Rajnikant Bhogilal Patel vs Lh Of Decd Bhudarbhai Hakkabhai Bhrambhatt

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Guj) 695

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. KARIA, J.
Rajnikant Bhogilal Patel – Appellant
Versus
Lh Of Decd Bhudarbhai Hakkabhai Bhrambhatt – Respondent
R/First Appeal No. 53 of 2021 With Civil Application (For Injunction) No. 1 of 2020, Civil Application (For Additional Evidence) No. 1 of 2022
Decided on : 19-04-2022

Advocates:
Advocate Appeared:
For the Appellant : MR. MEHUL S. SHAH, MR. PANAM C SONI
For the Respondent: MR RASESH H PARIKH, MR. H.M. PARIKH, MR.HEMANG H PARIKH, adv.

Headnote:
Limitation Act - Articles 54, 58 and 59 - Criminal Procedure Code,1973 - Section 96 - English Limitation Act, 1980 - Plaintiff filed Civil Suit learned City Civil Court against original defendants who are legal specific performance of contract and permanent injunction in respect of land admeasuring Hecter-Are-Square Defendants appeared and waived process and also moved a Chamber Summons with an application seeking rejection of plaint on the ground of bar of limitation under Order 7 Rule 11(d) of Civil Procedure Code, 1908 – Parties learned trial Court allowed said application and rejected the plaint vide judgment and decree - Learned trial court has failed to consider the averments made in plaint and failed to consider that Entry in revenue records qua the ‘suit land’ is still in existence was intended to be lifted by Gazette Notification actually lifted - Appellant received notice issued proceedings before the learned Collector relating to the N.A. permission application qua the ‘suit land’ filed by the respondents/original defendants - appellant immediately filed the suit for specific performance and injunction - Learned trial Court ought to have appreciated that in the nature of the averments made in the plaint, the issue of limitation is a mixed question of law and facts and therefore, it could not be taken as pure question of law to reject the plaint - Appellant has filed suit within the prescribed time limit as required under Article 54 of the Limitation Act for specific performance as since no date was fixed in ‘agreement to sell’, the limitation would begin from the date when the plaintiff acquired knowledge of the proceedings before the learned Collector and when performance was refused by the defendants - Held, Shalimar Chemical plaintiff produced photocopies of registration of certificate in suit - Appeal against the dismissal of the suit was also dismissed by learned Single Judge of the High Court. Division Bench did not allow production of original registration certificate at appellate stage as additional evidence which was allowed by learned Single Judge of High Court - Apex Court that Division Bench ought to have been remanded the case so that defendant can lead evidence to rebut the evidence - Revenue Appellate Authority for admitting certified copy of mutation entry as additional evidence. Application was allowed, however, Board of Revenue declined to admit the additional evidence against which appeal was preferred. It was held that documents in question would so light on the germane issue, and therefore, necessary for production pronouncing judgment. Board of Revenue erred in declining admission of the document - additional evidence was found necessary to decide the real controversy involved in appeal - Additional evidence being in the nature of public documents and pertinent to suit land was found necessary to be taken on record permission was granted to produce the additional evidence Here fact is quite different - Documents sought to be produced by the applicant would not require to decide appeal preferred by him or relevant to decide the issue of parties over the suit land and hence the same would not require to be taken on record. 19. None of the aforesaid judgments are applied in the present case - Application is hereby dismissed

JUDGMENT :

ORDER IN FIRST APPEAL NO. 53 of 2021

1. Present appellant, who is the original plaintiff, has challenged the judgment and decree dated 12.11.2020 passed in Civil Suit No. 575 of 2018 by learned Chamber Judge, City Civil Court, Court No.15, Ahmedabad and prayed to revive the Civil Suit No. No. 575 of 2018 and direct the learned trial Court to proceed further with the suit on merits and in accordance with law. Against that order, present First Appeal preferred u/s. 96 of Code of Civil Procedure, 1908.

2. The short facts leading to the present case are as under:-

3. Plaintiff filed Civil Suit No. 575 of 2018 before the learned City Civil Court, Ahmedabad against original defendants who are the legal heirs of the late Shri Bhudarbhai Hakkabhai Brahmbhatt (hereinafter referred to as ‘deceased’ for convenience) for specific performance of contract and permanent injunction in respect of the land bearing Survey No. 388/1 admeasuring Hecter-Are-Square Meter 0-71-83 of Rs. 7.75 of Mouje Vadaj, Dist-Ahmedabad. Defendants appeared and waived the process and also moved a Chamber Summons with an application seeking rejection of plaint on the ground of bar of limitation under Order 7 Rule 11(d) of the Civil Procedure Code, 1908. After hearing the parties, learned trial Court allowed the said application and rejected the plaint vide judgment and decree dated 12.11.2020. Present appellant being aggrieved and dissatisfied with the judgment and decree dated 12.11.2020 passed in Civil Suit No. 575 of 2018 by learned Chamber Judge, City Civil Court, Court No.15, Ahmedabad has preferred present appeal u/s. 96 of the C.P.C.

4. Heard learned advocate for the appellant and learned advocate for the respondents.

5. Learned advocate appearing fort the appellant-plaintiff submits that impugned judgment and decree passed by the trial Court is contrary to the record of the case and contrary to the provisions of Order 7 Rule 11(d) of the C.P.C. That, learned trial court has failed to consider the averments made in the plaint and failed to consider that Entry No. 14260 in revenue records qua the ‘suit land’ is still in existence as on date as reflected in VF No. 7/12 and that the ‘reservation’ which was intended to be lifted by Gazette Notification dated 04.12.2013 was actually lifted in the year-2017. That, appellant received the notice issued on 03.04.2018 of the proceedings before the learned Collector relating to the N.A. permission application qua the ‘suit land’ filed by the respondents/original defendants. That, appellant immediately filed the suit for specific performance and injunction. That, learned trial Court ought to have appreciated that in the nature of the averments made in the plaint, the issue of limitation is a mixed question of law and facts and therefore, it could not be taken as pure question of law to reject the plaint. That, appellant has filed suit within the prescribed time limit as required under Article 54 of the Limitation Act for specific performance as since no date was fixed in the ‘agreement to sell’, the limitation would begin from the date when the plaintiff acquired knowledge of the proceedings before the learned Collector and when the performance was refused by the defendants. That, after acquiring knowledge of the proceedings before the learned Collector, appellant immediately filed the suit for specific performance and that was the cause of action for filing the suit as limitation was started from 03.04.2018, when notice was received by the plaintiff of the proceedings before the learned Collector and therefore, the learned trial Court should not observe that appellant to prove the case by evidence for the relief of specific performance of contract and ought to have rejected the application filed under Order 7 Rule 11(d) of the C.P.C. by the original defendants.

5.1 It is further submitted that when rejection of