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GUJARAT HIGH COURT
A.S. Supehia, J.
Nagjibhai Kanjibhai Patel – Applicant
versus
Mukesh @ Pappu Chandraprakash Harivansh Shukla – Opponent
R/Civil Revision Application No.105 of 2019
Decided on : 11.10.2022
(A) Civil Procedure Code, 1908 – Section 11 – Res Judicata – When any issue whether on question of law or fact has been decided in any proceedings and decision has become final, neither of party can be allowed to reopen the issues in future by filing subsequent proceedings questioning findings on question of law or fact – In subsequent proceedings, doctrine of res judicata will operate between co-defendants. (Para 11)
(B) Civil Procedure Code, 1908 – Order VII Rule 11 – Rejection of plaint – For the purpose of invoking Order VII Rule 11 of CPC, averments made in plaint and accompanying documents have to be only exclusively examined and no evidence can be looked into – Issue on merit of matter which may arise between parties would not be in realm of Court at that stage – Defence taken by defendant in written statement cannot be taken into consideration and plaint has to be read as a whole and application cannot be decided in context of few averments made in plaint – On presentation of plaint, it is solemn duty of Trial Court to examine whether suit discloses cause of action or is it barred by any law, and Trial Court does not have to wait for such objection being taken by other party. (Para 13)
(C) Civil Procedure Code, 1908 – Order VII Rule 11 – Limitation Act, 1963 – Article 54 – Rejection of plaint – Agreement to Sell – Suit for Specific Performance – Plaint is blissfully silent on aspect of denial of performance by defendants – Plaintiff has very conveniently not mentioned as to on which date he came to know about denial of performance of agreement by defendants, so as to come within period of limitation as contemplated in Article 54 of Limitation Act, and also that on which date he came to know about execution of other sale deeds of which cancellation is sought – Plaint is bereft of such averments – In absence of any averment in plaint as to why he did not take any action against defendants for such a long time, and as to when he acquired knowledge about denial of his right under agreement by defendant owners, Court is left with no other option but to hold that suit is barred by law of limitation under Article 54 of Limitation Act, 1963 so far as relief sought in respect of specific performance of agreement to sell is concerned. (Para 17)
(D) Civil Procedure Code, 1908 – Order VII Rule 11 – Rejection of plaint – If by a clever drafting an illusionary a cause of action is created that suit is required to be nipped in bud – Suit must be instituted when right asserted in suit is infringed, or when there is a clear and unequivocal threat to infringe such right by defendant against whom suit is instituted – Plaintiff has to incorporate a specific averment as to how and when cause of action to file suit against defendant has arisen. (Para 20)
Result:Civil Revision Application allowed.
JUDGMENT (CAV)
In the present application filed under the provision of section 115 of the Civil Procedure Code, 1908 (for short “the CPC”), the applicant has assailed the order dated 16.01.2019 passed by the learned Principal Senior Civil Judge and Additional Chief Judicial Magistrate, Kathor, Dist.Surat rejecting the application Exh.102 filed under Order VII Rule 11 of CPC seeking rejection of plaint being Special Civil Suit No.159 of 2017 (old No.639 of 2014) filed by the applicant-original defendant no.1-Nagjibhai Kanjibhai Patel.
2. Brief facts emerging from the memo of Revision Application are as under:
2.1. On 28.02.2005, the applicant-original defendant No.1 purchased a land bearing Block No.391/1 by a registered sale deed from defendant no.3-Jigneshbhai Batukbhai Patel for a valuable consideration.
2.2. In the month of October, 2014, the plaintiff Mukeshbhai Prakashbhai Shukla instituted Special Civil Suit No.639 of 2014 for specific performance of an agreement to sell dated 10.01.2005, executed pursuant to a Power of Attorney (PoA) dated 02.09.2004 and in the alternative to award a compensation of Rs.20 crores. The plaintiff has also prayed for cancellation of various sale deeds, including the sale deed dated 28.02.2005 in favour of the applicant-defendant no.1.
2.3. It is the case of the defendant no.1 that on 02.09.2004, a forged and fabricated PoA was created in favour of Shri Ramesh Manjibhai Davra,respondent-defendant no.7 fraudulently shown to have been executed by the defendant no.1 and some of other original defendants giving authority to the PoA for dealing in various parcels of land, including the suit lands. The PoA - Shri Rameshbhai Davra has passed away on 05.10.2011 before institution of the suit and he is represented through his legal heirs being defendant nos.7(A) to 7(C).
2.4. It is alleged that on 10.01.2005, based on the fabricated PoA, an agreement to sell is created on a non-judicial stamp paper of Rs.50/- between the plaintiff and the PoA (and not with any of the land owners or) for and on behalf of the land owners) for sale of the suit lands for a consideration of Rs.1.60 Crores. It is stated in the document that an amount of Rs.80 Lakhs is paid by cash by the plaintiff to the PoA (not to the land owners) and balance amount of Rs.80,00,000/- will be paid after the PoA arranges for a clear and marketable title of the suit lands.
2.5. In the year, 2005, the defendant no.1 filed a complaint in the Court of Judicial Magistrate, First Class (JMFC), Kathor against Shri Rameshbhai Davra, PoA and other accused for various criminal offences. The concerned Magistrate made an order under Section 156(3) of the Criminal Procedure Code, 1973 (Cr.P.C.) directing the police to investigate into the matter and submit a report. After the registration of the criminal complaint, on 27.04.2005, before and after conducting investigation, the accused were arrested by the Investigating Officer. The documents were also sent to the Forensic Science Laboratory (FSL), Gandhinagar.
2.6. On 31.01.2006, the FSL, Gandhinagar gave a report observing that the PoA is bogus and fabricated. On 25.09.2006, the Investigating Officer filed charge-sheet in the Court, which led to the registration of Criminal Case No.3571 of 2006.
2.7. In the month of October, 2014, the plaintiff instituted Special Civil Suit No.639 of 2014. On 17.08.2015, the trial Judge rejected application below Exh.5 in Special Civil Suit No.639 of 2014 by observing that prima facie, the PoA as also the agreement to sell is bogus and fabricated, and no evidence was shown that payment of Rs.80,00,000/- is made. It appears that an Appeal From Order against the aforementioned order is filed before this Court, however, there is no interim relief granted therein by this Court.
2.8. On 10.07.2018, an Application Exh.102 is filed by the defendant no.1 under Order VII Rule 11 of the CPC seeking rejection of the plaint. On 16.01.2019, the Trial Court rejected
(1) Rejection of plaint – For the purpose of invoking Order VII Rule 11 of CPC, averments made in plaint and accompanying documents have to be only exclusively examined and no evidence can be looked ....
A suit for specific performance of an agreement to sell and cancellation of sale deeds is barred by limitation if it is filed beyond the period of limitation prescribed under Article 54 of the Limita....
(1) Rejection of plaint – Defence taken by defendant in written statement cannot be taken into consideration and plaint has to be read as a whole and application cannot be decided in context of few a....
Rejection of plaint – Plaintiffs cannot be permitted to bring suits within period of limitation by clever drafting, which otherwise is barred by limitation.
Plaint not rejected under Order VII Rule 11(d) CPC despite 28-year delay in specific performance suit where fraud, collusion, unilateral cancellation averred, making limitation mixed fact-law issue r....
The main legal point established in the judgment is that a suit can be rejected under Order VII Rule 11 of the CPC if it is found to be manifestly vexatious and without merit, and does not disclose a....
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