Gujarat High Court
Ketanbhai Babubhai Patel vs Prahladji Gabhaji Thakore on 23 September, 2022
Bench: A.S. Supehia
C/CRA/306/2022 ORDER DATED: 23/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 306 of 2022
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ketanbhai babubhai patel
Versus
PRAHLADJI GABHAJI THAKORE
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Appearance:
MR PARTHIV B SHAH(2678) for the Applicant(s) No. 1,2,3
for the Opponent(s) No. 2,3.1,3.2,3.5,5
DELETED for the Opponent(s) No. 6
NIRMIT ATULBHAI DIXIT(8853) for the Opponent(s) No. 1,3,3.3,3.4,4
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 23/09/2022
ORAL ORDER
1. Rule. Learned advocate Mr.Dixit waives service of notice of rule
for the respondent nos.1, 3, 3.3, 3.4 and 4.
2. Since the short issue involved in the present application, the same
is heard and finally decided.
3. Being aggrieved and dissatisfied by the order dated 07.05.2022
passed by the learned 4th Additional Civil Judge, Ahmedabad Rural at
Mirzapur, rejecting the application below Exh.14 in Regular Civil Suit
No.375 of 2013 filed under the provisions of Order VII Rule 11 of the
Code of Civil Procedure, 1908 (for short "the CPC"), the present revision
application is filed.
4. The plaintiffs have filed the Regular Civil Suit No.375 of 2013 for
cancellation of the Power of Attorney as well as the sale deed dated
30.07.2003. From the plaint, it is reflected that the Power of Attorney is
C/CRA/306/2022 ORDER DATED: 23/09/2022
dated 24.03.2000. However, in the prayer clause, the date of Power of
Attorney is not mentioned.
5. It is the case of the plaintiffs that the aforesaid sale deed is
executed in view of the forged and fabricated Power of Attorney in
favour of the deceased Shankarbhai Prahladbhai Patel by the defendant
no.3 (applicant no.1 herein).
6. Learned advocate Mr.Parthiv Shah appearing for the applicants has
submitted that the applicants filed an application under Order VII Rule 11
of the CPC below Exh.14 seeking rejection of the plaint, however, the
same has been rejected by the court below, which has constrained the
applicants to file the present revision application. He has submitted that
the suit filed by the applicant is barred by limitation since it is filed
beyond the period of 3 years, as contemplated under Article 59 of the
Limitation Act, 1963
6.1. Learned advocate Mr.Shah, while pointing out to the averments
made in the plaint, more particularly paragraph no.3, has submitted that
the plaintiffs were very well having the knowledge about the forged
Power of Attorney in the year 2008 itself since they had filed the
complaint on 11.04.2008, which ultimately resulted into the summery
report, which was granted by the concerned court on 17.04.2013.
6.1. Learned advocate Mr.Shah has further submitted that as per the
averments made in the paragraph no.3 of the plaint, the plaintiffs have
stated that they came to know about such Power of Attorney only in the
year 2011 and in view of Letters Patent Appeal No.884 of 2011, which
was filed against the order passed in Special Civil Application No.9327
C/CRA/306/2022 ORDER DATED: 23/09/2022
of 2006 with regard to mutation of entry proceedings. It is submitted that
the aforesaid averments made in paragraph no.3 of the plaint are
absolutely ignored, except from the limitation period. He has placed
reliance on the judgment of the Supreme Court in the case of Dahiben vs.
Arvindbhai Kalyanji Bhanushali (Gajra) Dead through Legal
Representatives & Others, (2020) 7 SCC 366 and the judgment of this
Court in the case of Kanjibhai Bhagwanjibhai Patel vs. Nanduben
Shamjibhai Sorathiya Through P.O.A., Dharmesh P. Trivedi, 2013 (1)
GLR 51 and has submitted that the plaint deserves to be rejected since the
suit is instituted beyond the period of limitation of 3 years.
7. Per contra, learned advocate Mr.Dixit appearing for the respondent
nos.1, 3, 3.3, 3.4 and 4 has submitted that the revision application is not
required to be entertained since the plaintiffs had filed the suit in the year
2013, after they came to know that the proceedings in Letters Patent
Appeal, which are pending before the High Court with regard to
production of entries in the revenue record. It is submitted that the Power
of Attorney dated 24.03.2000 is forged, pursuant to which the sale deed
has been executed on 30.07.2003 and hence, the plaint may not be
rejected.
8. I have heard the learned advocates appearing for the respective
parties.
9. The facts narrated in the plaint, would suggest that the suit has
been filed on 24.06.2013 seeking declaration for setting aside the Power
of Attorney dated 24.03.2000 as well as the registered sale deed dated
30.07.2003. In paragraph no.3, a specific averment is made in the plaint
C/CRA/306/2022 ORDER DATED: 23/09/2022
that the FIR Nos.M/02 and M/03 dated 08 have been filed before Sarkhej
Police Station with regard to the forged Power of Attorney executed on
24.03.2000. Thus, on filing the complaint in the year 2008, the plaintiffs
were very well aware about the alleged forged Power of Attorney,
however, they have chosen to remain silent till the year 2013 and have
instituted the suit for setting aside the Power of Attorney as well as the
sale deed executed on the basis of the said Power of Attorney.
10. The averments of paragraph no.3 of the plaint further suggest that
in order to explain the limitation period, it is narrated that the plaintiffs
came to know about the said illegality committed by the defendants when
a notice was issued by this Court in Letters Patent Appeal No.844 of
2011. The aforesaid facts narrated in the plaint suggest that though the
plaintiffs were aware about the aforesaid alleged forged Power of
Attorney they were not vigilant enough to challenge the same despite
having filed the complaint against the forged Power of Attorney only and
'C' Summery report was filed, which was accepted by the trial court on
17.04.2013.
11. At this stage, it would be apposite to refer to the observations made
by the Apex Court in the case of Dahiben (supra):-
"26. Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the
period of limitation for filing a suit where a declaration is sought, or
cancellation of an instrument, or rescission of a contract, which reads as
under :
Description of Period of Time from
suit limitation which period
begins to run
C/CRA/306/2022 ORDER DATED: 23/09/2022
58. To obtain Three years When the right
any other to sue first
declaration accrues.
59. To cancel Three years When the facts
or set aside an entitling the
instrument or plaintiff to
decree or for have the
the rescission instrument or
of a contract decree
cancelled or
set aside or
the contract
rescinded first
become know
to him
The period of limitation prescribed under Articles 58 and 59 of the 1963
Act is three years, which commences from the date when the right to sue
first accrues.
27. In Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr.,12 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 12 (2011) 9 SCC 126.
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.
28. A three-Judge Bench of this Court in State of Punjab v. Gurdev
Singh,13 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.
The Supreme Court, while referring to the observations made in the
case of Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr ., (2011) 9
C/CRA/306/2022 ORDER DATED: 23/09/2022
SCC 126, has held that 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.
12. In the present case, the facts suggested that the right to sue and
accrued in the year 2008 when the plaintiffs had filed a criminal
complaint alleging the forged Power of Attorney executed on 24.03.2000.
Thus, the suit, which has been filed beyond the period of limitation i.e. 3
years, is not maintainable as it would be de hors the limitation and hence,
the Court is of the opinion that by way of clever drafting and on the
pretext of receiving the notice issued by this Court in Letters Patent
Appeal No.884 of 2011 with regard to some revenue proceedings, the
suit, which is barred by limitation, is sought to be brought under the
limitation and hence, the impugned order dated 07.05.2022 rejecting the
application below Exh.14 filed under Order VII Rule 11 of the CPC is
required to be quashed and set aside and the same is hereby set aside.
13. As a sequel, the plaint is ordered to be rejected. Rule is made
absolute.
(A. S. SUPEHIA, J)
ABHISHEK/6
