CHHOTANBEN AND ANR. versus KIRITBHAI JALKRUSHNABHAI THAKKAR AND ORS. on 10 April 2018

SUPREME COURT REPORTS[2018] 3 S.C.R. 422

[2018] 3 S.C.R.

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CHHOTANBEN AND ANR.

v.

KIRITBHAI JALKRUSHNABHAI THAKKAR AND ORS.

(Civil Appeal No. 3500 of 2018)

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APRIL 10, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Code of Civil Procedure, 1908:

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COrder VII, r.11(d) – Suit for declaration and permanentinjunction – Alleging therein that the suit property was transferredby the defendants (co-owners) without knowledge of plaintiffs andby forging their signatures – Application u/O.VII, r.11(d) bydefendants for rejection of plaint on the ground that suit was barredby limitation – Application was dismissed by trial court – In RevisionDHigh Court reversed the order of trial court – On appeal, held: Thebasis to decide an application u/O.VII, r.11(d) are the averments inthe plaint (read as a whole) and defence or plea in the WrittenStatement cannot be the basis – In view of the averments in theplaint and relief claimed, the issue of limitation is a triable issue –ETherefore, plaint cannot be rejected at the threshold, in exercise ofpower u/O.VII, r.11(d).

Allowing the appeal, the Court

HELD: 1. The appellants (plaintiffs) have asserted that until2013 they had no knowledge whatsoever about the execution ofFthe registered sale deed concerning their ancestral property.Further, they have denied the thumb impressions on theregistered sale deed as belonging to them and have alleged forgeryand impersonation. In the context of totality of averments in theplaint and the reliefs claimed, which of the Articles from amongstGArticles 56, 58, 59, 65 or 110 or any other Article of the LimitationAct will apply to the facts of the present case, may have to beconsidered at the appropriate stage. [Para 11] [431-E-F]

2. What is relevant for answering the matter in issue in thecontext of the application under Order VII Rule 11(d), is to H

CHHOTANBEN AND ANR. v. KIRITBHAI JALKRUSHNABHAITHAKKAR AND ORS.

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examine the averments in the plaint. The plaint is required to beread as a whole. The defence available to the defendants or theplea taken by them in the written statement or any applicationfiled by them, cannot be the basis to decide the application underOrder VII Rule 11(d). Only the averments in the plaint aregermane. [Para 12] [431-G]

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3. In the present case, the appellants (plaintiffs) haveasserted that the suit was filed immediately after gettingknowledge about the fraudulent sale deed executed by originaldefendant Nos. 1 & 2 by keeping them in the dark about suchexecution and within two days from the refusal by the originaldefendant Nos.1 & 2 to refrain from obstructing the peacefulenjoyment of use and possession of the ancestral property of theappellants. The issue regarding the suit being barred by limitationin the facts of the present case, is a triable issue and for whichreason the plaint cannot be rejected at the threshold in exerciseof the power under Order VII Rule 11(d). [Para 16] [434-A-C]

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Saleem Bhai and Others v. State of Maharashtra andOthers (2003) 1 SCC 557 : [2002] 5 Suppl. SCR 491;Mayar (H.K.) Ltd. and Others v. Owners & Parties,Vessel M. V. Fortune Express and Others (2006) 3 SCC100 : [2006] 1 SCR 860; and also T. Arivandandam v.T. V. Satyapal and Another (1977) 4 SCC 467 : [1978]1 SCR 742 – relied on.

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Church of Christ Charitable Trust and EducationalCharitable Society v. Ponniamman Educational Trust(2012) 8 SCC 706 : [2012] 6 SCR 404 – referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3500of 2018.

AFrom the Judgment and Order dated 13.01.2017 of the High Courtof Gujarat at Ahmedabad in Civil Revision Application No. 76 of 2016.

Purvish Jitendra Malkan, Ms. Dharita Purvish Malkan, Ms. DeepaGorasia, Bhaskar Singh, Ms. Rumi Chander, Advs. for the Appellants.

Gaurav Agrawal, Adv. for the Respondents.B

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. This appeal, by special leave,takes exception to the judgment and order dated 13[th] January, 2017 ofthe High Court of Gujarat at Ahmedabad in Civil Revision ApplicationNo.76 of 2016.C

2. The appellants filed a suit for declaration and permanentinjunction on 18[th] October, 2013, against the respondents before thePrincipal Senior Civil Court, Anand, being Regular Civil Suit No.166 of2015 (Old No. Special Civil Suit No.193 of 2013). The frame of theDsubject suit is on the assertion that the appellants and original defendantNos.1 & 2 were in joint ownership and possession of an ancestral propertyinherited by them from their predecessor (father), deceased BawamiyaKamaluddin Saiyed, bearing Survey No.113/1+2, area H.1-37-59 Ara,Akar Rs.15-81 paise. That land is old tenure agricultural land situated atMouje Village, Hadgud Taluka and District Anand. The said ancestral,Ejoint, undivided land was jointly possessed and used and enjoyed by theappellants (plaintiffs) and original defendant Nos.1 & 2 (predecessorsof respondent Nos.2 to 15), after the demise of their father BawamiyaKamaluddin Saiyed, being in his straight line of heirs. The names ofJahangirmiya Bawamiya Kamaluddin Saiyed and HussainmiyaBawamiya Kamaluddin Saiyed (original defendant Nos.1 & 2Frespectively) came to be recorded in the record of rights along with thenames of the appellants and since that time, all of them were jointly inpossession and usage of the undivided land. The appellants assert thatthey have half (1/2) share, rights, powers, possession and usage rights inthe property. It is their case that without their knowledge the originalGdefendant Nos.1 & 2 transferred the said land after forging their(appellants) signatures. The appellants were not aware about the saidtransaction effected vide registered sale deed No.4425 dated 18[th] October,1996, which they came to know from their community members,immediately whereafter they made enquiry in the office of Sub Registrarat Anand. It was revealed to them that the land has already beenH

transferred by a registered sale deed dated 18[th] October, 1996 in favourof defendant Nos.4, 5 and 6 (Anilbhai Jaikrishnabhai Jerajani, KiritbhaiJaikrishnabhai Thakkar and Kekanbhai Jaikrishnabhai Thakkar,respectively). They promptly applied for a certified copy of the registeredsale deed. They were also informed that Jaikrishnabhai PrabhudasThakkar had expired and, therefore, the defendant Nos.3 to 6 receivedthe land as heirs. It is then asserted that from the registered sale deed,they came to know that their thumb impressions were obtained aswitnesses in the presence of Bhikhansha Pirasha Divan. They assertedthat they had never signed or gave their thumb impressions upon anysuch deed, in any manner, in front of any witness. It is then stated thatsome person has been fraudulently involved for putting thumb impressionson the sale deed. They have asserted that the thumb impressions on thesale deed did not belong to them and that they were ready and willing toprove that fact by providing their genuine thumb impressions in front ofofficers. It may be relevant to reproduce paragraph 4 of the plaint whichreads thus:

“4. The paragraph no.1 property is jointly owned, co-shared, jointlyused and possessed by the applicants and respondents nos.1 and2. The respondents nos.1 and 2 do not have any rights to sell theproperty on their own. In case if the respondents nos.1 and 2have the willingness to sell the property, they are required to obtain

our consent. This was very well in the knowledge of therespondents nos.1 and 2 yet they have entered into a sale deedfor the property in an illegal manner. But the actual possessionand usage of the suit property is jointly undertaken by us. Beforetwo days, the applicants meet the respondents and asked themnot to hinder, harass, etc. as to these rights on the land. We askedthe respondents to partition our half part, provide actual possessionof the land, yet the respondents did not consider this request. Onthe contrary it was stated by them that the respondents nos.2 to 6shall sell the property to someone else, the courts are open andwe can take steps whatever we can.”

3. In paragraph 6 of the plaint, the appellants have stated aboutthe cause of action for filing the suit in the following words:

“6. The cause as to the filing of the suit, as mentioned under theabove mentioned paragraph pertains to the fact that therespondents nos.1 and 2 without the knowledge of the applicants, A

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SUPREME COURT REPORTS

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Awhile keeping the applicant in dark, removed the name of theapplicants from the record of rights and entered into a registeredsale deed no.4425 dated 18.10.1996 without the knowledge of theapplicants. Upon getting the above mentioned knowledge, theapplicants meet the respondents personally before two days andrequested them to cancel the sale deed and hand over the clear,Bmarketable and actual vacant possession of the property to theapplicants. Yet the respondents did not consider the request andmentioned that the courts are open for us thereby asking us theapplicants to do whatever we wished to do. Therefore the presentissue has arise at the village Hadgud without the jurisdiction ofCthe honourable court.”

4. As mentioned above, the suit came to be filed for declarationand permanent injunction and for the following reliefs:

“a) The honourable court be pleased to declare that the propertymentioned under the paragraph no.1 being situated at Mouje villageDHadgud, Taluka and district Anand, survey no.113/1+2, areaheacter 1-37-59 Ara, Akar Rs. 15-81 paisa old tenure agriculturalland is ancestral property of the applicants and thereby theapplicants have undivided ½ (half) part, share, interest and rightin the property and a partition of the land be undertaken in a judicialEmanner and the actual possession, usage, etc. be provided to theapplicants in the interest of justice.

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b) The honourable court be pleased to declare that the Moujevillage Hadgud, Taluka and district Anand, survey no. 113/1+2,area Heacter 1-37-59 Ara, akar Rs. 15-81 Paise old tenureFagricultural land is ancestral, joint, undivided, jointly possessed andused property of the applicants and the respondents nos.1 and 2and thereby the respondents nos.1 and 2 solely do not have therights and powers to sell or interference in the title of the propertyand further declare that the registered sale deed no.4425 dated18.10.1996 in the favour of the respondents nos.4 and 6 is nullGand void, void ab-initio, cancelled, false and frivolous and therebythe honourable court be kind enough to declare in the interest ofjustice that the respondents nos.3 to 6 do not receive any kind ofrights-powers as to the land on the basis of this particular saledeed.

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c) The honourable court be pleased to pass a permanent injunctionorder against the respondents and in the favour of the applicantssuch that, neither the respondents nor through their agents,servants, persons, etc. sell, mortgage, charge, lien, etc. the orconstruct, etc. upon the property mentioned under the paragraphno.1 and situated at the Mouje village Hadgud, Taluka and districtAnand, survey no. 113/1+2, area Heacter 1-37-59 Ara, akar Rs.15-81 Paise old tenure agricultural.

d) The honourable court be pleased to pass a permanent injunctionorder against the respondents and in the favour of the applicantssuch that, neither the respondents nor through their agents,servants, persons, etc. interfere, obstruct, hinder, etc. the ancestral,joint, undivided possession, usage, etc. of the applicants upon theproperty mentioned under the paragraph no.1 and situated at theMouje village Hadgud, Taluka and district Anand, survey no. 113/1+2, area Heacter 1-37-59 Ara, Akar Rs.15-81 Paise old tenureagricultural.

e) The honourable court be pleased to pass a permanent injunctionorder against the respondents and in the favour of the applicantssuch that, neither the respondents nor through their agents,servants, persons, etc. would alter the record of rights entries forthe property mentioned under the paragraph no.1 and situated atthe Mouje village Hadgud, Taluka and district Anand, survey no.113/1+2, area Heacter 1-37-59 Ara, Akar Rs.15-81 Paise old tenureagricultural.

f) The honourable court be pleased to pass an appropriate orderfound proper and efficacious by the honourable court.

g) The honourable court be pleased to order the respondents toprovide for the cost as the suit.”

5. After filing of the suit, an application was filed on 19[th] November,2014 under Orders XIII and XVI of the Code of Civil Procedure, 1908(for short “CPC”) read with Sections 67 and 71 of the Evidence Act fordirections to defendant Nos.3 to 6 to produce before the Court, the originaldeed executed by the original defendant Nos.1 & 2 in respect of the suitland and to obtain the admitted thumb impressions of the appellants andsend it for scientific examination and comparison of the thumbimpressions by a Handwriting Expert to unravel the truth. The original AB

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Adefendant Nos.4 to 6 filed reply to the said application on 3[rd] February,2015, to oppose the same. Thereafter, the defendant No.5 (respondentNo.1) on 17[th] April, 2015 filed an application under Order VII Rule 11(d)for rejection of the plaint on the ground that the suit was barred bylimitation having been filed after 17 years. The appellants filed reply tothe said application. Both the applications under Order XIII Rule 16 andBunder Order VII Rule 11(d), were disposed of by the 4[th] AdditionalDistrict Judge, Anand on 20[th] January, 2016 by separate orders. Asregards the application filed by the plaintiffs (appellants), the Courtallowed the same by passing the following order:

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The application is hereby allowed.

The defendants are directed to produce registered sale deedno.4425 dt.18/10/1996 in the court and further the register civilcourt is directed to take specimen thumb impression of the plaintiffsDas per rules and further such sale deed along with the specimenof thumb impressions of the plaintiffs be sent to thumb impressionof the witnesses in such sale deed are of the plaintiffs or not.

Further the thumb impression expert is directed to submit his reportwithin period of 30 days after receiving the documents.”

E6. As regards the application filed by defendant No.5 (respondentNo.1) for rejection of the plaint, the said application was dismissed bythe Trial Court on the same day i.e. 20[th] January, 2016. The Trial Courtopined that the contention urged by defendant No.5 (respondent No.1)for rejection of the plaint was not tenable as the factum of suit beingbarred by limitation was a triable issue, considering the averments in theFplaint. The Trial Court observed thus:

“3. I have given my thoughtful consideration to the submissionmade by the learned advocate for both the parties. The plaintiffshave filed this suit to set aside in registered sale deed no.4425 dt.18/10/1996. And this suit has been filed on 18/10/2013. And theGcontention of the Ld. Advocate for defendant no.5 that the suithas been filed after delay of almost 17 years and hence the suit isprima faciely barred by law of limitation and other submissions ofthe Ld. Advocate of defendant no. 5 that the plaintiffs do not have prima facie case, it cannot be considered at this stage becausewhether there is delay of almost 17 years in filling this suit or notand whether it is barred by law of limitation or not, it is subjectmatter of trial and moreover, the other submissions of Ld. Advocatefor defendant no.5 regarding no prima facie case in favour ofplaintiff also cannot be considered as these are also the subjectmatter of trial which can be decided only after taking the evidence.Moreover, at the time of deciding the application under order 7rule 11 the Court has to just look into the averments made in plaintonly and the plea or defense raised by defendant cannot be takeninto account at the stage of deciding the application under Order7 Rule 11 and here in this case merely looking to the pleading inthe plaint it does not come out that the suit barred by law oflimitation. Moreover, I am of humble view the case law cited byLd. Advocate for plaintiffs reported as 2015 (1) GLH 1, fullysupport to the case in hand. Moreover, I am of humble view that,the case cited by Ld. Advocate for defendant reported in 2015(2)GLH 355 and 2013 (1) GLR 398, does not support in the presentcase as the factual position of these cases and present case aredifferent.”

7. Respondent No.1 carried the matter before the High Court byway of a Civil Revision Application No.76/2016 against the order passedby the Trial Court dismissing his application under Order VII Rule 11(d)of CPC for rejection of the plaint. The High Court allowed the applicationunder Order VII Rule 11(d) of CPC filed by respondent No.1 (defendantNo.5) and reversed the decision of the Trial Court on the finding that thesuit was barred by limitation. For so holding, the High Court in theimpugned judgment observed thus:

“18. This Court notices that the plaintiffs are the sisters anddefendants No.1 and 2 in the suit of the year 2013 have chosennot to file written statement. Thereby the original defendants No.1and 2 who are sellers have not made their stand clear. Strongpossibility cannot be ruled out that the plaintiffs after about 20years of the registered sale deed has chosen to bring a collusivesuit. It is true that only detail of the plaint shall be examined at thestage of considering application under Order VII Rule 11 of CPC.From a bare reading of the plaint, it is clearly indicative that the AB

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Aregistered sale deed has been effected in the year 1996 wherethe plaintiffs have affixed their thumb impression as witnesses inthe very document and the same came to be challenged in theyear 2013. The reason is not very far to fetch. With the phenomenalincrease in the land price in the State of Gujarat, such litigationsby some of the family members are sponsored litigations by otherBunscrupulous elements are so often initiated. It is not at all difficultto engineer the same and upset many equations of the purchaserswho have enjoyed the title and peaceful possession for many years.Attempt is made to question the registered sale deed on the groundthat these were the ancestral property and 7/12 Form reflectedCthe name of the revisionist and other defendants. Revenue entryhas also been mutated soon after the registered sale deed in favourof the revisionist and other defendants in the year 1997. Themutation order of village form has been effected on the basis ofsuch registered sale deed on 21[st] January, 1997. Copy of whichhas been issued on 31[st] March, 1997. For such inexplicable delayDplaintiffs ought to have brought on record substantiating thedocuments. However, the documents which have been broughtalso point out that the plaintiffs’ suit is barred by law of limitationfor having been preferred after expiry of three years period. It isto be noted that even during the course, when revenue authorityEmutated the names of present revisionist and other respondents,no objection came to be raised and it is almost after 18 years,such objections have surfaced.”

8. The aforementioned decision of the High Court is the subjectmatter of this appeal at the instance of the appellants (plaintiffs).FAccording to the appellants, the High Court committed manifest error inbeing swayed away by the fact that the suit was filed after about 17years. It has proceeded on the basis of assumptions and surmises andnot in consonance with the limited sphere of consideration at the thresholdstage for examining the application for rejection of the plaint in terms ofOrder VII Rule 11(d) of CPC. It has not even bothered to analyse theGrelevant averments in the plaint which, it is well settled, has to be read asa whole and has also not adverted to the reasons recorded by the TrialCourt that the factum of suit being barred by limitation was a triableissue in the facts of the present case.

9. The respondents, on the other hand, would contend that thereHis no infirmity in the view expressed by the High Court and being a possible view coupled with the fact that the suit instituted by the appellantsappears to be a collusive suit, no interference in exercise of jurisdictionunder Article 136 of the Constitution, is warranted. According to thecontesting respondents, it is unlikely that the appellants who are sistersof original defendant Nos.1 & 2, would not have any knowledge aboutthe transaction effected vide registered sale deed and especially, whendefendant Nos.3 to 6 were in possession of the land for such a long time,which fact is reinforced from the mutation entries recorded in 1997 andincluding the conversion of the land from agricultural to non-agriculturaluse. According to the contesting respondents, this appeal ought to bedismissed.

10. We have heard Mr. Purvish Jitendra Malkan, learned counselfor the appellants and Mr. Gaurav Agrawal, learned counsel for thecontesting respondents.

11. After having cogitated over the averments in the plaint andthe reasons recorded by the Trial Court as well as the High Court, wehave no manner of doubt that the High Court committed manifest errorin reversing the view taken by the Trial Court that the factum of suitbeing barred by limitation, was a triable issue in the fact situation of thepresent case. We say so because the appellants (plaintiffs) have assertedthat until 2013 they had no knowledge whatsoever about the executionof the registered sale deed concerning their ancestral property. Further,they have denied the thumb impressions on the registered sale deed asbelonging to them and have alleged forgery and impersonation. In thecontext of totality of averments in the plaint and the reliefs claimed,which of the Articles from amongst Articles 56, 58, 59, 65 or 110 or anyother Article of the Limitation Act will apply to the facts of the presentcase, may have to be considered at the appropriate stage.

12. What is relevant for answering the matter in issue in the contextof the application under Order VII Rule 11(d), is to examine the avermentsin the plaint. The plaint is required to be read as a whole. The defenceavailable to the defendants or the plea taken by them in the writtenstatement or any application filed by them, cannot be the basis to decidethe application under Order VII Rule 11(d). Only the averments in theplaint are germane. It is common ground that the registered sale deed isdated 18[th] October, 1996. The limitation to challenge the registered saledeed ordinarily would start running from the date on which the sale deed A

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Awas registered. However, the specific case of the appellants (plaintiffs)is that until 2013 they had no knowledge whatsoever regarding executionof such sale deed by their brothers - original defendant Nos.1 & 2, infavour of Jaikrishnabhai Prabhudas Thakkar or defendant Nos.3 to 6.They acquired that knowledge on 26.12.2012 and immediately took stepsto obtain a certified copy of the registered sale deed and on receiptBthereof they realised the fraud played on them by their brothersconcerning the ancestral property and two days prior to the filing of thesuit, had approached their brothers (original defendant Nos.1 & 2) callingupon them to stop interfering with their possession and to partition theproperty and provide exclusive possession of half (1/2) portion of theCland so designated towards their share. However, when they realizedthat the original defendant Nos.1 & 2 would not pay any heed to theirrequest, they had no other option but to approach the court of law andfiled the subject suit within two days therefrom. According to theappellants, the suit has been filed within time after acquiring theknowledge about the execution of the registered sale deed. In this context,Dthe Trial Court opined that it was a triable issue and declined to acceptthe application filed by respondent No.1 (defendant No.5) for rejectionof the plaint under Order VII Rule 11(d). That view commends to us.

13. The High Court on the other hand, has considered the matterEon the basis of conjectures and surmises and not even bothered to analysethe averments in the plaint, although it has passed a speaking order runninginto 19 paragraphs. It has attempted to answer the issue in one paragraphwhich has been reproduced hitherto (in paragraph 7). The approach ofthe Trial Court, on the other hand, was consistent with the settled legalposition expounded in Saleem Bhai and Others Vs. State ofFMaharashtra and Others[1], Mayar (H.K.) Ltd. and Others Vs.Owners & Parties, Vessel M.V. Fortune Express and Others[2] andalso T. Arivandandam Vs. T.V. Satyapal and Another[3].

14. These decisions have been noted in the case of Church ofChrist Charitable Trust and Educational Charitable Society Vs.GPonniamman Educational Trust,[4] where this Court, in paragraph 11,observed thus:

1 (2003) 1 SCC 5572 (2006) 3 SCC 1003 (1977) 4 SCC 467H4 (2012) 8 SCC 706

“11. This position was explained by this Court in Saleem Bhai v.State of Maharashtra, in which, while considering Order 7 Rule11 of the Code, it was held as under: (SCC p. 560, para 9)

“9. A perusal of Order 7 Rule 11 CPC makes it clear that therelevant facts which need to be looked into for deciding anapplication thereunder are the averments in the plaint. Thetrial court can exercise the power under Order 7 Rule 11 CPCat any stage of the suit—before registering the plaint or afterissuing summons to the defendant at any time before theconclusion of the trial. For the purposes of deciding anapplication under clauses (a) and (d) of Rule 11 of Order 7CPC, the averments in the plaint are germane; the pleas takenby the defendant in the written statement would be whollyirrelevant at that stage, therefore, a direction to file the writtenstatement without deciding the application under Order 7 Rule11 CPC cannot but be procedural irregularity touching theexercise of jurisdiction by the trial court.”

It is clear that in order to consider Order 7 Rule 11, the court hasto look into the averments in the plaint and the same can beexercised by the trial court at any stage of the suit. It is also clearthat the averments in the written statement are immaterial and itis the duty of the Court to scrutinise the averments/pleas in theplaint. In other words, what needs to be looked into in decidingsuch an application are the averments in the plaint. At that stage,the pleas taken by the defendant in the written statement arewholly irrelevant and the matter is to be decided only on the plaintaverments. These principles have been reiterated in RaptakosBrett & Co. Ltd. v. Ganesh Property and Mayar (H.K.) Ltd. v.Vessel M.V. Fortune Express.”

15. The High Court has adverted to the case of Church of ChristCharitable Trust and Educational Charitable Society (supra), whichhad occasion to consider the correctness of the view taken by the HighCourt in ordering rejection of the plaint in part, against one defendant, onthe ground that it did not disclose any cause of action qua that defendant.The High Court has also noted the decision relied upon by the contestingrespondents in the case of Mayur (H.K.) Ltd. and Ors. (supra), whichhas restated the settled legal position about the scope of power of theCourt to reject the plaint under Order VII Rule 11(d) of CPC.

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A16. In the present case, we find that the appellants (plaintiffs)have asserted that the suit was filed immediately after getting knowledgeabout the fraudulent sale deed executed by original defendant Nos.1 &2 by keeping them in the dark about such execution and within twodays from the refusal by the original defendant Nos.1 & 2 to refrainfrom obstructing the peaceful enjoyment of use and possession of theBancestral property of the appellants. We affirm the view taken by theTrial Court that the issue regarding the suit being barred by limitation inthe facts of the present case, is a triable issue and for which reason theplaint cannot be rejected at the threshold in exercise of the power underOrder VII Rule 11(d).

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17. In the above conspectus, we have no hesitation in reversingthe view taken by the High Court and restoring the order of the TrialCourt rejecting the application (Exh.21) filed by respondent No.1(defendant No.5) under Order VII Rule 11(d). Consequently, the plaintwill get restored to its original number on the file of the IVth AdditionalDCivil Judge, Anand, for being proceeded further in accordance with law.

We may additionally clarify that the Trial Court shall give effect to theorder passed below Exh.17 dated 20[th] January, 2016, reproduced inparagraph 5 above, and take it to its logical end, if the same has remainedunchallenged at the instance of any one of the defendants. Subject tothat, the said order must be taken to its logical end in accordance withElaw.

18. Accordingly, this appeal succeeds and is allowed in the aboveterms, with no order as to costs.

FKalpana K. Tripathy

Appeal allowed.

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