement Exh.31 and 33 respectively in
favour of the plaintiff. It is submitted
that there is no specific date fixed in the
agreement to sell for its performance and
therefore, it is the Second Part of Article
54 of the Limitation Act, which applies to
the facts of the case, which says that the
limitation runs from the date when the
plaintiff has the notice that the
performance is refused. It is submitted
that as per the settled proposition of law,
in such a case the question of limitation
is always a question of fact, which
requires evidence to be led.
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4.6) In support of his submissions, he has
placed reliance on the judgment of the
Supreme Court in the case of Urvashiben vs.
Krishnakant Manuprasad Trivedi , 2019 (13)
SCC 372, and in the case of Chhotanben vs.
Kiritbhai Jalkrushnabhai Thakkar , AIR 2018
SC 2447.
4.7) Learned Senior Advocate Mr.Shah has
submitted that as per the settled position
of law, in an agreement for an immovable
property, time is never an essence of
contract and has placed reliance on the
judgment of the Supreme Court in the case
of Panchanan Dhara Versus Monmatha Nath
Maity (Dead) Thr.Lrs. (2006) 5 SCC 340.
4.8) Learned Senior Advocate Mr.Shah has
submitted that no deemed knowledge of any
subsequent transaction can be attributed to
the plaintiff. It is submitted that the
plaintiff has clearly pleaded that he had,
in fact, no knowledge of any subsequent
sale deeds having been executed after his
agreement and this plea of the plaintiff is
required to be believed at this stage. It
is submitted that the provisions of Section
3 of the Transfer of Property Act, 1882
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only raises a presumption of knowledge,
which is always rebuttable during the
course of trial by leading evidence, and
further the principle of "deemed knowledge"
only applies to previous transactions and
not to any transactions, which are
subsequent to agreement to sell.
4.9) In support of his submissions, he has
placed reliance on the judgments of this
Court in the case of Bahadurbhai Laljibhai
Malhotra vs. Ambalal Joitaram Heir of
Joitaram Ranchhoddas, 2015 (3) GLR 2760, on
the decision passed in First Appeal No.124
of 2014 dated 10.05.2019, and on the
judgments of the Supreme Court in the case
of Tilakdhari Lal vs. Khedan Lal , AIR 1921
PC 112 and in the case of Salim
D.Agboatwala Versus Shamalji Oddhavji
Thakkar, AIR 2021 SC 5212.
4.10) Learned Senior Advocate Mr.Shah has
submitted that the plaintiff in the plaint
has prayed for more than one reliefs,
including the relief of damages and return
of money with interest and for permanent
injunction. It is submitted that assuming
without admitting that the relief of
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challenging the alleged sale deeds is barred
by limitation, the plaint cannot be rejected
in part qua the said relief, as other reliefs
are clearly not hit by the provisions of
the Limitation Act. In support of his
submission, he has placed reliance on the
judgment of the Supreme Court in the case
of Madhav Prasad Aggarwal @ Anr. Vs. Axis
Bank Limited & Anr. ,(2019) 1 SCC 158.
4.11) Learned Senior Advocate Mr.Shah has
submitted that merely because the say of
the applicant is that the plaintiff is not
likely to succeed at all in the suit is no
ground for rejecting the plaint under Order
VII Rule 11 of the CPC.
4.12) Learned Senior Advocate Mr.Shah has
submitted that the alleged case of the
defendants, as regards the criminal
proceedings or handwriting expert opinion,
is all in the realm of defence of the
defendants, which is not required to be
looked into at this stage. It is submitted
that even otherwise the plaintiff was not
at all named in the alleged FIR of the year
2005 and the plaintiff disputes various
documents of the defendants.
C/CRA/105/2019 CAV JUDGMENT DATED: 11/10/2022
4.13) Learned Senior Advocate Mr.Shah has
submitted that the parameters of deciding
application Exh.5 for interim injunction
and for rejection of plaint under Order VII
Rule 11 of the CPC are wholly different.
While deciding Exh.5 application, the court
can look into defence of the defendants for
reaching to prima facie findings and such
findings even otherwise is just prima
facie, which can never allow the plaint to
be rejected under Order VII Rule 11 of the
CPC.
(5) In rejoinder, learned Senior advocate
Mr.Pahwa has submitted that the preliminary
objections of the respondent No.1-original
plaintiff is to the effect that as there is
no challenge to the order (although common
order) dated 16.01.2019 insofar as Exh.103
is concerned, which would result into
conflicting orders of the Trial Court and
this Court and hence, the present revision
application is not maintainable, is liable
to be rejected.
5.1) It is submitted that it is relevant to
mention that all these judgments are in the
context of Section 11 of the CPC, which is
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the principle of res judicata. It is
submitted that the very basic premise of
the principle of res judicata is that there
has to be a former suit or proceedings
which has been heard and finally decided
and a subsequent suit or proceedings in
respect of matter directly and
substantially in issue in the former suit
or proceedings is sought to be raised in
the subsequent suit or proceeding which is
barred. It is contended that this principle
can also be extended in a case where
against an order made by the Trial Court,
the Superior Court is approached and the
order of the Trial Court is reversed or
confirmed, and in such a case, no
subsequent proceedings on a matter directly
and substantially decided by the Superior
Court would be barred, either before the
Trial Court or before the High Court. It is
submitted that the contention of the
respondent No.1-original plaintiff that as
the applicant of Exh.103 has not challenged
the order dated 16.01.2019, which is a
common order on application Exh.102 and
Exh.103, the present revision application
is not maintainable, is liable to be
rejected. It is submitted that the
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principle of res judicata does not and
cannot bar the challenge to the order dated
16.01.2019 by the applicant of Exh.102 even
if the applicant of application Exh.103 has
not impugned the order dated 16.01.2019. It
is submitted that the effect of decision in
the present revision application would be
that the applicant of application Exh.103
will be barred from then challenging the
order dated 16.01.2019 as it would be only
the order made by this Court which would
operate and would hold the field.
(6) Learned Senior Advocate Mr.Pahwa has tried
to distinguish the judgemnts, on which the
reliance is placed by learned Senior
Advocate Mr.Shah. It is submitted that the
decision of the Supreme Court in the case
of Premier Tyres Limited (supra) , wherein,
two suits were filed, one by the appellant-
Premier Tyres Limited and another by Kerala
State Road Transport Corporation (KSRTC)
seeking different reliefs. Premier Tyres
Limited did not file any appeal against the
dismissal of the suit for part of its claim
but only filed appeal against the decree
granted in favour of KSRTC in the suit
filed by KSRTC. It is in this background
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that the appeal filed by Premier Tyres
Limited came to be dismissed as barred by
res judicata in view of the findings
recorded in the connected suit. Similarly,
it is contended that the decision of this
Court in the case of Darayas Baman Shah
Medhora (supra) is not applicable in the
facts of the present case, since there were
two counter- suits decided by a common
judgment and the appellant filed appeal
only challenging the decree passed in
Special Civil Suit No.700 of 2000, hence
the High Court dismissed the appeal as
barred by res judicata since the findings
recorded in the suit filed by the appellant
had become final.
6.1) It is submitted that the decision of the
Supreme Court in the case of Harbans Singh
(supra) again based on the principle of res
judicata has no application in the present
case since there were two suits instituted
by the Management and one by Sant Hari
Singh. The suit instituted by Sant Hari
Singh came to be decreed and the suit
instituted by the Managing Committee was
dismissed. Hence, the High Court also held
that no appeal has been filed in the
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connected suit and, therefore, the findings
recorded by the Trial Court as also the
First Appellate Court in the connected suit
has attained finality.
6.2) Learned Senior Advocate Mr.Pahwa has
asserted that the decision of the Supreme
Court in the case of Sri Gangai Vinagar
Temple (supra) is also on the principles of
res judicata and not applicable to the
facts of the present case, since three
suits were instituted by the tenant and the
tenants did not file any appeal in respect
of two suits. The Trust did not file any
appeal in respect of their suit and in such
facts, the Supreme Court held that
considering the fact that there were
different reliefs sought in the different
suits and that there were adverse decrees,
the tenants having failed to file appeals
against the decrees in their suits hence,
the principle of res judicata will apply.
6.3) Finally, it is submitted by learned Senior
advocate Mr.Pahawa that the plaint does not
disclose the cause of action. It is
submitted that the same does not disclose
as to when the plaintiff knew about the
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denial of performance of the agreement to
sell or denial to repay the amount alleged
to have been paid to late PoA holder late
Shri Davra. It is submitted that so far the
aspect of MoU is concerned that the
applicant has already issued a notice for
cancellation of the same, and hence the
applicant is not bound by it.
(7) Mr.Prakash Jani, learned Senior Advocate
appearing with Mr.Harsh K. Thakar for
respondent no.14 submits that the suit
instituted by respondent no.1-original
plaintiff is barred by law of limitation.
It is submitted that respondent no.14 had
purchased three parcels of land from
original owners, who are respondent nos.8,
9 and 10 and the said sale in favour of the
respondent no.14 by the original owners is
not disputed by the plaintiff. It is
submitted that the sale deed in favour of
respondent no.14 had taken place on
13.09.2018 since no interim relief was
granted in the civil suit. It is submitted
that the original plaintiff-respondent no.1
claimed to have executed unregistered
agreement to sell by the PoA holder
Mr.Rameshbhai Manjibhai Davra i.e
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respondent no.7. It is submitted that the
original owners have never executed PoA in
favour of Shri Rameshbhai Manjibhai Davra
i.e. respondent no.7 on 02.09.2004. It is
further submitted that the respondent no.1,
who is the plaintiff, is said to have
agreement to sell in his favour dated
10.01.2005 executed by the PoA holder of the
original owners. It is submitted that if the
plaintiff had executed the agreement to sell
on 10.01.2005, then he ought to have taken
out appropriate legal steps for effecting
the sale deed based on the so-called
agreement to sell by instituting a civil
suit within 3 years from the date of the
alleged agreement to sell dated 10.01.2005
as per the provision of Articles 54, 58 and
59 of the Limitation Act, 1963. It is
submitted that in the present case the
plaintiff-respondent no.1 has instituted the
civil suit on 13.10.2014. It is submitted
that the Judge ought to have returned the
plaint, having regard to the facts of the
case, as narrated hereinabove.
7.1) Learned Senior Advocate Mr.Jani has also
asserted that the agreement to sell in
favour of respondent no.1 is of year 2005
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executed by the PoA in favour of the same
plaintiff, is on Rs.50/- stamp paper, which
is the foundation to institute the suit in
the year 2014 for specific performance. It
is submitted that though in the agreement it
is mentioned Rs.80,00,000/- consideration is
paid, the same is shown to have been paid in
cash and no cheque transaction is shown in
the alleged agreement to sell. It is
submitted that a public notice was also
given in different daily newspapers' on
01.09.2004, 22.06.2005, 08.09.2007 and
20.11.2007 specifically clarifying the fact
that the applicant has never given any PoA
to Shri Rameshbhai Davra and any document by
the said PoA would be considered as null and
void. It is submitted that no objection was
ever raised by the original plaintiff-
respondent no.1, even though it was a public
notice. It is submitted that in fact in the
criminal case as well as in the civil suit
the PoA holder has filed his affidavit dated
19.04.2010, wherein he has admitted that he
has created PoA dated 02.09.2004 forging the
signature of the original land owners. It is
submitted that during the course of
investigation of criminal complain-FIR the
document was sent to the FSL, Gandhinagar.
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It is submitted that the report of FSL,
Gandhinagar dated 31.01.2006 shows that
signature in the PoA dated 02.09.2004 is
forged and fabricated. It is below Exh.104
and Exh.105 in the present suit Dhirubhai-
respondent no.7.3 and Vallabhbhai-respondent
no.2 have filed further affidavits
confirming the stand of the applicant that
the PoA is forged document and no
consideration whatsoever was paid to the
original owners. It is further submitted
that the respondent No.14 has got the
development permission from the concerned
authorities to construct 21 towers and he
has developed the land in question and has
constructed 6 towers each containing of 12
floors and indeed one of the towers has been
already occupied by its owners. It is
submitted that pendency of the suit, which
is not maintainable on facts of it, is
causing severe difficulties to respondent
no.14.
7.2) In support of the aforenoted submissions,
reliance is placed on the judgments of the
Supreme Court in the case of Smt. Dilboo
(Dead) by L.Rs. & Others vs. Smt Dhanraji
(dead) & Others, 2000 (7) SCC 702, in the
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case of Becharbhai Zaverbhai Patel & Another
vs. Jashbhai Shivabhai Patel & Others, 2013
(1) GLR 398. Reliance is also placed on the
judgment of the Supreme Court in the case of
Dahiben vs.Arvindbhai Kalyanji Bhanusali &
Ors., 2020 (7) SCC 366, and in the case of
Radhwendra Sharan Singh vs. Ram Parsanna
Singh, 2020 (16) SCC 601.
(8) Learned advocate Mr.Niraj Sharma appearing
for the respondent nos.2, 3, 4, 5.2, 6, 8,
9, 10 and 13 has submitted that they have
filed the affidavits in the present Civil
Revision Application supporting the case of
the present applicant. It is further
submitted that we adopted the arguments
advance by the applicant-original defendant
no.1 that Shri Rameshbhai Manjibhai Davra
has created bogus PoA on 02.09.2004.
CONCLUSION:
(9) From the aforenoted submissions and facts,
two issues stem out for consideration.
(A) whether the present revision application
is barred by the principle of res judicate;
and
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(B) Whether the suit instituted by the
plaintiff is barred by limitation, and the
plaint does not disclose any cause of
auction and deserves to be rejected by
resorting to the provision of Order VII Rule
11(a) and (d) of the CPC.
(10) With regard to the first issue of the
present revision application being barred by
principle of res judicata, it is contended
by the respondent no.1-plaintiff that since
the applicant of Exh.103 has not challenged
the order dated 16.01.2019, which is a
common order on application Exh.102 and
Exh.103, hence, the present revision
application is not maintainable. There were
two applications filed under the provision
of Order VII Rule 11 of the CPC being
Exh.102 by the applicant-defendant no.1 and
Exh.103 by defendant no.2 and 7-A.
Defendant no.7-A is the heir of late Shri
Rameshbhai Manjibhai Dawra, the PoA holder.
The defendant no.1 has assailed the order
dated 16.01.2019 passed by filing the
present revision application, however the
defendant nos.2 and 7-A have not chosen to
assail the said order. It is contended by
respondent no.1-original plaintiff that
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since the defendant nos.2 and 7-A have
chosen not to challenge the impugned order
dated 16.01.2019, the revision application
filed by the applicant will be barred by
the principle of res judicata since any
order passed by this Court will be contrary
to the order dated 16.01.2019 passed below
Exh.103, which has become final. The
aforesaid submission advanced by the
respondent no.1-original plaintiff is hard
to comprehend and does not merit acceptance
since the same is made without appreciating
the true purport of principle of res
judicata.
(11) The doctrine of res judicata is embedded in
the maxims "res judicata pro veritate
acciptitur" (A thing adjudicated is received
as the truth). It is well settled
proposition of law that "No court shall try
any suit or issue in which the matter
directly and substantially in issue has been
directly and substantially in issue in a
former suit or proceedings between the same
parties, or between parties under whom they
or any of them claim, litigating under the
same title, in a court competent to try such
subsequent suit or the suit in which such
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issue has been subsequently raised and has
been heard and finally decided by such
Court. When any issue whether on question of
law or fact has been decided in any
proceedings and the decision has become
final, neither of the party can be allowed
to reopen the issues in future by filing the
subsequent proceedings questioning the
findings on question of law or fact. Hence,
in the subsequent proceedings, the doctrine
of res judicata will operate between co-
defendants. It will operate against the
defendant nos.2 and 7-A in case they choose
to file any proceedings after the decision
rendered in the present revision
application. Any decision which is passed by
this Court will bind them and it will not be
open for them to again re-agitate the issues
by challenging the impugned order dated
16.0l.2019 passed below Exh.103. If the
submission advanced by the respondent no.1,
is accepted, then the present applicant-
defendant no.1 will be barred from
questioning the impugned order, merely
because his co-defendants have chosen not to
do so, and he has to wait till they deem fit
to challenge. The existence or subsistence
of order passed by the Trial Court below
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Exh.103 cannot preclude this Court from
examining such order passed below Exh.102 by
exercising its power under the provision of
section 115 of the CPC, merely because the
co-defendants of Exh.103 have chosen not to
assail the said order. The order passed by
this Court in the present revision
application will eclipse the order passed in
Exh.103, and will not trigger the effect of
doctrine of res judicata on the present
proceedings. Once any such order is passed,
the other defendant nos.2 and 7-A, who have
not chosen to assail such order have no
option, but to accept the same. There cannot
be any cavil on the proposition of law
enunciated by the Supreme Court in the
decisions cited by learned Senior Advocate
Mr.Shah, but the same will not apply in wake
of the aforesaid fact. Hence, the contention
with regard to the present revision
application being barred by res judicata is
rejected.
(12) In the present case, the applicant has
asserted that the suit is barred by - (a)
limitation (Order VII Rule 11(d) of the CPC,
i.e. the suit is barred by any law; and (b)
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the plaint does not disclose any cause of
action (Order VII 11(a) of the CPC).
(13) In order to determine that the plaint is
barred under the provisions of Order VII
Rule 11 of the CPC, it is necessary to
examine the averments made in the plaint.
Though, it is contended by the applicant-
defendant no.1, that in the order dated
17.08.2015 passed below Exh.5 rejecting the
application of the plaintiff, it is observed
that the PoA dated 02.09.2004 is found to be
forged by the FSL and the applicant had also
filed a criminal complaint against the PoA
holder Shri Rameshbhai Davra, which
culminated into Criminal Case No.3571 of
2006, this Court is precluded in taking
cognizance of the order passed below Exh.5,
since it is well settled proposition of law
that for the purpose of invoking Order VII
Rule 11 of the CPC, the averments made in
the plaint and the accompanying documents
have to be only exclusively examined, and no
evidence can be looked into. The issue on
merit of the matter, which may arise between
the parties would not be in the realm of the
Court at that stage. The defence taken by
the defendant in the written statement
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cannot be taken into consideration and the
plaint has to be read as a whole and the
application cannot be decided in context of
few averments made in the plaint. On the
presentation of the plaint, it is the solemn
duty of the Trial Court to examine whether
the suit discloses the cause of action or
is it barred by any law, and the Trial Court
does not have to wait for such objection
being taken by the other party. The
contention of the plaintiff and the
defendants with regard to the executing of
MoU and seeking cancellation of MoU between
them will also have no bearing in deciding
the application.
Bar of Clause (d) of Rule 11 Order VII CPC:
(14) Keeping in mind the aforementioned
observations, I may examine the recitals of
the plaint. In the present case, the
recitals of the plaint suggest that
plaintiff - Mukeshbhai Prakashbhai Shukla
has instituted Special Civil Suit No.159 of
2017 (old No.639 of 2014) for specific
performance of an agreement to sell dated
10.01.2005, executed pursuant to a power of
attorney dated 02.09.2004, and in the
alternative to award a compensation of Rs.20
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crores. The plaintiff has also prayed for
cancellation of various sale deeds,
including the sale deed dated 28.02.2005 in
favour of the applicant-defendant no.1. By
amending the plaint, the plaintiff has also
prayed for setting aside eleven registered
sale deeds executed in the year 2005.
(15) The plaintiff along with prayer for specific
performance of agreement to sell is also
seeking cancellation of the registered sale
deeds executed in the year 2005. The
defendants have asserted that the plaintiff
can be attributed the deemed knowledge of
the sale deeds of which cancellation is
sought after a period of nine years. The
principle of "deemed Knowledge" has been
articulated in the case of Dilboo (supra).
The relevant observations are extracted as
below:
"20................ Thus a suit for redemption of
mortgage could be filed within 60 years. But if the
mortgagee had created an interest in excess of the
right enjoyed by him then to recover possession
against the third party the suit had to be filed
within 12 years of the transfer becoming known to the
plaintiff. The rationale in cutting down the period
of 60 years to 12 years is clear. The 60 years'
period is granted as a mortgagee always remains a
mortgagee and thus the rights remain the same.
However when an interest in excess of the interest of
the mortgagee is created then the third party is not
claiming under the mortgagee. The position of such a
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person could not be worse than that of a rank
trespasser who was in an open and hostile possession.
As the title of the rank trespasser would get
perfected by adverse possession on the expiry of 12
years so also the title of such transferee would get
perfected after 12 years. The period of 12 years has
to run from the date of knowledge by the plaintiff of
such transfer. It is always for the party who files
the suit to show that the suit is within time. Thus
in cases where the suit is filed beyond the period of
12 years, the plaintiff would have to aver and then
prove that the suit is within 12 years of his/her
knowledge. In the absence of any averment or proof,
to show that the suit is within time, it is the
plaintiff who would fail. Whenever a document is
registered the date of registration becomes the date
of deemed knowledge. 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, the Apex Court has held that whenever
a document is registered the date of
registration becomes the date of 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. In the
present case, the plaintiff is seeking
cancellations of 11 sale deeds registered in
the year 2005. The details in the plaint
indicate that out of 11 sale deeds, 06 are
registered on 28.02.2005 and others on
12.09.2005 and 10.2.2005 respectively. Thus,
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the plaintiff can be said to have the deemed
knowledge of all these registered sale deeds
executed in the year 2005. The suit is
instituted by alleging that all the
documents are fabricated and forged, since
the PoA had already executed the agreement
to sell and an amount of Rs.80,00,000/- is
taken from him in cash. It is pertinent to
note that the suit is instituted in October,
2014 and the PoA holder - Shri Rameshbhai
Manjibhai Davra has passed away on
05.10.2011. In the plaint, the plaintiff has
not averred that during lifetime of PoA Shri
Rameshbhai Manjibhai Davra, he has made any
efforts, either to get a registered sale
deed executed or to recover any money from
him. The suit is instituted by joining the
legal heirs of late PoA - Shri Rameshbhai
Davra, out of them defendant no.7, Dhirubhai
Manjibhai Davra is the subsequent purchaser.
(16) The Coordinate Bench of this Court in the
case of Hemendra Ishwarbhai Patel (supra),
after considering the decision of the Apex
Court in the case of Dilboo (supra), in the
suit filed beyond the period of limitation
seeking specific performance of agreement to
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sell and cancellation of sale deed, has held
thus:
"18 It is also pertinent to note that during the
period of 1995 to 2008 many other sale deeds and
reconveyance deeds were executed by the defendants
inter se, as stated in the plaint itself, and all the
said deeds were also registered in the office of Sub-
Registrar. As held by the Supreme Court in case of
Dilboo (Smt.) (dead) by Lrs. and Ors. Vs. Dhanraji
(Smt.) (Dead) and Ors., reported in (2000) 7 SCC 702,
whenever a document is registered, the date of
registration becomes the date of deemed knowledge. In
other cases, where a fact could be discovered by due
diligence, then deemed knowledge would be attributed
to the plaintiff, because a party can not be allowed
to extend period of limitation by merely claiming
that he had no knowledge. When the suit is filed
beyond period of limitation, the plaintiffs have to
aver in the plaint as to when they came to know
about the sale deeds executed by the defendants inter
se and how the suit is within limitation. In the
instant case, the respondents - plaintiffs are
conveniently silent as to on which date they came to
know about the denial of performance of the agreement
by the defendant No.1 so as to come within the period
of limitation as contemplated in Article 54 of the
Limitation Act, and on which date they came to know
about the execution of the other sale deeds of which
cancellation is sought. Apart from the fact that the
said Gokulbhai had signed on the sale deeds
dated 15.4.1998 executed in favour of the defendant
Nos.4 to 9, the said sale deeds being registered
documents, deemed knowledge of the plaintiffs could
be presumed in respect of the said deed. In absence
of any averment in the plaint as to why they did not
take any action against the defendants - owners for
such a long time, and as to when they came to know
about denial of their rights under the agreement by
the defendant owners, the Court is constrained to
hold that the suit is barred by law of limitation, so
far as relief sought in respect of the specific
performance of the agreement dated 13.6.1995 is
concerned. The very foundation of the claim of the
plaintiffs being the said agreement, and if the
specific performance of the said agreement is
barred by law of limitation, the question of
cancellation of the sale deeds executed in favour of
the other defendants during the period 1995 to 2008
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would not arise. In that view of the matter, the
Court is of the opinion that the suit being ex facie
barred by limitation, the plaint is also liable to be
rejected under Clause (d) of Rule 11, Order VII."
(17) This Court, while examining a plaint seeking
specific performance of contract and also
cancellation of sale deed has held that
"When the suit is filed beyond period of
limitation, the plaintiffs have to aver in
the plaint as to when they came to know
about the sale deeds executed by the
defendants inter se and how the suit is
within limitation." In the instant case, the
plaint is blissfully silent on the aspect of
denial of performance by the defendants. The
plaintiff has very conveniently not
mentioned as to on which date he came to
know about the denial of performance of the
agreement by the defendants, so as to come
within the period of limitation as
contemplated in Article 54 of the Limitation
Act, and also that on which date he came to
know about the execution of the other sale
deeds of which cancellation is sought. The
plaint is bereft of such averments, hence,
in absence of any averment in the plaint as
to why he did not take any action against
the defendants for such a long time, and as
to when he acquired the knowledge about
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denial of his right under the agreement by
the defendant owners, this Court is left
with no other option but to hold that the
suit is barred by law of limitation under
Article 54 of the Limitation Act, 1963 so
far as relief sought in respect of the
specific performance of the agreement to
sell dated 10.01.2005, is concerned. Since,
the substratum of claim of the plaintiff
seeking enforcement of agreement to sell is
barred by law of limitation, the question of
cancellation of the sale deeds executed in
favour of the other defendants in the year
2005 does not arise. As held by the Apex
Court in the case of Urvashiben (supra),
(the decision on which the plaintiff has
placed reliance), it is true that the issue
of limitation may tend to be a mix question
of law and facts, if the facts leading to
the bar of limitation are disputable
requiring adjudication; however, where facts
are not disputable and only law is required
to be applied to the facts, the issue of
limitation would not be a mix question of
law and fact. On the contrary, the decision
in case of Urvashiben (supra) will help the
defendants, where in the Apex Court while
examining Article 54 of the Limitation Act
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has held that the limitation will commence
when it is noticed by the plaintiff that the
performance has been refused, and the
starting point would be when the plaintiff
noticed refusal of performance of contract
by the defendant. In the present case, as
noted herein above the plaint does not
disclose the time of refusal of performance
by the defendants. The decision in case of
Chottanben (supra) will not rescue the
plaintiff since the same will not apply to
the facts of case. In the case before the
Apex Court it was specifically alleged that
the deed contained forged thumb impression
and signatures of the plaintiffs and the
plaint contained specific date of cause of
action.
BAR of Clause (a) of Rule 11 Order VII CPC
(cause of auction):
(18) The cause of action for filing the suit is
mentioned in paragraph 12 of the plaint. A
translated version of the same is as below:
"12. Reason of this Suit:
When the POA holder of the land-owners executed,
with the knowledge and consent of the land-
owners, the Deed of Exchange dated 10/01/2005 in
favor of we the Plaintiffs, the Respondents in
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the present case had received sufficient
consideration thereof from we the Plaintiff. At
that time and even thereafter, we the Plaintiffs
have repeatedly requested the Respondents to get
the title cleared by the land-owners, obtain NA
permission and then accept the remaining
consideration amount from us and get the Sale
Deed executed. At that time and consequently, all
the Respondents in collusion with each other have
hatched a conspiracy and pretended to have
executed the Sale Deed, mentioned in the above
table, with regard to some of the land out of the
suit property. The reason of this suit has arisen
at that time as well as at later stages, when
they proceeded to sell the disputed property to
other persons, when they did not comply with the
Deed of Exchange to get the Sale Deed executed in
our favor, when all these facts came to our
knowledge when we obtained copies of Form-7/12 as
well as on the different occasions which occurred
on day to day basis. Therefore, the present suit
is not barred by limitation."
(19) At this stage, I may with profit refer to
the judgment of Apex Court in the case of
Dahiben (supra). The Supreme Court while
examining a plaint, has explained the
expression "cause of action". The same reads
as under:
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"13 "Cause of action" means every fact which would be
necessary for the plaintiff to prove, if traversed, in
order to support his right to judgment. It consists of a
bundle of material facts, which are necessary for the
plaintiff to prove in order to entitle him to the
reliefs claimed in the suit.
In Swamy Atmanand v. Sri Ramakrishna Tapovanam, (2005)
10 SCC 51. this Court held :
"24. A cause of action, thus, means every fact, which if
traversed, it would be necessary for the plaintiff to
prove an order to support his right to a judgment of the
court. In other words, it is a bundle of facts, which
taken with the law applicable to them gives the
plaintiff a right to relief against the defendant. It
must include some act done by the defendant since in the
absence of such an act, no cause of action can possibly
accrue. It is not limited to the actual infringement of
the right sued on but includes all the material facts on
which it is founded"
(emphasis supplied)
In T. Arivandandam v. T.V. Satyapal & Anr., (1977) 4 SCC
467. this Court held that while considering an
application under Order VII Rule 11 CPC what is required
to be decided is whether the plaint discloses a real
cause of action, or something purely illusory, in the
following words : -
"5. ...The learned Munsiff 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 O. VII, R. 11, 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 ..."
xxxxxxxxxxxx
Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate
Tribunal, (1998) 2 SCC 170, this Court held that law
cannot permit clever drafting which creates illusions of
a cause of action. What is required is that a clear
right must be made out in the plaint.
If, however, by clever drafting of the plaint, it has
created the illusion of a cause of action, this Court in
Madanuri Sri Ramachandra Murthy v. Syed Jalal, (2017) 13
SCC 174, held that it should be nipped in the bud, so
that bogus litigation will end at the earliest stage.
The Court must be vigilant against any camouflage or
suppression, and determine whether the litigation is
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utterly vexatious, and an abuse of the process of the
court."
In Khatri Hotels Pvt. Ltd. & Anr. v. Union of India &
Anr., (2011) 9 SCC 126, this Court held that the use of
the word first between the words sue and accrued , would
mean that if a suit is based on multiple causes of
action, the period of limitation will begin to run from
the date when the right to sue first accrues. That is,
if there are successive violations of the right, it
would not give rise to a fresh cause of action, and the
suit will be liable to be dismissed, if it is beyond the
period of limitation counted from the date when the
right to sue first accrued.
A three-Judge Bench of this Court in State of Punjab v.
Gurdev Singh, (1991) 4 SCC 1, held that the Court must
examine the plaint and determine when the right to sue
first accrued to the plaintiff, and whether on the
assumed facts, the plaint is within time. The words
"right to sue" means the right to seek relief by means
of legal proceedings. The right to sue accrues only when
the cause of action arises. The suit must be instituted
when the right asserted in the suit is infringed, or
when there is a clear and unequivocal threat to infringe
such right by the defendant against whom the suit is
instituted.
Order VII Rule 11(d) provides that where a suit appears
from the averments in the plaint to be barred by any
law, the plaint shall be rejected."
(20) From the aforementioned observations of the
Apex court it is manifest that if by a
clever drafting an illusionary a cause of
action is created that the suit is required
to be nipped in the bud. It is held that
the suit must be instituted when the right
asserted in the suit is infringed, or when
there is a clear and unequivocal threat to
infringe such right by the defendant
against whom the suit is instituted. As
noted herein above, there is no whisper in
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the plaint which indicates the plaintiff has
averred as to when he came to know the
execution of the sale deeds by the
defendants. The plaintiff has to incorporate
a specific averment as to how and when the
cause of action to file the suit against the
defendant has arisen. The cause of action of
the plaint as mentioned herein above is
vague and general and is bereft of any
specific time/date or specific act done on
behalf of the defendant such as refusing the
specific performance which gave rise of
filing the suit. Even if the time is not the
essence of contract in the agreement to
sell, and case of the plaintiff will fall in
the second part of Article 54 of Limitation
Act, the plaintiff is still required to
state as to how the suit was within the
period of limitation, in wake of the fact
that the agreement to sale of the year 2005
is sought to be enforced in 2014. The
plaintiff has to aver what steps or action
has he taken for the intervening period of 9
years in order to bring the suit within
limitation and when he noticed the refusal
of specific performance. Hence, in the
considered opinion of this Court, since the
plaintiff has failed to disclose the cause
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of action against the defendants, the plaint
is required to be rejected under Clause(a)
of the Rule 11 of Order VII of the CPC.
(21) With regard to the alternative prayer for
recovery of amount of Rs.20,00,00,000/-
(twenty crores), it is noticed that the
plaintiff has alleged in the
plaint(paragraph 4) that he had paid an
amount of Rs.80,00,00/- (eighty lacs) in
cash to the power of attorney, and he had
assured that he will undertake necessary
exercise for title clearance of the land
"shortly". There is not a single averment in
the plaint that till the PoA holder Shri
Rameshbhai Davra passed away on 5.10.2011,
the plaintiff has made any efforts for
recovery of amount or he has asked late Shri
Davra to inquire about the status of the
proceedings undertaken by him, if any. With
such allegations, the suit is instituted for
recovery of amount, which is alleged to have
been paid to the power of attorney holder
after his death that too against the
defendants who were never party to such
transaction. The prayer of recovery of
amount is a consequential and alternative
prayer made to the main prayer seeking
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performance of agreement to sell. Since,
this Court has opined that the suit for
specific performance is barred by limitation
and does not disclose cause of action, the
alternative prayer of recovery money as a
sequel fails.
(22) The respondent-plaintiff has also raised the
contention of limited jurisdiction of this
Court while exercising its power under
section 115 of the CPC. It is submitted that
there is no jurisdictional error committed
by the Court below, hence this Court may
not set aside the impugned order.
Jurisdictional error includes the failure
of exercise of jurisdiction vested in the
Court. The Court below has failed to
appreciate the material facts of the case
and has misdirected itself in rejecting the
application filed seeking the rejection of
plaint. The Court below has failed to
exercise its power conferred under Order 7
Rule 11 in rejecting the application filed
by the defendants. Hence, this Court can
invoke its revisional power under section
115 of the CPC, if it is found that the
order of the Court below is based on the
misreading of facts and is passed in
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ignorance of the well settled proposition of
law. The Apex Court has occasionality
reminded the underlying object of Order 7
Rule 11 which empowers the Court to put an
end to the sham and vexatious litigation, at
the threshold on filing of the plaint or at
any stage of trial in order to see that the
further judicial time is not wasted.
(23) On the substratum of the afore-noted
analysis and observations, the Civil
Revision Application merits acceptance. The
impugned order dated 16.01.2019 passed by
the learned Principal Senior Civil Judge and
Additional Chief Judicial Magistrate,
Kathor, Dist.Surat rejecting the application
Exh.102 filed under Order VII Rule 11 of CPC
seeking rejection of plaint being Special
Civil Suit No.159 of 2017 (old No.639 of
2014) is quashed and set aside. As a sequel
the plaint is ordered to be returned since
the same is barred under clause (a) and (d)
of Rule 11 of Order VII of the CPC.
(24) Rule made absolute. No order as to costs.
NOTE OF CAUTION:
The plaintiff and the defendants have
placed reliance on catena of decisions in
C/CRA/105/2019 CAV JUDGMENT DATED: 11/10/2022
support of their oral and written
submissions which are noted herein above.
The law enunciated in such decisions is
either repetitive or has no bearing on the
issues, hence I did not deem it fit to deal
with each of the decisions, as the same will
result in a prolix judgment. It is high time
that the learned advocates appearing for the
respective parties stick to the relevant and
precise decisions which exclusively govern
the issue raised in the proceedings. Though,
I do not doubt that they act in the interest
of their clients, but at the same time they
should not forget that they are the officers
of this Court. In wake of huge backlog of
cases, unnecessary and repetitive citations
will only tend to consume the time of the
bar and the precious and scarce judicious
time.
Sd/- .
(A. S. SUPEHIA, J)
FURTHER ORDER
After the judgment was pronounced, learned
Senior Advocate Mr.Shah requests for stay of the
present judgment and order. The same is refused in
view of the aforementioned observations and
analysis.
Sd/- .
(A. S. SUPEHIA, J)
Bhavesh-[PPS]*
