Gujarat High Court
Prajapati Kodarbhai Kachrabhai vs Aanjana Valabhai Manabhai Since Died ... on 26 June, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 53 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 53 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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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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PRAJAPATI KODARBHAI KACHRABHAI
Versus
AANJANA VALABHAI MANABHAI SINCE DIED THROUGH LHR & ORS.
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Appearance:
MR JIGAR G GADHAVI(5613) for the Appellant(s) No. 1
for the Respondent(s) No. 3
DECEASED LITIGANT for the Respondent(s) No. 1
DELETED for the Respondent(s) No. 2
MR P S DATTA(11324) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 26/06/2024
CAV JUDGMENT
Since the limited issue of rejection of plaint under O.7
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R.11(d) of the Code of Civil Procedure 1908 (for short the CPC) is
involved in the present Second Appeal, this Second appeal, with
the consent of learned advocates appearing for the parties is
taken up for final hearing.
2. This Second Appeal under Section 100 of the Code
challenges the judgment and order dated 17/10/2023 passed in
Regular Civil Appeal No.6 of 2022 by the learned Principal
District Judge, Banaskantha at Palanpur reversing the judgment
and decree dated 26/04/2018 passed below Exh.13 in Regular
Civil Suit No.15 of 2017 by the learned Principal Civil Judge,
Danta.
3. The facts needed to decide this appeal can be outlined as
under:
3.1 The short facts of the case are that the disputed suit land
bearing Revenue Survey No.120/1 belongs to plaintiffs and they
have not transferred or sold it to anyone as is reflected from
documentary evidence at Mark4/1, 4/3, 4/5, 4/6 whereby the
name of the plaintiffs is reflected in revenue record. It is the case
of the plaintiffs that the defendants have done their forged
signature and as a result wrong and false Sale-deed has been
created. It is also stated that plaintiffs have come across the false
sale-deed only on 10.04.2017 and thus plaintiffs filed Regular
Civil Suit No.15 of 2017 against the defendants before the Court
of learned Principal Civil Judge, Danta and prayed for
cancellation of the so-called sale-deed executed on 04.12.2004 in
respect of the disputed suit land bearing Revenue Survey
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No.120/1 situated at Village: Kundel, Tal. Danta, District:
Banaskantha. Plaintiffs have also prayed for permanent
injunction that defendants and their legal heirs, servants and
agents be restrained from transferring the suit land to anybody by
way of sell or mortgage.
3.2 During the pendency of the suit, defendant No.1 had filed
an application before the learned Trial Court at Exh.13 for
rejection of the suit of the plaintiffs under O.7 R.11 of CPC. It is
submitted that the plaintiffs have not joined Sub-Registrar as
defendant No.2 and it is mandatory to give notice under section
80 of CPC. It is also submitted that as no notice has been given,
the same suffers on technical ground. It is also submitted that
the prayer for cancellation of sale-deed has been made by the
plaintiffs after a period of 13 years and hence it is required to be
rejected.
3 . 3 After hearing both the sides and after taking into
consideration the documentary evidence available on record,
learned Trial Court rejected the suit of the plaintiffs under
Order-7 Rule-11 of C.P.C.
3.4 Aggrieved and dissatisfied with the order of the learned
trial court, present appellants-original plaintiffs have preferred
the Regular Civil Appeal No.6 of 2022 before the learned first
appellate Court. The learned first appellate Court after hearing
both the sides has rejected the appeal and thus the appellant
has filed this Second Appeal.
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4. Following questions of law has been framed by the
appellant for the consideration of this Court:
"A. Whether the First Appellate Court was right in
entering into appreciation of the evidence while
considering the issue limited to Order 7 Rule 11 of
the Civil Procedure Code which pertains to the
rejection of plaint?
B. Whether the First Appellate Court was right in
throwing burden on the Appellant - original
Defendant No.1 to prove that the original Plaintiffs
were aware about the execution of the Sale Deed
dated 04.12.2004, which is a registered Sale Deed,
ignoring the fact that there was deemed knowledge to
the Plaintiffs with regard to the registered document
(Sale Deed dated 04.12.2004)?
C. Whether or not the First Appellate Court has
committed error of law by not considering the
provision with regard to the deemed knowledge of the
registered document (Sale Deed dated 04.12.2004)?
D. Whether or not the findings given by the First
Appellate Court are perverse and it involves clear cut
misinterpretation of law as well as error law and
judgment?
E. Whether the First Appellate Court has committed
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serious error by not considering Section 3 of the
Transfer of Property Act and other provisions of the
Transfer of Property Act, 1882, as well as the
Registration Act, 1908, by not considering that the
Plaintiff had a notice with regard to the fact of
execution and registration of the Sale Deed and
thereby the transfer of property in question, in view of
what is provided under Section 3 of the Transfer of
Property Act, 1882?
F. Whether the First Appellate Court was right in
allowing the appeal travelling beyond the points of
determination framed vide Exhibit-16?"
5. In background of the above questions of law framed by the
appellant, learned advocates appearing for the parties are heard
at length.
5.1 Learned advocate Mr.Jigar Gadhvi for the appellant - org.
defendant no.1 would submit that the appellate Court has
committed serious error in reversing the judgment and decree of
the trial Court whereby the plaint was rejected by the trial Court
on the touchstone of the Limitation Act as the suit was
hopelessly barred by limitation.
5.2 He would further submit that by filing the suit the plaintiff
has challenged the legality and validity of the sale-deed executed
on 04/12/2004 in favour of the appellant-defendant no.1 on the
ground that they have not signed the registered sale-deed as well
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as fraud committed in execution of the registered sale-deed, with
the averment that the plaintiff came to know about the execution
of the sale-deed only when he received a notice dated
01/04/2017 regarding the mutation of entry. However, learned
advocate would submit that suit challenging the sale-deed dated
04/12/2004 is barred by principle of limitation as in view of
Article 59 of the Limitation Act, the plaintiff was required to file
suit within three years from the date of the knowledge.
5.3 He would further submit that since the document was
registered before the Sub-Registrar Office, there is deemed
knowledge and it could be presumed that plaintiff was knowing
fully well about the execution of the sale-deed and yet the same
has been challenged after 13 years. He would further submit
that trial Court has rightly discussed and interpreted this issue
in contrast to provision of law by passing the order below Exh.13
rejecting the plaint under O.7 R.11.
5.4 Learned advocate Mr.Gadhavi for the appellant would
submit that in the appeal proceedings, the appellate court has
taken different kind of view which is not backed by any provision
or the documentary evidence on record. He would further submit
that the plaintiff has asked the relief to cancel the sale-deed;
apart from that, no other relief is claimed; yet the appellate court
has gone into the merits of the case on the ground that stamp
papers are purchased by the appellant and there is issue of
possession and therefore all these issues require to be dealt with
during the trial.
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5.5 He would further submit that reasons assigned by the
appellate Court for reversing the decree is totally perverse,
erroneous and patently illegal and against the settled principle of
law and therefore he would submit to allow this appeal and to
quash and set aside the judgment and order passed by the
appellate Court.
5.6 Learned advocate for the appellant Mr.Gadhavi has relied
upon the decision in case of L.H. of Decd. Alibhai Kalubhai vs. L
H of Late Pagi Vaja Vittal [2024 (1) GLH 513] more particularly
paragraph 12 thereof which reads thus:
"12. From a reading of the aforesaid Article, it is clear that
when the date is fixed for performance, limitation is three
years from such date. If no such date is fixed, the period of
three years is to be computed from the date when the
plaintiff, has notice of refusal. When rejection of plaint is
sought in an application filed under O.VII R.11, same is to
be considered from the facts of each case, looking at the
averments made in the plaint, for the purpose of
adjudicating such application. As averred in the plaint, it
is the case of the plaintiff that even after payment of the
entire consideration amount registration of the document
was not made and prolonged on some grounds and
ultimately when he had visited the site on 25.05.2017 he
had come to know that the same land was sold to third
parties and appellants have refused performance of
contract. In such event, it is a matter for trial to record
correctness or otherwise of such allegation made in the
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plaint. In the C.A.@ SLP(C)Nos.23062-63/18 suits for
specific performance falling in the second limb of the
Article, period of three years is to be counted from the date
when it had come to the notice of the plaintiff that
performance is refused by the defendants. For the purpose
of cause of action and limitation when it is pleaded that
when he had visited the site on 25.05.2017 he had come to
know that the sale was made in favour of third parties and
the appellants have refused to execute the Sale Deed in
which event same is a case for adjudication after trial but
not a case for rejection of plaint under O.VII R.11(d) of
CPC."
6. On the other hand, learned advocate Mr.P.S.Datta for
Mr.Majmudar, learned advocate for the respondents-plaintiffs
would submit that in view of Article 59 of the Limitation Act, the
limitation to challenge sale-deed would commence from the date
of knowledge and the date of knowledge is specifically stated by
the plaintiff in the plaint and in that view the suit was within the
time limit. He would submit that in this regard specific cause of
action has been stated in the plaint which is believed to be true
at the time of deciding plea of rejection of the plaint. He would
further submit that when defendant insisting to reject the plaint
under O.7 R.11 of CPC, the statement made in the plaint are
considered to be as true and even if considering the said
statement as true if the suit is found to be in violation of any
provisions of law, O.7 R.11 of CPC can be pressed into service for
rejection of the plaint.
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6.1 He would further submit that in the present case the
plaintiff has also pleaded fraud and this aspect needs trial. He
would submit that plaintiff was never knowing about execution
of the sale-deed, even plaintiff had not signed the sale-deed. It is
specifically averred that the plaintiff came to know about the
execution of the sale-deed only when notice for mutation entries
is received by him. Immediately, thereafter he has filed the suit
challenging the sale-deed and therefore, the suit was within the
time limit. The civil court has committed serious error in
rejecting the suit which has been rightly reversed by the
appellate court and therefore he would submit not to interfere
with the findings arrived by the appellate court.
6.2 In support of his above submissions, learned advocate
Mr.Datta would rely upon the decision rendered in F.A. No.3866
of 2011 in the case of Shardaben d/o Davalbhai Maganbhai
Patel vs. Natwarlal Davalbhai Patel & Ors ., dated 21/02/2024
and Bahadurbhai Laljibhai Malhotra vs. Ambalal Joitaram Heir
of Joitaram Ranchhoddas [2015(3) GLR 2760] , more particularly,
paragraph 23 thereof.
"23. It is true that in the said case, the Supreme Court did
apply the principle of deemed knowledge on a plaintiff who
claimed to be having preexisting right when the suit land was
subsequently sold. However, such observations cannot be read
in isolation and cannot be seen as the Court laying down a ratio
that in case of every registered instrument of transfer of
immovable property, the world at large would be deemed to
have notice of such transaction and period of limitation to
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question legality thereof would commence from the date of
registration of the instrument. In fact the Supreme Court
adopted the analogy and applied the principles flowing from
section 3 of the Transfer of Property Act in facts of the case
where the plaintiffs could and ought to have discovered with
due diligence regarding the subsequent sale transaction. It was
in this context the Supreme Court held that in absence of any
averment or proof to show that the suit is within time, the
plaintiff would fail. It was further observed that when a
document is registered the date of registration becomes the date
of deemed knowledge and in other cases where a fact could be
discovered by due diligence then deemed knowledge would be
attributed to the plaintiff because a party cannot be allowed to
extend period of limitation by merely claiming that he had no
knowledge. Thus even in case of a registered document, to any
situations which are not covered under section 3 of the Transfer
of Property Act, it is always open for the plaintiff to point out as
to the manner and source of knowledge of the transaction and
to establish that such fact could not have been discovered by
due diligence and that therefore, the plaintiff cannot be
attributed deemed knowledge of the offending transaction."
7. It is settled rule of law that plea of rejection of plaint is
founded on the 'Plea of Demurrer'. A party raising such plea
under Order 7 Rule 11 of CPC has to take the facts stated by the
plaintiff in plaint as correct. Pleadings which is gathered from
the plaint and documents filed by the plaintiff are only to be
seen at the time of deciding plea under Order 7 Rule 11 of CPC.
The defence of the defendant is wholly relevant at the stage of
deciding this application. Presumption of prima facie correctness
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is attached with the plaint and the party intend to reject the
plaint at threshold is burdened with the onus to show that in
spite of presumption of prima facie correctness of the plaint, still
the plaint is not maintainable as it is barred by provision of law
or lacking cause of action or barred by other exigencies stated
under Order 7 Rule 11 of CPC. However, despite tentative
admission of correctness of the plaint, if plaintiff is not disclosing
complete or even partial cause of action or the relief claimed in
the plaint or it is barred by law, plaint is liable to be rejected
within the provisions of Order 7 Rule 11 of the Code of Civil
Procedure. Plain language of O.7 R.11 of the CPC espy that, for
determination of an application under the provision of Order 7
Rule 11 of CPC, the Court has to look alone into the plaint and
documents annexed therewith. Language couched in O.7 R.11 of
CPC does not admit any scope for doubt that the written
statement filed by the defendant cannot be referred or relied nor
averments made in the application for decision. Whether the
plaint discloses any cause of action or not or relief claimed in the
plaint is barred by limitation, is root question, to be decided. It
must thus necessarily be construed that language of Rule is
circumscribed by the limitation of reading the plaint at best with
its supporting documents.
8. At this juncture, well famous decision of Hon'ble Supreme
Court in case of T.Arivandandam v/s. T.V.Satyapal [1977 (4)
SCC 467], is required to be referred wherein following
observations are made:
"5. We have not the slightest hesitation in condemning the
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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, Page 19 of 26 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, he should exercise his power
under Order 7 Rule 11 CPC 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 10 CPC. an activist Judge is the answer to
irresponsible law suits."
9. Useful reference can be made to the case of Sopan
Sukhdeo Sable v/s. Charity Commissioner [(2004) 3 SCC 137] ,
the Hon'ble Supreme Court has observed under : -
"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
7 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
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under Order 10 of the Code. (See T. Arivandandam v. T.V.
Satyapal [(1977) 4 SCC 467].)"
10. Another decision can be pressed is in case of Madanuri Sri
Rama Chandra Murty v/s. Syed Jalal [(2017) 13 SCC 174] , the
Hon'ble Supreme Court has observed under :-
"7. The plaint can be rejected under Order 7 Rule 11 if
conditions enumerated in the said provision are fulfilled. It
is needless to observe that the power under Order 7 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 7 Rule 11
CPC. Since the power conferred on the court to terminate
civil action at the threshold is drastic, the conditions
enumerated under Order 7 Rule 11 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
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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 7 Rule 11 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."
11. Thus, what carved from the aforesaid judgment that while
exercising power under Order 7 Rule 11 of CPC, which is drastic
itself and terminate the civil action at the threshold, to exercise
such power of rejection of plaint have to be strictly adhered to,
the averments made in the plaint are required to be read
meaningfully and to scrutinize them to find out whether plaint is
genuine or illusory, whether it is setting up cause of action, if
traversed, is proving in favour of the plaintiff to support right to
the judgment.
12. The case on hand indicates that plaintiff came out with the
plea that sale-deed executed in the year 2004 is fraudulent and
they have not signed this document and they were never
knowing the fact of execution of the sale-deed. Since the fraud
was discovered just prior to filing of the suit, the suit is within
the limitation. In this regard, firstly, let reproduce the relevant
averment constitution cause of action. Averment is in Gujarati
language; however for better understanding, it is translated into
English as under:
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"10. Since the defendant has filed RTS Appeal No.16 of
2017 before the Deputy Collector, Danta on 31/03/2017
and upon receipt of notice thereof, we obtained the
certified copy from the office of the Sub-Registrar in
regards to the suit property on 01/04/2017 and therefore
no delay has been caused in filing of the suit. "
12.1 Relief claimed by the plaintiff are as under:
"(1) Be pleased to pass order to cancel the Sale-deed executed
by the Defendants of this case on 04/12/2004 regarding suit
agricultural land located in mouje Kundel, Ta.Danta,
Dist.Banaskantha, bearing R.S.No.120/1 paiki P1.
(2) Be pleased to pass permanent injunction that Defendants
of this case neither themselves nor through their heirs,
successors, servants or agents, by virtue of aforementioned
sale-deed, do not assign the suit agricultural land located in
mouje Kundel, Ta.Danta, Dist.Banaskantha, bearing
R.S.No.120/1 paiki P1 through sale, mortgage or by any other
means or get the same done.
(3) Be pleased to grant other reliefs deemed fit and proper in
the suit and to pass order against Defendants to pay costs of
this Suit."
13. It is undisputed that the registered sale-deed of the
disputed property / land was executed in the year 2004. It was
registered before the Sub-Registrar Office, Danta vide Sr.
no.1643. Relief claimed by the plaintiff is limited to cancel the
sale-deed. Barring that, plaintiff has not asked for any other
relief; except relief for consequential injunction. Thus, the
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plaintiff has filed the suit for cancellation of the sale-deed which
belongs to the year 2004. The suit was filed on 18/04/2017 i.e.
almost after 13 years. To bring the suit within the limitation, the
plaintiff came out with the cause of action that since they have
received the notice of RTS Appeal No.16 of 1997 filed before the
appellate Court on 01/04/2017 and then went to the Sub-
Registrar Office and received the copy of sale-deed on
01/04/2017 so they came to know about the execution of the
sale-deed on 01/04/2017. Whether this is a genuine cause of
action or illusory. The plaintiff pleaded fraud to bring the suit
within the limitation. Fraud is stated that some forged signature
or thumb impression was obtained or done on the sale-deed.
Apart from that, plaintiff has not made any other pleading about
the fraud. No other or further particulars are stated, in plaint.
14. Merely stating the word 'fraud' in pleading by itself could
not be considered as particulars, explaining the 'fraud'. When
plaintiff is putting his case upon the fraud said to have been
executed upon him, the plaintiff is required to plead the detailed
averments in this regard and particulars ought to be averred
therein. O.6 R.4 of the CPC demands so. In the present case,
essential particulars are missing. This assumes significance as
the impugned sale-deed is a registered document as per the
part-VI of the Registration Act. It is presumed that the Sub-
Registrar before registering the sale-deed must have been made
inquiry in view of Sections 34 and 35 of the Registration Act. The
party claiming that sale-deed is executed fraudulently has to set
the necessary details which may prima facie rebut the
presumption of correctness and genunity attached with sale-
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deed as it has passed through inquiry envisaged under Sections
34 and 35 of the Registration Act. The impugned sale-deed once
was registered after a procedure in part - VI of the Registration
Act with all sanctity and if the party wants to impeach the
sanctity of such sale-deed, the party has to set details /
particulars in the pleadings; but it is missing in the plaint.
15. Section 3 of the Transfer of Property Act, 1882 also worth
to notice at this juncture. By Act 20 of 1929, Section 4 as
amended by Act 5 of 1930, Section 2 for the original paragraph
is substituted as under:
"a person is said to have notice" of a fact when he actually
knows that fact, or when, but for wilful abstention from an
enquiry or search which he ought to have made, or gross
negligence, he would have known it. "
The fact either came to knowledge when a person actually
knows it or is but for the willful abstain from an enquiry or such,
which ought to have made is also considered to be an act
actually knows to the person and it is sufficient to say that a
person is said to have notice of the fact. Explanations to Section
3 of the Act are also material and they are sufficient to indicate
about the constructive notice of the registered sale-deed.
16. At this stage, I am refer to the judgment of this Court in
the case of Bahadurbhai Laljibhai Malhotra v/s. Ambalal
Joitaram [Civil Revision Application No.12 of 2015] . The question
of deemed notice of registered document came up for
consideration before this Court. Following observations are made
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by this Court in this regard :-
"13. Upon perusal of the said portion of section 3 of the
Transfer of Property Act, it can be seen that knowledge of a
fact is attributed to a person either when he actually
knows that fact, or when, but for wilful abstention from an
inquiry or search, he ought to have made, or gross
negligence, he would have known it. Explanation to the
said clause interalia provides that where any transaction
relating to immoveable property is required by law to be
and has been effected by a registered instrument, any
person acquiring such property or any part thereof, or
share or interest in, such property shall be deemed to have
notice of such instrument as from the date of registration.
This is subject to the conditions provided in provisios
contained to the said explanation. Explanation1 thus
refers to deemed notice and relates to the notice of
instrument relating to a transaction of immovable property
which is required by law and has also been so registered
and such deemed knowledge is imputed to the person
acquiring such property or any share or interest in such
property. Such provision therefore, cannot be applied in
case of a subsequent sale of an immovable property to
impute deemed knowledge of such transaction on the
erstwhile purchaser/owner merely on the strength of
section 3 of the Transfer of Property Act unless facts and
attendant circumstances suggest that the person in
question was reasonably expected to make search or
inquiry which he failed to do, thus suggesting willful act,
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negligence or lack of due diligence i.e. prudence, expected
of a reasonable man. Any such interpretation being quite
contrary to the language used in the provision, would also
put an unreasonable onus on a owner or a purchaser of an
immovable property to be constantly vigilant and apprise
himself of any subsequent registered transaction with
respect to such immovable property or face unpleasant
consequences of his challenge to a totally invalid or even a
fraudulent or a bogus sale deed being barred by law of
limitation after the statutory period commencing from the
date of registration on the principle of deemed knowledge.
In plain terms said provision of section 3 of the Transfer of
Property Act applies in case of a person acquiring an
immovable property or a share or interest therein of a
transaction which would be an existing and not a future
transaction which by law is required and indeed been
registered."
17. Thus what appears that whenever a document is registered
the date of registration becomes the date of deemed knowledge.
In other words, a fact could be disclosed by due diligence then
deemed knowledge would be attributed to the plaintiff. The party
cannot be allowed to extend period of limitation, alter or amend
provision of Limitation Act to claim that he had no knowledge.
This view is fortified by the judgment of the Hon'ble Apex Court
in the case of Dilboo (SMT) (Dead) by Lrs. v/s. Dhanraji (SMT)
(Dead) [(2007) 7 SCC 702] which is referred by this Court in the
case of Zoharabibi v/s. Thakorbhai Maganbhai Patel [FA No.791
of 2014 vide judgment dated 28.04.2014].
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18. Article 59 of the Limitation Act, 1963 provides period of
limitation of 3 years. Limitation begins to run from the date
when facts entitling the plaintiff to have the instrument or decree
cancelled or set aside or the contract rescinded first become
known to him. On perusal of entire claim, the plaintiff was aware
about each proceedings.
19. Article 59 of the Limitation Act reads as under :-
Description of suit Period of limitation Time from which
period beings to run
To cancel or set Three years. When the facts
aside entitling
an instrument or the plaintiff to have
decree the
or for the rescission instrument or decree
of a cancelled or set
contract. aside or
the contract
rescinded
first become known
to
him.
If we peruse the above provisions of law vis-a-vis the
averments made in the plaint, what prima facie found that relief
claimed by the plaintiff in the plaint is time barred. Limitation
could not be saved by general pleading of "fraud" played upon
the plaintiff or discovering the fact, firstly when notice was
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issued by the office of the Deputy Collector in RTS. The plaintiff
willfully abstained from inquiry of which he ought to have, made.
Explanation to Section 3 of the Transfer of Property Act inter alia
provides that where any transaction relating to immovable
property is required by law to be and has been effected by a
registered instrument, any person acquiring such property or
any part of, or share or interest in, such property shall be
deemed to have notice of such instrument as from the date of
registration. In the present case, on the general averments that
the "fraud" was played upon the plaintiff, he cannot evade
provisions of Limitation Act. Admittedly, suit for cancellation of
sale-deed is filled after 13 years of execution. It could not be
expected that for these many years plaintiff have not made any
inquiry about the sale-deed or sale of his properties.
20. At this stage, I may refer observations of the Hon'ble Apex
Court in the case of Dahiben v/s. Arvindbhai Kalyanji Bhanusali
(Gajra) [(2020) 7 SCC 366]. Para 23.1 to 28 are relevant which
reads as under :-
"23. We have heard the learned Counsel for the parties, perused
the plaint and documents filed therewith, as also the written
submissions filed on behalf of the parties.
"23.1 We will first briefly touch upon the law applicable for
deciding an application under Order VII Rule 11 CPC, which
reads as under:
"11. Rejection of plaint.- The plaint shall be rejected in the
following cases:-
(a)where it does not disclose a cause of action;
(b)where the relief claimed in undervalued, and the plaintiff, on
being required by the Court to correct the valuation within a
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time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is
written upon paper insufficiently stamped, and the plaintiff, on
being required by the Court to supply the requisite stamp-paper
within a time to be fixed by the Court, fails to do so;
(d)where the suit appears from the statement in the plaint to be
barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule
9 Provided that the time fixed by the Court for the correction of
the valuation or supplying of the requisite stamp-paper shall
not be extended unless the Court, for reasons to be recorded, is
satisfied that the plaintiff was prevent by any cause of
exceptional nature for correction the valuation or supplying the
requisite stamp-paper, as the case may be, within the time fixed
by the Court and that refusal to extend such time would cause
grave injustice to the
plaintiff." (emphasis supplied).
23.2 The remedy under Order VII Rule 11 is an independent
and special remedy, wherein the Court is empowered to
summarily dismiss a suit at the threshold, without proceeding
to record evidence, and conducting a trial, on the basis of the
evidence adduced, if it is satisfied that the action should be
terminated on any of the grounds contained in this provision.
23.3. The underlying object of Order VII Rule 11 (a) is that if in
a suit, no cause of action is disclosed, or the suit is barred by
limitation under Rule 11 (d), the Court would not permit the
plaintiff to unnecessarily protract the proceedings in the suit. In
such a case, it would be necessary to put an end to the sham
litigation, so that further judicial time is not wasted.
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23.4. In Azhar Hussain v. Rajiv Gandhi1 this Court held that
the whole purpose of conferment of powers under this provision
is to ensure that a litigation which is meaningless, and bound
to prove abortive, should not be permitted to waste judicial time
of the court, in the following words :
"12. ...The whole purpose of conferment of such power 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, and exercise the mind of the respondent. The sword of
Damocles need not be kept hanging over his head unnecessarily
without point or purpose. Even if an ordinary civil litigation, the
Court readily exercises the power to reject a plaint, if it does not
disclose any cause of action."
23.4. The power conferred on the court to terminate a civil
action is, however, a drastic one, and the conditions
enumerated in Order VII Rule 11 are required to be strictly
adhered to.
23.5. Under Order VII Rule 11, a duty is cast on the Court to
determine whether the plaint discloses a cause of action by
scrutinizing the averments in the plaint2, read in conjunction
with the documents relied upon, or whether the suit is barred
by any law.
23.6 Order VII Rule 14(1) provides for production of documents,
on which the plaintiff places reliance in his suit, which reads as
under :
"Order 7 Rule 14: Production of document on which plaintiff
sues or relies.- (1)Where a plaintiff sues upon a document or
relies upon document in his possession or power in support of
his claim, he shall enter such documents in a list, and shall
produce it in Court when the plaint is presented by him and
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shall, at the same time deliver the document and a copy thereof,
to be filed with the plaint.
(2)Where any such document is not in the possession or power
of the plaintiff, he shall, wherever possible, state in whose
possession or power it is.
(3)A document which ought to be produced in Court by the
plaintiff when the plaint is presented, or to be entered in the list
to be added or annexed to the plaint but is not produced or
entered accordingly, shall not, without the leave of the Court, be
received in evidence on his behalf at the hearing of the suit.
(4)Nothing in this rule shall apply to document produced for the
cross examination of the plaintiff's witnesses, or, handed over to
a witness merely to
refresh his memory." (emphasis supplied)
23.8. Having regard to Order VII Rule 14 CPC, the documents
filed alongwith the plaint, are required to be taken into
consideration for deciding the application under Order VII Rule
11 (a). When a document referred to in the
plaint, forms the basis of the plaint, it should be treated as a
part of the plaint.
23.9 In exercise of power under this provision, the Court would
determine if the assertions made in the plaint are contrary to
statutory law, or judicial dicta, for deciding whether a case for
rejecting the plaint at the threshold is made out.
23.10 At this stage, the pleas taken by the defendant in the
written statement and application for rejection of the plaint 15
on the merits, would be irrelevant, and cannot be adverted to,
or taken into consideration.
23.11 The test for exercising the power under Order VII Rule 11
is that if the averments made in the plaint are taken in entirety,
in conjunction with the documents relied upon, would the same
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result in a decree being passed. This
test was laid down in Liverpool & London S.P. & I Assn. Ltd. v.
M.V.Sea Success I & Anr., which reads as : "139. Whether a
plaint discloses a cause of action or not is essentially a question
of fact. But whether it does or does not must be found out from
reading the plaint itself. For the said purpose, the averments
made in the plaint in their entirety must be held to be correct.
The test is as to whether if the averments made in the plaint are
taken to be correct in their entirety, a decree would be passed."
23.12. In Hardesh Ores (P.) Ltd. v. Hede & Co. the Court further
held that it is not permissible to cull out a sentence or a
passage, and to read it in isolation. It is the substance, and not
merely the form, which has to be looked into. The
plaint has to be construed as it stands, without addition or
subtraction of words. If the allegations in the plaint prima facie
show a cause of action, the court cannot embark upon an
enquiry whether the allegations are true in fact.
23.13 If on a meaningful reading of the plaint, it is found that
the suit is manifestly vexatious and without any merit, and does
not disclose a right to sue, the court would be justified in
exercising the power under Order VII Rule 11 CPC.
23.14 The power under Order VII Rule 11 CPC may be exercised
by the Court at any stage of the suit, either before registering
the plaint, or after issuing summons to the defendant, or before
conclusion of the trial, as held by this Court in the judgment of
Saleem Bhai v. State of Maharashtra. The plea that once issues
are framed, the matter must necessarily go to trial was repelled
by this Court in Azhar Hussain (supra).
23.15 The provision of Order VII Rule 11 is mandatory in
nature. It states that the plaint "shall" be rejected if any of the
grounds specified in clause (a) to (e) are made out. If the Court
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finds that the plaint does not disclose a cause of action, or that
the suit is barred by any law, the Court has no option, but to
reject the plaint.
24. "Cause of action" means every fact which would be
necessary for the plaintiff to prove, if traversed, in order to
support his right to judgment. It consists of a bundle of
material facts, which are necessary for the plaintiff to prove in
order to entitle him to the reliefs claimed in the suit.
24.1 In Swamy Atmanand v. Sri Ramakrishna Tapovanam this
Court held :
"24. A cause of action, thus, means every fact, which if
traversed, it would be necessary for the plaintiff to prove an
order to support his right to a judgment of the court. In other
words, it is a bundle of facts, which taken with the law
applicable to them gives the plaintiff a right to relief against the
defendant. It must include some act done by the defendant
since in the absence of such an act, no cause of action can
possibly accrue. It is not limited to the actual infringement of
the right sued on but includes all the material facts on which it
is founded" (emphasis supplied)
24.2.In T. Arivandandam v. T.V. Satyapal & Anr. this Court
held that while considering an application under Order VII Rule
11 CPC what is required to be decided is whether the plaint
discloses a real cause of action, or something purely illusory, in
the following words : -
"5. ...The learned Munsiff 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, he should exercise his power under O. VII, R. 11,
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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 ..."
(emphasis supplied)
24.3. Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate
Tribunal, this Court held that law cannot permit clever drafting
which creates illusions of a cause of action. What is required is
that a clear right must be made out in
the plaint.
24.4.If, however, by clever drafting of the plaint, it has created
the illusion of a cause of action, this Court in Madanuri Sri
Ramachandra Murthy v. Syed Jalal held that it should be
nipped in the bud, so that bogus litigation will end at the
earliest stage. The Court must be vigilant against any
camouflage or suppression, and determine whether the
litigation is utterly vexatious, and an abuse of the process of the
court.
25. The Limitation Act, 1963 prescribes a time-limit for the
institution of all suits, appeals, and applications. Section 2(j)
defines the expression "period of limitation" to mean the period
of limitation prescribed in the Schedule for
suits, appeals or applications. Section 3 lays down that every
suit instituted after the prescribed period, shall be dismissed
even though limitation may not have been set up as a defence.
If a suit is not covered by any specific article, then it would fall
within the residuary article.
26. Articles 58 and 59 of the Schedule to the 1963 Act,
prescribe the period of limitation for filing a suit where a
declaration is sought, or cancellation of an instrument, or
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rescission of a contract, which reads as under :
Description of suit Period of Time from which
limitation period beings to
run
58. To obtain any Three years. When the right
other declaration. to sue first
accrues.
59.To cancel or set Three years. When the facts
aside an instrument entitling the
or decree or for the plaintiff to have
rescission of a the instrument or
contract. decree cancelled
or set aside or the
contract
rescinded first
become known
to him.
The period of limitation prescribed under Articles 58 and 59 of
the 1963 Act is three years, which commences from the date
when the right to sue first accrues.
27. In Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr.,
this Court held that the use of the word 'first' between the
words 'sue' and 'accrued', would mean that if a suit is based on
multiple causes of action, the period of limitation will begin to
run from the date when the right to sue first accrues. That is, if
there are successive violations of the right, it would not give rise
to a fresh cause of action, and the suit will be liable to be
dismissed, if it is beyond the period of limitation counted from
the date when the right to sue first accrued.
28. A three-Judge Bench of this Court in State of Punjab v.
Gurdev Singh, held that the Court must examine the plaint and
determine when the right to sue first accrued to the plaintiff,
and whether on the assumed facts, the plaint
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is within time. The words "right to sue" means the right to seek
relief by means of legal proceedings. The right to sue accrues
only when the cause of action arises. The suit must be
instituted when the right asserted in the suit is infringed, or
when there is a clear and unequivocal threat to infringe such
right by the defendant against whom the suit is instituted.
Order VII Rule 11(d) provides that where a suit appears from
the averments in the plaint to be barred by any law, the plaint
shall be rejected."
21. The learned Civil Judge has passed order below Exh.13 in
the RCS No.15 of 2017 and made observation in paragraph 4 as
under:
"4. I have heard learned advocate for both the sides at length
and gone through the plaint and relevant documents on record
After going through the Sale deed vide mark 4/1 it is crystal
clear that the sale deed have been carried out in favour of the
Defendant on Prajapati Kodarbhai Kachrabhai in the year 2004
and the present suit has been filed after a delay of 13 years.
Further the defendant have rightly releid on the ratio laid down
in the case of Kamal Gupta v/s Uma Gupta in para 31,32,33
wherein the Hon'ble Court have held that the plaintiff have filed
the present suit after a delay of 16 years and limitation would
also apply. The said decision squarely applies to the present
case as the present suit has been filed after a period of 13 years
and to challenge the Sale deed the period of limitation as
prescribed in the Limitation Act is of 3 years has lapsed. The
plaintiff have filed the present suit after a delay of 13 years and
as such is beyond the period of limitation Further the plaintiff
were well aware of the Sale deed from the year 2004. The suit is
not maintainable and required to be rejected in terms of
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provisions under Order 7 Rule11 (d). Hence, the following order
is passed."
22. In no unclear terms the learned Civil Court has believed
that sale-deed was of the year 2004 and the suit is filed after 13
years of delay as the plaintiff was well aware of the sale-deed
from the year 2004 and the suit is not maintainable which was
required to be filed within three years. The first appellate court
has ventured into reversing the impugned judgment and decree
on the premise that whether the plaintiff was knowing about the
execution of the sale-deed is a question of trial and therefore
finding of the trial Court to reject the plaint under O.7 R.11(d) of
the CPC of the ground of suit being barred by provisions of
limitation is premature and perverse. Paragraph 21 of the
impugned judgment of appellate court could be considered as
reasons for upturning the impugned judgment and decree of the
trial Court which reads thus:
"21. Therefore, it is humble opinion of this Court that the
verify learned from the Civil Court record as ought to to where
have there appears any single evidence which suggest that
plaintiffs were aware about the Sale-deed in question. It is
pertinent to state that copy of Sale-deed defendant through is
vide the produced Mark said 8/1, on record and Sale-deed,
upon as by the going discussed earlier, it appears that stamp
paper for the purpose was purchased by the defendant and not
by the plaintiffs and this important fact was not considered by
the learned Trial Court, while deciding application of defendant
filed under Order-VII Rule-11 of C.P.C. Upon going through
Regular Civil Suit No.15/2017, it appears that it is a specific
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version of the plaintiffs that they came to know about the Sale-
deed only in the year 2017 when they received notice in the
proceedings initiated before the Deputy Collector, for correction
in the revenue record filed by the defendant and no contrary
evidence with that regard is also produced on record by the
defendant no.1."
23. What discern from the above finding that the learned
appellate Court put the burden upon the defendant to show any
single evidence which indicates that the plaintiff was aware of
the execution of the sale-deed. By filing such finding learned
appellate court has committed serious error. Sale-deed executed
and registered as per the Registration Act attached sanctity and
also presumption of knowledge. The learned appellate court has
totally failed to remember the explanation (1) to Section 3 of the
Transfer of Property Act while narrating such finding. There is no
question of producing any contrary or negative evidence. It is the
plaintiff to establish by pleading a particulars as per O.6 R.4 of
the CPC to establish "fraud" even at prima facie stage which
permit plaintiff to bring the suit within the limitation.
24. Another finding which weighed with the learned appellate
court to upturn the judgment and decree to reject the plaint is in
paragraph 22 of the impugned judgment. The court believed that
there is issue of possession of the plaintiff involved in the matter
and therefore evidence is required to be recorded to decide the
issue. Relief claimed by the plaintiff as referred herein above,
does not claim any possession. Nowhere issue of possession was
involved. This is a plain violation to the pleading employed by
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the first appellate court by reversing the finding which does not
substantiate the rational.
25. One more aspect which discerned by the learned trial
Court that though sale-deed in question was executed in the
year 2004, proceedings for mutation took place in the year 2017.
The appellate Court find fault with this issue and believed that
since the entry proceedings commenced in the year 2017 the
plaintiff first time came to know about the execution of the sale-
deed. The appellate court misread the provisions of the Bombay
Land Revenue Code (for short the Code). In view of Section
135(C) and (D) of the Code, it is the duty of the Revenue Officer
to post entry of the transaction once the sale-deed is executed
and registered. It is not the duty of the purchaser of the land to
move the revenue officer for mutating the revenue entry.
Registration of the sale-deed itself is sufficient to mutate the
revenue entry; but this legal aspect neither has been discussed
by the first appellate court nor has been gone through and
discussed while believing that since the revenue entry
proceeding has been commenced, the plaintiff came to know
about the execution of the sale-deed. In background of the
above, it could be noted that the Court owes the duty to reject
the frivolous and vexatious suit, as also the clever drafting
creating illusions of cause of action are not permitted in law and
a clear right to sue should be shown in the plaint. The court also
owes the duty to see that bar in law of the suit is not
camouflaged by devious and clever drafting of the plaint. At this
stage, I may refer to the judgment of Hon'ble Apex Court in case
of K. Akbar Ali vs. K. Umar Khan, [2021 (2) Apex CJ(SC) 1] .
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26. The judgment in case of Shardaben d/o Davalbhai
Maganbhai Patel vs. Natwarlal Davalbhai Patel & Ors ., (supra)
would not help to the respondent as in that case the plaintiff had
plead the deception and fraud and the Court believes that to
establish such deception and fraud the trial is required. In that
case, the appellant was continue with the possession and in the
present case the appellant has failed to show any possession
lying with the appellant.
27. Simultaneously, the decision in case of Bahadurbhai
Laljibhai Malhotra vs. Ambalal Joitaram Heir of Joitaram
Ranchhoddas (supra), would not avail any assistance as in that
case the suit for partition was filed and consequential relief for
cancellation of the plaint was made. The Court ultimately found
that it is not the case of rejection of plaint considering the bar in
law. Whereas, the facts in the present case different.
28. For the foregoing reasons, the present Second Appeal
deserves to be allowed; it is accordingly allowed. The questions of
law as stated herein above are answered accordingly. The
judgment and order dated 17/10/2023 passed in Regular Civil
Appeal No.6 of 2022 by the learned Principal District Judge,
Banaskantha at Palanpur is quashed and set aside and the
judgment and order dated 26/04/2018 passed below Exh.13 in
Regular Civil Suit No.15 of 2017 by the learned Principal Civil
Judge, Danta rejecting the plaint under O.7 R.11 is restored and
confirmed.
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Connected CA, if any, does not survive. R & P be sent back
to the court below.
(J. C. DOSHI,J)
FURTHER ORDER
After pronouncement of the judgement, learned advocate
Mr SP Majmudar appearing for the respondents requests to stay
operation and implementation of the judgement for four weeks to
enable him to approach the higher forum. The request is
declined on the ground that no interim order is operating in
favour of the respondents in the appeal.
(J. C. DOSHI,J)
sompura
