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2026 Supreme(Online)(Guj) 12505
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Bhargav D. Karia, L. S. Pirzada, JJ
Melabhai Dhulabhai Makwana – Appellant
Versus
Kamlaben Becharbhai Dhulabhai Padhiyar – Respondent
R/FIRST APPEAL NO. 3928 of 2010
Important Points
Subject
Civil Law - Procedural Law / Limitation
Act Referred
Headnote
(B) Transfer of Property Act - Section 3 - Constructive notice - A person has notice of a fact when they actually know it, or would have known it with reasonable inquiry or search - Wilful abstention from inquiry into public or registered documents does not permit extension of limitation periods in suits for specific performance. (Para 13)
Facts of the case:
The appellant sought specific performance of a registered agreement to sell dated 13.10.1997. The property in question was later sold by the original owners/defendants to third parties via registered sale deeds in 2001 and 2006. The appellant filed the suit in 2009, claiming that they only became aware of these sales two to three months prior to filing the suit. The Trial Court rejected the plaint under Order VII Rule 11(d) of the Code of Civil Procedure on the grounds of limitation. The appellant challenged this order, arguing that limitation was a mixed question of fact and law requiring a trial.
Findings of Court:
The court observed that the appellant provided no details regarding events that occurred between the initial agreement in 1997 and the sales in 2001 and 2006, suggesting the recent knowledge claim was a fabrication. Significant interpolations were found in the plaint to specifically insert references to the date of knowledge to bring the suit within the limitation period. Relying on the principle of 'clever drafting,' the court found the suit to be a classic case of an attempt to create an illusion of a cause of action where none existed within the statutory time frame.
Issues: The main issues were whether the trial court was justified in rejecting the plaint at the threshold under Order VII Rule 11(d) and whether the appellant’s claim of recent knowledge of registered sale deeds could sustain a suit otherwise barred by limitation.
Ratio Decidendi: Where a plaint is drafted with the intention of creating an illusion of a cause of action, the court must be vigilant and nip such litigation in the bud. A plaintiff cannot plead ignorance of registered sale deeds to bypass limitation periods, as such conduct amounts to the abuse of the process of the court and renders the litigation vexatious.
Result: Appeal dismissed.
For the Appellants/Petitioners: Varun Modasia, S.P. Majmudar
For the Respondents: Parthiv B. Shah
| Table of Content |
|---|
| 1. initiation of appeal against dismissal of suit under order vii rule 11(d). (Para 1 , 2) |
| 2. factual chronology and procedural history of the dispute. (Para 3 , 4) |
| 3. appellant contends limitation is a mixed question of fact and law. (Para 5 , 6 , 7 , 8 , 9) |
| 4. respondents argue the plaint is barred by limitation and constitutes 'clever drafting'. (Para 10 , 11 , 12 , 13) |
| 5. judicial assessment: clever drafting to create an illusion of cause of action. (Para 14 , 15 , 16 , 17 , 18) |
| 6. distinguishing precedents regarding limitation and order vii rule 11. (Para 19) |
| 7. final order of dismissal due to meritless, vexatious litigation. (Para 20) |
1. Heard learned advocate Mr.Varun Modasia for learned advocate Mr.S.P. Majmudar appearing for the appellant and learned advocate Mr.Parthiv B. Shah appearing for the defendants.
2. This appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (for short ‘the Code’). Being aggrieved by the Judgment, Order and Decree dated 30.08.2010 passed by the learned 14th Senior Civil Judge, Vadodara rejecting the Special Civil Suit No.590 of 2009 preferred by the appellant – original plaintiff under Order VII Rule 11(d) of the Code on the ground that the suit is barred by the law of limitation.
3. The brief facts of the case are as under:
3.1 The plaintiff Melabhai Dhulabhai Makwana preferred the Special Civil Suit No.590 of 2009 through his Power of Attorney holder Bhagwanbhai Chhotabhai Patel on the ground for specific performance of the registered agreement to sale dated 13.10.1997 for sale of the 1/3 share of the lands situated at Revenue Survey Nos.93/3, 168 and 169 of Village Vadsar, Sub District Vadodara, Registration District Vadodara.
3.2 It is averred in the plaint by the appellant that the suit land was of the ownership of late Ramabhai Padhiyar who is grandfather of the defendant nos.1/1 to 1/4, who are the legal heirs of the late Kamlaben, widow of Becharbhai Dhulabhai.
3.3 It is stated that late Ramabhai Padhiyar had three sons: Motibhai Padhiyar, Chimanbhai Padhiyar and Dhulabhai Padhiyar. Dahiben was widow of Motibhai having no issue and therefore, according to the plaintiff Dahiben executed a Will in favour of the Kamlaben, wife of Bachubhai, son of Dhulabhai Padhiyar by transferring 1/3 share of Motibhai from the suit land of ownership of Ramabhai in favour of Kamlaben.
3.4 According to the plaintiff, Kamlaben executed the agreement for sale of 1/3 share of Dahiben in favour of the appellant by accepting the part consideration on 17.10.1996 by executing an unregistered Banakhat and thereafter, accepting other part consideration in all Rs.10,000/- by executing the registered agreement for sale dated 13.10.1997.
3.5 As averred in the plaint, it was further stated that the plaintiff was entitled to get 1/3 share which has been bequeathed to Kamlaben pursuant to the Will of Dahiben and also 1/3 share which has come to the share of Becharbhai, son of Dhulabhai, and accordingly, 2/3 share in the suit land was agreed to be sold to the plaintiff, however, on perusal of the agreement for sale it refers only to 1/3 share of the Dahiben pursuant to the Will preferred in the agreement for sale in favour of Kamlaben.
3.6 According to the plaintiff as per the terms of the agreement for sale, the plaintiff was required to obtain the requisite permission from the Government Office within three years from the date of the agreement for sale and Kamlaben was required to bifurcate and get the partition of her share from the other co-owners and thereafter, the sale deed was to be executed in favour of the plaintiff. It was agreed that the suit land would be sold at the rate of Rs.38 per Sq.Ft to the plaintiff by the said Kamlaben.
3.7 According to the plaintiff Kamlaben did not make any efforts to obtain the permission for partition of her share from the ancestral property of Ramabhai and sought extension of time from the plaintiff which was granted by the plaintiff.
3.8 According to
