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2017 Supreme(Guj) 1069
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ANANT S. DAVE, A.Y. KOGJE, JJ.
KAMLESHBHAI ATMARAM PATEL - APPELLANTS
Versus
RAIBEN WD/O BHIKHAJI MARSANGJI & ORS. - RESPONDENTS
FIRST APPEAL NO. 2477 of 2015 With APPEAL FROM ORDER NO. 357 of 2015 With CIVIL APPLICATION NO. 13088 of 2015 In FIRST APPEAL NO. 2477 of 2015 With CIVIL APPLICATION NO. 12990 of 2015 In APPEAL FROM ORDER NO. 357 of 2015
Decided On : 11-08-2017
FOR THE APPELLANTS : MR MIHIR THAKORE, MR B.B. NAIK, MR PARTHIV B. SHAH
FOR THE RESPONDENTS: ABHISST K. THAKER, MR NIRAL R. MEHTA, MR P.C. KAVINA, MR AMRISH K. PANDYA
Important Point:
“Cause of Action” has been defined as meaning simply a factual situation existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. ‘Cause of action’ has also been taken to mean that particular action the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action.
Headnote:Civil Procedure Code, 1908--- Section 96--- Limitation Act, 1963--- Article 54---Suit for specific performance of contract and permanent injunction---On facts---possession with the appellant of the property when part consideration was given to the respondent--- respondent sold it to third person--- thus this suit--- permission under Land Revenue Code not taken under Section 84 (C)--- registered deed stands cancelled--- error in applying O2R2 ---Mere similarity in pleadings in the two suits is not relevant for avoiding bar of O-2, R-2.---plea of limitation is a mixed question of law and fact especially applicability of first part of the second part of Article 54 of the Limitation Act--- On facts, error is committed by the Civil Judge in concluding that the second suit, is hit by O-2, R-2 and consequently, by O-7, R-11 as leave as contemplated under sub-rule (3) of R-3 is not sought or granted by the Court to file subsequent suit---On facts, even on the count of limitation, the suit by the plaintiff cannot be held to be barred by limitation so as to non-suit the plaintiff under O-7, R-11 of the Civil Procedure Code.
Result: Application fails
A.Y. KOGJE, J.
1. The present appeal under Section 96 of Civil Procedure Code is preferred against the order dated 19.11.2015 passed by Civil Judge (Senior Division), Ahmedabad (Rural) below application Exh.13 in Special Civil Suit No. 495 of 2015.
2. The appellant is the original plaintiff who preferred a Suit for specific performance of contract and permanent injunction, where defendant nos. 6 and 7 filed an application Exh.13 under Order-7 Rule-11 of Code of Civil Procedure (hereinafter referred to as ‘the CPC’ for the sake of brevity). By the impugned order, 3rd Additional Senior Civil Judge, Ahmedabad (Rural) rejected the plaintiff’s interim injunction application Exh.5 and at the same time, granted the application Exh. 13 under Order-7 Rule-11 of CPC filed by defendant nos.6 and 7 thereby the suit of the plaintiff was rejected with costs. The appellant (hereafter referred to as ‘the plaintiff’ and respondents as ‘the defendants’ for the sake of brevity).
3. The facts in brief are as under:-
3.1 The dispute is with regard to an agricultural land bearing Block No. 104 admeasuring 53369 sq.mtrs. situated at Village: Jagatpur, Tal.: Daskroi, Dist.: Ahmedabad and which is now covered under Town Planning Scheme No. 65 bearing Final Plot No. 208 admeasuring 3217 sq.mtrs.
3.2. The suit is filed on the strength of an agreement to sale dated 25.08.2009 executed by the defendant no. 1 to 3 with the consent of defendant no. 4 in favour of the plaintiff for a consideration of Rs.58,98,200/- and at the time of agreement to sale an amount of Rs.11,00,000/- was paid towards the part consideration. Alongwith the agreement to sale, a declaration-cum-Indemnity bond was also executed by defendant no. 1 to 4, supplementary-cum- possession agreement was also executed on the same day. It is the case of the plaintiff that, under aforementioned document, the possession of the suit property was handed over to him. The present Civil Suit being Special Civil Suit No.495 of 2015 is filed for specific performance of contract.
3.3. Despite the above, the defendant no.1 to 4 executed a registered sale deed dated 13.07.2015 in favour of defendant no. 6 to 7 for which Regular Civil Suit No. 589 of 2015 was filed by the plaintiff for the protection of the possession of the plaintiff.
3.4 An application Exh.13 came to be filed by the defendant no.6 and 7 contending that the suit is barred under Order-2 Rule-2 of CPC, in view of filing of Regular Civil Suit No. 589 of 2015 which is the suit for similar nature and also the suit is barred by law of limitation and Specific Relief Act.
3.5 The 3rd Additional Senior Civil Judge, Ahmedabad (Rural) by an order dated 19.11.2015 rejected the application Exh.5 filed by the plaintiff and allowed application Exh.30 of the defendant no.6 and 7, thereby rejecting the plain under Order-7 Rule-11 of CPC.
4. Relevant facts.
4.1. The Appeal from Order No. 357 of 2015 is also filed by the appellant against the same order, by which application Exh.5 of the plaintiff is rejected. Therefore, by a separate order dated 27.01.2016, the Appeal from Order is appears to have been placed alongwith the First Appeal. Both the parties have no objection, if the First Appeal as well as the Appeal from Order are heard and disposed of together. That on 30.12.2005, the original owners i.e. defendant no.1 to 3 executed a registered sale deed in favour of one Patel Girishbhai Prahladbhai and Patel Keshavlal Somdas in connection with the same land (Page no. 272 of the paper book).
4.2 The suit land being of restricted tenure, required permission under Land Revenue Code and since the same was not taken, the proceeding under Section 84 (C) of the Land Revenue Code were undertaken and by an order dated 21.12.2009 the transfer of the suit land under the registered sale deed was canceled and directions were given to put the land back its its original position within a period of three months. On 25.08.2009, Banakhat in favour of the plaintiff in connect
