Gujarat High Court

Ramilaben Devji Jodhani vs Ishvarlal Maganlal Shah on 15 September, 2023

Bench: Bhargav D. Karia

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    C/CRA/446/2021                                CAV JUDGMENT DATED: 15/09/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/CIVIL REVISION APPLICATION NO. 446 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== RAMILABEN DEVJI JODHANI Versus ISHVARLAL MAGANLAL SHAH ========================================================== Appearance:

MR ABHAYKUMAR P SHAH(3093) for the Applicant(s) No. 1 MR SAGAR B PANDYA(13177) for the Opponent(s) No. 1,2 NOTICE SERVED for the Opponent(s) No. 3,4,5,6,7 ==========================================================

CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

Date : 15/09/2023

CAV JUDGMENT

1.Heard learned advocate Mr. Abhaykumar P. Shah

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for the petitioner and learned advocate Ms.

Rekha Mehta for respondent nos. 1 and 2.

2.By this petition, the petitioners have

challenged the order dated 16.07.2021 passed

by 3rd Additional Senior Civil Judge & ACJM,

Bhuj, District Kachchh below Exh.30 in

Special Civil Suit No.53/2016 preferred by

the petitioner under Order VII Rule 11 of the

Code of Civil Procedure 1908, (For short "the

Code").

3.Brief facts of the case are that respondent

nos. 1 and 2 who are the original plaintiffs

preferred Special Civil Suit No.53/2016 in

the Court of Principal Senior Civil Judge,

Bhuj-Kachchh for declaration, specific

performance, damages and permanent injunction

against the petitioner and respondent nos. 3

to 5. Respondent no.6 and 7 were subsequently

joined as defendant no.5 and 6 by way of

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amendment by the plaintiff.

3.1) The plaintiffs preferred the suit

for specific performance for enforcing the

Agreement to Sale dated 04.03.2010 for

purchase of Plot Nos. 23/3, 23/4, 23/16 and

23/17 situated in Revenue Survey No.311/2

situated at Moje Kodki Road, Mankuva, Taluka

Bhuj and District Kachchh (hereinafter

referred to as "the suit property")

admeasuring 334.80 sq. mtr or 400.44 sq.

yards for a consideration of Rs. 4,00,000/-.

At the time of execution of the Agreement to

Sale, the plaintiffs paid earnest money of

Rs.50,000/- to the petitioner-original

defendant no.1. The Agreement to Sale was

signed by the petitioner and respondent no.3

as the co-owners of the land.

3.2) The plaintiffs paid the remaining

amount of Rs. 3,50,000/- to the petitioner

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and respondent no.3 on 22.03.2010.

Consequently, a Power of Attorney was issued

in favour of the plaintiffs confirming the

right of administration and possession of the

suit property.

3.3) It is averred in the plaint that

with a view to destroy the rights of the

plaintiffs over the suit property, the

petitioner and respondent no.3 had sold the

suit property to one Noormammad Alimmad by

creating a bogus, fabricated and forged deed

dated 16.12.2013 which was registered with

office of Sub-Registrar at Serial No.12347.

The plaintiffs therefore, published a caution

public notice in the newspaper and also sent

a legal notice to the petitioner on

25.01.2014. However, as there was no response

from the petitioner in compliance of the

demand of the plaintiffs to execute the sale

deed, Special Civil Suit No.53/2016 was filed

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seeking specific performance of the agreement

made on 04.01.2010.

3.4) The petitioner filed application

Exh.30 under Order VII Rule 11 of the Code to

reject the application on the ground of

limitation as the plaintiffs have sought

specific performance of the Agreement to Sale

entered into on 04.01.2010 and payment was

also made on 22.01.2010 and accordingly, the

suit was not filed within three years from

the date of entire payment. It was further

contended that though the Agreement to Sale

was made with plaintiff no.1, payment was

made by plaintiff no.2 which created doubt on

the veracity of the transaction. It was also

contended that as per the provisions of

Section 17A of the Registration Act, every

Agreement to Sale is required to be

compulsorily registered. However, the

Agreement to Sale dated 04.01.2010 was not

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registered. It was submitted that the

plaintiffs failed to show readiness and

willingness for specific performance of the

agreement.

3.5) Learned Judge after considering the

submissions made by both the sides by

impugned order dated 16.07.2021 rejected the

application Exh.30 filed by the petitioner

under order VII Rule 11 of the Code on the

ground that no specific date was fixed by the

parties in the Agreement to Sale. Reliance

was also placed on Article 54 of the

Limitation Act which provides limitation of

three years from the date fixed for the

performance or if no such date is fixed, when

the plaintiff has noticed that performance is

refused. Learned Judge referring to the said

Article came to the conclusion that

plaintiffs came to know that performance is

refused when they had seen the caution notice

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dated 25.01.2014 produced at Mark 3/5

considering the said date as date of

knowledge. It was held that the suit was

filed within a period of limitation as per

Article 54 of the Limitation Act. Learned

Judge also placed reliance upon the decision

of Apex Court in case of Ram Karan v.

Govind Lal reported in AIR 1999 Raj 167

wherein it is held that in absence of any

stipulation in agreement with regard to time

of execution of sale deed, suit filed within

three years from the date of notice to the

defendant for execution of sale deed is not

barred by limitation.

3.6) Learned Judge therefore, considering

the averments made in the plaint and the

documents annexed therewith held that suit is

not barred by limitation rejecting the

application filed under Order VII Rule 11 of

the Code.

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4.Learned advocate Mr. Abhaykumar P. Shah for

the petitioner submitted that learned Judge

has committed an error by referring to the

date of knowledge of refusal to perform the

Agreement to Sale by the petitioner from the

date of publication of notice dated

25.01.2014 because in view of Article 54 of

the Limitation Act, limitation would start

running from the date of payment and within

three years suit ought to have been filed

whereas admittedly suit has been filed after

more than six years.

4.1) It was submitted that application

filed by the petitioner ought to have been

allowed by the learned Judge inasmuch as

findings of the learned Judge are erroneous

with regard to contention raised by the

plaintiffs that no specific date was fixed by

the parties for performance considering the

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fact that the agreement for sale clearly

provides for payment of remaining amount and,

therefore, limitation is to be ascertained

from that date. It was therefore, submitted

that learned Judge has committed an error

against the settled principle of limitation

as per the judgment of the Apex Court in case

of Ramzan v. Hussaini reported in (1990) 1

Supreme Court Cases 104. Learned advocate Mr.

Shah referred to and relied upon paragraph

no.6 of the judgment wherein it is held and

observed by the Apex Court that requirement

of Article 54 of limitation Act, is not that

the actual day should necessarily be

ascertained upon the face of the deed but

that the basis of the calculation which was

to make it certain should be found therein.

It was therefore, submitted that admittedly

the suit is not filed within three years

after remaining payment was made by

respondent nos. 1 and 2-original plaintiffs.

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4.2) Reliance was also placed on the

decision in case of Decd. Hanubhai Ladhrabhai

Bharwad's Main Legal Heirs and Administrator

v. Legal Heirs of Decd. Chimanbhai Jivabhai

Patel (Judgment dated 12.08.2018 passed in

First Appeal No.2287/2015.), wherein Division

Bench of this Court accepted the proposition

that if the date is capable of being

ascertained from the contents of the

agreement as well as averments made in the

plaint, limitation can certainly commence

from that date. It was further submitted by

learned advocate Mr. Shah that the learned

Judge has erroneously considered the

limitation from the date of publication of

notice in newspaper on 25.01.2014 which would

be an illegal exercise of power.

5.On the other hand, learned advocate Ms. Rekha

Mehta for the respondent nos. 1 and 2-

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original plaintiffs submitted that on perusal

of the averments made in the plaint, learned

Judge has rightly passed the impugned order

rejecting application Exh.30.

5.1) Learned advocate Ms. Mehta would

submit that after making payment of entire

sale consideration of Rs. 4 lakhs, the

petitioner executed Power of Attorney in

favour of respondent nos. 1 and 2- original

plaintiffs on 22.01.2010. It was submitted

that the petitioners thereafter executed the

sale deed in the year 2013 in favour of third

person and thereafter on publication of the

caution notice on 25.01.2014, the plaintiffs

came to know about such execution of the sale

deed. It was therefore, submitted that the

date of knowledge of refusal to perform by

the petitioner is 25.01.2014 and therefore,

suit filed in the year 2016 was within the

period of limitation of three years as per

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Article 54 of the Limitation act. It was

submitted that learned Judge has therefore,

rightly dismissed the application filed by

the petitioner.

5.2) Learned advocate Ms. Mehta

thereafter submitted that reliance placed by

the petitioner on decision in case of

Ramzan(supra) would not be applicable in

facts of the case as there is no date fixed

in the Agreement to Sale dated 04.01.2010. It

was further submitted that on perusal of the

Agreement to Sale, it is clear that the date

of payment of remaining amount of

Rs.3,50,000/- was fixed at 31.03.2010 and

accordingly, amount of Rs.3,50,000/- was paid

on 22.03.2010 and receipt was also issued

by the petitioner in favour of respondent

no.2. In such circumstances, when there is no

date fixed in the Agreement to Sale for

execution of the sale deed, limitation of

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three years would not be applicable as no

date is stipulated for performance of

Agreement to Sale. It was submitted that as

the action on part of the petitioner to

execute the sale deed amounts to refusal to

perform the Agreement to Sale, limitation

would start from the date on which such

refusal was made known to the plaintiff i.e.

on publication of caution notice on

25.01.2014. It was therefore, submitted that

the suit was filed within the period of

limitation. In support of her submission,

reliance was placed on the decision of Apex

Court in case of Chhotaben and another v.

Kiritbhai Jalkrushnabhai Thakkar and others

reported in (2018) 6 Supreme Court Cases 422

wherein the Apex Court held in facts of the

said case that when the suit was filed

immediately after getting knowledge about the

fraudulent sale deed executed by the original

defendants by keeping them in dark about such

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execution, the suit being barred by

limitation in facts of the case is a triable

issue and for which reason the plaint cannot

be rejected at the threshold in exercise of

powers under Order VII Rule 11(d) of the

Code.

6.Considering the submissions made by both the

sides and on perusal of the averments made in

the plaint along with documents annexed

therewith, it appears that after execution of

the Agreement to Sale on 04.01.2010, entire

sale consideration of rs.4 lakh as agreed

upon was paid on 22.03.2010 before the time

fixed in the Agreement to Sale for such

payment i.e. 31.03.2010. It is also pertinent

to note that General Power of Attorney was

also executed in favour of the plaintiff i.e.

respondent no.2 by the petitioner after

handing over the possession of the suit

property and thereafter plaintiffs were

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enjoying the suit property in capacity of the

owner. The suit was filed in the year 2016

after coming to know about the fraudulent

sale deed executed by the petitioner in

favour of one Noormammad Alimmad on

16.12.2013 for a meagre amount of Rs.

42,000/-. However, such sale deed was

cancelled and subsequently another sale deed

was executed on 11.09.2014 for Rs.84,000/- in

favour of Surajgiri Valgiri Goswami who is

joined as original defendant no.5 as per the

amended plaint.

7.Article 54 of the Limitation Act provides for

limitation of three years from the date of

specific performance or if no such date is

fixed when the plaintiff has noticed that

performance is refused. In the facts of the

case, the plaintiffs came to know about

refusal when the caution notice was published

in newspaper on 25.01.2014. The Agreement to

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Sale dated 04.01.2010 does not specify any

date or time for making payment or execution

of the sale deed. It is not possible to

ascertain time of event from the Agreement to

Sale. It is true that the Apex Court has held

that requirement of Article 54 is not that

the actual day should necessarily be

ascertained upon the face of the deed but

that the basis of the calculation which was

to make it certain should be found therein.

Therefore, in facts of the case, the date to

execute the sale deed was not fixed. The

period of limitation itself started running

on the day when the plaintiffs came to know

about the fraudulent sale deed executed by

the petitioner in favour of Noormammad

Alimmad. In case of Chhotaben and another

(supra), the Apex Court in similar

circumstances, has held as under:

"14.After having cogitated over the averments in the plaint and the reasons recorded by the Trial Court

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as well as the High Court, we have no manner of doubt that the High Court committed manifest error in reversing the view taken by the Trial Court that the factum of suit being barred by limitation, was a triable issue in the fact situation of the present case. We say so because the appellants (plaintiffs) have asserted that until 2013 they had no knowledge whatsoever about the execution of the registered sale deed concerning their ancestral property. Further, they have denied the thumb impressions on the registered sale deed as belonging to them and have alleged forgery and impersonation. In the context of totality of averments in the plaint and the reliefs claimed, which of the Articles from amongst Articles 56, 58, 59, 65 or 110 or any other Article of the Limitation Act will apply to the facts of the present case, may have to be considered at the appropriate stage.

15. What is relevant for answering the matter in issue in the context of the application under Order VII Rule 11(d), is to examine the averments in the plaint. The plaint is required to be read as a whole.

The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order VII Rule 11(d). Only the averments in the plaint are germane.

It is common ground that the

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registered sale deed is dated 18th October, 1996. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the appellants (plaintiffs) is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers - original defendant Nos.1 & 2, in favour of Jaikrishnabhai Prabhudas Thakkar or defendant Nos.3 to 6. They acquired that knowledge on 26.12.2012 and immediately took steps to obtain a certified copy of the registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original defendant Nos.1 & 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half (1/2) portion of the land so designated towards their share. However, when they realized that the original defendant Nos.1 & 2 would not pay any heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. According to the appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the Trial Court opined that

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it was a triable issue and declined to accept the application filed by respondent No.1 (defendant No.5) for rejection of the plaint under Order VII Rule 11(d). That view commends to us.

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19. In the present case, we find that the appellants (plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original defendant Nos.1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original defendant Nos.1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order VII Rule 11(d).

20. In the above conspectus, we have no hesitation in reversing the view taken by the High Court and restoring the order of the Trial Court rejecting the application (Exh.21) filed by respondent No.1 (defendant No.5) under Order VII Rule 11(d). Consequently, the plaint will get restored to its original number on the file of the IVth

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Additional Civil Judge, Anand, for being proceeded further in accordance with law. We may additionally clarify that the Trial Court shall give effect to the order passed below Exh.17 dated 20th January, 2016, reproduced in paragraph 5 above, and take it to its logical end, if the same has remained unchallenged at the instance of any one of the defendants. Subject to that, the said order must be taken to its logical end in accordance with law."

8.The Apex Court further in the said decision

referred to decision in case of Church of

Christ Charitable Trust and Educational

Charitable Society v. Ponniamman Education

Trust reported in (2012) 8 SCC 706, wherein

it is observed as under:

"11. This position was explained by this Court in Saleem Bhai v. State of Maharashtra[(2003) 1 SCC 557], in which, while considering Order 7 Rule 11 of the Code, it was held as under:

(SCC p. 560, para 9) "9. A perusal of Order 7 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 7 Rule 11 CPC at any stage

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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 7 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 7 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 7 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 scrutinise 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. v. Ganesh Property [(1998) 7 SCC 184] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express[(2006) 3 SCC 100]."

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9.Decision in case of Decd. Hanubhai

Ladhrabhai Bharwad's Main Legal Heirs and

Administrator(supra) relied upon by the

petitioner is not applicable in facts of the

case as in the said case, it was not in

dispute that as per the averments made in the

plaint, it was not possible to know as to

when the plaintiff came to knowledge about

execution of Agreement for Development and