[Cites 13, Cited by 0]
Gujarat High Court
Dipakbhai Bhagchandbhai Khatri vs Dhuliben D/O Nanjibhai Mithaji on 7 May, 2026
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 164 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/FIRST APPEAL NO. 164 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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DIPAKBHAI BHAGCHANDBHAI KHATRI & ANR.
Versus
DHULIBEN D/O NANJIBHAI MITHAJI & ORS.
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Appearance:
MR SHEGUN B CHOKSHI(12790) for the Appellant(s) No. 1,2
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,2
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Defendant(s) No. 5
MR HRIDAY BUCH FOR MR ABHISHEK M MEHTA(3469) for the
Defendant(s) No. 1,2,3,4,6
MS CHAITALI P DAVE(11693) for the Defendant(s) No. 7
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 07/05/2026
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE L. S. PIRZADA)
1. Heard learned advocate Mr.S.P. Majmudar appearing for
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the appellants and learned advocate Mr.Hriday Buch
appearing for learned advocate Mr.Abhishek M. Mehta for the
respondent Nos.1 to 6.
2. The present appeal, preferred by the appellants -
original plaintiffs under Section 96 of the Code of Civil
Procedure, 1908 (for short, the "Code"), is directed against
the impugned Judgment and Decree dated 28.11.2014 passed
by the learned 3rd Additional Senior Civil Judge, Vadodara
below Exh.42 in Special Civil Suit No.128 of 2016 whereby,
while allowing the application below Exh.42 preferred under
Order VII Rule 11 of the Code, the learned trial Court has
rejected the plaint of the plaintiffs.
3. For the sake of brevity, the parties herein are referred to
as per their original status in the suit.
4. Factual matrix leading to the filing of the present appeal
are that Special Civil Suit No.128 of 2016 has been filed by
the original plaintiffs against the defendants for specific
performance of an agreement to sale dated 08.02.2001 and
also for cancellation of the sale deed dated 31.08.2015
executed by the defendant Nos.1 to 6 in favour of the
defendant No.7.
5. In nutshell, the case of the original plaintiffs in the plaint
was that the original defendant Nos.1 to 6 were the owners
and occupiers of the land bearing Revenue Survey No.661,
Final Plot No.119, admeasuring 3187 sq.mtrs. (hereinafter
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referred to as the "suit land") situated at Village: Gotri. As
defendant Nos.1 to 6 wanted to sell the suit land, they have
contacted the plaintiffs and thereafter, the plaintiffs and
defendant Nos.1 to 6 have entered into an agreement to sale
and the sale consideration was fixed at Rs.20/- per sq.ft. and
the said agreement to sale was executed on 08.02.2001, which
was registered before the Notary on 13.02.2001. The total
sale consideration was fixed at Rs.6,85,850/- and the plaintiffs
have paid an amount of Rs.2,90,000/- by way of an earnest
money by cheque. Subsequently, the defendant Nos.1 to 6
have also executed the development agreement with the
plaintiffs on 13.02.2001 and given possession of the suit land
to the plaintiffs and receipt thereof was issued by the
defendant Nos.1 to 6 on 13.02.2001.
5.1. It is the case of the plaintiffs that as per the conditions
of the agreement to sale, the remaining amount of the sale
consideration was to be paid within a period of six months
from the date of getting the Title Clearance Certificate and
the other permissions before the sale and thereafter, within a
period of three months, sale deed was required to be
executed. Thus, the total amount of Rs.2,90,000/- i.e. almost
40% of the sale consideration was paid by the plaintiffs to the
defendants and thereafter, the payment has been made by the
plaintiffs. Subsequently, the defendant Nos.1 to 6 have
entered into agreement to sale with the third party and to get
the said agreement to sale cancelled, the plaintiffs have paid
the amount to the third party and they have also paid more
amount than the sale consideration to the defendant Nos.1 to
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6 for executing the sale deed.
5.2. It is further the case of the plaintiffs that thereafter,
public notices have been issued in the newspaper by
respondent Nos.1 to 6 on 17.12.2011, 02.07.2013 and
15.11.2014 for title through an advocate. The plaintiffs have
raised objections against the said public notices. Defendant
Nos.1 to 6 have not given any information regarding any
permission obtained by them for executing the sale deed and
thereafter, the defendant Nos.1 to 6 have obtained the
permission for change of conditions on 01.08.2015 and the
said fact was not conveyed to the plaintiffs and on 03.02.2016,
when the plaintiffs had taken out the copies of the revenue
records, it came to the notice of the plaintiffs that the
defendant Nos.1 to 6 have executed a sale deed in favour of
the defendant No.7 on 31.08.2015 and, therefore, the suit
being Special Civil Suit No.128 of 2016 has been filed with the
prayer of specific performance of the agreement to sale dated
08.02.2001 and also for cancellation of the sale deed executed
dated 31.08.2015 by the defendant Nos.1 to 6 in favour of the
defendant No.7.
5.3. During the trial, the defendant No.7 had given one
application at Exh.17 under Order VII Rule 11 of the Code on
20.08.2016 to reject the plaint on the ground of limitation and
on the ground that as the suit land was of a new tenure land,
and that the suit was hit by Section 43 of the Bombay Tenancy
and Agriculture Lands Act, 1948 (for short, the "Act of 1948").
The said application preferred by the defendant No.7 came to
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be rejected by the learned trial Court on 30.03.2017.
5.4. The defendant Nos.1 to 6 had also preferred an
application under Order VII Rule 11(b) of the Code below
Exh.42 to reject the plaint of the plaintiffs mainly on the
ground that the same was barred under Section 43 of the Act
of 1948 as the suit land, at the time of execution of the
agreement to sale, was new tenure land. Thus, it was prayed
to reject the plaint and the learned trial Court, vide Judgment
and Decree dated 28.11.2024, has allowed the application
Exh.42 preferred by the defendant Nos.1 to 6 and rejected the
plaint of the plaintiffs. Being aggrieved and dissatisfied by the
said Judgment and Decree passed by the learned trial Court,
the present appeal has been preferred by the plaintiffs.
6. Learned advocate Mr.S.P. Majmudar appearing for the
original plaintiffs submitted that the impugned Judgment and
Decree passed by the learned trial Court is contrary to law
and evidence on record. It is submitted that the learned trial
Court ought to have appreciated that the provisions of Order
VII Rule 11 of the Code were not attracted to the facts and
circumstances of the present case. It is submitted that upon
bare reading of the plaint and the documents annexed along
with the plaint, it appears that the plaint was not required to
be rejected under the provisions of Order VII Rule 11(d) of the
Code. It is submitted that the impugned Judgment and Decree
is contrary to the provisions of the Act of 1948. It is submitted
that as per the condition of the agreement to sale, after
getting all the permissions, the sale deed was to be executed
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and the agreement to sale was not barred under Section 43 of
the Act of 1948. It was further submitted that at the time of
deciding the application under Order VII Rule 11 of the Code,
the Court ought not to have taken the defense of the
defendants and the contentions raised in the application
preferred under Order VII Rule 11 of the Code. It was
submitted that in the plaint and the documentary evidence
annexed with the plaint, it was nowhere disclosed that the the
suit land for which, the agreement to sale has been executed,
was of a new tenure land.
6.1. It is submitted that even in the agreement to sale dated
13.02.2001 produced at Mark 4/1 along with the plaint, it was
nowhere stated that the suit land was of a new tenure land
and, therefore, also, the order passed by the learned trial
Court is required to be quashed and set aside.
6.2. It is submitted that at the time of deciding the
application under Order VII Rule 11 of the Code, the
averments made in the plaint and the documents attached
with the plaint were required to be considered and except
this, no other contents of the application preferred by the
defendants and the documents produced by them were
required to be considered.
6.3. Learned advocate Mr.Majmudar, in support of his
arguments, has relied upon the following decisions:-
(i) Kuldeep Singh Pathania vs. Bikram Singh
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Jaryal, reported in 2017 (5) SCC 345,
(ii) Mayar (H.K.) Limited vs. Owners and
Parties, Vessel M.V. Fortune Express, reported
in 2006 (3) SCC 100,
(iii) Dahiben vs. Arvindbhai Kalyanji Bhanusali
(D) thr.L.Rs. and Ors., reported in AIR 2020
SC 3310,
(iv) Soumitra Kumar Sen vs. Shyamal Kumar
Sen and others, reported in (2018) 5 SCC
644,
(v) Eldeco Housing And Industries Limited vs.
Ashok Vidyarthi And Others, reported in
2024 (11) SCC 503.
6.4. The second limb of the argument of learned advocate
Mr.Majmudar is that earlier, the defendant No.7 had
preferred an application at Exh.17 to reject the plaint under
Order VII Rule 11(d) of the Code and the same was rejected
by the learned trial Court on 30.03.2017. Thereafter, on the
same ground, an application has been preferred by the
defendant Nos.1 to 6 vide Exh.42, which was allowed by the
learned trial Court and, therefore, the principle of res-judicata
under Section 11 of the Code applies to the present case.
6.5. Learned advocate Mr.Majmudar, relying upon the
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decision of the Hon'ble Apex Court in the case of Y.B. Patil
vs. Y.L. Patil, reported in 1976 (4) SCC 66, submitted that
principle of res-judicata is applicable not only in separate
subsequent proceedings but also, in subsequent stage of same
proceedings. Once an application under Order VII Rule 11 of
the Code preferred by the defendant No.7 has already been
rejected, subsequently, on the same ground, an application
preferred by the defendant Nos.1 to 6 on the ground of
Section 43 of the Act of 1948, there is an applicability of res-
judicata under Section 11 of the Code and, therefore, the
Judgment and Decree passed by the learned trial Court is
required to be quashed and set aside.
6.6. It is further submitted that so far as any concealment or
suppression has been made by the plaintiff or not is
concerned, is a triable issue, therefore, the Court ought not to
have rejected the plaint under Order VII Rule 11 of the Code
at the threshold. It is submitted that considering the same, the
present appeal is required to be allowed and Judgment and
Decree passed by the learned trial Court is required to be
quashed and set aside.
7. On the other hand, learned advocate Mr.Hriday Buch
appearing for learned advocate Mr.Abhishek M. Mehta for the
defendant Nos.1 to 6 has vehemently opposed the present
appeal and submitted that the Judgment and Decree passed
by the learned trial Court is just and proper and does not
require any interference. It is submitted that the agreement to
sale for which, specific performance has been sought by the
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plaintiffs, has been produced vide Mark 4/1 along with the
plaint by the plaintiffs and plain reading of the agreement to
sale, discloses that the same had been executed on
08.02.2001 and as per the conditions mentioned in the
agreement to sale, prior to execution of the sale deed, the
plaintiffs were required to obtain necessary permission for
sale of the suit land and after obtaining the permission within
six months, the sale deed was to be executed. It is submitted
that till filing of the suit in the year 2016, for about 15 years,
the plaintiffs have not taken any steps. Further, it is submitted
that when the defendant Nos.1 to 6 preferred an application
Exh.42 under Order VII Rule 11 of the Code before the
learned trial Court to reject the plaint, it has been specifically
mentioned therein that the suit land was of a new tenure land.
It is submitted that at the time of entering into an agreement
to sale by the plaintiffs and defendant Nos.1 to 6, the suit land
was a new tenure land. It is submitted that as per the revenue
record also, the suit land was of a new tenure land and it was
specifically stated in the agreement to sale and, more
particularly, as per the condition mentioned therein that
before registering the sale deed, necessary permission was
required to be obtained.
7.1. It is submitted that the plaintiffs have cleverly drafted
the plaint and not stated in the plaint that so far as the suit
land is concerned, it was a new tenure land and even to
maintain the civil suit along with the plaint, copies of the
revenue records have also not been produced. Therefore, it
becomes clear that the suit land was of a new tenure land.
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Relying upon the decision of the Larger Bench of this Court in
the case of Decd Shaikh Ismailbhai Hushainbhai Through
Lh Vs. Vankar Ambalal Dhanabhai, reported in 2024 (1)
GLH 222, it is submitted that the Full Bench of this Court had
already held that when there is a new tenure land and as per
Section 43 of the Act of 1948, the agreement to sale itself is
illegal and invalid agreement as well as it is hit by Section 43
of the Act of 1948 and the plaint is liable to be rejected under
Order VII Rule 11 of the Code.
7.2. Further, it is submitted that earlier application preferred
under Order VII Rule 11 of the Code by the defendant No.7
vide Exh.17 was rejected in the year 2017 by the learned trial
Court and after the pronouncement of the Judgment of the
Full Bench of this Court in the case of Decd Shaikh
Ismailbhai Hushainbhai Through Lh (supra), the
application preferred by the defendant Nos.1 to 6 and as the
agreement to sale is hit by Section 43 of the Act of 1948, the
principle of res-judicata would not apply and, therefore, it is
submitted that when the law is altered since the earlier
decision, it will not operate as a res-judicata between the
same parties.
7.3. In support of his arguments, learned advocate Mr.Buch
has relied upon the Judgment of the Hon'ble Apex Court in the
case of Mathura Prasad Bajoo Jaiswal and Others vs.
Dossibai N.B. Jeejeebhoy, reported in (1970) 1 SCC 613.
He also relied upon the Judgment of the Division Bench of this
Court in the case of Jagdishbhai Haribhai Patel Through
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POA Shah Rajeshkumar Chandravadan vs. LH of Decd.
Ramanlal Shankarlal Patel & Ors. rendered in First Appeal
No.2541 of 2024 with Civil Application No.1 of 2024 and
submitted that while deciding the application under Order VII
Rule 11 of the Code, the Division Bench of this Court has
already held that when the plaintiff has suppressed the
material facts and there was omission to place on record the
documents, which are not favourable and selectively placed
the favourable documents only, on this ground also, the
learned trial Court has rightly straightway rejected
application under Order VII Rule 11 of the Code. It is
submitted that no illegality has been committed by the
learned trial Court and as the present appeal is devoid of any
merit, the same is required to be dismissed.
8. After hearing the rival submissions made by the learned
advocates appearing for the respective parties, perusing the
impugned Judgment passed by the learned trial Court and the
paper-book, the following points come before us for
consideration:-
(i) Whether the appellants - plaintiffs
prove that the learned trial Court has
erred in coming to the conclusion that the
agreement to sale is hit by Section 43 of
the Bombay Tenancy and Agriculture
Lands Act, 1948 and the plaint is liable to
be rejected under Order VII Rule 11 of the
Code of Civil Procedure?
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(ii) Whether the appellants - plaintiffs
prove that the successive application
under Order VII Rule 11 of the Code of
Civil Procedure is not maintainable as it
operates as res-judicata?
(iii) What order?
9. The findings are as under:-
(i) Negative
(ii) Negative
(iii) As per the final order.
Point No.1
10. So far as the present case is concerned, it is not in
dispute that the plaintiffs have filed a suit in the year 2016 for
specific performance of the agreement to sale dated
08.02.2001 executed between the plaintiffs and defendant
Nos.1 to 6. It is also not in dispute that the defendant Nos.1 to
6, after obtaining the necessary permission, have executed the
sale deed in favour of the defendant No.7 on 31.08.2015 and
the suit has been filed for specific performance of the
agreement to sale dated 08.02.2001 and for cancellation of
the sale deed dated 31.08.2015 executed by the defendant
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Nos.1 to 6 in favour of the defendant No.7.
11. It is not in dispute that in the plaint, the plaintiffs have
only stated that so far as the suit land is concerned, an
agreement to sale has been executed with the defendant
Nos.1 to 6 wherein, it is nowhere mentioned that the suit land
was of a new tenure land. Further, from the plain reading of
the agreement to sale executed on 08.02.2001, produced vide
Mark 4/1 and registered before the Notary public on
13.02.2001, some conditions have been mentioned in the
same, more particularly, condition No.1, which pertained to
the price fixed for the suit land i.e. Rs.20/- per sq.ft. and the
total amount has been fixed at Rs.6,85,850/- and against that,
an amount of Rs.2,90,000/- has been paid by the plaintiffs as
an earnest money by way of cheque. Further, in condition
No.3, it was stated that the plaintiffs have to obtain the
relevant permissions from concerned authority and after
obtaining the permission within six months, rest of the
amount of sale consideration was to be paid to the defendant
Nos.1 to 6 and thereafter, the sale deed was to be executed.
So, from the agreement to sale, it clearly emerges that the
permission was required to be obtained before executing the
sale deed and even the agreement to sale does not specifically
state that the suit land was of a new tenure land but, it
specifically states that prior to executing the sale deed,
permission was required to be obtained from the authority
concerned.
12. In the plaint, the plaintiffs have also averred that when
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they had obtained necessary revenue records regarding the
suit land on 03.02.2016, at that time, they came to know
about Revenue Entry No.6935 and that entry pertained to
some order. After such order and after obtaining the
permission for change of tenure of the suit land, they have
executed a sale deed in favour of the defendant No.7.
Therefore, it can be said that the plaintiffs have deliberately
not stated in the plaint that the suit land was of a new tenure
land at the time of executing the sale deed and it was brought
to the notice by the defendants in the application Exh.42 that
the suit land was of a new tenure land. The said fact has been
suppressed by the plaintiffs by clever pleading. So, it is clear
that in the case where, the plaintiffs, by clever drafting of the
plaint, attempted to make out an illusory cause of action to
bring the suit by not mentioning that the suit land was of a
new tenure land.
13. In this regard, it is profitable to refer to the decision of
the Division Bench of this Court in the case of Jagdishbhai
Haribhai Patel Through POA Shah Rajeshkumar
Chandravadan (supra), more particularly, paras 23, 29 and
31 thereof, read as under:-
"23. Having said so, this Court would also like
to deal with the contention raised by the
learned advocate appearing for the
defendants regarding suppression of material
facts of the documents within the knowledge
of the plaintiff. It is well settled that when a
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party approaches the Court of law it is
expected that he/she should not only come
with clean hands but also with a clean heart.
It is well settled that it would be
impermissible for any person to pollute the
fountain of justice. It is difficult to fathom that
when a party has knowledge of the
proceedings and all the documents are
available with it, what restrains him/her from
placing these documents on record.
Necessarily, the inference, that can be drawn
is that motive, is neither genuine nor bona
fide. Suppressing important documents will
surely disentitle a party from seeking any
relief as, non-disclosure was only with a view
to avoiding rejection of the suit at the
threshold. If that be so, whether such a party
can be given a premium for suppression or
non-disclosure, thereby, nullifying the spirit of
the provisions of Order VII Rule 11 of the
Code. Furthermore, the opposite party, would
be entangled in the protracted litigation
though no fault of his own.
29. Therefore, the plaintiff, clearly held back
rather suppressed the material facts.
Omission to place on record the documents,
which are not favourable and selectively
placing the favourable documents, is nothing,
but a mischievous attempt on the part of the
plaintiff to come out of the lethal bar of
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limitation. Having not produced and as stated
earlier to contend that at the stage of Order
VII Rule 11 of the Code, only the plaint and
the documents together with the plaint, have
to be considered, is nothing, but an attempt
on the part of the plaintiff to overcome the
omission and gross lapse of not producing the
relevant documents on the record.
31. It is well-settled that the remedy under
the provisions of Order VII Rule 11 of the
Code is an independent and a special remedy
wherein, the Court is empowered to
summarily dismiss the suit at the threshold
without proceeding to record evidence and
conducting the trial on the basis of the
evidence adduced, if it is satisfied that the
action should be terminated on any ground
contained in the provision. It has been held
and observed that underlying object of Order
VII Rule 11 of the Code is that if in a suit, no
cause of action is disclosed or the suit is
barred by limitation, the Court should not
permit the plaintiff to unnecessarily protract
the proceedings in the suit and in such a case,
it would be necessary to put an end to the
sham litigation so that further judicial time is
not wasted."
14. Thus, from the aforesaid decision, it is clear that the
remedy under the provisions of Order VII Rule 11 of the Code
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is an independent and a special remedy and the Court is
empowered to summarily dismiss the suit at the threshold as
there is no cause of action disclosed or barred by any law and
when the plaintiffs have specifically not placed on record the
correct facts and suppressed the material facts or there was
omission to place on record the documents and only produced
the documents which were favourable, it was a mischievous
attempt and at the stage of application under Order VII Rule
11 of the Code, it was argued that at the time of deciding the
application, only the plaint and the documents attached with
the plaint were required to be considered, which is nothing
but an attempt made by the plaintiffs to overcome the
omission by not mentioning the correct facts and not placing
the relevant documents on record.
15. Further, it has already been held by the learned trial
Court that the suit land was of a new tenure land and it was
hit by Section 43 of the Act of 1948. In this regard, it is
profitable to refer to the decision of the Larger Bench of this
Court in the case of Decd Shaikh Ismailbhai Hushainbhai
Through Lh (supra), wherein, it has been held and observed
that the Civil Court, alone can look into the fact that as to
whether the agreement on the basis of which, the suit for
specific performance is instituted is a valid agreement, not hit
by any statutory provision, or forbidden by law or oppose to
public policy. The Full Bench, has also considered the object
and scope of Order VII Rule 11 of the Code, and referred to
the judgment in the case of Dahiben vs. Arvindbhai
Bhanusali (Gajara) dead through LHS., reported in
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(2020) 7 SCC 366, wherein, it has been held and observed
that the cause of action for a suit for specific performance of
an agreement of refusal by the Vendor inspite of readiness
and willingness of the vendee to execute the sale deed, will
not be existing in a case where the agreement itself is invalid
being hit by Section 43 of the Act of 1948, inasmuch as, no
cause of action can be said to have arisen, asking the
defendant to perform his part of the contract when there is no
sanction and the agreement itself is illegal or invalid.
Paragraphs 138, 139, 151 and 153 of the judgment of Larger
Bench, read thus:-
"138. We may clarify that we are not
concerned with the dispute pertaining
to the validity of an agreement, i.e. the
dispute whether an agreement is hit by
Section 43 or not, i.e. whether it is
valid or not? The issue before us is
plain and simple; as to whether the
agreement which has been executed
with a view to transfer a restricted
tenure land as prescribed in Section
43(1), without the permission of the
Collector, can be specifically enforced
by the Civil Court by granting a decree
of specific performance of such an
agreement." Our concern is about the
jurisdiction of the Civil Court to decide
on the question of enforceability of
such an agreement of sale, which in
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our considered opinion clearly resides
in the Civil Court as held by the
Division Bench in Ganpatlal (supra).
The Civil Court alone will have
jurisdiction to adjudicate on the
question of enforceability of the
agreement of sale, on the basis of
which the suit for specific performance
has been executed. It is the Civil Court
which alone can look into the fact as to
whether the agreement on the basis of
which the suit for specific performance
is instituted is a valid agreement, not
hit by any statutory provision, or
forbidden by law or opposed to public
policy.
139. The question as to enforceability
of an agreement hit by Section 43 of
the Tenancy Act, 1948, to grant a
decree of specific performance, cannot
be by any stretch of imagination, a
question within the scope of the
jurisdiction of the revenue authority
under the Tenancy Act, 1948. There is
no gainsaying that Civil Court will not
be required to stay a suit for specific
performance based on an agreement
hit by Section 43(1) of the Tenancy Act,
1948 and relegate the parties to
approach the Mamaltdar to decide on
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the question of validity of such an
agreement.
(g) Enforceability of the agreement hit
by Section 43 of the Tenancy Act:-
151.On a careful reading of the
provision in Order VII, Rule 11 of the
Code of Civil Procedure and the law
laid down by the Apex Court in
Dahiben (supra), in light of the dispute
before us, we may note that in order to
maintain the suit for specific
performance of agreement, which is hit
by Section 43(1) of the Tenancy Act,
1948, the plaintiff would be required to
disclose the cause of action for seeking
a decree of specific performance of
such an agreement. The cause of
action for a suit for specific
performance of an agreement of
refusal by the Vendor inspite of
readiness and willingness of the
vendee to execute the sale deed, will
not be existing in a case where the
agreement itself is invalid being hit by
Section 43(1), inasmuch as, no cause of
action can be said to have arisen
asking the defendant to perform his
part of the contract when there is no
sanction and the agreement itself is
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illegal or invalid. Further, on the
averments made in the plaint, in
conjunction with the documents relied
upon by the plaintiff, the Civil Court
will be in a position to ascertain the
question of enforceability of the
agreement. It will be in a position to
ascertain that the agreement, which is
the basis of the suit, whether is hit by
Section 43(1) or not, inasmuch as, to
seek a decree of specific performance
of agreement, the plaintiff is required
to disclose and establish two
circumstances: (I) firstly, that the
documents, which is the basis of the
suit is a valid document in the eye of
law and (ii) secondly, that the cause of
action has arisen prior to the
presentation of the plaint. If the
documents, i.e. the agreement is an
illegal or invalid document in the eye of
law, the Civil Court from the statement
in the plaint itself will ascertain the
suit being barred by law. In any case,a
suit basis of which is an invalid
document in the eye of law or where
there exists no cause of action to
institute the suit on the date of the
presentation of the plaint, the Civil
Court will have no option but to reject
the plaint, at the threshold, under
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Order VII, Rule 11 of the Code of Civil
Procedure. The arguments that the
Civil court will be required to frame
the issue as to the validity of the
agreement, which is the basis of the
suit and must necessarily proceed with
the trial to arrive at the decision as to
whether the decree of specific
performance of an agreement hit by
law, is to be granted or not, does not
appeal to us.
153. We are in respectful agreement
with the decision of the Division Bench
in Naranbhai Kanjibhai Gajera (supra),
holding that the Division Bench
decision in Amarben (supra) can be
said to be 'per incuriam' ignoring
statutory provisions and in view of the
decision of another Division Bench
dated 21.06.2021 in Vijaybhai
Shambhubhai Patel (supra), which was
challenged in Special Leave to Appeal
(Civil) No.5124 of 2022, and which has
been dismissed vide judgement and
order dated 10.11.20222 affirming the
Division Bench judgement in Vijaybhai
Shambhubhai Patel (supra)."
16. Therefore, the question "whether the plaint is liable to be
rejected under Order VII, Rule 11 of the Code of Civil Procedure on
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the ground that the suit for specific performance of the contract
based on illegal or invalid agreement to sell, hit by Section 43 of
the Tenancy Act, 1948, is not maintainable", is answered in the
affirmative.
16.1. Considering the above decision of the Larger Bench of
this Court, so far as the present case is concerned, it is an
admitted position that the agreement to sale dated 08.02.2001
executed by the defendant Nos.1 to 6 for the land in favour of
the plaintiffs was of a new tenure land and the plaintiffs have
cleverly not mentioned this fact in the plaint and also not
produced the revenue records, which clearly indicates that
the suit land was of a new tenure land and even from the plain
reading of the agreement to sale produced at Mark 4/1, it
transpires that before execution of the sale deed, permission
from the competent authority was required and even in the
plaint itself, it is stated by the plaintiffs that when defendant
Nos.1 to 6 have executed the sale deed in favour of the
defendant No.7, at that time, permission was obtained from
the Collector and it was reflected in the revenue records.
Therefore, we are of the considered opinion that no illegality
has been committed by the learned trial Court in recording
the finding that the present suit is hit by Section 43 of the Act
of 1948. Hence, we answer the Point No.1 in the affirmative.
Point No.2
17. The another argument of the learned advocate for the
plaintiffs is that previously, the defendant No.7 has preferred
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an application under Order VII Rule 11(b) of the Code vide
Exh.17 on the same ground that the suit land was of a new
tenure land and the same was rejected by the Court in the
year 2017 and subsequently, application vide Exh.42 has been
preferred by the defendant Nos.1 to 6, which came to be
allowed and whether, it operates as a res-judicata or not?, in
that regard, learned advocate Mr.Buch has relied upon the
Judgment of the Hon'ble Apex Court in the case of Mathura
Prasad Bajoo Jaiswal and others (supra), more particularly,
para 7 thereof, which reads as under:-
"7. Where the law is altered since the earlier
decision, the earlier decision will not operate as
res judicata between the same parties: Tarini
Charan Bhattacharjee case. It is obvious that the
matter in issue in a subsequent proceeding is not
the same as in the previous proceeding, because
the law interpreted is different."
18. Therefore, it is an admitted position that the Full Bench
of this Court has decided the reference on 12.01.2024 and the
law has been altered since the earlier decision and as per the
pronouncement of the Hon'ble Apex Court in the case of
Mathura Prasad Bajoo Jaiswal and others (supra), it
cannot operate as a res-judicata so far as the application
preferred by the defendant Nos.1 to 6 is concerned, which
was decided by the learned trial Court on 28.11.2024.
19. Hence, we do not find any force in the argument of the
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learned advocate for the plaintiffs that the application Exh.42
operate as a res-judicata. Hence, we answer the Point No.2 in
negative.
20. In view of the above, we are of the considered opinion
that the findings recorded by the learned trial Court are just
and proper as the suit is hit by Section 43(1) of the Act of
1948 and there was also suppression made by the plaintiffs
and, therefore, the learned trial Court has rightly rejected the
plaint of the original plaintiffs under Order VII Rule 11(d) of
the Code.
21. Accordingly, we do not find any merit in the present
appeal and the same is hereby dismissed. No order as to
costs.
22. Decree is to be drawn accordingly.
23. In view of dismissal of the present appeal, Civil
Application No.1 of 2025 would not survive and the same also
stands disposed of.
(BHARGAV D. KARIA, J)
(L. S. PIRZADA, J)
Hitesh
