Gujarat High Court
Lh Of Decd Vinubhai Mohanlal Raval Gor vs Lh Of Decd Vinubhai Mohanlal Raval Gor on 25 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 175 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 175 of 2024
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LH OF DECD VINUBHAI MOHANLAL RAVAL GOR & ORS.
Versus
LH OF DECD VINUBHAI MOHANLAL RAVAL GOR & ORS.
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Appearance:
MR RAXIT J DHOLAKIA(3709) for the Appellant(s) No. 1,2,2.1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 25/11/2025
ORAL ORDER
1. The Second Appeal filed under Section 100 of the Order 7
Rule 11 of the Civil Procedure, 1908 (for short "Code"), challenges
the concurrent finding arrived in by the learned Court below
whereby the learned Principal Senior Civil Judge, Kalol rejected the
plaint of the plaintiffs under Order 7 Rule 11 of the Civil Procedure
Code, in a primary hearing No.1 of 2022, by judgment and order
dated 04.02.2022.
2. Being aggrieved and dissatisfied by the said judgment and
order the plaintiffs - applicants have preferred Regular Civil Appeal
No.6 of 2022 in a Court of Additional District Judge, Gandhinagar
at kalol, where the Regular Civil Appeal stands dismissed by
judgment and order dated 12.01.2024. Further aggrieved by the
concurrent finding, the plaintiffs are before this Court raising
multiple grounds in appeal memo, posing following questions of law
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as substantial question of law;
"A) Whether the trial Court is justified in looking in to the papers produced by
caveators along with their caveat while rejecting the plaint under Order 7 Rule
11 and coming to the conclusion that the Plaintiffs have no cause of action to
file the suit and the suit is barred by law ?
B) Whether the case of the Plaintiffs that they have rights, title and interests in
the suit property can on be discarded only the
strength of revenue entries which is purely for the fiscal purpose ?
C) Whether the judgments and decrees of both the courts can be said to be in
consonance with the provisions of the Evidence Act more particularly when the
Plaintiffs approach the Hon'ble Court with specific averment in the plaint that
they have rights in the suit land ?
D) Whether the first Appellate Court is justified in confirming the judgment and
decree passed by the Hon'ble Civil Court and can be said to be in consonance
with the provision contained in 041 R31 of Code Of Civil Procedure without
giving its independent findings on the issues ?"
3. The short facts of the case are as under:
3.1 The plaintiffs intend to file a Regular Civil Suit before the
learned Civil Court for declaration and permanent injection in
respect of the suit land being land of Khata No.432, Survey
No.1037/1/7 admeasuring Hectare-Aare-0-93-08Sq.mtr. of Moje
Village Saij, Taluka:kalok, District - Gandhinagar claiming it to be
the ancestral property, sourcing from ancestor Mr. Mohanlal
Mahasukhram Raval, plaintiffs claims declaration that they be
declared as the owner and the occupier of the suit land. The
defendant Nos.3 to 19 has no whatsoever rights in the suit land and
permanent injunction be issued that the defendant Nos.3 to 9 be
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restrained from changing the hands of the suit property and
restrained them from interfering with the possession of the plaintiffs
- applicants over the suit properties.
3.2 The defendants have filed a caveat before the learned trial
Court. Therefore, when the plaintiffs have presented the suit for
registration the caveat was placed thus, the learned Civil Court kept
the plaint presented by the plaintiff for a primary hearing, giving it
the number of primary hearing 1 of 2022. After hearing plaintiff, as
well as, caveator on the locus and maintainability of the plaint,
learned Civil Court had rejected the plaint under Order 7 Rule 11
of the CPC for want of cause of action and title under Order 7 Rule
11(a) and (d) of the Code. Unsuccessful challenge has been made by
way of Regular Civil Appeal No.6 of 2022.
4. In the aforesaid premises, for admission of the Second Appeal.
I have heard learned advocate Mr. Raxit Dholakia appearing for the
plaintiffs - appellants. Learned advocate Mr. Dholakia has mainly
submitted that the learned trial Court has committed serious error
in keeping the suit on PH and then exercise the jurisdiction under
Order 7 Rule 11 of the CPC to reject the plaint. He would further
submitted that the caveator who has annexed certain documents
along with the caveat has been considered by the learned trial
Court though they cannot be considered at the time of admission of
the plaint, however the learned trial Court has committed serious
error in considering the documents which would be at the most
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part of the defence thereby has committed serious error of law.
5. Mainly upon above submissions learned advocate Mr.
Dholakia submitted to allow this appeal, and requested the suit for
hearing.
6. Having heard the learned advocate Mr. Raxit Dholakia
appearing for the appellants - plaintiffs and, considering the
judgment and order of the learned Court below.
7. At the outset let me refer the observations and finding of the
learned trial Court to reject the plaint at threshold. Para.2 to 11 are
reproduced herein as under:-
"(2). Now the facts of the plaint is to be considered. The plaintiffs have filed
present Plaint against their relatives, Defendant No.1 and 2 and other 17
Defendants. It is the say of the plaintiffs that there is Block/ Survey
no.1037/1/a, 1037/1/b and 1037/1/k situated at Saij Village, Ta.Kalol which are
disputed registered in disputed properties. It is the say of the Plaintiffs that the
disputed properties were originally belonging to their father and Defendant
no.1 & 2's ancestor, Shri Mahasukhram Lakshmiram and after his death, entry
no.893 was mutated. It is the say of the Plaintiffs that name of Mohanlal
Mahasukhram was there in records of 1037/1/a and 1037/2. It is the say of the
Plaintiffs that they and Defendant no.1 and 2 are legal heirs of D.Mahasukhram
lakshiram and Defendant no.1 and 2 are formal parties in present suit but no
relief has been claimed against them.
(3). It is the say of the Plaintiffs that survey by DILR Visanagar was done for
037/1 and its measurement was Ekar 11-34 Ghuntha was done, Hissa-form
no.12 was filled and 1037/1/1 and 1037/1/7 were mutated in name of Plaintiffs
and Defendant no.1 & 2's ancestor Shri Mohanlal Mahasukhram and Entry
no.3068 was mutated. It is the say of the Plaintiffs that there was no Tenant
registered in disputed properties even then name of Bai Gangaben wid/o.
Mangaji Khodaji was entered vide Entry no.4538, by mistake or illegally, in
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records of S.no.1037/1/7. It is the say of the Plaintiffs that the Defendant no.3
to 19 issued a Public Notice recently for title clearance and then they obtained
records of 7/12 and then they came to know about the revenue entries. It is the
say of the Plaintiffs that Bai Ganagaben Mangaji died without leaving heirs and
even then names of Masangji Khodaji and Becharji Khodaji were entered in
records of S.no.1037/1/7. It is the say of the Plaintiffs that their ancestor
Mohanlal Mahasukram's name was there in records till 1971 but the Defendant
no.3 to 19 have tampered with revenue records and mutated their names
illegally and playing conspiracy with revenue officers. This is the basic facts of
the Plaint giving rise to cause of action to the Plaintiffs to file present suit.
(4). There is Caveat no.16/2021 filed by the Defendant no.8,9,15,17 prior to
filing of present Plaint, against the Plaintiffs for the disputed property. They
have pleaded that they issued a public notice for title clearance and the
Plaintift filed objections against it but the disputed properties are ancestral
properties of the Defendants given under Tenancy Act and they are in
possession of the disputed properties since last 50 years. They have alleged
that the Plaintiffs wish to extort money illegally from them and therefore they
have filed caveat. Therefore the caveators are heard prior to institution of suit.
They have filed written arguments wherein they have reiterated facts that the
disputed properties were given to them under Tenancy Act and certificate form
no.9 under S.43 of the Tenancy Act was issued in their favour. They have
submitted that they are legal owner in possession of the disputed properties
and the Plaintiffs have no interest it the said properties. L.A.Mr.R.K.Punjabi has
submitted that the Plaintiffs have made smart pleadings wherein facts of
Tenancy Orders are knowingly suppressed by the Plaintiffs. He has referred all
documents which are produced by the caveators with list and submitted that
the Plaintiffs or their ancestors have not challenged order of Tenancy Court at
relevant point of time and therefore present Plaint is barred by limitation as
well as Jurisdiction. He has submitted that the Plaintiffs have filed present suit
in collusion with the Defendant no.1 and 2 to extract money from them hence
he has prayed to reject the suit.
(5). Hear L.As. Now averments of the Plaint is to be considered. The Plaintiffs
and Defendant no.1 and 2 are relative and descendants of Mahasukhram
Lakshmiram. The Plaintiffs have pleaded in para I that D.Mahasukhram
Lakshmiram was owner and after his death, name of his son, Mohanlal
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Mahasukhram was mutated with entry no.893 but they have not stated the
date of said entry. They have produced zerox of revenue extract 6 at Mark 3/3
which shows entry no.893 showing name of Mohanlal Mahasukhram in records
of total 8 properties including disputed properties. The said zerox copy also
shows entry no.1446 stating that there was Becharji Khodaji and Masangji
Khodaji as "Protected Tenant" in disputed property but said fact has been
suppressed by the Plaintiffs. The said zerox copy shows entry no.1661 and date
of 31/07/55 and then there is entry no.1816 which specifically mentions
about Tenants for the year 1955-56 and the said Tenants are namely, Tha.
Mangaji Khodaji, Tha. Masangji Khodaji, Tha. Manaji Chaturji, Tha. Bai Hiraji
Bhalaji. Pa. Kashiram Ranchhodji, Pa.Somabhai Ranchhodji. The Plaintiffs have
suppressed said crucial facts which apparently proves that the Plaintiffs have
not come with clean hands. It is to be noted that the said entries of Tenancy
was certified and neither the Plaintiffs nor their ancestors had challenged
them. Thereafter there is entry no.2147 which is also about Tenant. Then
there is entry no.3098 dt.27/9/71 giving effect of survey by DILR but it does not
effect the right of Tenant.
(6). Mark 3/1 is zerox copy of revenue extract 7/12 from 1955-56 to 1961-62
which does not show name of Plaintiffs' ancestor, then from 2009-11 which
shows name of Raval Mohanlal Mahasukhram and entry no.893 through which
his title was deleted and land was allotted to Tenant. The said record shows
name of Tha. Masangji Khodaji with entry no.2147 and 2586 but the Plaintiffs
have not produced entry no.2586, reason best known to them. The said
document shows that S.no.1037/1 was under S.43 of Tenancy Act and new
tenure land and Masangji Khodaji was cultivating it. The record further shows
that Tha.Bai Ganaga Mangaji's name was there in record of S.no.1037/1/7 and
the same was given under S.43 of Tenancy Act with mentioning of Entry
no.28.2150.2682 3306,4538 but the Plaintiffs have suppressed all said entries,
reason best known to them. Name of said Tenanct was also there as cultivator
of the said land. It is not the Plaintiffs' say that they are in possession and they
have been cultivating the disputed properties till the day. On the contrary they
have smartly suppressed facts of the possession of disputed properties.
(7). Mark 3/2 shows names of Defendant no.3 to 19. The names of the
Defendant no.3 to 19 are there is revenue records which are not challenged by
the Plaintiffs or their ancestors till the date, reason best known to them. The
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said document shows many revenue entries but the Plaintiffs have not
produced them on record, reason best known to them. The Plaintiffs are bound
to produce all relevant revenue records, whether in their favour or not. They
have not complied with the S.135H of the Bombay Land Revenue Code. On the
contrary they have selectively produced revenue records which might be
helpful to them only but that is the proof of their conduct. They have not come
with clean hands. They have alleged that the Defendant no.3 to 19 have
conspired with Revenue Officer and illegally mutated their names but the
Plaintiffs themselves have suppressed facts of all revenue records in the Plaint
as well not produced them with list. They have simply stated that they came to
know about the revenue records recently when the public notice is issued in
the news-paper. It is not believable that the original owner has remained
negligent about his land for long period of from the year 1971 to 2022. The
Plaintiffs' ancestor have not challenged order of Tenancy Court at relevant
point of time and the Plaintiffs have, therefore, smartly suppressed all facts
about Tenancy Orders in present suit to stretch or rather to overlook the issue
of limitation.
(8). The other notable fact is that the order of Tenancy Court is not subject
matter before this Civil Court. The Plaintiffs have not offered any explanation in
respect of Tenancy Orders, which are mentioned in revenue records produced
by themselves. The caveators have produced all records including certificate of
form no.9 u/s.43 which were issued in favour of Tenants. The Plaintiffs have
explained how this Court has jurisdiction to hear them against Tenancy Rights
of the Defendant no.3 to 19's ancestor. Therefore present Plaint is
apparently barred by jurisdiction.
(9). The Plaintiffs have produced a copy of public notice at Mark 3/4 which i
nothing but a smart and conniving attempt to create their illusory interest in
disputed properties. Mark 3/5 is copy of objections which are filed by the
Plaintiffs against Public Notice of the Defendant no.3 to 19. The said document
is crucial to appreciate that the Plaintiffs are not in possession of disputed
properties. It is mentioned in para 3 on page 1 that, ".. ठाडो२ शांताबेन भुशी વગેરેના
ભોગવટા કે કબ્જામાં છે જેની પર તેઓનો માત્ર વાવણી કરવા ખાતર જ હકક છે જે અમારા વાલી દ્વારા
આપવામાં આવેલ હતા.." but the Plaintiffs have not pleaded in the Plaint their
ancestor allowed Defendants the disputed properties for the cultivation only.
On the contrary they have suppressed fact of the possession of disputed
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properties.
(10). The Plaintiffs' ancestors have not challenged Tenancy Orders. There is no
is no cause of action in present suit at the instance of issue of Public Notice by
the heirs of Tenants. The present suit is also barred by jurisdiction under
Tenancy Act. Therefore relevant provisions of Order 7, Rule 11 (a) and (d) is to
be noted here. "The plaint shall be rejected in the following cases;- (a) where it
does not disclose a cause of action..(d) where the suit appears from the
statement in the Plaint to be barred by any law". The said provision is to be
considered with following citations. The Plaint is apparently false, frivolous and
vexatious. The Plaintiffs and Defendant no.1 and 2 are in active collusion.
Therefore relevant provisions of Order 7. Rule 11 (a) to (d) are applicable.
Following authorities are applicable in present Plaint.
1).2010 (4) All MR 854
2). AIR 2008 (NOC) 2502 (Mad)
3). 2003 AIR Kant HCR 1760
4). 2002 AIHC 4667
5).AIR 1997 All 323
6). 2008 AIR SCW 3241
7). 1999 AIHC 470
8). (2002) 48 All LR 793
9). 2000 CLC 561
10). (2002) 10 SCC 501
In above authorities it has been held that Where the litigation is utterly
vexatious and an abuse of process of court, Plaint can be rejected. It has been
held that where there is nothing on record to demonstrate as to what fraud was
committed, rejection of Plaint is proper order. It has been held that where
Plaint is lacking in material pleadings and does not give rise to cause of action.
rejection of Plaint is proper. Where suit is filed totally false, vexatious. meritless
without any cause of action, Plaint is to be rejected. Where Plaint does not
make out case of fraud, deception or even confusion, Plaint is liable to be
rejected. Order 7 R.11 (d) casts mandate upon the Court to reject Plaint where
suit appears from statement in Plaint to be barred by law. It has been held that
Court has got inherent powers to see that the vexatious litigations are not
allowed to take or consume the time of the Court. In present suit there is no
cause of action as well as the Plaintiff has no locus. The Plaintiffs-haye, not
come with clean hands. They suppressed all relevant facts of Tenancy orders
and possession with suppression of relevant document just to mingle the issue
of limitation with jurisdiction. It is duty of this Court, at time of institution of
suit, to see that unnecessary and nightmare litigations should not be instituted
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which is not going to be granted but only increase burden of the Court and may
cause unnecessary hardship to Defendants or third parties. Therefore the plaint
is not to be instituted. Hence I think following orden will serve the purpose of
justice."
8. While dismissing the first appeal the learned Appellate Court
in para 11 and 12 are observed as under:-
"[11] On careful perusal of the entire record and impugned order, it also
appears that dispute under the tenancy act was not definitely coming under
the jurisdiction of the civil court and in this regard also the Ld. Trial Court has
given cogent and reliable reaons on para 10 and onwards. Ld. Trial Court has
cited certain 10 case-laws while deciding the PH No.1/2022 and all those case-
laws and findings of the Ld. Trial Court based on the same were appropriately
examined by the Ld. Trial Court. In nutshell, it appears that in fact as per the
case-laws relied upon by the Ld. Trial Court the plaint of the
appellants/plaintiffs was utterly vexatious and abuse of process of court.
Hence. here does not seem to be any reason in existence to differ with the
impugned order passed by the Ld. Trial Court. On page 7 on wards the Ld. Trial
Court has given well-discussed reasons as to why the plaint of the
appellants/plaintiffs were not maintainable. Therefore, this court is of the view
that arguments advanced by the Ld. Advocate of the appellants/plaintiffs is
misguiding and not touching to the core issue involved in the plaint. At this
juncture, it must be noted that Ld. Advocate of the appellants/plaintiffs has
cited total 12 different case-laws as mentioned above but has not offerred any
comment upon the same as to how they are applicable to his case. Therefore,
this court has carefully and respectfully gone through all the above case-laws
whereby it is found that facts of the cases in all these case-laws were quitely
different than the facts of the plaint of the appellants/plaintiffs.
[12] In the conclusion, it is very much necessary to note that disputed lands
were allotted as per the law of tenancy under the Tenancy Act to the ancestors
of respondents/defendants no.3 to 19 and after due process the lands were
aportioned where for about 55 years there is no mention of appellants/plaintiffs
or their ancestors. The record also shows that even necessary order for N.A.i is
also passed at relevant time. In this regard, it may also be noted that after
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about 55 years, appellants/plaintiffs made hue and cry about fraudulent
activities in the proceedings and orders under the tenancy Act but in that
regard, except making allegations in the plaint, they have not taken any
actions prior to filing of the suit before any of the competent authorities.
Therefore also, Ld. Trial Court has noted this aspect in the concluding para of
the impugned order. Hence, impugned order passed by the Ld.Trial Court being
very well reasoned and in consonance of the provision of order 7 rule 11 (a)(d)
of the CPC, does not require any interference, hence following is the order."
9. Plaintiffs in plaints claim propriety right in the suit property
claiming it to be ancestral property, originated from deceased Mr.
Mohanlal Mahasukhram Raval. The documents which has placed by
the defendants along with the caveat states that, qua the disputed
land tenancy proceedings were undertaken previously under the
Bombay Tenancy and Agricultural Act 1948, whereupon defendant
were declared tenant by the Mamlatdar, Form No.9 was issued
under Section 43 of the Tenancy Act in favour of the defendant,
which declared them "Protected Tenant" by entry No.1446 in the
name of Becharji Khodaji and Masangji Khodaji. Entry No.1816 in
revenue proceedings specially mentioned about the tenancy and
name of the protected tenants, another revenue entry No.2147 also
envision the status of the tenants of the disputed property. These all
documents were supposed to be produced by the plaintiffs. More
particularly plaintiff claim propriety title on the disputed property.
All these documents are the documents which plaintiffs needed to
produced along with the plaint however, the defendant has placed
on record these undisputed documents along with the caveat
therefore, those documents can be read while hearing the
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admissibility of the plaint, these are not the document in defence or
documents of the defendant, it's undisputed revenue records. The
Court further notice that the order passed by the Mamlatdar under
the Bombay Tenancy and Agricultural Act, 1948, has not been
challenged by the plaintiff or their ancestral, at any point of time.
However, by passing all remedy available with law plaintiff
suppressing the material facts, had filed the suit under the claver
drafting by averring illusive cause of action.
10. In the case of T. Arivandandam Vs. T. V. Satyapal and
Another reported in (1977) 4 SCC 467 has observed 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 unrepentently
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, 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. The trial courts
would insist imperatively on examining the party at the first hearing so that
bogus litigation can be shot down at the earliest stage. The Penal Code is also
resourceful enough to meet such men, (Cr. XI) and must be triggered against
them. In this case, the learned Judge to his cost realised what George Bernard
Shaw remarked on the assassination of Mahatma Gandhi:
"It is dangerous to be too good."
7. We regret the infliction of the ordeal upon the learned Judge of the High
Court by a callous party. We more than regret the circumstance that the party
concerned has been able to prevail upon one lawyer or the other to present to
the Court a case which was disingenuous or worse. It may be a valuable
contribution to the cause of justice if counsel screen wholly fraudulent and
frivolous litigation refusing to be beguiled by dubious clients. And remembering
that an advocate is an officer of justice he owes it to society not to colloborate
in shady actions. The Bar Council of India, we hope will activate this obligation.
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We are constrained to make these observations and hope that the cooperation
of the Bar will be readily forthcoming to the Bench for spending judicial time on
worthwhile disputes and avoiding the distraction of sham litigation such as the
one we are disposing of. Another moral of this unrighteous chain litigation is
the gullible grant of ex parte orders tempts gamblers in litigation into easy
courts. A Judge who succumbs to ex parte pressure in unmerited cases helps
devalue the judicial process. We must appreciate Shri Ramasesh for his young
candour and correct advocacy."
11. Learned advocate Mr. Raxit Dholakia who is appearing for the
applicants could not point out that why the plaintiff has not
produced the relevant records.
12. Order 7 Rule 14 of the Code demands that the plaintiff is
require to produced all the documents upon which plaintiff is relies.
Plaintiffs in the case on hand seeks proprietary right in the disputed
property was required to place on record all the relevant revenue
record of the suit property.
13. In view of the Section 135(h) of the Gujarat Land Revenue
Code 1879, the plaintiff - applicant in every suit as application
pertain to land dispute is required to annex the certified copy of
the Revenue Records. In the present case the plaintiff has
purportedly avoided to annex the revenue record along with the
plaint and as such as, suppressed on material facts, facts of tenancy
proceedings are also not pleaded. Thus plaintiff suit was suffering
from gross suppression of facts.
14. They considered the matter of facts before the Court has been
widely criticized by the Hon'ble Supreme Court in case of Moti Lal
Songara vs. Prem Prakash @ Pappu and Another, (2013) 9 SCC 199.
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The Hon'ble Supreme Court observed that "Court is not a laboratory
where children come to play" and opined as under:-
"19. The second limb of the submission is whether in the obtaining factual
matrix, the order passed by the High Court discharging the accused
respondent is justified in law. We have clearly stated that though the
respondent was fully aware about the fact that charges had been framed
against him by the learned trial Judge, yet he did not bring the same to the
notice of the revisional court hearing the revision against the order taking
cognizance. It is a clear case of suppression. It was within the special
knowledge of the accused. Any one who takes recourse to method of
suppression in a court of law, is, in actuality, playing fraud with the court,
and the maxim supressio veri, expression faisi i.e. suppression of the truth
is equivalent to the expression of falsehood, gets attracted. We are
compelled to say so as there has been a calculated concealment of the fact
before the revisional court. It can be stated with certitude that the accused
respondent tried to gain advantage by such factual suppression. The
fraudulent intention is writ large. In fact, he has shown his courage of
ignorance and tried to play possum.
20. The High Court, as we have seen, applied the principle "when
infrastructure collapses, the superstructure is bound to collapse." However,
as the order has been obtained by practising fraud and suppressing
material fact before a court of law to gain advantage, the said order cannot
be allowed to stand." (Emphasis supplied)
15. after referring the aforesaid judgment recently the Hon'ble
Supreme Court in the case of Kusha Duruka Vs. State of Odisha
2024 4 SCC 432 in Para 7 held as under:-
"7. It was held in the judgments referred to above that one of the two
cherished basic values by Indian society for centuries is "satya" (truth) and
the same has been put under the carpet by the petitioner. Truth constituted
an integral part of the justice-delivery system in the pre-Independence era,
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however, post- Independence period has seen drastic changes in our value
system. The materialism has overshadowed the old ethos and the quest for
personal gain has become so intense that those involved in litigation do not
hesitate to take shelter of falsehood, misrepresentation and suppression of
facts in the court proceedings. In the last 40 years, the values have gone
down and now a litigants can go to any extent to mislead the court. They
have no respect for the truth. The principle has been evolved to meet the
challenges posed by this new breed of litigants. Now it is well settled that
alitigant, who attempts to pollute the stream of justice or who touches the
pure fountain of justice with tainted hands, is not entitled to any relief,
interim or nal. Suppression of material facts from the court of law, is
actually playing fraud with the court. The maxim supressio veri, expression
faisi, i.e. suppression of the truth is equivalent to the expression of
falsehood, gets attracted. Its nothing but degradation of moral values in the
society, may be because of our education system. Now we are more happy
to hear anything except truth; read anything except truth; speak anything
except truth and believe anything except truth. Someone rightly said that
"Lies are very sweet, while truth is bitter, that's why most people prefer
telling lies."
16. Learned advocate Mr. Dholakia submitted that the Court
should not exercise the power under Order 7 Rule 11 of the C.P.C.
before registration of the suit. This Court is not convince by the
said submissions.
17. In the case of Saleembhai and Others Vs. State of
Maharashtra and Others (2003) 1 SCC 557, the Hon'ble Supreme
Court in regards to the power under Order 7 Rule 11 of the Code,
held that it can be exercised at any stage of the suit prior to
registration of the suit but before the conclusion of the trial. Para.9
of the judgment reads as under:-
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"A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which
needed to be looked into for deciding an application thereunder are the
averments in the plaint. The trial court can exercise the power under Order 7
Rule 11 CPC at any stage of the suit - before registering the plaint or after
issuing summons to the defendant at any time before the conclusion of the
trial. For the purposes of deciding an application under clauses (a) and (d) of d
Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas
taken by the defendant in the written statement would be wholly irrelevant at
that stage, therefore, a direction to file the written statement without deciding
the application under Order 7 Rule 11 CPC cannot but be procedural
irregularity touching the exercise of jurisdiction by the trial court. The order,
therefore, suffers from non-exercising of the jurisdiction vested in the court e
as well as procedural irregularity. The High Court, however, did not advert to
these aspects."
18. In view of the above contentions raised by the learned
advocate Mr. Raxit Dholakia does not survive hence rejected.
19. The scope of the Second Appeal has been explained by the
Hon'ble Supreme Court in the case of Gurbachan Singh Vs.
Gurcharan Singh reported in (2023) 20 SCC 104 has been given by
reasons, para. 7, 14 and 15 of the judgment are reads as under:-
"7. The parameters of an appeal under Section 100 CPC passing muster are
well established. The section itself dictates that such an appeal shall only be
maintainable when the case involves a substantial question of law or that the
appellate decree has been passed ex parte. The latter, obviously is not the
case. This Court has, in a multitude of decisions, expounded on what may be
termed as a substantial question of law to satisfy the requirements of Section
14. The principles of law cited herein may be undoubtedly good law, but,
however, in the considered view of this Court, they do not hold in the case put
forward by the appellant. A perusal of the witness statements of DW 3 as duly
recorded by the High Court, (the Court also relies on the cross-examination
portions of DW 4 although the same do not form part of the record before this
Court) shows that father of the appellant had indeed partitioned the property
during his lifetime. In such situation selling a part of his share in an undivided
property, is a question that does not arise. Reliance on Shyam Sunder does not
NEUTRAL CITATION
C/SA/175/2024 ORDER DATED: 25/11/2025
undefined
support the case of the appellant as there is nothing on record to reflect any
effort having been made by him to substitute himself in place of the
respondents in buying the 4 marlas of land from Faqir Singh in order to keep a
stranger, namely, Gurcharan Singh from entering into family-owned property.
Had the appellant made any such effort and the same would be reflected from
record, then it could have been argued that he has a right to exclude the
respondents.
15. As already noted above, another ground of objection taken by the
appellant is the fact of the impugned judgment entering into a reappreciation
of evidence. While it is true that ordinarily, in second appeal, the Court must
not disturb facts established by the lower court or the first appellate court.
However, it is also equally well recognised that this rule is not an absolute one
or in other words, it is not a rule set in stone."
20. For the reasons stated herein above I decline to entertain the
present appeal, accordingly stand rejected at admission stage on
limine.
21. Civil Application does not survive, accordingly disposed of.
(J. C. DOSHI,J)
KAJAL
