Gujarat High Court
Rajendrabhai Mithalal Thakkar vs Sureshbhai Ramanlal Thakkar on 17 October, 2022
Bench: A.S. Supehia
C/FA/4132/2022 JUDGMENT DATED: 17/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO.4132 of 2022
With
CIVIL APPLICATION (FOR STAY) NO.1 of 2022
In R/FIRST APPEAL NO. 4132 of 2022
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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RAJENDRABHAI MITHALAL THAKKAR
Versus
SURESHBHAI RAMANLAL THAKKAR
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Appearance:
PARTH J BRAHMBHATT(9373) for the Appellant(s) No. 1
SUDHANSHU A JHA(8345) for the Appellant(s) No. 1
MR A.S. VAKIL with MR.DHIREN SHAH, ADVOCATE for
MR PRANAY V SHAH(8828) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 17/10/2022
ORAL JUDGMENT
1. ADMIT. Learned advocate Mr.Vakil, waives service of
notice of admission on behalf of the respondent.
2. The present First Appeal filed under Section 96 of the Code
of Civil Procedure, 1908, (for short, "the CPC"), emanates from
the judgment, order and decree dated 29.09.2022 passed below
Exh.30 by the City Civil Court, Ahmedabad, in Civil Suit No.1084
C/FA/4132/2022 JUDGMENT DATED: 17/10/2022
of 2022, whereby the application filed below Exh.30 under Order
VII Rule 11 of the CPC, by the defendant has been allowed and
the plaint is ordered to be rejected.
3. At the outset, learned advocate Mr.Sudhanshu Jha,
appearing for the original plaintiff-appellant has submitted that
the impugned judgment, order and decree passed by the Court
below rejecting the plaint is contrary to law enunciated by the
Apex Court in the case of Srihari Hanumandas Totala Vs. Hemant
Vithal Kamant Ors. by judgment dated 09.08.2021 passed in Civil
Appeal No.4665 of 2021 (arising out of SLP (C) No.3899 of 2021).
3.1 Learned advocate Mr.Sudhanshu Jha, has further invited the
attention of this Court to the averments made in the plaint, more
particularly the cause of action stated in paragraph No.9 and the
prayer clause and has submitted that the plaint could not have
been rejected and the same discloses the valid cause of action
and the suit is also within the period of limitation.
3.2 It is submitted that the Court below has in fact considered
the written arguments filed by the defendant below Exh.38,
which is impermissible and hence, the impugned order is
required to be quashed and set aside.
3.3 Learned advocate Mr.Jha has further submitted that the
prayers made in the plaint suggest that the plaintiff is only
seeking demarcation of the suit property, which has been
granted to him through a Will and when he came to know that on
his share of the property, an unauthorized construction has been
undertaken by the defendant, he had instituted the suit seeking
C/FA/4132/2022 JUDGMENT DATED: 17/10/2022
declaration of the demarcation of the suit property i.e. out of 740
sq. mtrs., the plaintiff would be entitled to share of 555 sq. mtrs.
and the defendant is entitled to 185 sq. mtrs. He has submitted
that it is asserted in the plaint that unauthorized construction is
being carried out by the defendant in his share of the suit
property and hence, such declaration is sought for. Thus, it is
submitted that it was not open for the Trial Court to examine the
defence of the defendant, while rejecting the plaint and hence,
the impugned judgment and order may be set aside and the suit
may be ordered to be restored.
4. Per contra, learned Advocate Mr.Vakil, with learned
advocate Mr.Dhiren Shah, appearing for learned advocate
Mr.Pranay Shah for the respondent has submitted that the
impugned order does not require any interference and the same
is appropriately passed. Learned advocate Mr.Vakil has submitted
that in fact, false and incorrect statement has been made in the
plaint, more particularly in paragraph No.6, wherein the plaintiff
has asserted that no development permission has been obtained
before undertaking the construction, however, it is submitted that
in fact, the plaintiff is the signatory to the application made
before the Corporation for seeking development permission. In
support of his submissions, he has placed reliance on the
development permission which is supplied to this Court. It is
submitted that in fact, the plaint does not disclose any cause of
action and hence, the impugned judgment and decree, which has
been passed after placing reliance on the judgment of the Apex
Court, does not require any interference. Thus, it is submitted
that the impugned judgment and decree may not be disturbed.
C/FA/4132/2022 JUDGMENT DATED: 17/10/2022
4.1 In support of his submissions, learned advocate Mr.Vakil
has placed reliance on the judgment of the Apex Court in the
case of Dahiben Versus Arvindbhai Kalyanji Bhanusali (GAJRA)
(D) Thr Lrs. & Ors., 2020 7 SCC 366 and the judgment of the
Coordinate Bench dated 10.04.2019 passed in First Appeal
No.1329 of 2019.
4.2 Learned advocate Mr.Vakil has also submitted that in fact,
until the entire 740 sq. mtrs. of the land is partitioned, the entire
land would be theirs i.e. of the plaintiff and defendant and they
will be the co-owners and hence, the development permission
was appropriately sought by both - the plaintiff and defendant.
5. I have heard the learned advocates appearing for the
respective parties.
6. Before I proceed to deal with the rival submissions, it would
be appropriate to incorporate the observations made by the Apex
Court in the case of Biswanath Banik Vs. Sulanga Bose, AIR 2022
SC 1519. The Supreme Court, while examining the provisions of
Order VII Rule 11 of CPC and an application made therein, has
observed thus :
"7.1.From the aforesaid decision and even otherwise as held by
this Court in a catena of decisions, while considering an
application under Order VII Rule 11 CPC, the Court has to go
through the entire plaint averments and cannot reject the plaint
by reading only few lines/passages and ignoring the other
relevant parts of the plaint."
The Apex Court has held that while considering an
application under Order VII Rule 11 of the CPC, the Court has to
go through the entire plaint and the averments made therein and
C/FA/4132/2022 JUDGMENT DATED: 17/10/2022
the plaint cannot be rejected by reading only few lines / passages
and ignoring the other relevant parts of the plaint.
7. In the case of Shrihari Hanumandas Totala (supra),
after survey of the various judgments, the Apex Court has
observed thus : -
"18 At this stage, it would be necessary to refer to the
decisions that particularly deal with the question whether
res judicata can be the basis or ground for rejection of the
plaint. In Kamala & others v. KT Eshwara Sa6, the Trial Judge
had allowed an application for rejection of the plaint in a
suit for partition and this was affirmed by the High Court.
Justice S B Sinha speaking for the two judge bench examined
the ambit of Order 7 Rule 11(d) of the CPC and observed:
"21. Order 7 Rule 11(d) of the Code has limited
application. It must be shown that the suit is barred
under any law. Such a conclusion must be drawn from
the averments made in the plaint. Different clauses in
Order 7 Rule 11, in our opinion, should not be mixed
up. Whereas in a given case, an application for
rejection of the plaint may be filed on more than one
ground specified in various sub-clauses thereof, a
clear finding to that effect must be arrived at. What
would be relevant for invoking clause (d) of Order 7
Rule 11 of the Code are the averments made in the
plaint. For that purpose, there cannot be any addition
or subtraction. Absence of jurisdiction on the part of
a court can be invoked at different stages and under
different provisions of the Code. Order 7 Rule 11 of
the Code is one, Order 14 Rule 2 is another.
22. For the purpose of invoking Order 7 Rule 11(d) of
the Code, no amount of evidence can be looked into.
The issues on merit of the matter which may arise
between the parties would not be within the realm of
the court at that stage. All issues shall not be the
subject-matter of an order under the said provision."
(emphasis supplied) The Court further held:
"23. The principles of res judicata, when attracted,
would bar another suit in view of Section 12 of the
Code. The question involving a mixed question of law
and fact which may require not only examination of the
plaint but also other evidence and the order passed in
the earlier suit may be taken up either as a
preliminary issue or at the final hearing, but, the
said question cannot be determined at that stage.
C/FA/4132/2022 JUDGMENT DATED: 17/10/2022
24. It is one thing to say that the averments made in
the plaint on their face discloses no cause of action,
but it is another thing to say that although the same
discloses a cause of action, the same is barred by a
law.
25. The decisions rendered by this Court as also by
various High Courts are not uniform in this behalf.
But, then the broad principle which can be culled out
therefrom is that the court at that stage would not
consider any evidence or enter into a disputed
question of fact or law. In the event, the
jurisdiction of the court is found to be barred by any
law, meaning thereby, the subject-matter thereof, the
application for rejection of plaint should be
entertained."
(emphasis supplied)
8. Thus, it is well settled proposition of law that while
examining the provision of an application filed under Order VII
Rule 11(d) of the CPC, the Court has only to examine the
averments made in the plaint along with the supported
documents and the defence of the defendant, at the stage, is
absolutely required to be ignored and the issues on merit of the
matter, which may arise between the parties, would not be within
the realm of the Court at the stage of examining an application
filed below Order VII Rule.11 of the CPC.
9. It is the case of the defendant before the Trial Court as well
as before this Court that the suit is instituted by suppressing the
relevant fact i.e. the defendant along with plaintiff, who is
the co-signatory of the application filed before the Ahmedabad
Municipal Corporation (AMC) seeking development permission.
It is the case of the defendant that in fact, the development
permission with regard to the construction, which is referred in
the plaint, is only initiated after the plaintiff along with the
defendant have jointly requested for the development permission
C/FA/4132/2022 JUDGMENT DATED: 17/10/2022
from the Corporation. Thus, the defence of the defendant, while
examining any application under Order VII Rule 11 of the CPC, is
absolutely required to be ignored and that can only be
considered in the suit proceedings.
10. The Court has also perused the cause of action, which is
narrated in paragraph No.9 of the plaint. The same is translated
from vernacular language as under:
"(9) The plaintiff further states that, out of the disputed land,
except 185 sq.m. land of the defendant's share, the defendant
in this case is carrying out construction by illegally
encroaching the remaining open land out of 555 sq.m. land of
the plaintiff's share on which the plaintiff has made
construction. The present suit has been filed to immediately
stop him doing so and to obtain a stay order and to get the
declaration that, in the said land in dispute, the plaintiff has
the share of 555 sq.m. and the defendant has the share of 185
sq.m. Further, the plaintiff states that as per the provisions of
the registered will dated 05/01/1988 of plaintiff's father Mr.
Mithalal Veljibhai Thakkar, the plaintiff has the share of 555
sq.m. and the defendant has the share of 185 sq.m. in the
land in dispute. In this regard, if the need arises to file a suit
for lawful partition or to get required relief in such suit as per
the registered will dated 05/01/1988 of the plaintiff's father Mr.
Mithalal Veljibhai Thakkar, I reserve my right for it. The
plaintiff declares before the Hon'ble Court that, in this regard,
the plaintiff has filed a separate application as per Order - 2
Rule - 2 of the Civil Procedure Code."
C/FA/4132/2022 JUDGMENT DATED: 17/10/2022
11. After making such prayers, the plaintiff has sought the
declaration to divide the suit property and also to restrain the
defendant from carrying out any illegal constructions in the suit
property. Thus, the limitation becomes an issue, which is of
mixed question of law and fact and it cannot be said that the suit
is barred by limitation and bereft of any cause of action. The
plaintiff has also explained with regard to the development
permission in paragraph No.6. All these aspects with regard to
obtaining of the development permission jointly and the
commencing of the construction, are the triable issues which can
be undertaken in a full-fledged trial proceedings. The judgement,
on which the reliance is placed by the respondent will not rescue
him since the decision rendered in case of Dahiben (supra) will
not apply to the facts of case since the facts suggest that the suit
was instituted for cancellation of the registered sale deed and
was instituted beyond the period of limitation. In the judgment of
the Coordinate Bench, the facts suggest that though the plaintiff
had mentioned filing of a writ petition, however he had not
disclosed the circumstances of filing the writ petition and there
was no cause of action to plead in the plaint. In the present case,
as mentioned herein above, the cause of action is clearly
disclosed in the plaint. The core issue is the manner in which the
application filed under Order VII Rule 11 of the CPC is dealt with
by the Court below. As held in the case of Dahiben (supra), the
Apex Court has fortified that while examining an application
under Order VII Rule 11 of the CPC, the Court should scrutinize
recitals in the plaint as a whole, without any subtraction or
addition, and if the allegations made in the plaint prima facie
show a cause of action, the Court cannot embark upon an inquiry
whether the allegations are true in fact.
C/FA/4132/2022 JUDGMENT DATED: 17/10/2022
12. In the instant case, the approach of the Trial Court runs
contrary to the settle proposition of law as enunciated by the
Apex Court in the aforementioned judgement. A persual of the
impugned order, particularly paragraph No.5 thereof, reveals that
while rejecting the plaint the Trial Court has considered the
written arguments of the defendant, which is filed at Exh.38,
which is impermissible and could not have been considered. Only
the recitals made in the plaint along with the accompanying
documents are the subject matter of scrutiny, while deciding the
application under Order VII Rule 11 of the CPC, and the defence
of the defendant has no bearing. Under these circumstances, in
view of the settled proposition of law, the Court below has
travelled beyond its jurisdiction while examining the contents of
the written statements of the defendant while rejecting the
plaint.
13. Hence, the present appeal succeeds. The impugned
judgment, order and decree dated 29.09.2022 passed below
Exh.30 by the City Civil Court, Ahmedabad, in Civil Suit No.1084
of 2022 is quashed and set aside. Civil Suit No.1084 of 2022 is
ordered to be restored to its original file. Registry of the Court
below is directed to immediately, place the matter on the Board
of the Court, after receipt of this Order, since it is the case of the
plaintiff that the defendant is undertaking further construction as
the interim injunction granted below Exh.5 has been vacated. The
suit shall be restored to its original status which existed on the
day of passing of the impugned order.
C/FA/4132/2022 JUDGMENT DATED: 17/10/2022
14. In view of the disposal of the main appeal, the connected
civil application for stay would not survive and the same is
disposed of accordingly.
15. Registry shall communicate the present order to the Court
of learned City Civil Judge forthwith.
Sd/- .
(A. S. SUPEHIA, J)
MB/04
