CRA/366/2016 of VANZARA GOPIJI VALLAJI Vs GADHVI GHANSHYAMBHAI GOVINDSINGH on 27 December 2019

1. The present revision application under Section 115 of the Code of Civil Procedure, 1908 (the 'Code' for short) is preferred to assail the order dated 24.08.2015 passed by the learned Principal Senior Civil Judge, Kadi, District Mahesana below Exh.9 in Regular Civil Suit No.210 of 2014 whereunder the application preferred by the applicant for rejection of the plaint under Order 7 Rule 11 of the Code came to be rejected.

2. The facts as could be gathered from the impugned order and connected materials are that the respondents instituted Regular Civil Suit No.210 of 2014 against the applicant, in the Court of learned Principal Senior Civil Judge, Kadi for cancellation of registered sale deed dated 17.09.2008 in favour of the applicant. Main ground on which the cancellation of the registered sale deed is non-payment of Rs.1,51,000/- out of agreed sale consideration of Rs.4,95,000/-. The applicant preferred Exh.9 application in the suit under Order 7 Rule 11 for rejection of the plaint on the ground of no cause of action because the suit is barred by limitation as it is instituted after three years of the execution of the registered sale deed. The learned Trial Judge by the impugned order rejected the application on the ground that the limitation is mixed question of law and facts, which cannot be decided before the evidence adduced by the parties. Aggrieved by this order, the applicant has preferred the present Civil Revision Application.

3. I have heard Mr. Satyam Y. Chhaya, learned advocate for the applicant and Mr. Munjal Acharya, learned advocate for Mr. Hitesh N. Acharya, learned advocate for the respondents.

4. Mr. Chhaya, learned advocate for the applicant

submitted that the registered sale deed was executed in favour of the applicant on 17.09.2008, whereas the suit is filed on 24.12.2013. It is thus eminently clear that the suit is filed after three years of execution of the registered sale deed, which is clearly beyond the limitation period of three years. He further submitted that in the plaint itself, it is averred that the land is sold to the applicant. However, only ground for seeking cancellation is non-payment of some part of sale consideration. He submitted that the non-payment of some part of sale consideration would not be itself rendered the registered sale deed, if any cause to the respondents plaintiffs to seek cancellation of sale deed. He therefore, submitted that when the suit on face of it, is barred by limitation, the learned trial Judge is clearly fallen in error rejecting the application on the ground that the limitation in a present case is a mixed question of law and facts. He, therefore, urged that the revision application may be allowed and the suit may be dismissed on the ground of limitation. In support of his submissions, he has relied upon the decision of this Court in the Case of (1) Masrur Fatema Jafarali Saiyed Versus Vishnubhai Ambalal Patel reported in 2016(0)AIJEL-HC 237186, (2) Sankabhai Rambhai Desai Versus Rathod @ Kantaben reported in 2016(0) AIJEL-HC 236560, (3) Emrald Co-Operative Housing Society Ltd. Versus Manguben Thakor the Daughter of Ataji Chaturji Thakor reported in 2016(0) AIJEL-HC 236189.

5. Mr. Munjal Acharya, learned advocate for Mr.

Hitesh Acharya, learned advocate has supported the impugned order. He submitted that the cause of action to file suit accrued in favour of the respondents when the applicant refused to make payment of balance amount of sale consideration. He, therefore, submitted that the learned trial Judge has rightly rejected the application on the ground that the issue of limitation in the present case, is mixed question of law and facts. He, therefore, urged that the revision application may be dismissed.

6. Order 7 Rule 11 of the Code reads as under :- Order 7 Rule 11 : Rejection of plaint:- The plaint shall be rejected in the following cases :- (a) where it does not disclose a cause of action; (b) wherethereliefclaimedis undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued by 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 prevented by any cause of an exceptional nature for correcting 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]”

7. The applicant has preferred application Exh.9 for rejection of the plaint on the ground that the suit instituted by the respondents for cancellation of registered sale deed executed on 24.12.2013, was beyond the period of limitation of three years.

8. Before adverting to the submissions made at the bar, it would be relevant to prefer certain decisions of the Hon'ble Supreme Court, wherein the scope and ambit of Order 7 Rule 11 of the Code is highlighted.

9. Keeping in mind the aforesaid broad principles enunciated by the Hon'ble Supreme Court, if the averments made in the plaint by the respondents are considered, it become eminently clear that the respondents themselves have averred in the suit that the registered sale deed dated 24.12.2013 was executed in favour of the present applicant in respect of the suit land for consideration of Rs.4,95,000/-. It is further averred in the plaint that out of the said sale consideration, a sum of Rs.3,44,000/- was paid at the time of execution of the sale deed. Hence, a sum of Rs.1,51,000/- remained outstanding, which the applicant has assured to pay after the notice under Section 135(D) of the Bombay Land Revenue Code, signed by respondents. According to the averments made in the plaint though the respondents have signed the notice under Section 135(D) of the Revenue Code, the applicant refused to make the payment of balance amount when demanded on 01.12.2013. Hence, it is clear from the averments made in the plaint itself that the respondents have stated that the registered sale deed was executed in favour of the applicant on 24.12.2013 and thereafter the suit is instituted on 17.09.2008 and the suit was instituted on 24.12.2013. It is clear that the suit is barred by law of limitation.

10. The Hon'ble Supreme Court in the case of T. Arvindandam Versus T. Satyapal and others reported in 1977(4) SC 467 has held as under in paragraph No.5 :

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

11. From the plain reading of the plaint as a whole makes it abundantly clear that by making an averments that the respondent had demanded the balance amount on 01.12.2013, the applicant has tried to prove that n the suit is not within period of limitation. Such an averment made in the plaint is nothing, but a clever drafting to avoid the mischief of limitation, which the Court cannot countenance.

12. The rejection of the application by the learned Trial Judge on the ground that in the present case, the issue of limitation is a mixed question of law and facts is clearly without proper consideration of the plaint as a whole. It is not a general rule that in all cases, the issue of limitation is a mixed question of law and facts. The Court has to closely scrutinize the plaint to find out that the suit is clearly beyond the period of limitation period or not. If on plain reading of the plaint, it manifestly clear that the suit is heat by limitation and therefore, the Court should not hesitate to dismiss such suit under Order 7 Rule 11 of the Code.

13. In my considered view, when on the plain reading of the plaint, it is clear that the suit is filed beyond three years after the execution of the sale deed, the learned trial Judge has fallen in error in rejecting the application on the ground that the issue of limitation is a mixed question of law and facts.

14. For the foregoing reasons, the revision application is succeeds and is hereby allowed the order dated 24.08.2015 passed by the learned Principal Senior Civil Judge, Kadi, below Exh.9 in Regular Civil Suit No.210 of 2014 is hereby quashed and set aside and the plaint of Regular Civil Suit No.210 of 2014 instituted by the respondent is hereby is rejected on the ground of limitation Act.

15. Rule is made absolute. Parties are directed to bear their own costs.

(A.G.URAIZEE, J)

Pallavi