Gromax Agri Equipment Limited vs Hindustan Earthmovers Private ...
2023 Latest Caselaw 4075 Guj

     C/CRA/190/2023                              JUDGMENT DATED: 06/06/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CIVIL REVISION APPLICATION NO. 190 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRAL R. MEHTA

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1    Whether Reporters of Local Papers may be allowed                 YES
     to see the judgment ?

2    To be referred to the Reporter or not ?                          YES

3    Whether their Lordships wish to see the fair copy                 NO
     of the judgment ?

4    Whether this case involves a substantial question                 NO
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                    GROMAX AGRI EQUIPMENT LIMITED
                               Versus
                HINDUSTAN EARTHMOVERS PRIVATE LIMITED
================================================================
Appearance:
MR SP MAJMUDAR(3456) for the Applicant(s) No. 1
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR NINAD P
SHAH(10911) for the Opponent(s) No. 1
================================================================

    CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                             Date : 06/06/2023

                            ORAL JUDGMENT

1. By way of this Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 (for short 'the Code'), the petitioner herein - original defendant has called in question the order dated 27.3.2023 passed below Exh.150

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in Regular Civil Suit No.2117 of 2015 (Old Special Civil Suit No.569 of 1990) passed by learned 8 th Additional Senior Civil Judge, Vadodara, by which the trial court has refused to reject the plaint under Order VII Rule 11 of the Code was rejected.

2. The facts giving rise to this Civil Revision Application, in nutshell, are as under :

2.1 The respondent herein - original plaintiff has preferred Regular Civil Suit No.2117 of 2015 (Old Special Civil Suit No.569 of 1990) for declaration and permanent injunction with the following reliefs :

"(1) Be pleased to declare in favor of the plaintiff that the detail of area (1,66,777.58 sq.m.) mentioned in the abstract of the property register card of city survey no.2545, moje village Manjalpur, Taluka- Vadodara, is wrong and the land ad-measuring 6 acre at survey no.498 of moje village Manjalpur is owned by the plaintiff.

(2) Be pleased to declare in favor of the plaintiff that city survey no.2545, entirely registered in the name of Hindustan Tractors Co. Ltd., is wrong and registered unlawfully and the resolution passed before the city survey officer, dated 16/12/1976 is not binding to the plaintiff.

(3) Be pleased to pass permanent injunction order in favor of the plaintiff that unless the location of the lands of the plaintiff and respondent is determined in survey no.498, the respondent company shall not interfere in the possession of the triangular shaped land of the plaintiff, situated at the south-west corner of survey no.498 of the village Manjalpur, or shall not interfere through its employees or agents or any other co-operative society working for the aforesaid company or its contractors, by any means and any type of

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construction is not carried out and if any construction is already done, then the same is not continued.

(4) Be pleased to award the cost of this suit from the respondent.

(5) Be pleased to grant any other relief in the interest of justice, in favor of plaintiff's Mahindra Gujarat Tractor Ltd."

2.2 Upon service of notice, the petitioner herein - original defendant appeared and submitted its written statement below Exh.15 on 20.7.1990.

2.3 Thereafter, in the year 1998, initially, the trial court framed the issues below Exh.25 as under :

"1. Whether the plaintiff proves that the disputed property is in his possession?

2. Whether the plaintiff proves that the defendant is encroaching upon plaintiff's property i.e. land?

3. Whether the plaintiff proves that the details of area of city survey No.2544 as mentioned at property register records, is illegal?"

2.4 Thereafter, it appears that upon an application Exh.181 at the instance of original defendant, the trial court vide order dated 12.4.2023, reformulated/reconstructed the issues by adding Issue Nos.4 and 5, as under :

"4. Whether the plaintiff proves that the city survey resolution dated 16.12.1976 being passed by city survey officer is not binding upon him ?

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5. Whether the defendant proves that the entire suit lands are his property by virtue of which title deed document?"

2.5 It appears, although the suit was filed in the year 1990, after passage of almost 32 to 33 years, for one or the other reason, the suit remained undecided. Since the suit is almost 32 to 33 years old, the same is being reflected as pending in top most 100 old cases and thereby, considering the general directions of the High Court of Gujarat, the trial court has taken up the suit on day-to-day basis. The original plaintiff has produced oral as well as documentary evidence, deposition in form of affidavit in chief examination of Atmagnyaben Shah at Exh.101, to which the original defendant has, through lawyer, in detail cross-examined said witness on various dates i.e. 6.2.2023, 7.2.2023, 14.2.2023, 15.2.2023, 16.2.2023 and 17.2.2023. Thereafter, the respondent herein - original plaintiff has filed deposition of another witness of plaintiff, namely, Shri Divyang Upendra Jha at Exh.128 in form of affidavit in examination-in-chief and said witness came to be cross-examined on various dates i.e. on 21.2.2023, 28.2.2023, 3.3.2023 and 7.3.2023. Thereafter, the respondent herein - original plaintiff has filed closing pursis vide Exh.165 on 13.3.2023 and the suit was put up for the evidence of the defendant.

2.6 Though the suit was put up at the evidence stage of the defendant on 13.3.2023, however at the request made by original defendant, adjourned for producing evidence of defendant on 17.3.2023. On 17.3.2023 the defendant has

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chosen not to file evidence. However, upon an adjournment application Exh.149, as a last chance, the suit proceeding was adjourned on 18.3.2023.

2.7 Instead of producing the evidence, for which the matter was adjourned at the request of the original defendant, after a period of approximately 33 years of the institution of suit and after a period of 25 years of framing of issues, the original defendant - petitioner herein submitted present application before the trial court below Exh.150 and sought rejection of plaint under the provisions of Order VII Rule 11 of the CPC on the grounds, inter-alia, that (i) the suit is barred by limitation and (ii) the suit challenging the entries barred by law.

2.8 The application was opposed by the original plaintiff vide Exh.154. Thereafter, by the impugned order, the trial court has rejected the application and refused to reject the plaint in exercise of its powers under Order VII Rule 11 of the CPC. Thus, the said order which is impugned before this Court under Section 115 of the CPC by way of this Civil Revision Application.

3. I have heard learned learned advocate Mr.S.P. Majmudar for the petitioner and learned Senior Advocate Mr.Shalin Mehta assisted by learned advocate Mr.Ninad P. Shah, who appeared on advance notice.

4. Considering the facts and circumstances of the present case, more particularly the present proceedings arising from a suit which is pending before the trial court since almost 32

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years, this Court has, with the consent of learned advocates appearing for the respective parties, taken up the matter for final hearing.

5. Hence, Rule, returnable forthwith. Learned advocate Mr.Ninad P. Shah waives service of notice of Rule on behalf of respondent.

6. Learned advocate Mr.S.P. Majmudar for the petitioner while challenging the impugned order and in support of the prayer to reject the plaint in exercise of powers under Order VII Rule 11(d) of the CPC, has made the following submissions:

6.1 That the trial court has not properly appreciated the fact that suit challenging the mutation entry shall not be maintainable and, therefore, the suit would be barred by law in view of Section 11 of the Bombay Revenue Jurisdiction Act, 1876.

6.2 That the trial court has not properly appreciated the object and purpose behind Order VII Rule 11 of the CPC.

6.3 That the trial court has not appreciated the fact that by clever drafting, the plaintiff has tried to bring the suit which is even otherwise barred by law.

6.4 That the trial court has not appreciated the fact that even otherwise, the suit is barred by law of limitation as what has been challenged in the suit is the entry mutated in the

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property card in the year 1976 and the suit has been filed in the year 1990, therefore, the suit is clearly barred by law of limitation and thereby, it ought to have been rejected under Order VII Rule 11 of the CPC.

6.5 So far as the submission on behalf of respondent that the present application under Order VII Rule 11 of the CPC being filed after 33 years from filing of the suit and, therefore, the same not being entertained as such at a belated stage, learned advocate for the petitioner vehemently submitted that as such, no limitation is prescribed for filing an application under Order VII Rule 11 of the CPC and thereby, it can be filed at any stage before the pronouncement of judgment.

6.6 Learned advocate for the petitioner would submit that plaint does not disclose cause of action for the relief in the prayer. Plaintiff has not asserted clearly by way of pleading or by way of any documentary evidence to establish his right to sue. It is further submitted that the plaintiff has not disclosed, in particular, the location of the land bearing Survey No.498A, on which for 6 Acres, the plaintiff is asserting his right and, therefore, the suit based on vague pleadings, according to learned advocate for the petitioner, should have been dismissed by the trial court by exercising power under Order VII Rule 11(a) of the CPC.

6.7 Learned advocate for the petitioner, relying on Exh.59/7 i.e. the order passed by SSRD, further submitted that the Entry recorded in the city survey No.2545 on 16.12.1976 in the name of defendant is legal. He further submitted that the

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said order of the SSRD has not been subjected to any challenge and thereby, the same has attained its finality. According to learned advocate for the petitioner, therefore, the plaint is liable to be rejected since the plaintiff did not have any civil right to enforce on the date of the suit and no such right was in existence then.

6.8 To substantiate the aforesaid contentions, learned advocate for the petitioner has placed reliance on the following decisions :

(1) I.T.C. Limited v. Debts Recovery Appellate Tribunal, reported in 1998-SCC-2-70.

(2) Kamlesh Babu v. Lajpat Rai Sharma, reported in 2008-

SCC-12-577.

(3) Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman v. M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, reported in 2012-SCC-8-

706.

(4) Decision of this Court in case of Rameshbhai Devkubhai Khachar v. Harilal Gagjibhai Parmar, rendered in Civil Revision Application No.209 of 2014, dated 15.11.2014.

(5)       Decision of this Court in case of Ajendraprasad
          Nrugendraprasad            Pandey         v.        Swami            Keshav

Prakashdasji, rendered in Letters Patent Appeal No.776

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of 2013 dated 29.12.2016.

(6)       Decision of the Apex Court in case of Ajendraprasad
          Nrugendraprasad       Pandey          v.        Swami            Keshav

Prakashdasji rendered in Special Leave to Appeal (C) No.5019 of 2017, dated 17.2.2017.

(7) Mohanbhai Maganbhai Patel v. Miral Vallabhbhai Surani, reported in 2016 SCC Online Guj. 8146.

(8) Madanuri Sri Rama Chandra Murthy v. Syed Jalal, reported in (2017) 13 SCC 174.

(9) Colonel Shrawan Kumar Jaipuriyar @ Sarwan Kumar Jaipuriyar v. Krishna Nandan Singh, reported in 2020- SCC-16-594.

(10) State of Gujarat v. Kolavada Gram Panchayat, reported in 2001-GLR-2-1245.

(11) Rajendra Bajoria & Ors. v. Hemant Kumar Jalan & Ors., reported in 2021 SCC Online SC 764.

6.10 By making above submissions, learned advocate for petitioner urged this Court to allow the present Civil Revision Application.

7. Per contra, learned Senior Advocate Mr.Shalin Mehta assisted by learned advocate Mr.Ninad P. Shah for the respondent, vehemently opposed the present Civil Revision Application by making the following submissions :

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7.1 According to learned Senior Advocate Mr.Shalin Mehta, the trial court has not committed any error in refusing to reject the plaint under Order VII Rule 11 of the CPC after a period of 32 years of filing of the suit and more particularly when the evidence of the plaintiff is already over. According to learned Senior Advocate filing of an application under Order VII Rule 11 of the CPC at such a belated stage is nothing but a sheer abuse of process of law and thereby, trial court has rightly rejected the same.

7.2 Learned Senior Advocate further pointed out that the petitioner herein - original defendant while filing the written statement, no such objection was raised as to the maintainability of the suit and the suit being barred by law more particularly in view of Section 11 of the Bombay Revenue Jurisdiction Act and in fact, no such issue has been framed by the trial court. Learned Senior Advocate further submitted that for the first time, such a plea that the suit being not maintainable has been raised in application under Order VII Rule 11 of the CPC, that too at such a belated stage.

7.3 Learned Senior Advocate further submitted that if cause of action pleaded in the suit is seen, the dispute as such is with regard to measurement and boundary for which evidence required to be led during trial, therefore, it cannot be said that the suit per-se shall be not maintainable at all.

7.4 So far as the submission with regard to suit is barred by limitation is concerned, learned Senior Advocate submitted that as per the settled law laid down by the Apex Court as well

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as the High Court, the issue of limitation is mixed question of law and fact and is required to be considered at the time of trial on the basis of material that has come on record. Moreover, according to learned Senior Advocate, the very issue with regard to limitation is also not framed and/or re- framed by the trial court, as there is no contention raised by the petitioner - original defendant in the written statement.

7.5 Learned Senior Advocate further submitted that even in the facts and circumstances of the present case and more particularly when the application under Order VII Rule 11 of the CPC has been moved after a period of 32 years, that too after the evidence of the plaintiff was closed and the suit was at the stage of final argument, the trial court has rightly refused to reject the plaint under Order VII Rule 11 of the CPC. It is further submitted that at this belated stage, the application under Order VII Rule 11 of the CPC is entertained, the same will be against the object and purpose of Order VII Rule 11 of the CPC i.e. to cut the deadwood at the threshold and/or at the earliest so as avoid the defendant to face the gamut of trial.

7.6 To substantiate the said contention, learned senior advocate heavily relied upon the decision of the Apex Court in case of Ram Prakash Gupta v. Rajiv Kumar Gupta & Anr., reported in (2007) 10 SCC 59 and submitted that the object and purpose of Order VII Rule 11 of the CPC is to nip in the bud in the first hearing and at the earliest if the plaint is found vexatious and meritless in the sense of not disclosing clear right to sue.

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7.7 Learned Senior Advocate further submitted that if the averments of the entire plaint are considered including the cause of action pleaded, it cannot be said that the suit is barred by limitation and barred by any law. It is further submitted that as per the cardinal principle of law laid down by the Apex Court as well as this High Court, at the stage of deciding of application under Order VII Rule 11 of the CPC, only the averments of the plaints are to be seen and, therefore, in the facts and circumstances of the present case, the trial court has not committed any error in refusing to reject the plaint at this stage.

7.8 To substantiate the aforesaid contentions, learned Senior Advocate has placed reliance on the following decisions:

(1) Decision rendered in Civil Revision Application No.299 of 2011, dated 14.3.2012.

(2) Sri Biswanath Bank & Anr. v. Sulanga Bose & Ors., reported in (2022) 7 SCC 731.

8. I have heard the learned advocates for respective parties at a great length and have also gone through the material produced on record extensively. No other and further submissions have been canvassed by the learned advocates appearing for the respective parties except what are stated hereinabove.

9. Having considered the submissions canvassed by the

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respective parties, following questions fall for consideration of this Court.

(a) Whether at which stage an application under Order VII Rule 11, CPC can be entertained?

(b) Whether learned trial court was justified in rejecting application under Order VII Rule 11, CPC in the facts and circumstances of the present case?

10. While deciding the aforesaid questions, it is required to be noted that the suit appears to have been filed in the year 1990 and the issues are framed by the trial court in the year 1998 and subsequently, re-framed at the instance of the original defendant. Thereafter, the plaintiff submitted the examination-in-chief and has been thoroughly cross-examined. The evidence of the plaintiff was over. The suit proceeding was adjourned so as to enable the original defendant to adduce the evidence, however, in absence of any action taken pursuant thereto, right to lead evidence came to be closed and the suit is at the stage of final arguments. At this belated stage, the defendant has moved an application under Order VII Rule 11 of the CPC requesting, inter-alia, to reject the plaint on two grounds, namely, (i) the suit being barred by law of limitation and (ii) the suit is also barred in view of Section 11 of the Bombay Revenue Jurisdiction Act.

11. Now, so far as the first question is concerned, it is no more res integra. Position of law is well settled by the Apex Court as well as by this Court in catena of decisions, some of

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which, can be referred thus, as under.

11.1 In the case of I.T.C. Limited v. Debts Recovery Appellate Tribunal reported in (1998) 2 SCC 70, the Apex Court has held as under.

"The first point here is whether the power to reject the plaint under Order 7 Rule 11 C.P.C. can be exercised even after the framing of issues, and when the matter is posted for evidence. This point has arisen because the Division Bench of the High Court has referred to this aspect while dismissing the appeal." (Para 12)

"We may stated that in the context of Order 7 Rule 11 C.P.C., a contention that once issues have been framed, the matter has necessarily to go to trial has been clearly rejected by this Court in Azhar Hussain vs. Rajiv Gandhi[1986 (Supp.) SCC 315] (p.324] as follows:

"In substance, the argument is that the Court must proceed with the trial, record the evidence, and only after the trial....is concluded that the powers under the Code of Civil Procedure for dealing with a defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court"

The above said judgment which related to an election petition is clearly applicable to suits also and was followed in Samar Sing vs. Kedar Nath [1987 (Supp.) SCC 663]. We therefore hold that the fact that issues have been framed in the suit

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cannot come in the way of consideration of this application filed by the appellant under Order 7 Rule 11 C.P.C." (Para 13)

11.2 The Apex Court in the case of Ram Prakash Gupta v.

Rajiv Kumar Gupta reported in (2007) 10 SCC 59 observed as under.

"It is also relevant to mention that after filing of the written statement, framing of the issues including on limitation, evidence was led, plaintiff was cross-

examined, thereafter before conclusion of the trial, the application under Order VII Rule 11 was filed for rejection of the plaint. It is also pertinent to mention that there was not even a suggestion to the plaintiff/appellant to the effect that the suit filed by him is barred by limitation." (para 22)

"On going through the entire plaint averments, we are of the view that the trial Court has committed an error in rejecting the same at the belated stage that too without adverting to all the materials which are available in the plaint. The High Court has also committed the same error in affirming the order of the trial Court." (Para 23)

11.3 The coordinate Bench of this Court in the case of Dudhiben Hirabhai v. Rajangiri Kishoregiri Goswami in Civil Reivsion Application No.299 of 2011 held as under.

"8. Shri Mihir Joshi, learned Senior advocate appearing on behalf of the applicants has vehemently submitted that as held by the Hon'ble Supreme Court in the case of Saleem Bhai (Supra) and Sopan Sable (Supra) the powers under Order 7 Rule 11 of the Code of Civil Procedure can be exercised at any stage of the suit but before the judgment is pronounced. However, considering the aforesaid two decisions, it appears that there is no

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absolute proposition of law laid down by the Hon'ble Supreme Court in the said decisions that even the application under Order 7 Rule 11 of the Code of Civil Procedure is required to be entertained even if submitted belatedly i.e. after a period of 5 to 10 years of filing of the suit. It is to be noted that as such the dispute before the Hon'ble Supreme Court in the case of Saleem Bhai (Supra) was that before filing the written statement, the original defendant submitted the application to reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure and during pendency of the said application, the original plaintiffs submitted the application under Order 8 Rule 10 of the Code of Civil Procedure to pronounce the judgment in the suit as the original defendants did not file the written statement and the learned trial Court dismissed both the applications and the learned trial Court deferred the hearing of the application submitted under Order 7 Rule 11 of the Code of Civil Procedure and dismissed the application submitted by the original plaintiff to pronounce the judgment and directed the original defendants to file the written statement and to that the Hon'ble Supreme Court has held that the learned trial Court ought to have considered the application under Order 7 Rule 11 of the Code of Civil Procedure as while deciding the application under Order 7 Rule 11 of the Code of Civil Procedure, the averments in the plaint only are required to be considered and not the pleas taken in the written statement. As such there was no controversy before the Hon'ble Supreme Court in the said decision that whether the application under Order 7 Rule 11 of the Code of Civil Procedure can be preferred belatedly. Similarly, even the decision of the Hon'ble Supreme Court in the case of Sopan Sable (Supra) also will not be applicable to the facts of the present case. On the contrary, in the subsequent decision, the Hon'ble Supreme Court in the case of Ram Prakash Gupta (Supra) considering the aforesaid two decisions of the Hon'ble Supreme Court in the case of Saleem

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Bhai (Supra) and in the case of Sopan Sable (Supra) has specifically disapproved the rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure at a belated stage after filing of the written statement, framing of the issues and cross examination.

9. Even considering the statement and the object of Order 7 Rule 11 of the Code of Civil Procedure, it appears that the plaint can be rejected at the threshold on the grounds set out under Order 7 Rule 11 of the Code of Civil Procedure so as to see that the original defendants may not have to face the gamut of the litigation unnecessarily, even if the suit is to be found to be not maintainable and/or the suit is dismissed under Order 7 Rule 11 of the Code of Civil Procedure and, therefore, such powers are to be exercised at the earliest and not after a period of 10 years of filing of the suit."

11.3.1 It is pertinent to note that the aforesaid judgment passed by the coordinate Bench of this Court came to be confirmed by the Apex Court in Special Leave to Appeal (C) (CC) No.17396 of 2012.

11.4 In the case of Church of Christ Charitable Trust And Educational Charitable Society represented by its Chairman v. Ponniamman Educational Trust represented by its Chairperson/Managing Trust reported in (2012) 8 SCC 706, the Apex Court has held as under.

" ... ... ... It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the Court, insufficiently stamped and not rectified within the time fixed by the Court, barred by any law, failed to enclose the required copies and the plaintiff fail to comply with

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the provisions of Rule 9, the Court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order VII Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial." (para 10)

"This position was explained by this Court in Saleem Bhai & Ors. vs. State of Maharashtra and Others, (2003) 1 SCC 557, in which, while considering Order VII Rule 11 of the Code, it was held as under:

"9. A perusal of Order VII Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order VII Rule 11 CPC at any stage of the suit -- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order VII CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order VII Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court......."

It is clear that in order to consider Order VII Rule 11, the Court has to look into the averments in the plaint and the same can be exercised by the trial Court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to

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scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. vs. Ganesh Property(1998) 7 SCC 184 and Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel M.V. Fortune Express and Others (2006) 3 SCC 100."

(Para 11)

11.5 The Division Bench of this Court in case of Ajendraprasad Nrugendraprasad Pandey v. Swami Keshav Prakashdasji - Guru Pukya Narayanpriya Dasji in Letters Patent Appeal No.776 of 2013 held as under.

"18.2. Under the circumstances and considering the various decisions Hon'ble Supreme Court referred to herein above and the object and purpose of Order VII Rule 11 of the CPC, it is observed and held that the trial Court can exercise the suo motu powers and in exercise of such suo motu powers can reject the plaint under Order VII Rule 11 of the CPC, in case on plain reading of the averments in the plaint, the Court is satisfied that no cause of action is disclosed. It is also further observed and held that such powers can be exercised at any stage but before conclusion of the trial. However, as far as possible such powers be exercised at the earliest and more particularly when the plaint is to be rejected under Order VII Rule 11(a) of the CPC, as far as possible before the Issues are framed. However, in an appropriate case the Court can reject the plaint under Order VII Rule 11 of the CPC and at subsequent stage, however before the trial is concluded. However the same shall be depend upon the facts and circumstances of each case. As such there is no time limit prescribed under the

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provision of Order VII Rule 11 of the CPC and in some of the aforesaid decisions as discussed herein above, it is observed and held by the Hon'ble Supreme Court that plaint can be rejected under Order VII Rule 11 of the CPC at any stage, but before the trial is concluded. Therefore, the question nos. 1 to 3 are answered accordingly."

11.5.1 It is pertinent to note that the aforesaid judgment passed by the coordinate Bench of this Court came to be confirmed by the Apex Court in Special Leave to Appeal (C) No.5019 of 2017.

11.6 The Apex Court in the case of Madanuri Sri Rama Chandra Murthy v. Syed Jalal reported in (2017) 13 SCC 174 held as under.

"The plaint can be rejected under Order VII Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order VII Rule 11, CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order VII Rule 11, CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order VII Rule 11 of CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would

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always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when, the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order VII Rule 11 of CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage." (Para 7)

12. Keeping in mind the aforesaid position of law, in my opinion, law is crystal clear that the power under Order VII Rule 11 can be exercised at any stage of the trial i.e. right from registration of the plaint and before pronouncement of judgment. Whole laudable object is to see that the court may not be burdened with vexatious and frivolous litigation, saving of judicial time and also to protect defendant from wrongful claims and from undergoing entire gamut of trial unnecessary. However, it does not mean that such an application under Order VII Rule 11 of the CPC can be made after a period of 32 years of filing of the suit and after 25 years of framing of the issues. If the submission of the defendant is accepted, then, in that case, the object and purpose to reject the plaint in exercise of powers under Order VII Rule 11 of the CPC will be frustrated. As per settled proposition of law, the object and purpose to reject the plaint under Order VII Rule 11 of the CPC is to reject the plaint at the threshold under the ground

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set out with a view to view to see that the defendant may not have to face the entire gamut of trial unnecessarily, if the suit is not maintainable under any law. Therefore, such powers to be exercised at the earliest and not after a period of 32 years.

13. Although the provisions of Order VII Rule 11 is meant for the benefit to protect the defendant from vexatious and frivolous claims, but at the same time, in my considered opinion, the protection made available to the defendant has to be opted as early as possible. The law laid down by the Apex Court that the provisions of Order VII Rule 11 can be exercised at any stage cannot be meant to be left to the whims of the defendant. In other words, in the facts of the present case, when the trial is already going on since 32 y ears and has reached to a very advance stage, defendant shall not be allowed to make application under Order VII Rule 11 on the grounds which might be available since from the inception. Permitting the defendant to invoke the provisions of Order VII Rule 11, after 33 y ears, that too after completion of evidence of the plaintiff, would, in my opinion, amount to abuse of process of law. Because defendant, all throughout the suit, kept silent over his right and now when the evidence of the plaintiff is over, for the reasons best known, made an application under Order VII Rule 11 which would nothing but sort of testing the water level by sitting on the shore during entire suit proceedings. Such conduct is also relevant while deciding the application under Order VII Rule 11 at the advance stage of the proceedings. The defendant is not expected to sit over for 33 years and allow the suit to proceed

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for all these years. The main and laudable purpose behind Order VII Rule 11 is already frustrated and long judicial time has been invested. Thus, in my view, allowing the defendant to pursue his right under Order VII Rule 11, in the peculiar facts and circumstances, would be said to be counter productive. Once 33 years of judicial time has already been invested, it would be in the fitness of thing to have judgment on merits crystallizing the rights of the parties, rather terminating the proceedings at such a belated stage.

14. Thus in my considered opinion, when invocation of provisions of Order VII Rule 11 sought at an advance stage, at the instance of defendant, in that event, criteria has to be little different than that of invocation by the court suo motu. I say so because, like in the instant case, all throughout for 33 years the defendant has not invoked provisions of Order VII Rule 11 and allowed the suit to reach at the advance stage. The grounds on which Order VII Rule 11 invoked were indeed available from the inception. In spite of that, defendant did not prefer application at the threshold, rather allowed the suit to proceed. Now when the suit ripe and is on the verge of conclusion, defendant preferred an application under Order VII Rule 11 taking benefit of liberal construction "any stage", which in my opinion not in good test and court should deprecate such tactics. Purpose of Order VII Rule 11 is to protect the defendant from vexatious claim and unnecessary harassment of trial. But at the same time, Order VII Rule 11 cannot be allowed to be used as a tool in the hands of the defendant to use against the plaintiff who is awaiting for his

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claims since 33 years, in the instant case, to be adjudicated upon.

15. Considering the law laid down by the Apex Court as well as this High Court, it is very well settled that exercising of power under Order VII Rule 11 is permitted at any stage. However, it has also been clarified by this Court as well as the Apex Court that it depends on facts and circumstances of each case. Thus, keeping in mind the peculiar fact that the suit is as old as 33 years, issues framed, issues re-framed, evidence of plaintiff is completed and right of defendant to adduce evidence is closed, I see no good reason to allow the application of the petitioner - original defendant under the provisions of Order VII Rule 11, CPC. Therefore, although I respectfully agree with the proposition of law that application under the provisions of Order VII Rule 11 can be entertained at any stage before pronouncement of the judgment, however, facts and circumstances of this case warrants no interference.

I answer the first question accordingly.

16. So far as second question is concerned, it would be necessary to deal with the contentions of the petitioner in seriatum. The contention raised by the petitioner that in view of Section 11 of the Bombay Revenue Jurisdiction Act, 1876, the suit itself is not maintainable. To appreciate the aforesaid contention, it would be profitable to quote the Section 11 of the Act, 1876 as under.

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11. Suits not to be entertained unless plaintiff has exhausted right of appeal.--No Civil Court shall entertain any suit against the Government on account of any act or omission of any Revenue officer unless the plaintiff first proves that, previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force, as within the period of limitation allowed for bringing such suit, it was possible to present.

16.1 Considering the provisions of Section 11 as well as the entire plaint and the prayers made therein, pertinently, the suit in question is not against the government and/or its officers. The main relief in the plaint is for seeking declaration and permanent injunction and as such in the prayer, there is no challenge to any government action or omission. Hence, the contention raised by learned advocate for the petitioner that suit is barred by law, the provision of Section 11 of the4 Act is misconceived.

16.2 So far as another submission that plaintiff has not asserted his right by way of documentary evidence to establish his right to sue is concerned, in my view, upon going through the entire plaint in detail, it is clearly stated therein that how the land was mutated in the name of the plaintiff right from the year 1965 vide Entry No.1201 in detail, description of land also clearly averred in the plaint, Thus, according to me, the plaintiff has prima facie established right to sue and thereby at this advance stage of trial, plaint cannot be thrown away under Order VII Rule 11, CPC.

16.3 So far as the contention with regard to suit being time barred is concerned, it appears from the plaint that by way of

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pleading, the plaintiff has clearly averred by giving specific date i.e. 10.7.1990 and 15.7.1990 on which the dispute said to have been arisen between the parties and therefore immediately the suit was filed in the year 1990 itself. Prima facie, this Court believes that the plaintiff has given specific dates in the plaint and thereby it cannot be said that by way of vague pleading, plaintiff has made any attempt to bring the suit within the limitation. Even otherwise, limitation being a pure question of fact and law deserves to be adjudicated by leading proper evidence in that regard.

16.4 So far as the contention raised by the petitioner with regard to finality attained to the revenue proceedings is concerned, in my view, the revenue proceedings are always meant for fiscal purpose only and thereby, on the basis of the said revenue entry no right, title or interest can be claimed. Accordingly, merely because the entries have become final, ownership of 6 Acres of land derived by the plaintiff vide Entry No.1201 since the year 1965 cannot be given a go-bye and thereby the same has to be decided by way of leading proper evidence and adjudication thereof in the suit of declaration. At this stage, it would be proper to note that while deciding Order VII Rule 11 application, the Court has to consider the plaint as a whole and not some relevant paragraphs or some material line. Thereby, on overall consideration of the plaint, in my view, plaintiff has clearly made out a right to sue and thus the same requires to be decided on the basis of evidence produced on record and

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certainly cannot be thrown away at such an advance stage of trial.

16.5 So far as contention raised by the petitioner with regard to relief that the Court cannot grant at the conclusion of the trial and thereby, the entire gamut of trial cannot be allowed to be faced is concerned, the said contention is based on suit being barred by law in view of Section 11 of the Act, 1876. However, in the foregoing paragraphs, this Court has already held that provision of Section 11 would not be applicable in the instant case as the suit is not against government and/or its officers for their any act or omission, moreso, if the prayers of the suit are considered, the relief of injunction is independent relief. Even if it is assumed that prayer of injunction is interconnected or ancillary, in that event also, the same can be considered independently and suit cannot be dismissed because other prayer is not able to be granted.

16.6 At this stage, it is pertinent to take note of recent decision of the Apex Court in case of Sri Biswanath Banik v. Sulang A Bose reported in (2022) 7 SCC 731.

"When the suit is for a decree of permanent injunction and it is averred that the plaintiffs are in possession of the suit property pursuant to the agreement and thereafter, they have developed the land and that they are in continuous possession since more than twelve years and they are also paying taxes to the Corporation, the cause of action can be said to have arisen on the date on which the possession is sought to be disturbed. If that be so, the suit for decree for permanent injunction cannot be said to be barred by

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limitation. It is the settled proposition of law that the plaint cannot be rejected partially." (para 10)

"Even otherwise, the reliefs sought are interconnected. Whether the plaintiffs shall be entitled to any relief under Section 53A of the Transfer of Property Act or not has to be considered at the time of trial, but at this stage it cannot be said that the suit for the relief sought under Section 53A would not be maintainable at all and therefore the plaint is liable to be rejected in exercise of powers under Order VII Rule 11 CPC ."

(Para 11)

16.7 In view of the aforesaid discussion, in my considered opinion, the learned trial court cannot be said to have committed any illegality in rejecting the application under the provisions of Order VII Rule 11, CPC in the facts of the present case.

I answer the second question accordingly.

17. In view of the above, the present Civil Revision Application deserves to be dismissed and accordingly, it is dismissed. As the suit is pending since last 32 years, the suit is ordered to be expedited and the trial court is hereby directed to decide and dispose of the suit on its own merits and on the basis of the evidence led by the parties, within a period of six months from today and all the concerns are hereby directed to cooperate with the trial court so as to enable the trial court to decide and dispose of the suit within the aforesaid time limited.

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18. Before parting, it is observed that any observations made herein-above are to be treated and considered prima facie and thereby, the trial court shall not influence by the same while deciding the suit on its own merits.

(NIRAL R. MEHTA,J) V.J. SATWARA