Lh Of Kaushikbhai Prahladbhai Patel ... vs Vinodkumar Maganlal Rajpal
2025 Latest Caselaw 129 Guj

Gujarat High Court

Lh Of Kaushikbhai Prahladbhai Patel ... vs Vinodkumar Maganlal Rajpal on 5 May, 2025

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                               C/CRA/559/2024                               ORDER DATED: 05/05/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                       R/CIVIL REVISION APPLICATION NO. 559 of 2024
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                          LH OF KAUSHIKBHAI PRAHLADBHAI PATEL SINCE DECD. DIPEN S/O
                                              KAUSHIKBHAI PATEL
                                                    Versus
                                    VINODKUMAR MAGANLAL RAJPAL & ORS.
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                        Appearance:
                        MALAY S PATEL(8901) for the Applicant(s) No. 1
                        MR.D K.PUJ(3836) for the Opponent(s) No. 1
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                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                        Date : 05/05/2025
                                                         ORAL ORDER

1. The present Civil Revision Application has been filed challenging the order passed by the learned 4 th Additional Senior Civil Judge, Gandhinagar in Special Civil Suit N.136 of 2007 whereby the application filed by the defendant No.3 under Order VII Rule 11 of the Code of Civil Procedure has been rejected vide Exh.94. For the sake of convenience, the parties are referred to plaintiff and defendant herein.

2. The facts leading to the present case are that the plaintiff has filed Civil Suit No.136 of 2007 stating that as the plaintiff was not an agriculturist and as the plaintiff purchased the property which is an agricultural land it would amount to Sharatbhang and, therefore, as defendant no.1 was loyal person, and as defendant no.1 has stated that defendant no.1 is an agriculturist and if the property purchased in the name of defendant no.1, the defendant no.1 agreed that though the property was in the name of defendant no.1, the plaintiff will be

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considered as owner of the suit property. It is the case of the plaintiff that through defendant no.1 entire amount of sale consideration has been paid by the plaintiff and no amount of sale consideration of the suit property has been paid by defendant no.1. Moreover, in the suit, the plaintiff has also taken contention that thereafter it was only because of the intervention of the plaintiff, that the sale deed was registered ,whereby the defendant no.1 purchased suit property in his name from Atmaram Kalaji and Kashiji Kalaji and it is the case of the plaintiff that since the date of registration of the sale-deed, rectification document dated 31.01.1989, the plaintiff has become the owner and occupier of the suit premises. It is the case of the plaintiff in the plaint that as the name of the plaintiff could not be entered into in revenue record, the plaintiff had full trust on the defendant no.1 and only recently the plaintiff came to know that the defendant no.1 has sold the suit premises in favour of defendant nos.2 and 3 and only recently the defendants have approached the plaintiff to get the possession of the suit premises and, therefore, the suit is filed challenging the revenue entry dated 14.08.2006 executed by the defendant no.1 in favour of defendant nos.2 and 3.

3. The defendant appeared in the said suit and filed application vide Exhibit-94 under the provision of Order VII Rule 11 and by an order dated 09.01.2024, the said application has been rejected and the application that was filed under the provision of Order VII Rule 11 of Code of Civil Procedure was

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filed on the ground of suit being barred under Benami Transaction Act, 1988 and the suit challenging the registered sale deed executed in the year 1988, the suit is barred on the ground of limitation. The trial Court passed an order below Exhibit-94 that the suit is at the stage of cross-examination of the defendant. The suit is of the year 2007 and the defendant No.2 has also placed his examination-in-chief and it is at the stage of cross examination of defendant No.2. The issues were framed vide Exhibit-36 and defendant No.3 has filed an application under the provision of Order VII Rule 11 of the Code of Civil Procedure, and therefore, ultimately, the trial Court has rejected the said application and has recast the issue and the issue No.4(A) is recast as "whether the defendant No.3/1 to 3/3 proves that the suit of the plaintiff under Section 4 of Benami Transaction Act, 1988 beyond the period of limitation". Hence, the present Civil Revision Application.

4. Learned advocate for the defendant has mainly argued that the suit is hopelessly time barred as the plain reading of the plaint the suit is filed on the ground of limitation as the plaintiff has made averments in the plaint that the suit property is purchased in the year 1989 by original defendant No.1, as the plaintiff is not an agriculturist. The suit property was purchased in the name of defendant No.1 and one understanding by way of Banachitthi is made between the parties and the plaintiff having filed the suit after 18 years, the suit is hopelessly time barred. Moreover, by clever drafting, the present plaintiff had tried to

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bring the suit within the period of limitation and only by amendment, the present plaintiff had tried to make statements regarding plaintiff being an agriculturist, and therefore, the suit is barred on the ground of limitation.

5. With respect to the fact that the application can be filed at any stage, the defendant has stated that the provision of Order VII Rule 11 of the Code of Civil Procedure clearly state that an application can be filed at any stage when the suit from the plain reading of the plaint is barred by law, and therefore, as the suit filed by the present plaintiff is bogus, the trial Court at any stage can exercise its powers under the provision of Order VII Rule 11 of the Code of Civil Procedure and reject the plaint. Moreover, the defendant has relied on the provision of section 4 of Benami Transaction Act, 1988, therefore, the same does not need to go into evidence as the same is a point of law. In view of the said fact, the petitioner/defendant has argued that the plaint is required to be rejected as it is barred by law, and therefore, the order passed below Exhibit-94 is required to be quashed and set aside.

6. Learned advocate for the original plaintiff has mainly argued that while deciding an application under Order VII Rule 11 of the Code of Civil Procedure, the Court will have to look at the plaint and the documents annexed with the plaint. The fact remains that there are no averments in the plaint which suggest that the plaint is barred by law. The entire case of the plaintiff is

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based on the fact that as the plaintiff was not an agriculturist and there was an understanding between the plaintiff and defendant. The property was purchased in the name of defendant No.1 and there was an understanding between the plaintiff and defendant No.1 which is produced vide Exhibit-63 wherein the defendant No.1 acknowledges that the entire sale consideration has been paid by the plaintiff and has alleged that till the execution of sale deed dated 14.08.2006 whereby the defendant No.1 has executed a sale deed in favour of defendant No.2 and 3, the defendant No.1 has never refused the fact that the plaintiff is the owner of the property by virtue of the understanding that was arrived at between the plaintiff and defendant in the year 1988, and therefore, the cause of action to file the revision is only on 14.08.2006 when the plaintiff came to know that the sale deed has been executed in favour of defendant No.2 and 3, and therefore, the plaintiff has filed the suit for a relief to cancel the said sale deed dated 14.08.2006 and for a declaration that in view of the understanding arrived at in the year 1989, the plaintiff is the owner of the property and that the defendant No.1 had no right, title, interest to transfer and assign this property to a third party. Moreover, the said suit has also been filed with respect to restraining the defendant from transferring assigning the said suit property to third party and restraining from disturbing the plaintiff's possession of the suit property. Moreover, it was also argued by learned advocate for the plaintiff that the suit is of the year 2007 and the oral evidence of the plaintiff is also over and

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the matter is this stage of cross-examination of defendant No.2. The present application is at belated stage, and therefore, also the application is required to be rejected.

7. Learned advocate for the petitioner defendant has relied on the following judgments:-

(i) Fatehji & Company v. L.M.Nagpal, 2015 (0) AIJEL-SC 56465

(ii) Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)(D) Thr Lrs, 2020 (0) AIJEL-SC 66338

(iii) L.H. of Decd. Alibhai Kalubhai v. L.H. of Late Pagi Vaja Vittal, 2023 (0) AIJEL-HC 248113

(iv) Jaman Shami Fadadu v. Sadik Mahmad Sidik,2023 (0) AIJEL-HC 247160

(v) Shri Mukund Bhavan Trust v. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle, 2024 (0) AIJEL-SC 74446

8. Learned advocate for the respondent has relied on the following judgments:-

(i) Daliben Valjibhai v. Prajapati Kodarbhai Kachrabhai, 2024 (0) AIJEL-SC 74555.

(ii) Salim d. Agboatwal v. Shamalji Oddhavji Thakkar, 2021 (0) AIJEL-SC 67704.

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(iii) Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese Rep By its Procurator Devssias Son Rev. Father oseph Kappil, 2022 (0) AIJEL-SC 68589.

9. Having heard learned advocate for the parties, the fact remains that the application that has been filed by the defendant is on the ground of plaint being barred under the provision of Limitation Act and Benami Transaction Act, 1988. The plaintiff has stated that the cause of action to file the suit has arisen as the sale deed has been executed by defendant No.1 on 14.08.2006 and thereby for the first time defendant No.1 has breached the faith and trust put by the plaintiff by virtue of the understanding that was arrived at in the year 1989. The documents produced vide Exhibit 50. The plaintiff vide Exhibit-3/1 has produced the receipt dated 07.11.1988 executed by defendant No.1 acknowledging the fact that the entire sale consideration has been paid by the plaintiff and that the plaintiff has right, title, interest and possession of the premises. The memorandum of understanding is also produced dated 05.01.1989 wherein the defendant No.1 admits that the plaintiff is the owner of the property and that the defendant shall not be entitled to sale assign the property to a third party. In view of the said fact, the plaintiff is claiming right over the property on the ground that as per the understanding the defendant was not entitled to transfer, assign, sell the property to create third party right in the property. The defendant No.1 has admitted the said document that the plaintiff is in possession and the memorandum of

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understanding executed by defendant No.1 clearly shows that the property was purchased and handed over to the plaintiff, and therefore, the said fact that whether the suit is within the period of limitation in facts of the present case or not cannot be decided withut leading oral evidence and while deciding an application under Order VII Rule 11 of the Code of Civil Procedure, as in the present case the plaintiff has come forward with a case that there is a written agreement whereby the defendant No.1 has acknowledged that the entire sale consideration executed in favour of defendant No.1 has been paid by the plaintiff. The plaintiff has right, title, interest and possession of the property and pursuant to the same, the receipt is also issued by defendant No.1 in favour of plaintiff and there is understanding which has been arrived at between the plaintiff and defendant No.1 on 05.08.1989 wherein also the defendant No.1 has acknowledged the fact about right, title, interest of the plaintiff in the suit property and it is for the first time in the year 2006 that the defendant No.1 having sold the suit property in favour of defendant Nos.2 and 3, the first cause of action for the plaintiff to file the suit has arisen. With respect to the fact that the suit is filed on the ground of Benami Transaction Act, 1988, the said aspect can only be decided after having gone into the strength of evidence on record. As going by the averments in the plaint the understand the plea raised by the petitioner is filed under section 4 of Benami Transaction Act or not could not have subject matter of assessment at the stage when application under Order

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VII Rule 11 of Code of Civil Procedure is heard. Moreover, trial Court has already framed issues rejecting the application under Order VII Rule 11 of the Code of Civil Procedure and the present issue whether the suit is filed under Section 4 of Benami Transaction Act, 1988 and has also framed issue with respect to whether the suit is filed on the ground of limitation.

10. In view of the fact that the trial Court has also framed issue with respect to whether the issue of suit being hit of section-4 of Benami Transaction Act,1988 and also on the point of limitation. The fact remains that the judgments on which the learned advocate for the defendant relies are on the issue of limitation but in view of the fact that the plaintiff has categorically stated in the plaint that the plaintiff has claimed that he gained knowledge of the fact that the defendant is not ready and willing to abide by the understanding that have been arrived at between the plaintiff and defendant No.1 in the year 1988 whereby the defendant had agreed not to transfer, assign, sell the property and had also admitted the fact that the plaintiff is the owner of the property and the plaintiff has paid the entire sale consideration. In view of the said fact, the judgment on which the defendant has relied will not be of much assistance to the defendant, and therefore, when the plaintiff is alleging that the fraud has been committed by which the defendant is not ready and willing to abide by the understanding arrived at between the plaintiff and defendant and for the first time has

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committed the breach of the said agreement by executing the sale deed only in the year 2006, therefore, the said issue can only be decided after leading oral evidence and the said issue cannot be decided summarily and the same being triable issue the suit cannot be thrown out at the thresh hold and the defendant cannot pick up the few sentence, and therefore, from the plaint and content that the defendant had knowledge about the breach committed by the defendant.

11. It is true and settled law that though Court is required to be extremely careful regarding frivolous and vexatious litigations creeping in the judicial system and consequently abusing the process of law. This requires Courts to exercise their power under Order VII Rule 11 to nip such litigation in the bud.

12. However, equally important and well settled is the law that Order VII Rule 11 amounts to rejection of a case at the threshold. Therefore, it is a drastic power, which must exercised extremely cautiously. Hon'ble Supreme Court has laid down the following proposition of law in the case of P.V. Guru Raj Reddy v. P. Neeradha Reddy, (2015) 8 SCC 331:

5. Rejection of the plaint under Order 7 Rule 11 of CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7 Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7 Rule

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11, the stand of the Defendants in the written statement or in the application for rejection of the plaint is wholly immaterial.

It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial. (emphasis supplied).

13. It is therefore settled law that such a drastic step cannot be taken when upon a holistic reading of the Plaint, it does not appear to be barred by any law or discloses a cause of action (along with the other grounds of the said Rule). In such situations, the Plaint must go to trial and the Trial Court in accordance with law may allow or reject the same as deemed appropriate.

14. In view of the discussion of the present case in the foregoing paragraphs, this Court does not deem it fit to take recourse of the drastic powers conferred under Order VII Rule 11 for rejection of the Plaint and accordingly, the present Civil Revision Application is dismissed. The connected Civil Application, if any, shall also stand dismissed.

(SANJEEV J.THAKER,J)

Manoj Kumar Rai