IMPORTANT POINT
Powers under Order VII Rule 11 of CPC is to be applied in case of malafide suit.

JUDGMENT (ORAL)

Dr. A. P. Thaker, J.—This Civil Revision Application has been filed by the applicant - original defendant No.1 under Section 115 of the Code of Civil Procedure, 1908 (hereinafter be referred to as “the CPC”) challenging the impugned order dated 19th April 2018 passed below application Exhibit 38 in Regular Civil Suit No. 404 of 2016 by the learned 3rd Additional Civil Judge, Rajkot whereby the learned Civil Judge has rejected the said application at Exhibit 38.

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

2.1 That respondent No.1 has filed Regular Civil Suit No. 404 of 2016 before the Civil Court, Rajkot for cancellation of the registered sale deeds executed in the year 1983 and for declaration and permanent injunction for the land bearing Revenue Survey No.450 situated at Near Mahila Collage Bridge, Rajkot. It is alleged that earlier Civil Suit No.495 of 1981 was decreed on 16th October 1981 and Civil Suit No.496 of 1981 was decreed on 6th November 1981. In the execution proceedings being Execution Application No.225 of 1983 and Execution Application No.97 of 1982, various orders were passed by the Executing Court and this Court has also passed an order dated 8th December 2005 in Civil Revision Application No.1124 of 1997 wherein the respondent No.12 – original plaintiff was party and had contested all these proceedings and was well aware about such proceedings. It is also alleged that though such decree was passed in the year 1981 and the registered sale deeds were executed by the Executing Court in the year 1983, the respondent No.1 has filed Regular Civil Suit No.404 of 2016 with oblique motive only after original defendants No.1, 5 and 6 have submitted construction plan before the Rajkot Municipal Corporation. It is alleged that the agreement to sell of the suit land was executed in the year 1975 where the condition stipulated was that the land is required to be converted into Non-Agricultural Land by the seller. That, thereafter, the Urban Land (Ceiling and Regulation) Act came into force in the year 1976 and form under Section 6(1) was filed by the original landholder and accordingly, the suit land was excluded from holding of original landowner in view of the agreement to sell of 1975. It is alleged that thereafter, the applicant – defendant No.1 has filed suit before the Trial Court which was decreed and that order has been confirmed by this Court. It is alleged that the applicant herein is in possession of the suit land since agreement to sell executed. It is further alleged that after passing of the decree in the suit, the execution proceedings were filed before the Trial Court and defendant No.1 – applicant herein has deposited the remaining amount of sale consideration in the Trial Court, which came to be withdrawn by the original landowner and, thereafter, the sale deed was executed by the person appointed by the Executing Court. It is also alleged that the original plaintiff of the present suit is well aware of all the litigations and about such sale deeds since 1981 and 1983. It is alleged that only with a view to pressurize the defendants No.1, 5 and 6, the civil suit is filed which is apparently time barred and vexatious and not tenable in law.

2.2 It is alleged that defendant No.1 – applicant herein has filed an application at Exhibit 38, defendants No.5 and 6 have filed an application at Exhibit 40 and defendants No.7 and 9 have filed an application at Exhibit 52-A for dismissing the suit under Order VII, Rule 11 of the CPC in view of the averments made in the plaint and prayer made in the plaint. It is alleged that when the sale deed was executed in the year 1983, there is a long delay of almost 33 years in filing the suit. It is alleged that none of the defendants has carried out the construction on any part of the land which is ownership of the plaintiff and defendants No.1, 5 and 6 are constructing the house on their above mentioned land only after obtaining necessary permission from