Bhadreshkumar Bipinchandra ... vs Pravinkuvarba Amarsinh Alias ...
2023 Latest Caselaw 1582 Guj

     C/FA/4588/2022                           ORDER DATED: 15/02/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/FIRST APPEAL NO. 4588 of 2022
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              BHADRESHKUMAR BIPINCHANDRA SHETH
                               Versus
  PRAVINKUVARBA AMARSINH ALIAS PRAFULBA GOPALSINH JADEGA
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Appearance:
MR GP DEVMORARI(7419) for the Appellant(s) No. 1
MR PA DEVMORARI(2829) for the Appellant(s) No. 1
MR SAURABH AMIN for the Defendant(s) No. 1
for the Defendant(s) No. 2,3,4
MR ATIT D THAKORE(5290) for the Defendant(s) No. 5
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  CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
          and
          HONOURABLE MS. JUSTICE NISHA M. THAKORE

                          Date : 15/02/2023

                            ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

[1.0] By way of present First Appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"), the original plaintiff has challenged the order dated 24.08.2022 passed below Exhs.30 and 33 by the learned Principal Senior Civil Judge, Sanand in Special Civil Suit No.10/2022 by which the learned Judge has accepted application Exhs.30 and 33 filed by the respondent herein under Order VII Rule 11(a) of the CPC and dismissed the suit being Special Civil Suit No.10/2022.

[2.0] We have heard learned advocate Mr. P.A. Devmorari appearing for the appellant and learned advocate Mr. Saurabh Amin appearing for respondent No.1 and learned advocate Mr. A.D. Thakore appearing for respondent No.5.

C/FA/4588/2022 ORDER DATED: 15/02/2023

[3.0] The short facts arising from the record of the case are as follows:

[3.1] That, the present appellant filed a Special Civil Suit No.10/2022 in the Court of learned Principal Senior Civil Judge, Sanand (hereinafter referred to as "learned trial Court") for specific performance of an Agreement dated 01.01.2021 allegedly entered into between the original plaintiff and original defendant No.2 viz. Vanrajsinh Ranjitsinh Vaghela and also asked for various reliefs with regard to land being Revenue Block / Survey No.1045 of village Kunvaar, Taluka Sanand, District Ahmedabad (hereinafter referred to as "land in question"). Following prayers (Translation from paragraph No.12 of the plaint) were made by the original plaintiff before the learned trial Court:

"(a) The defendant no.2 of this case on behalf of and upon clear instruction as well as consent of defendant no.1 agreed to sell the old tenure agricultural land admeasuring Hector-00, Are-92, Sq.Mts.-00 i.e. 9200 Sq. Mts. of Account No.630, Block/Survey No.1045 paiki of Moje Village: Kunvar of Taluka and Sub-

District : Sanand of District Ahmedabad to the plaintiff in Rs.1,12,19,512/- and accepted Rs.5,68,240/- from the plaintiff towards part sale consideration as well as earnest money and also executed one Notarized Agreement for Sale in favour of the Plaintiff on 01/11/2021. Kindly pass an Order and decree in favour of the plaintiff and against the defendant no.1 and defendant no.2 that the defendant no.1 and 2 comply with the said agreement for sale and by accepting remaining sale consideration of Rs.1,06,51,272/- from the plaintiff, the defendant no.1 may be directed to execute Absolute Registered Sale Deed of the said land in favour of the plaintiff

C/FA/4588/2022 ORDER DATED: 15/02/2023

and hand over the peaceful, vacant and actual possession of the said land to the plaintiff. Moreover, kindly pass an Order and decree in favour of the plaintiff and against the defendant no.1 and defendant no.2 that even after the order of the Hon'ble Court, if the defendant no.1 fails to execute Registered Sale Deed in favour of the plaintiff and handing over peaceful, vacant and actual possession of the said land, the Hon'ble Court may appoint Court Commissioner and got Absolute Registered Sale Deed executed for the said land through the Court Commissioner for and on behalf of the defendant no.1 and peaceful, vacant and actual possession of the said land be handed over to the plaintiff.

(b) Kindly pass an Order and decree in favour of the plaintiff and against the defendants declaring the Registered Sale Deed executed by the defendant no.1 in favour of the defendant no.5 regarding the old tenure agricultural land admeasuring Hector-00, Are- 92, Sq.Mts.-00 i.e. 9200 Sq. Mts. of Account No.630, Block/Survey No.1045 paiki of Moje Village: Kunvar of Taluka and Sub-District : Sanand of District Ahmedabad on 06/12/2021, which is registered at Sr. No.19827, to be false, illegal, null and void ab initio, only paper transaction and not binding to the plaintiff.

(c) Kindly grant permanent injunction in favour of the plaintiff and against the defendant no.5 that the defendant no.4 herein shall not transfer or assign the old tenure agricultural land admeasuring Hector-00, Are-92, Sq.Mts.-00 i.e. 9200 Sq. Mts. of Account No.630, Block/Survey No.1045 paiki of Moje Village: Kunvar of Taluka and Sub-District : Sanand of District Ahmedabad and shall not execute any kind of Power of Attorney, Agreement for Sale, Deeds etc. either notarized or registered regarding the said land in favour of any individual, firm, person, trust, company etc. and shall not execute mortgage, charge or gift in favour of bank, financial institution or any other third party and shall not execute Memorandum of Understanding, documents such as earnest money chits or agreements and shall not create any third

C/FA/4588/2022 ORDER DATED: 15/02/2023

party rights regarding the said land and shall not get the said land converted into Non-Agricultural for any purpose and shall not get made any kind of raw or RCC construction on the said land.

(d) Kindly grant any other and further relief that may be deemed fit to the Hon'ble Court."

[3.2] The case put forward by the original plaintiff was that original defendant No.2 who is closely related to original defendant No.1 - Pravinkunvarba Amarsinh @ Prafulba Gopalsinh Jadeja i.e. the owner of the land in question entered into an Agreement to Sell on her behalf with the original plaintiff and when he did not execute the sale deed, the original plaintiff was compelled to file the aforesaid suit for specific performance of the Agreement to Sell.

[3.3] In response to the summons issued by the learned trial Court, the original defendant No.1 filed an application under Order VII Rule 11(a) of the CPC for rejecting the plaint on the ground that there was no cause of action at all against the original defendant No.1 i.e. the owner of the land in question.

[3.4] Reply to Order VII Rule 11(a) application of original defendant No.1 was filed by the original plaintiff at Exh.37. The learned trial Court after considering the Court Commission report made on behalf of the present respondent No.1 accepted the application Exh.37 and rejected the plaint.

Hence, present First Appeal.

C/FA/4588/2022 ORDER DATED: 15/02/2023

[4.0] Learned advocate Mr. P.A. Devmorari appearing for the appellant has produced paper book and has taken us through various documents entered into between Vanrajsinh Ranjitsinh Vaghela and Kantibhai Kamabhai Thakor, Agreement to Sell in question entered into between Vanrajsinh Ranjitsinh Vaghela, the appellant herein and third parties. He has also taken us through the public notice issued at the instance of Vanrajsinh Ranjitsinh Vaghela about inviting objections for getting title clearance certificate before selling the land in question and would submit that the learned trial Court has committed an error in rejecting the plaint on the ground that there was no cause of action for filing the suit. He, therefore, would submit that the First Appeal be allowed.

[5.0] On the other hand, learned advocate Mr. Saurabh Amin appearing for the original defendant No.1 - owner of the land in question has vehemently opposed this appeal and would submit that a fraud has been committed at the instance of the present appellant in conspiracy with some distant relative of the owner viz. Vanrajsinh Ranjitsinh Vaghela. He would submit that the original plaintiff has miserably failed to establish that Vanrajsinh Ranjitsinh Vaghela has any type of authority to enter into an Agreement with any party. He would submit that the original plaintiff has miserably failed to establish that the land in question is jointly held by respondent No.1 herein - original defendant No.1 and Vanrajsinh Ranjitsinh Vaghela. By taking us through the cause of action referred to in the plaint of the suit,

C/FA/4588/2022 ORDER DATED: 15/02/2023

he would submit that in absence of any authority granted in favor of Vanrajsinh Ranjitsinh Vaghela, he had no authority to execute any type of Agreement with any party and therefore, the learned trial Court has committed no error. By taking us through paragraph No.4 of the plaint, he would submit that though specific averment has been made that original defendant No.1 was the sole owner of the land in question, no such case is raised before this Court and on that ground also, he has requested to dismiss the present First Appeal. He would submit that not a single document is produced by the original plaintiff about authority given to Vanrajsinh Ranjitsinh Vaghela to deal with the land in question. He would submit that the suit filed by the original plaintiff in the year 2022 is frivolous and vexatious suit which has been rightly rejected by the learned trial Court in exercise of powers under Order VII Rule 11(a) of the CPC. He, therefore, would submit that the First Appeal be dismissed with costs.

[6.0] Learned advocate Mr. A.D. Thakore appearing for respondent No.5 states that respondent No.5 has purchased the land in question from respondent No.1 - original defendant No.1 vide the registered sale deed on 06.12.2021 after following due process of law that are mandatory for the said purpose. By relying upon the decision dated 12.02.2021 of the Hon'ble Supreme Court in the case of K. Akbar Ali vs. K. Umar Khan rendered in Special Leave Petition No.31844/2018 and decision in the case of Church of Christ Charitable Trust and Educational

C/FA/4588/2022 ORDER DATED: 15/02/2023

Charitable Society Represented by its Chairman vs. Ponniamman Educational Trust Represented by its Chair Person / Managing Trustee reported in (2012)8 SCC 706, he would submit that even the Hon'ble Apex Court after considering the power of attorney executed in favor of the person who has entered into Agreement to Sell has held that in absence of any specific power given for selling the property, such suit is not maintainable and held that such plaint shall be rejected under Order VII Rule 11 of the CPC. He, therefore, would submit that the First Appeal be dismissed with costs.

[7.0] We have heard learned advocates appearing for the respective parties. We have also gone through the order impugned in the First Appeal, documents which are produced before the learned trial Court and produced by the learned advocate appearing for the original plaintiff in form of paper- book.

[8.0] The only question which falls for our consideration is whether the trial Court was justified in passing order of rejection of plaint by invoking Order VII Rule 11(a) of the CPC?

[9.0] At this stage, we would like to examine the impugned order as against legal position as regards Order VII Rule 11(a) of the CPC vis-a-vis 'cause of action'. The cause of action as pleaded by the original plaintiff in the plaint, as translated by Translation Department of this Court, reads as follows:

C/FA/4588/2022 ORDER DATED: 15/02/2023

"10) CAUSE OF ACTION FOR FILING THIS SUIT:

The cause of action arisen when the said land is under the lawful ownership of the defendant no.1 and the defendant no.1 has been staying at Pune, Maharashtra after marriage for many years and when the defendant no.1 handed over the entire management of the said land to the defendant no.2 herein and when the defendant no.2 took Rs.1,50,000/- on 29/05/2007 from Kantibhai Kamabhai Thakor, executed agreement and handed over the possession to cultivate the said land and when at the behest of defendant no.1 and under his knowledge, for and on behalf of him, the defendant no.2 executed Agreement for Sale in favour of the plaintiff on 01/11/2021 and the total sale consideration of Rs.1,12,19,512/- was fixed by virtue of the details of the said Agreement for Sale and when the amount of Rs.5,68,240/- from the plaintiff herein towards earnest money as well as part payment of sale consideration and when the defendant no.3 and 4 joined the said agreement for sale as liability holder and when the defendant no.2 made signature in the vakalatnama of Advocate Mr. P.G. Gadhavi to obtain Title Clearance Certificate regarding the said land at the behest of and upon clear

C/FA/4588/2022 ORDER DATED: 15/02/2023

instruction of the defendant no.1 herein and when the public notice was published in daily newspaper Sandesh on 21/09/2021 for the said land and when the defendant no.1, 2 and 5 in collusion with each other, hatched criminal conspiracy, usurped the amount of Rs.5,68,240/-

towards earnest money as well as sale consideration from the plaintiff and the defendant no.1 executed illegal Registered Sale Deed on 06/12/2021 bearing Sr. No.19827 regarding the said land in favour of the defendant no.5 and when the defendant no.2 signed such illegal registered sale deed as witness no.2 and when the plaintiff asked the defendant no.2 about the said illegal registered sale deed dated 06/12/2021, the defendant no.2 gave a writing in form of the complaint in his handwriting on 07/12/2021 and gave false assurance that he shall lodge such complaint against the defendant no.1 and 5 at Sanand Police Station and when the cause of action arose within the local jurisdiction of your Hon'ble Court. Moreover, the said land is situated within the local jurisdiction of your Hon'ble Court and therefore, this Hon'ble Court has local jurisdiction to admit, try and to dispose of this suit."

C/FA/4588/2022 ORDER DATED: 15/02/2023

In the case of A.B.C. Laminart (P) Ltd. v. A.P. Agencies reported in (1989) 2 SCC 163, the Hon'ble Supreme Court in paragraph 12 has explained meaning of word 'cause of action' as follows:

"12. A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in 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 fight 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 fight sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fa ct necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a fight to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."

Thus, while deciding application under Order VII Rule 11(a) of the CPC, while scrutinizing the plaint averments, it is bounden duty of the trial Court to ascertain the material facts for cause of action. The terms "cause of action" means every fact which if traversed, it would be necessary for the plaintiff to prove in order to support his right to get relief.

[9.1] In light of aforesaid legal position, if we examine the averments made in the plaint, it is an undisputed fact that the land in question belonged to original defendant No.1 -

C/FA/4588/2022 ORDER DATED: 15/02/2023

Pravinkunvarba Amarsinh @ Prafulba Gopalsinh Jadeja. Not a single document has come on record which would demonstrate that original defendant No.1 has ever authorized Vanrajsinh Ranjitsinh Vaghela to deal with the land in question. Therefore, relying upon some relevant documents, a person who enters into an agreement and allegedly pays some amount to a person who has no power to deal with the land in question, would not be entitled for any relief as prayed for. It is also an undisputed fact that original defendant No.1 - Pravinkunvarba Amarsinh @ Prafulba Gopalsinh Jadeja is a permanent resident of Pune, Maharashtra and original plaintiff was fully aware about the same before issuing public notice in daily newspaper viz. Sandesh which discloses that the owner of the land in question, who is residing at Pune, Maharashtra might not be knowing about the said public notice. Not a single document of revenue record is produced by the original plaintiff which can disclose that Vanrajsinh Ranjitsinh Vaghela - original defendant No.2 was having any right / authority to deal with the land in question.

[9.2] Considering the above facts, we are of the considered opinion that in absence of any authority of original owner, no privity of contract is established against defendant No.1 to perform part of alleged Agreement. For the reasons recorded earlier, we are of the opinion that a frivolous and vexatious suit was filed by the present appellant to usurp the land in question belonged to a lady - original defendant No.1, who is permanent resident of Pune, Maharashtra and that too subsequent to the

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land in question after having been sold by her way back in the year 2021.

[10.0] Hence, no case having been made out to interfere with the impugned order, we dismiss the present First Appeal. It is apparent from the record that the original plaintiff had filed a frivolous and vexatious suit and thereafter the present First Appeal and has wasted time of the learned trial Court as well as this Court and therefore, we deem it just and proper to impose cost upon the present appellant - original plaintiff which is quantified at Rs.25,000/-. The amount of cost shall be deposited by the present appellant - original plaintiff with the High Court Legal Services Committee within a period of four weeks from the date of receipt of the present order failing which the District Collector, Ahmedabad shall proceed against the original plaintiff in accordance with the provisions of the Bombay Land Revenue Code and allied Rules.

Present First Appeal is dismissed accordingly with costs as aforesaid.

(A.J. DESAI, J.)

(NISHA M. THAKORE, J.) Ajay