Sonia Gokani, J.:— The present petition has been preferred under Section 115 of Code of Civil Procedure, challenging the legality and validity of the order dated 20.1.2016 passed by 4 Additional Civil Judge, Anand passed in Regular Civil Suit No. 166 of 2015 (Old No. Special Civil suit no. 193 of 2013) in an application below Exh. 21 wherein, the trial Court had rejected the application preferred by the present petitioner under Order VII Rule 11 of CPC for rejection of plaint.
2. Present Revisionist is the original defendant No. 5 and present respondents nos. 1 and 2 are the original plaintiffs. Respondents no. 3 and 4 are original defendants no. 1 and 2 and present respondents No. 5 to 7 are original defendants no. 3, 4 and 6 respectively in Regular Civil Suit No. 166 of 2015. Parties shall be addressed as plaintiffs and defendants for convenience in this order.
3. Original defendants No. 1 and 2 are real brothers of original plaintiffs. That the land being revenue survey No. 113/1+2 admeasuring H.1-37-59 Acre, situated at Mouje Village Hadgud, Taluka & District Anand (hereinafter referred as “suit land”) was sold by defendants No. 1 and 2 to the defendant No. 5. An application for injunction was also moved for interim relief.
4. Defendant No. 5 had submitted written statement and also submitted documents being public notice dated 8.10.1996, registered sale-deed dated 18.10.1996. Index of registered sale deed, waiver of rights document by defendants no. 1 & 2, the order passed by Mamlatdar, Anand dated 6 August, 1997 for consolidation of lands and order dated 7.6.1998 passed by District Development Officer, Anand granting permission of converting suit land into Non Agricultural land etc.
5. An application came to be given by original plaintiffs under Order 13 Rule 16 of CPC. After hearing of both the sides, the trial Court had allowed his application and permitted the thumb impression in the original sale deed to be sent for comparing to the Bureau of Handwriting Expert.
6. The Revisionist-defendant No. 5 filed an application below Exh. 21 under Order VII Rule 11 of CPC and the trial Court rejected such application vide its order dated 20.1.2016.
7. Being aggrieved by the said order, therefore, revisionist-original defendant No. 5 has preferred this Civil Revision Application.
8. Both the sides have been heard at length.
9. Learned advocate Mr. Nikhil Kariel appearing for the revisionist-original defendant No. 5 submits that the plaintiffs' suit is hopelessly time barred and what is sought by the revisionist is the cancellation of registered sale deed, for which the Civil Suit is filed on 18.10.2013 i.e. nearly after expiry of 17 years' period. It is further his say that the defendants No. 1 & 2 are real brothers of the plaintiffs. He has also submitted that they have no knowledge of registered sale transaction dated 18.10.1996. He has further urged that the original defendants No. 3 & 4 had entered into transaction vide registered sale deed dated 18.10.1996. The original plaintiffs had signed the said sale deed as witnesses and merely by clever drafting and much after the period of limitation is over, they approached the Court of law, seeking cancellation of registered sale deed. At a later stage, revenue entry No. 6562 came to be mutated on the basis of registered sale deed dated 18.10.1996 wherein, also the plaintiffs had never raised any objections against the same. Moreover, the original plaintiffs had already waive their rights way back in the year 1997. They had also signed the document waiving their rights and documents which had been produced by the revisionist before the notice which was given on 8.10.1996. It is also another potent ground that the trial Court ought to have interfered with the order of Civil Suit being outrightly malafide. The petitioner may not be asked to undergo the rigor of trial under the Code of Civil Procedure. Therefore, the present petitioner-revisionist has sought the following prayers:—
A Your Lordships may be pleased to admit and allow the present Civil Revision Application;
B. Your Lordships may be pleased to quash, set aside and reverse the order dated 20.1.2016 passed by learned 4th Additional Civil Judge, Anand in an application below exh.21 in Regular Civil Suit No. 166 of 2015 (Old No. Special Civil Suit No. 193 of 2013) and thereby be pleased to allow the application below exh.21 preferred by the present petitioner, in the interest of justice;
C. Pending the hearing and final disposal of this application, be pleased to grant stay on the further proceedings of Regular Civil Suit No. 166 of 2015 (Old No. Special Civil Suit No. 193 of 2013) pending before ld. 4th Additional Civil Judge, Anand in the interest of justice.
D. Any other and further relief(s) as this Hon'ble Court deems fit and proper, in the interest of justice.
10. An Affidavit-in-reply is filed by the respondents-original plaintiffs contending inter alia that at the time of death of deceased father, the name of the present plaintiffs were entered into the records and therefore fraud is perpetrated. Both original plaintiffs are illiterate and only thumb impression of theirs is made and the documents which are relied upon are also bearing thumb impression. Some other documents have also been misused and therefore, they had sought the prayer to refer the record to the handwriting Bureau. It is further contended that there is no written and registered documents for the purpose of establishing foregoing of the rights by the petitioner. Mere entry in the revenue record is not sufficient and that revenue entries did not determine any right, title and interest in the property. The plaintiffs came to know about the transfer when development over the land started and hence, they have challenged the same.
11. Learned advocate Mr. M.B. Gandhi appearing for the original plaintiffs has urged that the Court has already allowed the application of plaintiffs to refer the original documents with their thumb impression to the Bureau of Hand Writing Expert. Therefore, at this stage, this Court may not interfere. He has also urged that they are both sisters who do not dispute that the registered sale deed reflects their thumb impressions but they in fact have not so done them. It is premature to reject the plaint on the ground of issue of limitation when recordance of evidence is yet awaited with regard to the law on the subject, Order VII Rule 11(d) of CPC which deals with the rejection of plaint where the suit appears from the statement in the plaint to be barred by any law deserves reproduction Order VII Rule 11(d) of CPC:—
Order VII Rule 11(d):— “Where the suit appears from the statement in the plaint to be barred by any law.”
12. The plaint needs to be rejected on the averments made in the plaint itself and not on the basis of allegations of the defendant or application of rejection of the pliant; the Court needs to find out as to whom it discloses any cause of action and if it does, the plaint cannot be rejected by the Court exercising the power under Order VII Rule 11 of the CPC. It is question of what has been covered on the basis of claim and entitle taking those claims to be incorrect as held by the Apex Court and rendered in case of Mayur (H.K.) Limited v. Owners & Parties, Vessel M.V. Fortune Express reported in (2006) 3 SCC 100 : AIR 2006 SC 1828 wherein, the Apex Court has held that the plaint has to be rejected on the ground that it does not disclose the cause of action and it is an abuse of process of Court and appreciating the rival submissions, the rejection has to come on the ground of plaint alone.
13. The Apex Court rendered the decision in case of Fatehji and Company v. L.M. Nagpal reported in 2015 (2) GLH 345 where the petitioner had sought rejection of the plaint for having been barred by law of limitation.
14. The trial Court after hearing both the sides by a detail order held that the suit was patently barred by the law of limitation and allowed the application by rejecting the plaint. The High Court by the impugned judgment allowed the appeal by setting aside the order of the trial Court and restored the suit to the file.
15. The Apex Court held that the limitation for filing the Civil suit for specific performance of the contract is for 3 years from the date fixed for performance, if no such date is fixed from the knowledge about refusal of performance. In view of Order VII, Rule 11(a) and Rule 11(d) the Court has to satisfy that the plaint discloses the cause of action and does not appear to be barred by any law. Article 54 of the Limitation Act stipulates limitation for filing suit for specific performance of the contract within 3 years irrespective of the fact that the plaintiffs were put in possession of the property agreed to be sold on the date of agreement itself would not make any difference with regard to the limitation of filing suit for specific performance. The Apex Court has observed as under:—
“6. We considered the rival submissions. The specific performance is claimed of a written agreement of sale dated 2.7.1973 and as per the terms the performance of the contract was fixed till 2.12.1973. The defendants by subsequent letters dated 7.4.1975, 1.10.1975 and 18.1976 sought for extension of time to enable them to obtain permission of lessor and the last extension of six months expired on 1.2.1977. In view of Order VII Rule 11(a) and 11(d) the Court has to satisfy that the plaint discloses a cause of action and does not appear to be barred by any law. Article 54 of the Limitation Act stipulates that the limitation for filing the suit for specific performance of the contract is three years from the date fixed for the performance or if no such date is fixed, when the plaintiff has noticed that performance is refused
7. The fact that the plaintiffs were put in possession of the property agreed to be sold on the date of agreement itself would not make any difference with regard to the limitation of filing the suit for specific performance. In fact both the courts below have rightly held that Article 54 of the Limitation Act does not make any difference between a case where possession of the property has been delivered in part performance of the agreement or otherwise In the same way the courts below have also concurrently held even if any permission is to be obtained prior to the performance/completion of the contract, the mere fact that the defendants have not obtained the said permission would not lead to inference that no cause of action for filing the suit for specific performance would arise. Further it is also not the case for postponing the performance to a future date without fixing any further date for performance. The last extension for a period of six months w.e.f. 1.8.1976 sought for by the defendants expired on 1.2 1977. The present suit seeking for specific performance was filed by the plaintiffs on 29.4.1994, much beyond the period of three years.
8. Yet another circumstance was pointed out to prove the laches on the part of the plaintiffs. The sons of the second defendant filed a suit in July 1985 against defendants 2, 3 and the plaintiffs seeking for declaration that the present suit property is their ancestral joint family property and the sale made by the defendants in favour of the plaintiffs be declared as null and void. The plaintiffs herein contested the said suit and it came to be dismissed on 5.4.1989. The suit for specific performance was not filed within three years from the said date also.
9. The plaintiffs averred in the plaint that the last and final cause of action accrued and arose to them after August 1991 when the defendants succeeded in hiding themselves and started avoiding the plaintiffs and the cause of action being recurring and continuous one, they filed the suit on 29.4.1994. As already seen the original cause of action became available to the plaintiffs on 2.12.1973, the date fixed for the performance of the contract and thereafter the same stood extended till 1.2.1977 as requested by the defendants. Though the plaintiffs claimed that oral extension of time was given, no particulars as to when and how long, were not mentioned in the plaint. On the other hand even after knowing the dishonest intention of the sons of the second defendant with regard to the suit property in the year 1985, the plaintiffs did not file the suit immediately. The suit having been filed in the year 1994 is barred by limitation under Article 54 of the Limitation Act.”
16. The Apex Court rendered decision in case of Church of Christ Charitable Trust and Educational Charitable Society represented by its Chairman v. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee reported in (2012) 8 SCC 706, wherein it considered the question of rejection of plaint for non-disclosure of cause of action. The Apex Court held that plaintiff must aver clearly facts necessary to enable him to obtain decree and must produce documents on which cause of action is based. In case of suit for specific performance of agreement to sale of property, where cause of action was based on registered deed of power of attorney, either original or registered copy thereof must be produced. The same not having been produced held, plaint is rightly rejected.
17. In light of the discussion above, if the plaint of the Regular Civil Suit No. 166 of 2015 (Old No. Special Civil Suit No. 193 of 2013) is perused, it is case of the plaintiffs that by creating false signature and thumb impression and on bogus application, registered sale deed has effected in favour of original defendants No. 4, 5 and 6 by their brothers being defendants No. 1 and 2.
18. On inquiry, they realized that on 18.10.98 such registered sale deed came to be effected. Defendants No. 3 to 6 are the heirs of original purchasers Jaykrishna Prabhudas Thakkar. It is also further challenged that in the document of 1996, the thumb impression are sufficient to be a witness as the entire story has been concocted They are ready to give thumb impressions also if the matter is referred to the Handwriting Expert. At no stage the original defendants No. 1 and 2 had taken permission of the plaintiffs. They came to know about it two days prior to the filing of the suit in respect of the said transfer. The plaintiffs desire the documents to be declared as null and void.
19. This Court notices that the plaintiffs are the sisters and defendants No. 1 and 2 in the suit of the year 2013 have chosen not to file written statement. Thereby the original defendants No. 1 and 2 who are sellers have not made their stand clear. Strong possibility cannot be ruled out that the plaintiffs after about 20 years of the registered sale deed has chosen to bring a collusive suit. It is true that only detail of the plaint shall be examined at the stage of considering application under Order VII Rule 11 of CPC. From a bare reading of the plaint, it is clearly indicative that the registered sale deed has been effected in the year 1996 where the plaintiffs have affixed their thumb impression as witnesses in the very document and the same came to be challenged in the year 2013. The reason is not very far to fetch. With the phenomenal increase in the land price in the State of Gujarat, such litigations by some of the family members are sponsored litigations by other unscrupulous elements are so often initiated. It is not at all difficult to engineer the same and upset many equations of the purchasers who have enjoyed the title and peaceful possession for many years. Attempt is made to question the registered sale deed on the ground that these were the the ancestral property and 7/12 Form reflected the name of the revisionist and other defendants. Revenue entry has also been mutated soon after the registered sale deed in favour of the revisionist and other defendants in the year 1997. The mutation order of village form has been effected on the basis of such registered sale deed on 21 January, 1997. Copy of which has been issued on 31 March, 1997.For such inexplicable delay plaintiffs ought to have brought on record substantiating the documents. However, the documents which have been brought also point out that the plaintiffs' suit is barred by law of limitation for having been preferred after expiry of three years period. It is to be noted that even during the course, when revenue authority mutated the names of present revisionist and other respondents, no objection came to be raised and it is almost after 18 years, such objections have surfaced.
20. This Civil Revision Application is allowed. The order dated 20.1.2016 passed by the learned 4 Additional Civil Judge, Anand on an application under Order VII Rule 11 of CPC is hereby quashed and set aside. Plaint of the suit is rejected for being barred by law of limitation.
21. This Civil Revision Application is allowed accordingly.