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2016 DIGILAW 137 (GUJ)

Hasina Ayub Malek v. Sangam Gor Patri Sahani

2016-01-20

S.H.VORA

body2016
ORDER : S.H. Vora, J. By way of the petition under Articles 226 and 227 of the Constitution of India, the petitioner - original defendant No. 1 challenges order dated 30.11.2015 passed below application Exh.15 in Regular Civil Suit No. 101 of 2015, whereby the learned trial Judge has refused to reject the plaint in exercise of powers under Order 7 Rule 11(a) and (d) of the Code of Civil Procedure, 1908. 2. Having heard the submissions made at bar and considering the averments made in plaint para 5 and 7 and the reasons assigned by the learned trial Judge while rejecting the application Exh.15, this Court do not find any legal and valid reason to take a different view so as to reject the plaint. The submissions made at bar relate to the defense of the defendant No. 1 i.e the petitioner herein. While considering the application for rejection of the plaint, the Court is required to look into the averments/statements made in the plaint and no defense or statement made in written statement can be considered to decide the application preferred under Order 7 Rule 11(a) and (d) of the Code. Not a single statement from the plaint is shown so as to infer that the plaint is barred by any law or the plaintiff does not disclose cause of action. Learned advocate Mr. Shah for the petitioner also contended that the registered sale deed is of 2009 and therefore, the suit is barred by law of limitation as per Article 59 of the Limitation Act. In support of his contention, learned advocate Mr. Shah placed reliance upon decision rendered in case of Becharbhai Zaverbhai Patel v. Jashbhai Shivabhai Patel reported in 2013 (1) GLR 398. There is no disagreement on the point that if the suit is clearly barred by law of limitation, the plaint can be rejected in exercise of powers under Order 7 Rule 11(d) of the Code. It is true that the sale deed is registered in the year 2009 and the subject matter of the suit is filed in the year 2015. It is true that the sale deed is registered in the year 2009 and the subject matter of the suit is filed in the year 2015. While making such submission on the basis of the case cited at bar, the learned advocate for the petitioner forgets to refer the averments made in plaint para 5, wherein the plaintiff has specifically asserted in the plaint that he has been dispossessed in the year 2014 and for which, some criminal proceedings are also initiated. The outcome of such criminal proceedings has nothing to do with the prayer made by the petitioner in application Exh.15 Under the circumstances, the suit cannot be said to be barred by law of limitation as issue whether the plaintiff has been forcefully dispossessed or not is a matter of evidence to be decided by the learned trial Judge. 3. Under the circumstances, there is no illegality or perversity committed by the learned trial Judge while passing the impugned order so as to entertain the present petition. Therefore, the present petition being devoid of merits both on law and facts, stands rejected. 4. It is made clear that this Court has not examined the merits of the case of the plaintiff on its merits and therefore, all the contentions raised by the parties to the proceedings shall remain open and the learned trial Judge shall decide the same as per the evidence that may be led by the parties to the proceedings.