Satishbhai Dahyabhai Patel vs Dr. Umeshbhai Narshinhbhai Thakkar
2024 Latest Caselaw 4965 Guj

Gujarat High Court

Satishbhai Dahyabhai Patel vs Dr. Umeshbhai Narshinhbhai Thakkar on 19 June, 2024

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     C/SA/258/2022                           JUDGMENT DATED: 19/06/2024

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         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/SECOND APPEAL NO. 258 of 2022
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                 In R/SECOND APPEAL NO. 258 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J. C. DOSHI
==============================================================
 1 Whether Reporters of Local Papers may be allowed to               No
   see the judgment ?

 2 To be referred to the Reporter or not ?                           No

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

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

==============================================================
                SATISHBHAI DAHYABHAI PATEL & ORS.
                              Versus
           DR. UMESHBHAI NARSHINHBHAI THAKKAR & ANR.
==============================================================
Appearance:
MR.DIPAK B PATEL(3744) for the Appellant(s) No. 1,2,3
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1,2
==============================================================

 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                         Date : 19/06/2024
                         ORAL JUDGMENT

1. The seminal issue involved in the Second Appeal under Section 100 of Code of Civil Procedure, 1908 (for short 'CPC') is that whether the Court below has erred in rejecting the plaint under Order 7 Rule 11 of CPC.

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2. The Second Appeal under Section 100 of CPC questions the legality and propriety of common order passed below Exhibit- 5, 11 and 20 passed in Regular Civil Suit No.107 of 2012 whereby the application at Exhibit-11 filed by the defendant of the suit has been allowed and the plaint was rejected under Order 7 Rule 11 of CPC. Unsuccessful attempt was made by the plaintiff by filing first appeal being Regular Civil Appeal No.19 of 2012, hence this second appeal.

3. The parties are referred to as they are stated before the learned Trial Court.

4. The facts leading to filing of this second appeal are summarized as under.

4.1 It was that case of plaintiffs that they are owners of Final Plot No.230 (Old Survey No.90-1 and 91) of T.P.Scheme No.1 situated at Sub Plot No.16 admeasuring 415.78 sq.mtrs. of Tirthnagar Cooperative Housing Society Limited. The plaintiffs want to use the said plot for commercial purpose and they applied before society on 21.12.2008. The members of society allowed the said application. Plaintiffs paid Rs.20,75,000/- to the society, as decided. However, in a general meeting of society dated 21.12.2008 a resolution was passed cancelling the permission given to plaintiffs. On the basis of said resolution, some members filed Lavad Suit No.536 of 2010 before Board of Nominees wherein compromise was arrived in the meanwhile. The plaintiffs sold the said plot to defendant vide registered Sale Deed dated 22.09.2010. However, as the defendant did not pay

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Rs.58,50,000/- paid by the plaintiffs to the society, the plaintiffs filed objection not to join defendant as member of the society. Plaintiffs filed Lavad Suit No.578 of 2011 before Board of Nominees which is pending. Thereafter, as the defendant tried to make construction over the said plot, the plaintiffs filed Regular Civil Suit No.107 of 2012 which was rejected by the learned Trial Court vide order dated 15.06.201. Being aggrieved, plaintiffs filed Regular Civil Appeal No.19 of 2012 before learned Appellate Court which was also dismissed vide order dated 24.06.2019. Hence, present second appeal.

5. Heard learned advocates for the respective parties.

6. Learned advocate Mr.Dipak Patel appearing for the appellants would submit that the learned Court below has seriously erred in rejecting the plaint without permitting plaintiffs to put their case for trial. He would submit that the plaintiffs had paid around Rs.58,50,000/- to Tirthnagar Cooperative Housing Society Limited Vibhag-3 for permitting commercial use of Plot No.16. Subsequently, the plaintiffs have sold the plot to the defendant. Since Tirthnagar Cooperative Housing Society Limited neither permitted the plaintiffs to use Plot No.16 for commercial purpose nor refunded the amount to the plaintiffs, the suit being Regular Civil Suit No.107 of 2012 was filed seeking relief of injunction restraining the defendant i.e. the purchaser of the plot from carrying out any new construction in Plot No.16 or to remove old construction made thereon. He would further submit that this was the sum and substance of the suit filed by the plaintiffs. He would submit that

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such relief claimed by the plaintiffs were not barred by any provision of law, on the contrary they are triable by learned Civil Court. Learned Trial Court has committed error in rejecting the plaint. The error has been transcended as learned Appellate Court also dismissed the Regular Civil Appeal. Therefore, he would submit that since there is a serious issue of rights of the plaintiffs is involved in the plaint, it can only be decided after the cause of action is put to trial. Therefore, he would submit to allow this second appeal.

7. On the other hand, learned advocate Mr.Majmudar appearing for the respondent would submit that learned Trial Court has not committed any error. Supporting the concurrent finding of the learned Trial Court, the respondent would submit that the suit was frivolous and vexatious. No cause of action was ever arose against the defendant of the suit. It was an attempt on the part of the plaintiff to presurrize the defendant to get some other relief which he could at the most obtain against the Tirthnagar Cooperative Housing Society Limited. The cause of action is illusory, astute and camouflage. He would further submit that learned Trial Court has rightly rejected the plaint and the same has been rightly confirmed by the learned District Court. Therefore, there is no reason to interfere with the impugned orders in this second appeal. There is no substantial questions of law involved therein.

8. Having heard learned advocates for both sides, at the outset, I may refer to the prayers claimed by the plaintiffs in the Regular Civil Suit. They are in vernacular language Gujarati but

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for better understanding, they are translated in English as under:

"(A) Your Honour is requested to pass an order declaring that the Respondents in this matter are not entitled to make construction after making any type of renovation upon the suit property being the plot of land admeasuring 415.78 sq.mtrs. situated in Tirthnagar Society Vibhag-3, sub-Plot No.16 (old sub-plot No.15), constructed by Tirthnagar Co-Operative Housing Society Limited on the land bearing Final Plot No.230 (Old Survey No.90-1 and 91) of T.P. Scheme No.1, located in the sim of Moje Ghatlodiya of City Taluka, Sub-District Ahmedabad-2 (Vadaj) of District Ahmedabad.

(B) Your Honour is requested to kindly pass such a permanent injunction order that the Respondents in this matter and their supporters, servants, agents, contractors shall not make or get to be made any type of new construction after making any type of renovation in the suit property being the plot of land consisting of an area of 415.78 sq.mtrs situated in Tirthnagar Society Sub-Plot No.16 (Old sub-plot No.16) constructed by Tirthnagar Co-Operative Housing Society Limited Vibhag-

3, bearing Final Plot No.230 (Old Survey No.90-1 and 91) of T.P. Scheme No.1, located in the sim of Moje Ghatlodiya of City Taluka, Sub-District Ahmedabad-2 (Vadaj) of District Ahmedabad.

(C) Your Honour is requested to pass such permanent injunction order that the Respondents in this matter or their supporters, servants, agents, power-of-attorney holders themselves shall not or make others to transfer, assign or sell out the said suit property or any part thereof to any other third party or change it in any other manner or make any write-up or enter into any transactions that may create rights of any third party thereupon or handover the possession thereof in any way or create any sort of charge or encumbrance on the suit property.

(D) Any other relief that may deem appropriate and reasonable to the Honourable Court may be granted.

(E) Entire costs of this suit may be recovered from the Respondents and given to us."

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9. The cause of action para being para 8 of the plaint reads as under :

"(8) The reason for filing of this suit is such that, the Plot No.16 having your [sic] ownership situated in Tirthnagar Co-Operative Housing Society Limited was sold out to the Respondents in this matter Umeshbhai Narsinhbhai Thakkar and Nitaben Umeshbhai Thakkar and in this connection, the resignation was given from the post of Member of the said Society, but due to the reason that the entire amount of consideration was not received from them and since our name/s were to be removed from the post of Member/s of the said Society by including names of Umeshbhai Narsinhbhai Thakkar and Nitaben Umeshbhai Thakkar as the Member/s, we had given an objection application dated 26/09/2010 requesting not to make any correction in the share certificate; but the office bearers of the Society had, without disposing of our objection application, passed one resolution on 30/09/2010 and, thereby, they had removed names of us, the Plaintiffs, as the Member/s and they had included names of the Respondents Umeshbhai Narsinhbhai Thakkar and Nitaben Umeshbhai Thakker as the Member/s and; therefore, in this connection, we had filed Arbitration (Lavad) Suit No.579/2010 before the Hon'ble Court of Board of Nominees at Ahmedabad. Since then and since the time when the above-mentioned appeals were filed and even though the said litigation are still pending, the Respondents in this matter have been planning to demolish the suit property so as to make new construction thereupon and they have also been planning to sell out the suit property or to transfer or assign it to third parties in any manner. Since then, the reason for filing of this suit has been created within the jurisdiction of the Honourable Court of Your Honour."

10. The sum and substance of the entire story put by plaintiff is that in the suit for declaration and permanent injunction, the plaintiffs averred that they are owners of Plot No.16 of Tirthnagar Cooperative Housing Society Limited. They have moved

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application to the society for permitting them to use plot for commercial purpose and paid certain amount to the society but in a general meeting of the society took place on 21.12.2008, a common resolution was passed not to permit any one to use the plot for commercial purpose. Lavad Suit No.536 of 2010 was preferred before the Board of Nominees and the plaintiffs appeared therein and became the party to that proceedings which later on culminated into compromise. The plaintiffs abided that they would not use the Plot No.16 for commercial purpose. In this regard the plaintiffs were seeking for the refund of the amount they have deposited to the society.

11. What further appears that the plaintiffs sold Plot No.16 to the defendant on 22.09.2010 by registered Sale Deed and also tendered their resignation from being members of the society as the new purchaser has become member of the society. They have objected for defendant to be a member of the society on the ground that the society has not refunded them the amount which they have deposited.

12. In this background of the facts, the plaintiffs have come up with the above cause of action and relief claimed therein.

13. What appears from the pleadings of the parties that it is a dispute between plaintiffs and Tirthnagar Cooperative Housing Society Limited. Learned advocate Mr.Patel appearing for the plaintiffs fairly submitted that a suit has been preferred in the Board of Nominees for recovery of the amount which is deposited by the plaintiffs to the society. The suit is dismissed and now

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appeal is pending. It appears that in order to presurrize Tirthnagar Cooperative Housing Society Limited, the plaintiffs have filed the suit and attempted to presurrize and harass the purchaser from riping the benefits of the fruits of purchasing the property. In other words, the plaintiffs under the illusory cause of action attempted that the defendant to whom he has sold Plot No.16 could not get fruits of the purchase of the plot. It is trite law that until the sale deed is set aside or unsettled, the party purchaser cannot be prevented from taking fruits of the property he has purchased. The word 'cause of action' is not defined in Code of Civil Procedure. It is settled principle of law that 'cause of action' is bundle of fact pleaded in the plaint. In plaint, the plaintiff has sought relief against defendant without having any cause of action against him.

14. In Sopan Sukhdeo Sable vs. Charity Commissioner - (2004) 3 SCC 137, the Hon'ble Supreme Court has observed as under :

"11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and Ors. (1998 (2) SCC 70) it was held that the basic question to be decided while dealing with an application filed under Order VII Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order VII Rule 11 of the Code.

12. The trial Court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order X of the Code."

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15. The Court is expected to read the plaint meaningfully and not formally and if plaint is found to be manifestly vexatious and meritless in sense of not disclosing a clear right to sue, the Court can exercise the power under the Order 7 Rule 11 of CPC. Clever drafting if has created illusion of the cause of action, it has to be nipped at the bud at the first instance. Yet in another decision in the case of Madanuri Sri Rama Chandra Murty vs. Syed Jalal

- (2017) 13 SCC 174, the Hon'ble Supreme Court has observed as under :

"7. 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 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."

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16. This seems to be a gross abuse of process of law. The mindful reading of plaint indicates that it is frivolous and vexatious having no real cause of action. It appears to be flagrant misuse of the process of Court. The clever drafting of cause of action has camouflage a real cause of action. Therefore, the suit being a vexatious and frivolous has been rightly nipped into the bud at first hearing by the learned Court below and rightly has been confirmed by the learned Appellate Court.

17. Before parting with the order, let me refer to the case of T. Arivandandam vs. T.V.Styapal - (1977) 4 SCC 467, wherein it is held by the Hon'ble Supreme Court as under :

"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII r. 1 1 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits."

18. For the foregoing reasons, there is no substantial question of law has arisen. Learned Courts below have not committed any error in rejecting the plaint. The present second appeal stands dismissed. Interim relief, if any, to discontinue.

(J. C. DOSHI, J) GAURAV J THAKER