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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, J.
Shantibhai Somabhai Patel & Others - Appellants
Versu
Deceased Ranchodbhai Pujabhai Padhiyar & Others - Respondents
Second Appeal NP. 168 of 2018, Civil Application (For Stay) No. 1 of 2017
Decided On : 25-03-2019
Civil Law – Civil Procedure Code, 1908 – Section 100 – Order VII – Rule 11 (a) and (d) – Second Appeal – Specific performance of the agreement of sale – Rejection of plaint – Order passed by the Trial Court rejecting the plaint came to be affirmed by lower Appellate Court and that is how the original plaintiffs are here before this Court with this Second Appeal against concurrent findings of two Courts – Land ownership of the defendants for the said land, defendants have made an agreement for Sale with development in favour of plaintiffs – Said agreement was also -registered before the sub-Registrar office – In said agreement defendants have agreed and decided to sale the said land for development and against this, we the plaintiffs have paid the defendants cash amount of Rs. 10,000/-, which have been received by the defendants – Thereafter also e plaintiffs have paid further cash amount to the defendants under the banakhat – At time of making banakhat of said land, the Urban Land Ceiling Act was in vogue and at that time, government of Gujarat has declared the said land as non-agricultural land – In said agreement, after getting non-agricultural permission cancelled, development agreement is also made with permission to the plaintiffs to construct the residential houses for the poor strata of people and to sell it under Article 21. And in that agreement, 22 conditions have been imposed, which are enclosed herewith vide a separate list – Therefore, those written conditions are to be considered as a part of this suit – Whether plaint discloses any cause of action or not, the Court has to find out from the allegations made in the plaint itself and not beyond it as to whether a bogus, wholly vexatious or frivolous litigation has been initiated by the plaintiff or that the claim made by the plaintiff is a legally recognisable claim – Held, Plaint could not have been rejected on the ground of limitation. It is altogether a different matter whether at the conclusion of the trial, any case is made out by the plaintiffs for the grant of the discretionary relief of specific performance or not – At the threshold, without any evidence being recorded, the Courts below ought not to have rejected the plaint on the ground that the suit is barred by limitation. The bar of limitation has so many ingredients – If a party to the litigation sets up a contention that the suit is barred by limitation, the Court has first of all to examine : (1) the cause of action in the suit, (2) when the cause of action commences, (3) when the parties act in a particular fashion as to fix the cause of action, and (4) ultimately, what is a result flowing from such cause of action – It is specifically averred that the defendants Nos.1 to 5, in collusion with the defendant No.6, facilitated the defendant No.6 in obtaining a decree in his favour on the strength of the subsequent agreement of sale of the year 1994 – This, according to the plaintiffs, was done only with a view to defeat their rights under the registered agreement of sale of the year 1990 – Plaintiffs right to sue is clearly disclosed, and in such circumstances, Court ought not to have rejected the plaint – I find it difficult to accept the submission of Mr. Desai as regards the frivolity in the litigation and the abuse of the process of law. Ultimately, it would all depend upon the individual facts of each case – Impugned judgment and decree of the Trial Court is quashed and set aside. The judgment and order passed by the lower Appellate Court is also quashed and set aside – Appeal is allowed. (Paras 50 to 59)
J.B. PARDIWALA, J.
This Second Appeal under Section 100 of the Civil Procedure Code, 1908 (for short, 'the C.P.C.') is at the instance of the original plaintiffs and is directed against the judgment and order passed by the 3rd Additional District Judge, Vadodara dated 27th July 2017 in the Regular Civil Appeal No.143 of 2007 arising from the judgment and decree passed by the 6th Additional Senior Civil Judge, Vadodara dated 10th September 2007 below Exhibit : 37 in the Special Civil Suit No.308 of 2003.
2. For the sake of convenience, the appellants herein shall be referred to as the 'original plaintiffs and the respondents herein shall be referred to as the 'original defendants'.
3. The subject matter of this Second Appeal is an order passed by the Trial Court rejecting the plaint under the provisions of Order VII Rule 11 (a) and (d) of the C.P.C. The order passed by the Trial Court rejecting the plaint came to be affirmed by the lower Appellate Court and that is how the original plaintiffs are here before this Court with this Second Appeal against the concurrent findings of two Courts.
4. As the subject matter of this Second Appeal is one relating to the rejection of plaint, it is necessary to concentrate on the contents of the plaint. The plaint reads as under:
"Subject :- Suit. For Rs. Specific Performance of 2,48,880/- for Agreement
We the plaintiffs have filed the present suit against the defendants. The relevant facts in the background are as under.
1. The land situated at village Gotri, Taluka Vadodara, District Vadodara bearing Survey No. 127 admeasuring 12444 sq. mtrs. is of the ownership of the defendants. For the said land, the defendants have made an agreement for Sale with development in favour of the plaintiffs on 2.6.1990. The said agreement was also -registered before the sub-Registrar office on 2.6.1990. In the said agreement, the defendants have agreed and decided to sale the said land for development and against this, we the plaintiffs have paid the defendants cash amount of Rs. 10,000/-, which have been received by the defendants. Thereafter also the plaintiffs have paid further cash amount to the defendants under the banakhat.
2. At the time of making banakhat of the said land, the Urban Land Ceiling Act was in vogue and at that time, the government of Gujarat has declared the said land as non-agricultural land vide its ULCR 2077/68/69 dated 22.5.1997. In the said agreement, after getting non-agricultural permission cancelled, development agreement is also made with permission to the plaintiffs to construct the residential houses for the poor strata of people and to sell it under Article 21. And in that agreement, 22 conditions have been imposed, which are enclosed herewith vide a separate list. Therefore, those written conditions are to be considered as a part of this suit.
3. In the said agreement, the Article 21 is under,
"During the existence of this agreement, if any further relaxation is declared by the government under the Urban Land Ceiling Act, 1976, or even if the Act is no more, this agreement will remain in force and during that period, the sale document for the sale consideration as decided under this agreement is to be prepared by us in part/s in your name or in the name suggested by you or in the name of Co-operative Housing Society Limited- "The Urban Land Ceiling Act is not applicable being not in force since 30.3.1999 to the said land, but till 30.3.1999, the defendants have not taken any steps to construct residential premises for poor strata people as prescribed under Article 21 after non-agricultural permission. And in spite of our reminder and intimation, they got cancelled the Non-agricultural permission and have not submitted the form under Article 21 before the competent authority. Thus our agreement dated 2.6.1990 is in existence and is in force. And because of annulling of the Act on 30.3.1999, the sale consideration at the rate of Rs. 20/- per square meter as decided by the def
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