A party claiming relief must disclose all relevant facts, particularly prior proceedings, or risk having their suit dismissed for vexatiousness and suppression of material facts.

JUDGMENT :

(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)

Captioned appeal is filed challenging the judgment dated 20.11.2023 (hereinafter referred to as the “impugned judgment”) passed by the learned Principal Senior Civil Judge, Savli, district Vadodara in Special Civil Suit no.22 of 2022 (hereinafter referred to as “the suit”) whereby, the trial Court has rejected the plaint, accepting the application of the defendant no.3 filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”). For the sake of convenience, the parties are referred to as per their status in the suit.

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2. Mr Muhammadyusuf M. Kharadi, learned advocate for the appellant – plaintiff submitted that the suit was filed, seeking partition; however, upon application under Order VII Rule 11 of the Code being preferred by the defendant no.3, raising objections, namely, suppression of material fact; the suit being barred by limitation; and no cause of action, the learned Judge, allowed the application and the plaint has been rejected. It is submitted that the learned Judge, has placed reliance on the documents produced by the defendant no.3, which would be impermissible inasmuch as, it is well-settled that while considering the application Order VII Rule 11 of the Code, only the plaint and the documents together with the plaint, can be looked into. Hence, the learned Judge, has travelled beyond the scope of Order VII Rule 11 of the Code while rejecting the plaint and such exercise, is erroneous.

2.1 It is further submitted that, it is true that Special Civil Suit no.1067 of 2000 was instituted by the plaintiff with similar prayer of seeking partition; however, in the year 2017, the suit came to be transferred from Vadodara District Court to Savli Court, which had the jurisdiction. Thereafter, on 12.04.2018, order has been passed whereby, the Special Civil Suit no.1067 of 2000, was dismissed for want of prosecution. As per the order, notice was issued to the plaintiff on 10.02.2018 – Exh.61, which was returned with an endorsement that the plaintiff is not residing in the said village. Notice, Exh.60, to the defendant was also issued; however, upon production of the death certificate of the defendant, that the order has been passed and the suit, has been dismissed for default. It is further submitted that within two months of the transfer, the suit has been dismissed, which could not have been done.

2.2 It is submitted that therefore, the present suit has been filed in terms of the provisions of Order IX Rule 4 of the Code which, permits bringing of fresh suit. So far as non-disclosure of the previous suit is concerned, Order VI Rule 13 of the Code speaks about presumptions of law. It is submitted that when the law permits filing of the fresh suit, there is a presumption about the previous proceedings and the plaintiff, need not plead in the suit more particularly, when the prayers were similar and identical. Therefore, suppression of material fact cannot be a ground available to the defendants.

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2.3 It is further submitted that the learned Judge, committed a grave error in rejecting the plaint by observing that the plaintiff, has suppressed the fact of filing of the previous suit and had the factum of suits disclosed, the suit, would have been dismissed only on the ground of limitation. It is further submitted that the trial Court, misdirected itself in coming to the conclusion that there is no cause of action available to the plaintiff