Gujarat High Court

Radhika Gas Services Through Sole ... vs Laxmiben D/O Ramsangh Shabhai Solanki on 7 February, 2024

                                                                               NEUTRAL CITATION




      C/FA/2124/2023                           ORDER DATED: 07/02/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                   R/FIRST APPEAL NO. 2124 of 2023
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
                  In R/FIRST APPEAL NO. 2124 of 2023
                                With
     CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2 of 2023
                  In R/FIRST APPEAL NO. 2124 of 2023
===============================================================
 RADHIKA GAS SERVICES THROUGH SOLE PROPRIETOR RADHIKA
                   AMARSINGH RATHWA
                         Versus
         LAXMIBEN D/O RAMSANGH SHABHAI SOLANKI
===============================================================
Appearance:
MR PARV S GUPTA(11850) for the Appellant(s) No. 1
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1
NOTICE SERVED BY DS for the Defendant(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                          Date : 07/02/2024
                           ORAL ORDER

1. Heard learned advocate Mr. S.P. Majmudar for the

appellant.

2. The present First Appeal is filed under Section 96 of the

Code of Civil Procedure, 1908, (for short hereinafter referred

to as 'the Code') challenging the judgment and order dated

07.01.2023 passed by learned the 26th Additional Senior Civil

Judge, Vadodara below Exhibit-37 in Special Civil Suit

No.55/2021, whereby the plaint of the present appellant came

to be rejected.

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3. Notice was issued to the respondents by the Coordinate

Bench of this Court vide order dated 06.06.2023, which was

duly served to the respondents and the service affidavit of one

Mr. Chandreshkumar Parmar dated 03.07.2023 is placed on

record which suggests that all the respondents have been duly

served. Though served, none appeared for the respondents.

4. The brief facts leading to the present appeal in a nutshell

are as under:-

4.1 The plaintiff filed the Special Civil Suit No.55/2021

against the present respondents for an agricultural land bearing

Revenue Survey No.930 Khata No.152, T.P. Scheme No.60 of

Gotri, Final Plot No.111 of the District Vadodara,Village Gotri.

The said suit was for a relief of cancellation of registered sale

deed being Registration No.566 dated 06.04.2018. The

cancellation of registered sale deed being null and void as the

said registered sale deed was executed by the present

respondent Nos.1 to 4 in favour of the respondent No.5. The

aforesaid suit was filed on 01.04.2021.

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5. Learned advocate for the appellant has submitted that the

appellant is the owner and is in possession of the suit property

by virtue of a registered sale deed dated 01.08.2011 executed

by respondent Nos.1 to 4 in favour of the present appellant. It

is further submitted that after the execution of the aforesaid

registered sale deed dated 01.08.2011, the present appellant

filed a Regular Civil Suit No.66 of 2015 claiming the

ownership rights on the basis of adverse possession which is

pending. It is further submitted that during the pendency of the

said suit, the respondent Nos.1 to 4 executed a registered sale

deed dated 06.04.2018 in favour of the respondent No.5. It is

further submitted that the respondent Nos.1 to 5 are in

collusion with each other and with a view to snatch away the

suit property, the registered sale deed was executed. Appellant

has pleaded cause of action in paragraph No.9 of the plaint.

Thereafter, the present respondent Nos.1 to 4 filed a Special

Civil Suit No.132 of 2019 against the present appellant for a

relief of cancellation of registration of sale deed dated

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01.08.2011, the said suit is still pending. It is further submitted

that criminal proceedings were lodged by the original owner

against the present appellant. The present appellant was

acquitted on 31st January 2023 by the learned 9th Chief Judicial

Magistrate, Vadodara from the charges.

5.1 It is further submitted that respondent Nos.1 to 4 filed

Exhibit-37 by invoking the jurisdiction of Order VII Rule 11

(a) and (d) read with Sections 94 and 151 read with Order 6

Rule 16 of the Code.

5.2 Learned advocate for the appellant has further submitted

that the learned trial Court has committed an error in granting

the application below Exhibit-37. It is further submitted that in

the plaint, the appellant has specifically averred a contention

that the appellant has filed a Regular Civil Suit No.66 of 2015

before the learned Civil Judge, Senior Division, Vadodara for a

relief of title under adverse possession and the said suit is

pending. However, the learned trial Court has erred in

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observing that the plaintiff has suppressed facts in the plaint.

5.3 It is further submitted that the learned trial Court has

committed an error by relying upon the contentions raised in

the Written Statement. The reference can be found in the

impugned order being at paragraph No.11. It is further

submitted that the Regular Civil Suit No.66 of 2015 was filed

on a different cause of action from the present Special Civil

Suit No.55 of 2021. The present suit was filed challenging the

registered sale deed dated 06.04.2018 and a cause of action

arose when the registered sale deed was executed in favour of

the respondent No.5. It is further pointed out that the provisions

of Order 2 Rule 2 of the Code are not applicable to the facts

involved in the present case. It is further submitted that the

learned trial Court has exercised the powers beyond the scope

of Order 7 Rule 11 (a) and (d) of the Code.

5.4 In support of his submissions, learned advocate for the

appellant has placed reliance upon the decisions of Hon'ble

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Supreme Court in the case of Chandrakant Govind Deshmukh

Vs. The State of Maharashtra through Collector Amravati

and another reported in 1966 SCC OnLine Bom 4; in the case

of Smt.V.Bragan Nayagi vs R.R.Jeyaprakasam reported in

2015 SCC OnLine Mad 9032 and in the case of G. Nagaraj &

Anr. Vs. B.P. Mruthunjayanna & Ors. delivered in Civil

Appeal No.2737 of 2023.

6. Having considered the submissions and on close perusal

of the order impugned, the limited scope under this Appeal is

whether the learned trial Court has rightly exercised the powers

under Order 7 Rule 11 of the Code by rejecting the plaint or

not? The facts which can be culled out from the plaint are that

the appellant has filed the suit for the relief of cancellation of a

registered sale deed dated 06.04.2018, which was executed by

respondent Nos.1 to 4 in favour of the respondent No.5. The

respondent Nos.1 to 4 have also filed a Special Civil Suit

No.132 of 2019 challenging the registered sale deed dated

01.08.2011, upon which the plaintiff is claiming title over the

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suit land. The appellant was acquitted from the said criminal

proceedings vide order dated 31st January 2023 by the learned

9th Chief Judicial Magistrate, Vadodara.

7. It is worthwhile to note that the Regular Civil Suit No.66

of 2015 was for a relief of ownership of adverse possession

plea, whereas the Special Civil Suit No.55 of 2021 is filed on a

cause of action which arose when the registered sale deed dated

06.04.2018 came to be executed in favour of the respondent

No.5 by the respondent Nos.1 to 4. Thus, in both the suits, the

cause of action are different. Whether the plaintiff can file two

different suits on two different cause of action is a matter of

trial and which cannot be gone into by invoking the provisions

of Order 7 Rule 11 of the Code.

8. The learned trial Court has committed an error of law,

more particularly, in paragraph No.11 of the order impugned

whereby the learned trial Court has observed that in absence of

material facts being pleaded or produced by the plaintiff, the

Court is competent to go to the evidence adduced by the

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plaintiff along with the Written Statement, which is a gross

error of law being committed by the learned trial Court.

9. It is a settled principle of law that while deciding an

application under Order 7 Rule 11 of the Code, only the

averments made in the plaint and the documents produced in

support of the plaint are to be seen and the defence or the

documents produced in support of the defence cannot be

looked into.

10. At this stage, this Court finds to reproduce the provisions

of Order 2 Rule 2 of the Code which are as under:-

2. Suit to include the whole claim. -

"(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim.-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.

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(3) Omission to sue for one of several reliefs.-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."

11. The said provisions deal with the relinquishment of the

claim and omission to sue for one or several reliefs. The said

provisions envisage that the suit shall include whole of the

claim. Order 2 Rule 2(2) of the Code deals with relinquishment

of claim and Order 2 Rule 2(3) of the Code deals with omission

of reliefs. Thus, there is a clear distinction between the claim

and reliefs as can be seen from reading the said provisions. In

the present case, when the Regular Civil Suit No.66 of 2015

was filed, there is no existence of registered sale deed dated

06.04.2018 and thus, there is no question of relinquishment of

claim or omission to sue for any reliefs. The Special Civil Suit

No.55 of 2021 is filed challenging the registered sale deed

dated 06.04.2018, which is a fresh cause of action. The learned

trial Court has committed an error in not considering the said

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aspects and has fallen into a trap of mis-interpreting the

provisions of law.

12. So far as the next question regarding non-issuance of

Notice under Section 18 of the Code is concerned, again the

learned trial Court has committed an error in reading the

complaint. In the plaint as observed above, the prayer is only

qua challenging the said relief of permanent injunction, no such

prayers are sought for against the respondent No.6.

13. At this stage, it would be pertinent to refer Section 80 of

the Code, which reads as under:-

"80. Notice-(1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office-

(a) in the case of a suit against the Central Government, [except where it relates to a railway, a Secretary to that Government;

(b) in the case of a suit against the Central Government

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where it relates to a railway, the General Manager of that railway;

(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;

(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims;

and the plaint shall contain a statement that such notice has been so delivered or left.

(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub- section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements

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of sub-section (1).

(3)No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice-

(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and