JUDGMENT : M.R. Shah, J. Feeling aggrieved and dissatisfied with the impugned order dated 16.10.2015 passed by the learned Civil Judge, Senior Division, Vadodara (hereinafter referred to as "learned Judge") below Exh.14 application in Special Civil Suit No.51/2015 by which the learned Judge has allowed the said application preferred by the original defendant and consequently has rejected the plaint in exercise of powers under Order 7, Rule 11 (a) of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"), the original plaintiff has preferred the present First Appeal. 1.1. As earlier the Division Bench has issued the notice for final hearing and relevant material is before the Court and with the consent of learned advocates appearing for respective parties the present First Appeal is taken up for final hearing today and we have heard the learned advocates appearing for respective parties at length. 2. Facts leading to the present First Appeal in nut-shell are as under: 2.1. That the disputed land in question was owned by one Vitthalbhai Ramabhai who died on 10.02.2003. That the widow of Vitthalbhai Ramabhai (the original plaintiff), her daughter and son viz. Hemlataben and Mahendrabhai and the legal heirs of the deceased Vitthalbhai Ramabhai executed a registered Sale Deed dated 04.10.2014, which was presented before the office of the Sub-Registrar. That in the Sale Deed the sale consideration was stated to be Rs. 10 Crores and the same was alleged to have been paid by cheques to the executant of the Sale Deed. According to the plaintiff no such sale consideration was paid and therefore, according to the plaintiff, the Sale Deed was without consideration. Therefore, the original plaintiff - Narmadaben widow of Vitthalbhai Ramabhai instituted a Special Civil Suit No.51/2015 in the Court of learned Principal Civil Judge, Vadodara (learned Civil Judge, Senior Division), against the respondent herein - original defendant. That the said suit filed by the original plaintiff was for a declaration and permanent injunction more particularly to set aside the registered Sale Deed to declare it as null and void. That in the said suit the cause of action pleaded by the original plaintiff was non-payment of the sale consideration. It was also averred in the plain that though valuation of the land in question was approximately Rs. 25 Crores in the Sale Deed, the same was mentioned as Rs. 10 Crores only. That in the said suit the cause of action pleaded by the original plaintiff was non-payment of the sale consideration. It was also averred in the plain that though valuation of the land in question was approximately Rs. 25 Crores in the Sale Deed, the same was mentioned as Rs. 10 Crores only. It was specifically averred in the plaint that not a single amount has been paid as alleged in the Sale Deed and not a single amount has been received by the original plaintiff through cheques as stated in the Sale Deed. Therefore, it was a specific case on behalf of the plaintiff that the Sale Deed is without consideration. 2.2. Having been served with the summons of the suit, the respondent herein - original defendant submitted the application below Exh.14 to reject the plaint in exercise of powers under Order 7, Rule 11 (a) and (e) of the CPC. It was the case on behalf of the original defendant that suit is barred by law in view of Section 54 of the Transfer of Property Act and therefore, considering Order 7, Rule 11 (d) of the CPC, the plaint is liable to be rejected. It was also the case on behalf of the original defendant that the plaint is also liable to be rejected under Order 7, Rule 11 (a) of the CPC as no cause of action is disclosed in the plaint. 2.3. That by impugned order the learned Judge has allowed the application Exh.14 and has rejected the plaint under Order 7, Rule 11 (d) of the CPC. 2.4. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Judge below Exh.14 in Special Civil Suit No.51/2015 rejecting the plaint under Order 7, Rule 11 (d) of the CPC, the original plaintiff has preferred the present First Appeal. 3. Shri Hriday Buch, learned advocate appearing on behalf of the appellant herein - original plaintiff and Shri R.S. Sanjanwala, learned Senior Advocate has appeared with Shri Parthiv Shah, learned advocate appearing on behalf of the respondent herein - original defendant. 4. Shri Hriday Buch, learned advocate appearing on behalf of the original plaintiff has vehemently submitted that in the facts and circumstances of the case the learned Judge has committed a grave error in rejecting the plaint under Order 7, Rule 11 (d) of the CPC. 4.1. 4. Shri Hriday Buch, learned advocate appearing on behalf of the original plaintiff has vehemently submitted that in the facts and circumstances of the case the learned Judge has committed a grave error in rejecting the plaint under Order 7, Rule 11 (d) of the CPC. 4.1. It is vehemently submitted by Shri Buch, learned advocate appearing on behalf of the original plaintiff that as such the learned Judge has rejected the plaint only under Order 7, Rule 11 (d) of the CPC. It is submitted that even considering Section 54 of the Transfer of Property Act, it cannot be said that the plaint is barred by any law. 4.2. It is vehemently submitted by Shri Buch, learned advocate appearing on behalf of the original plaintiff that the learned Judge while rejecting the plaint under Order 7, Rule 11 (d) of the CPC has not properly appreciated the fact that the power under Order 7, Rule 11 of the CPC are required to be exercised sparingly and with great care and caution as the plaintiff will be non-suited without trial at the threshold. It is submitted that therefore the powers are required to be exercised with great care and caution and only in a case where it is found that the suit is per se barred by any law and/or it is per se a frivolous litigation, therefore falling under Order 7, Rule 11 (a) of the CPC. It is submitted that in the facts and circumstances of the case and looking to the averments and cause of action disclosed and the relief sought, it cannot be said that the case would fall either under Order 7, Rule 11 (d) or under Order 7, Rule 11 (a) of the CPC. It is submitted that as such the learned Judge has rejected the plaint under Order 7, Rule 11 (d) of the CPC and not under Order 7, Rule 11 (a) of the CPC, which is evident from the operative portion of the impugned order. 4.3. It is further submitted that even otherwise looking to the in the plaint more particularly with respect to the cause of action and more particularly when the suit is based upon the averments and the allegation that the Sale Deed is without sale consideration and though it is stated in the Sale Deed that Rs. 4.3. It is further submitted that even otherwise looking to the in the plaint more particularly with respect to the cause of action and more particularly when the suit is based upon the averments and the allegation that the Sale Deed is without sale consideration and though it is stated in the Sale Deed that Rs. 10 Crores are paid by cheques, not a single amount has been paid by cheques as stated in the Sale Deed and even in the application below Exh.14, no particulars whatsoever are given by the original defendant with respect to non-payment of Rs. 10 Crores by cheques as mentioned in the Sale Deed, the evidence is required to be led and therefore, it requires trial and therefore, the learned Judge has materially erred in rejecting the plaint under Order 7, Rule 11 (d) of the CPC. 4.4. It is further submitted that as such even considering Section 54 of the Transfer of Property Act, it cannot be said that the suit is barred by law as was contended on behalf of the original defendant. It is submitted that Section 54 of the Transfer of Property Act defines "sale" and as per Section 54 of the Transfer of Property Act, "sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. It is submitted that in the present case it is not the case on behalf of the original defendant and as such it is not stated in the Sale Deed that the sale consideration is promised to be paid or part paid and part promised. It is submitted that as stated in the Sale Deed and as per the original defendant - purchaser had paid Rs. 10 Crores as sale consideration by cheques. It is submitted that therefore when it is the specific case on behalf of the plaintiff and so averred in the plaint that the sale consideration of Rs. 10 Crores alleged to have been paid by cheques and so stated in the Sale Deed has not been paid at all and therefore, it cannot be said that there is a sale as defined under Section 54 of the Transfer of Property Act. 10 Crores alleged to have been paid by cheques and so stated in the Sale Deed has not been paid at all and therefore, it cannot be said that there is a sale as defined under Section 54 of the Transfer of Property Act. It is submitted that therefore it cannot be said that for the reliefs sought the suit can be said to be barred by any law or more particularly Section 54 of the Transfer of Property Act as observed and held by the learned Judge. 4.5. In support of his above submissions, Shri Buch, learned advocate appearing on behalf of the original plaintiff has heavily relied upon the decision of the High Court of Punjab & Haryana High in the case of Smt. Ind Kaur v. Tara Singh and others reported in MANU/PH/0165/1977. He has also relied upon the decision of the Patna High Court in the case of Baldeo Singh and Ors. v. Dwarika Singh and Ors. reported in AIR 1978 Patna 97. 4.6. Shri Buch, learned advocate appearing on behalf of the appellants has vehemently submitted that there are specific averments in the plaint disclosing the cause of action. It is submitted that therefore, if there are specific averments in the plaint disclosing the cause of action, the plaint is not required to be rejected in exercise of powers under Order 7, Rule 11 (a) of the CPC. It is submitted that as per catena of decisions of the Hon'ble Supreme Court while considering the application under Order 7, Rule 11 of the CPC, the plaint/averments in the plaint alone has to be seen. In support of his above submissions, he has relied upon the decision of the Hon'ble Supreme Court in the 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 . 4.7. Shri Buch, learned advocate appearing on behalf of the appellants has also heavily relied upon the following decisions of the Hon'ble Supreme Court in support of his submission that case would not fall under Order 7, Rule 11 (a) of the CPC and therefore, the learned Judge has materially erred in rejecting the plaint in exercise of powers under Order 7, Rule 11 (d) of the CPC. 1. D. Ramachandran v. R.V. Janakiraman and others, AIR 1999 SC 1128 2. 1. D. Ramachandran v. R.V. Janakiraman and others, AIR 1999 SC 1128 2. V. Narayanaswamy v. C.P. Thirunavukkarasu, (2000) 2 SCC 294 3. Sopan Sukhdeo Sable v. Asstt. Charity Commr., (2004) 3 SCC 137 Making above submissions, it is requested to allow the present First Appeal and quash and set aside the impugned order rejecting the plaint under Order 7, Rule 11 (d) of the CPC. 5. Present First Appeal is vehemently opposed by Shri R.S. Sanjanwala, learned Senior Advocate appearing on behalf of the original defendant. 5.1. It is vehemently submitted by Shri Sanjanwala, learned Senior Advocate appearing on behalf of the original defendant that in the facts and circumstances of the case, no error has been committed by the learned Judge in rejecting the plaint. At the outset it is required to be noted that as such the learned Counsel appearing on behalf of the original defendant has fairly conceded that the case may not fall under Order 7, Rule 11 (d) of the CPC but it will fall under Order 7, Rule 11 (a) of the CPC. 5.2. It is vehemently submitted by Shri Sanjanwala, learned Senior Advocate appearing on behalf of the original defendant that the suit is based upon the averment that the sale consideration of Rs. 10 Crores alleged to have been paid and so stated in the Sale Deed has not been paid at all. It is submitted that considering Section 54 of the Transfer of Property Act, the complete sale has taken place and ownership has been vested in favour of the original defendant - purchaser. It is submitted that even considering Section 54 of the Transfer of Property Act, what is stated in the Sale Deed is to be believed to be true even considering the provisions of the Indian Evidence Act more particularly Section 92 of the Indian Evidence Act. It is submitted that in any case for the unpaid amount of sale consideration the seller cannot seek annulment of the Sale Deed more particularly for non-payment of the balance price and the only remedy in law available to such vendor is to sue for balance price. 5.3. It is submitted that therefore the plaintiff has no right to file the suit for the reliefs which are sought in the plaint / suit and therefore, the plaintiff would not be entitled to any reliefs as sought in the suit. 5.3. It is submitted that therefore the plaintiff has no right to file the suit for the reliefs which are sought in the plaint / suit and therefore, the plaintiff would not be entitled to any reliefs as sought in the suit. It is submitted that right to sue which is invoked by invoking the provisions of Section 9 of the CPC by filing the suit would ordinarily mean right to seek relief by means of legal proceedings. It is submitted that as such right to sue occurs only when the cause of action arises i.e. the right to prosecute to obtain relief by legal means. It is submitted that the plaintiff cannot sue unless the plaintiff has a legal right which is infringed and is consequently entitled to the relief which is prayed. It is submitted that thus when the plaintiff is not entitled to a certain relief in law, no cause of action accrues in favour of such plaintiff to sue for reliefs which the plaintiff is not entitled in law. It is submitted that when the plaintiff has no legal right to seek annulment of a Sale Deed for non-payment of the balance price, there is no legal right available to the plaintiff to sue for such annulment and therefore, no cause of action arises to prosecute to obtain the relief of annulment of Sale Deed, when the law does not confer any such right upon the unpaid seller. It is submitted that when the law confers only the right to receive the balance consideration and to sue for same, plaintiff can only seek such relief and the relief of annulment of the Sale Deed is thus not available to the plaintiff and consequently since no cause of action arises for such relief, any plaint seeking annulment of the Sale Deed can be rejected under Order 7, Rule 11 (a) of the CPC. In support of his above submissions, Shri Sanjanwala, learned Senior Advocate appearing on behalf of the original defendant has heavily relied upon the decision of the Hon'ble Supreme Court in the case of State of Punjab and others v. Gurdev Singh reported in (1991) 4 SCC 1 (Para 6) and the decision of the Rajasthan High Court in the case of Mr. S. Kasliwal v. State of Maharashtra and others reported in Civil Revision Application No.6 of 2012. 5.4. S. Kasliwal v. State of Maharashtra and others reported in Civil Revision Application No.6 of 2012. 5.4. Shri Sanjanwala, learned Senior Advocate appearing on behalf of the original defendant has further submitted that as such the Sale Deed clearly recites that sale consideration has been received by the plaintiff. It is submitted that therefore, the averment in the plaint is thus contrary to the said recital in the Sale Deed. It is submitted that therefore the recital in the Sale Deed estops the plaintiff from contending to the contrary and/or from pleading any other agreement. In support of his above submissions, he has heavily relied upon the provisions of the Evidence Act more particularly Sections 91 and 92 of the Evidence Act and the decision of the Delhi High Court in the case of Karan Madaan and others v. Nageshwar Pandey reported in AIR 2015 (NOC) 86 (Delhi). Making above submissions and relying upon decision of the Division Bench of this Court in the case of Maharaj Shri Manvendrasinhji Ranjitsinhji Jadeja v. Rajmata Vijaykunverba Wd/o. Late Maharaja Mahendrasinhji reported in 1998 (2) GLH 823 (Para 13), it is vehemently submitted by Shri Sanjanwala, learned Senior Advocate appearing on behalf of the original defendant that the learned Judge has not committed any error in rejecting the plaint in exercise of powers under Order 7, Rule 11 of the CPC. Therefore, it is requested to dismiss the present First Appeal. 6. Heard learned advocates appearing for respective parties at length. At the outset it is required to be noted that in the present case the original defendant submitted the application at Exh.14 to reject the plaint in exercise of powers under Order 7, Rule 11 (a) and (d) of the CPC. However, by impugned order as such the learned Judge has rejected the plaint only under Order 7, Rule 11 (d) of the CPC and not under Order 7, Rule 11 (a) of the CPC viz. that the plaint does not disclose any cause of action. That while rejecting the plaint (para 18) the learned Judge has observed as under: "18. It is to be noted that the plaintiff had rights and interest in the disputed property which was sold to defendant. Looking to the pleading and relief claimed by the plaintiff are not according to the cause of action set out by the plaintiff in para- 6 of the plaint. It is to be noted that the plaintiff had rights and interest in the disputed property which was sold to defendant. Looking to the pleading and relief claimed by the plaintiff are not according to the cause of action set out by the plaintiff in para- 6 of the plaint. Hence, considering the ratio laid down in above referred judgments and averments made in the plaint and relief claimed by plaintiff, this Court is of the opinion that the suit of the plaintiff is not tenable according to law, hence, as discussed here in above, I pass the following order in the interest of justice." 6.1. Having heard learned advocates appearing for respective parties, we failed to appreciate the findings recorded by the learned Judge that the suit of plaintiff is not tenable according to law and therefore, the same is liable to be rejected under Order 7, Rule 11 (d) of the CPC. At the outset it is required to be noted that initially the learned Counsel appearing on behalf of the original defendant relied upon Section 54 of the Transfer of Property Act in support of his submission that the suit is barred by law. However, subsequently, he has fairly conceded that the application of the original defendant be restricted to the application below Order 7, Rule 11 (a) of the CPC viz. the plaint does not disclose any cause of action and therefore, elaborate submissions have been made by the learned advocates appearing for respective parties with respect to applicability of Order 7, Rule 11 (d) of the CPC. Even otherwise having heard learned Counsel appearing for the respective parties and considering the averments in the plaint and the relief sought and even considering Section 54 of the Transfer of Property Act read with Section 92 of the Evidence Act, we are of the opinion that it cannot be said that the suit and/or the relief sought in the plaint can be said to be barred by any law more particularly the Transfer of Property Act. Section 54 of the Transfer of Property Act speaks about transfer of ownership, however provided the full sale consideration is paid or part consideration is paid and part consideration is to be paid in future. Section 54 of the Transfer of Property Act speaks about transfer of ownership, however provided the full sale consideration is paid or part consideration is paid and part consideration is to be paid in future. Therefore, considering Section 54 of the Transfer of Property Act read with Section 92 of the Evidence Act, it can be said that there is a presumption of execution of the sale deed but there cannot be any presumption of actual payment of sale consideration even if it is mentioned in the sale deed that a particular amount towards full sale consideration has been paid. The contents in the sale deed with respect to payment of sale consideration are always question of fact which is required to be proved by leading evidence. It is required to be noted that in the plaint it is specifically averred and alleged by the plaintiff that though in the sale deed it is stated that Rs. 10 Crores towards sale consideration has been paid by cheques, there is no averment in the application below Exh.14 submitted by the original defendant that he has actually paid the full consideration of Rs. 10 Crores by cheques as stated in the sale deed and how and by which cheques they are paid. Under the circumstances, we are of the opinion that the suit / plaint is not liable to be rejected under Order 7, Rule 11 (d) of the CPC. 6.2. Now, so far as the applicability of Order 7, Rule 11 (a) of the CPC is concerned, it is the case on behalf of the original defendant that the plaintiff is not entitled to the reliefs which are sought in the plaint and therefore, the plaintiff has no right to sue and pray for the reliefs prayed in the suit and therefore, the plaint is liable to be rejected under Order 7, Rule 11 (a) of the CPC. Number of submissions have been made relying upon the some of decisions referred to herein above that the only remedy available to the plaintiff is the non-payment of balance sale consideration and the plaintiff cannot pray and/or is not entitled to the relief of cancellation of the sale deed is concerned, we are afraid, on the aforesaid ground the plaint can be rejected in exercise of powers under Order 7, Rule 11 (a) of the CPC. Non-disclosure of the cause of action in the plaint and whether the plaintiff is entitled to the reliefs sought in the plaint, both are different. In a given case it may happen that when the suit is filed, it discloses the cause of action but after the trial the plaintiff may not be entitled to certain reliefs. Therefore, on the aforesaid ground the plaint cannot be rejected in exercise of powers under Order 7, Rule 11 (a) of the CPC. 6.3. As per the catena of decisions of the Hon'ble Supreme Court, while considering the application under Order 7, Rule 11 (a) of the CPC, only the averments in the plaint are required to be seen. If any decisions are required on the point, it is in the case of Sopan Sukhdeo Sable (Supra). Considering the averments in the plaint more particularly in para 6, it cannot be said that the plaint does not disclose any cause of action. Cause of action pleaded in the plaint is playing fraud and nonpayment of the sale consideration of the Rs. 10 Crores alleged to have been paid by cheques and so stated in the sale deed. Therefore, it cannot be said that on bare reading of the plaint it does not disclose any cause of action at all. 6.4. It is the case on behalf of the original defendant and as submitted by Shri Sanjanwala, learned Senior Advocate appearing on behalf of the original defendant that the plaintiff is not entitled to such a relief and therefore, the relief of cancellation of the sale deed for non-payment of sale consideration and therefore, she has no right to sue and therefore, the plaint is liable to be rejected under Order 7, Rule 11 (a) of the CPC. The aforesaid submission seems to be attractive but liable to be rejected. The provisions of Order 7, Rule 11 (a) of the CPC is required to be considered very strictly and in exceptional circumstances as the plaint is being rejected at the threshold and the plaintiff shall be non-suited without trial and before the proceedings of the suit are commenced. Considering the averments in the plaint disclosing the cause of action and the original plaintiff being one of the co-owner, it cannot be said that she has no right to sue at all. Considering the averments in the plaint disclosing the cause of action and the original plaintiff being one of the co-owner, it cannot be said that she has no right to sue at all. As observed herein above, in a given case the plaintiff may not get any relief as prayed. But if the plaint discloses cause of action and the plaintiff has a right to sue, the plaint cannot be rejected in exercise of powers under Order 7, Rule 11 (a) of the CPC. Even otherwise there are divergent views of different High Courts whether the plaintiff is entitled to the reliefs which are sought in the plaint. Under the circumstances and in the facts and circumstances of the case, the plaint is not liable to be rejected under Order 7, Rule 11 (a) of the CPC. As observed herein above, as such by passing the impugned order the learned Judge has rejected the plaint in exercise of powers under Order 7, Rule 11 (d) of the CPC. However, as the original application was to reject the plaint under Order 7, Rule 11 (a) of the CPC also and elaborate submissions have been made by the learned Counsel appearing for the respective parties, we have considered the issue whether in the facts and circumstances of the case, the plaint is liable to be rejected in exercise of powers under Order 7, Rule 11 (a) of the CPC and in the facts and circumstances of the case, considering the averments in the plaint disclosing cause of action and more particularly even in the application it is not the case on behalf of the defendant at all that he has paid the full consideration of Rs. 10 Crores by cheques so stated in the sale deed either to the plaintiff and/or other co-owners. The aforesaid is required to be considered vis-a-vis the averments and allegations in the plaint that a fraud has been committed inasmuch as though no sale consideration alleged to have been paid by cheques has been paid, the sale deed is got executed by the persons who are illiterate. 7. In view of the above and for the reasons stated above, present First Appeal is allowed. 7. In view of the above and for the reasons stated above, present First Appeal is allowed. Impugned order dated 16.10.2015 passed by the learned Civil Judge, Senior Division, Vadodara below Exh.14 application in Special Civil Suit No.51/2015 cannot be sustained and the same deserves to be quashed and set aside and is hereby quashed and set aside. However, it is observed that whatever the observations are made by us in the present order, they are to be treated while deciding the application under Order 7, Rule 11 (a) & (d) of the CPC only and all the contentions and defences which may be available to the respective parties are kept open to be considered by the learned Judge at the time of deciding the suit and the learned Judge to decide and dispose of the suit in accordance with law and on merits and on the basis of the evidence led and without in anyway being influenced by any of the observations made in the present order. Present First Appeal is allowed accordingly. No costs. Civil Application No.160 of 2016 : In view of disposal of main First Appeal, Civil Application stands disposed of. Appeal allowed.