A suit filed more than three years post-execution of a sale-deed is barred by limitation regardless of claims of security, emphasizing the necessity of timely legal action.

ORDER :

J. C. DOSHI, J.

1. By way of this petition u/s 115 of the Code of Civil Procedure, 1908, (in short “the Code”), the petitioner defendant challenges order dated 6.2.2024 passed by the learned Principal Civil Judge, Lodhika below Exh.15 in Regular Civil Suit No.3 of 2023 rejecting the application of the petitioner defendant filed under Order 7 Rule 11(a)(d) of the Code on the ground that suit is barred by law of limitation.

2. Brief facts of the case are as under:-

2.1 The respondent herein (orig. plaintiff) filed Regular Civil Suit No.3 of 2023 in the Court of Learned Principal Civil Judge, Lodhika on 18.1.2023 against the petitioner. The said suit was registered on 19.1.2023 inter alia praying for declaration that the sale-deed registered on 9.9.2016 vide registration no.2954 in respect of land bearing Old Survey no.504 Paiki 1 Paiki 1 (New Survey No.1144) of Mouje Chibhada, Taluka Lodhika, District Rajkot admeasuring 0 hector 86 are and 00 sq.mtrs. (in short “suit property”) being executed without consideration towards security is null and void and ab-initio void as per the provisions of The Transfer of Property Act and to set aside the said sale-deed.

2.2 That on summons being issued by the trial court, the petitioner (orig. defendant) appeared in the suit.

2.3 The petitioner made application under Order-7, Rule- 11(a)(d) of C.P.C. for rejection of plaint on 13.6.2023. The said application was registered at Ex. 15. 2.4 The respondent (orig. plaintiff) filed written objections against the application filed by petitioner (orig. defendant) under Order-7, Rule-11 of C.P.C. The said objections were registered at Ex.20.

2.5 The Learned Principal Civil Judge, Lodhika, after hearing parties vide his order dated 6.2.2024 was pleased to reject application Ex.15 filed by petitioner in Regular Civil Suit No.3/2023.

2.6 Hence, present petition.

3. For the sake of convenience, the parties are referred to as per their original status before the learned trial Court.

4. Learned advocate Mr. Rao appearing for the defendant would submit that though the cause of action is a bundle of facts and is required to be examined and tried during the trial, reading of the plaint ex facie showcase that illusory and sam cause of action is pleaded under clever drafting. He would further submit that the suit is expressly barred by principles of law of limitations. He would further submit that if the averments of the plaint is read as it is, the plaintiff filed a suit to cancel registered sale deed No.2954 executed in favour of the defendant by the plaintiff himself on 9.9.2016. He would further submit that taking the averments as well as pleadings of the plaint as it is, nowhere it is submitted by the plaintiff that sale deed is executed under the fraud or playing the fraud upon the plaintiff and therefore, looking to the facts and circumstances of the case, the learned trial Court ought to have believed that the suit is filed beyond limitation and as such, plaint is liable to be rejected, however, ignoring such legal position, the learned trial court has committed serious error in declining to grant the relief in favour of the defendant. He would further submit that, though the plaintiff pleaded that the sale deed was executed as a security and without taking any consideration, such averments made in the plant are antithetical to the registered sale deed executed between the parties and produced on record, along with the list of documents at Mark 4/3. He referred to para 3 and 5 of the registered sale deed and submitted covenant m