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2017 DIGILAW 225 (GUJ)

Kiritkumar Vijaykumar Vyas v. Hamirji Thakor

2017-01-30

RAJESH H.SHUKLA

body2017
JUDGMENT : Rajesh H. Shukla, J. 1. The present Second Appeals have been filed by the appellant-original plaintiff being aggrieved and dissatisfied with the order passed below Exh. 18 & Exh. 25 under Order 7, Rule 11 of the Civil Procedure Code in Regular Civil Suit No. 94/2010 and Regular Civil Suit No. 93/2010 respectively dated 01.02.2011 confirming the judgment and order passed by Principal Sr. Civil Judge, Kalol dated 01.02.2011 posing substantial questions of law as follows:- "(a) Whether present suit was required to be dismissed under the provisions of Order 7 Rule 11(d), when the averments in the plaint regarding the question of limitation was required to be adjudicated upon leading evidence, as the question of limitation is a mixed question of law as well as facts. (b) Whether the Courts were required to reject the suit under the provisions of Order 7 Rule 11(d), when the period for obtaining N.A. permission was not fixed in the Banakhat and therefore as per the provisions of Article 59, the evidence was required to be led regarding when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded, first became known to him. (c) Whether the Courts below can exercise the power conferred upon them to dismiss the Suit under the provisions of Order 7 Rule 11(d) when the period of limitation was required to be computed as per Article 59 and as per the prayer of cancelling the registered sale deed. (d) Whether the Courts below could have exercised their power to reject the Suit without leading evidence, as the prayer for canceling or setting aside the instrument or for rescission of contract, required leading of evidence, as the time from which the period of limitation begins to run, only when the facts entitling the plaintiff to have the instruments cancelled set aside, first become known to the plaintiff. (e) Whether the Courts below were right in dismissing the Suit under the provision of Order 7 Rule 11(d) without ascertaining whether the vendor was entitled to make the time of the essence of contract and without ascertaining whether the purchaser was guilty of gross default, entitling the Vendor to rescind the contract. (e) Whether the Courts below were right in dismissing the Suit under the provision of Order 7 Rule 11(d) without ascertaining whether the vendor was entitled to make the time of the essence of contract and without ascertaining whether the purchaser was guilty of gross default, entitling the Vendor to rescind the contract. (f) Whether the Courts below were right in dismissing the Suit under the provisions of Order 7 Rule 11(d) applying ration laid down in 2013(10) GLR 398 imputing deemed knowledge of the registration of the sale deed, as the factum of knowledge can be proved or disproved only after leading of evidence. (g) Whether the suit was required to be dismissed under the provision of Order 7 Rule 11(d), when the various relief prayed for in the plaint, including the relief regarding injunction against dispossession, involved mixed questions of facts and law. (h) Whether the Courts below were right in dismissing the suit under the provision of Order 7 Rule 11(d), on the ground that "clever drafting by advocate cannot save the Suit from bar of limitation", was clearly a question of fact to be determined by the Court, upon leading evidence and by not allowing to defend such allegation, would amount to gross violation of principles of natural justice, to the plaintiff as well as the lawyer, particularly when not such imputation has been made by the defendant in his application under Order 7 Rule 11(d)." 2. Heard learned advocate, Ms. Sonal D. Vyas for the appellant and learned advocate, Shri Sanjay Amin for the respondents. 3. Learned advocate, Ms. Vyas referred to the papers and tried to submit that both the Courts below have committed an error in not appreciating the fact that under Order 7, Rule 11 of the Civil Procedure Code, plaint has been rejected only on the ground of limitation. She emphasized that the issue of limitation is a mixed question of law and fact and opportunity could have been given and the plaint could not have been rejected. She submitted that the first Appellate Court has also committed an error. Learned advocate, Ms. Vyas referred to the averments in the plaint referring to the background of the facts with regard to the execution of the agreement to sell and submitted that as the agreement to sell contains one condition that the sale deed could be executed after NA permission is obtained. Learned advocate, Ms. Vyas referred to the averments in the plaint referring to the background of the facts with regard to the execution of the agreement to sell and submitted that as the agreement to sell contains one condition that the sale deed could be executed after NA permission is obtained. She, therefore, submitted that repeated requests were made but as the condition was not fulfilled or complied with, sale deed could not be executed. She, therefore, submitted that the Courts below have failed to appreciate this aspect. She also referred to the averments in the plaint to support that there are different reliefs, which have been claimed. Learned advocate, Ms. Vyas submitted that even if the specific performance could have been granted for the subsequent event including registration of the sale deed, at-least liquidated damages is a matter, which could have been considered. She, therefore, submitted that the order passed below Exhs. 18 & 25 respectively in exercise of power under Order 7, Rule 11 of the Civil Procedure Code rejecting the plaint being Special Civil Suit No. 94/2010 is erroneous. In support of the contention, she has referred to and relied upon the judgment of the Hon'ble Apex Court in case of C. Natrajan v. Ashim Bai & Anr., reported in (2007) 14 SCC 183 and submitted that as observed that the Order 7, Rule 11 of the Civil Procedure Code applies only if the allegation in the plaint are taken to be correct and if appear to be barred by law and the Court is not entitled to consider the case of defence. She submitted that therefore Order 7, Rule 11 of the Civil Procedure Code makes it very clear that only on the basis of the averment in the plaint, it has to be considered. Learned advocate, Ms. Vyas also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Kamlesh Babu & Ors. v. Lajpat Rai Sharma & Ors., reported in (2008) 12 SCC 577 and again submitted that the date of knowledge is very relevant. She submitted that the appellant has explained the same as to the knowledge and, therefore, when it came to their knowledge, suit came to be filed. v. Lajpat Rai Sharma & Ors., reported in (2008) 12 SCC 577 and again submitted that the date of knowledge is very relevant. She submitted that the appellant has explained the same as to the knowledge and, therefore, when it came to their knowledge, suit came to be filed. She has also referred to the order passed by the trial court as well as the first appellate court to support her submission and submitted that both the Courts below have totally failed to appreciate the relevant provision of law under Order 7, Rule 11 of the Civil Procedure Code and has erroneously considered the aspect of consideration and/or rejection of plaint without appreciating that it is a mixed question of law and fact. 4. Learned advocate, Shri Amin referred to the background of the fact and submitted that the agreement to sell was executed on 19.02.1990 and suit for specific performance thereof was filed in the year 2010, however, the registered sale deed came to be executed in favour of third party on 04.12.1996. He, therefore, strenuously submitted that obviously the suit is hopelessly time barred when it is filed for specific performance of agreement to sell in the year 1990 and for cancellation of registered sale deed executed in the year 1996. He also referred to the observations made in a judgment of both the Courts below and submitted that as there are concurrent findings of fact, this Court may not entertain the present Second Appeal. 5. Learned advocate, Shri Amin submitted that the submissions have been made referring to Order 7, Rule 11 of the Civil Procedure Code and the approach by the Court below. However, he submitted that the Court is required to consider the aspect of limitation even as provided under Order 7, Rule 11 of the Civil Procedure Code. He, therefore, submitted that the explanation in the plaint taken at the face value would appear to be vague and casual without any specific details. He, therefore, submitted that this aspect has been considered by the Hon'ble Division Bench of this High Court (Coram : M.R. Shah & R.P. Dhalaria, JJ.) in a judgment in case of Chinubhai Babaldas Chauhan v. Shardaben Somaji Thakore & Anr., reported in 2013 (1) GLR 398. He, therefore, submitted that this aspect has been considered by the Hon'ble Division Bench of this High Court (Coram : M.R. Shah & R.P. Dhalaria, JJ.) in a judgment in case of Chinubhai Babaldas Chauhan v. Shardaben Somaji Thakore & Anr., reported in 2013 (1) GLR 398. He pointedly referred to the observations made in the said judgment relying upon earlier judgment and submitted that even the judgment which has been referred to by learned advocate, Ms. Vyas in case of Dilboo (Smt.) (Dead) By Lrs. & Ors. v. Dhanraji (Smt.) (Dead) & Ors., reported in (2000) 7 SCC 702 has already been considered with regard to the aspect of knowledge. He submitted that it is observed that date of registered sale deed would be deemed to be the date of knowledge. He, therefore, submitted that in the instant case, when the registered sale deed is executed in the year 1996, it would be deemed knowledge for the appellant and there is no explanation/justification for such suit filed at belated stage in the year 2010. He, therefore, submitted that considering the scope of Second Appeal in exercise of discretion under Section 100 of the Civil Procedure Code, the concurrent finding of facts may not be disturbed and the present Second Appeals may not be entertained. 6. In view of these rival submissions, it is required to be considered whether the present Second Appeals deserve consideration. 7. The first submission, which has been made by learned advocate, Ms. Vyas that the Courts below have misdirected while appreciating the aspect of limitation and have also failed to appreciate the provision of the Order 7, Rule 11 of the Civil Procedure Code, requires to be considered. The provision of the Order 7, Rule 11 of the Civil Procedure Code clearly provides "where the suit appears from the statement in the plaint to be barred by any law". This itself cast obligation upon the Court at the first instance prima facie to examine about the aspect of limitation. Therefore both the Courts below were very much within right to examine even while considering such application under Order 7, Rule 11 of the Civil Procedure Code the aspect of limitation. 8. This itself cast obligation upon the Court at the first instance prima facie to examine about the aspect of limitation. Therefore both the Courts below were very much within right to examine even while considering such application under Order 7, Rule 11 of the Civil Procedure Code the aspect of limitation. 8. Therefore the moot question is whether the issue of limitation which is sought to be a mixed question of facts and law, is addressed by both the Courts below properly with reference to Order 7, Rule 11 of the Civil Procedure Code and the Limitation Act or not. Though learned advocate, Ms. Vyas has referred to Articles 56 and 59 of the Limitation Act, which provides for the period of limitation for three years, admittedly suit is filed at belated stage. Therefore merely because the averments are made in the plaint that the appellant had no knowledge, would it be acceptable at the face value. Admittedly though it is averred that they have been repeatedly requesting when the period of limitation was expiring, no legal notice is said to have been served nor any communication is said to have been addressed calling upon the respondent to execute the sale deed. Therefore, it is only an averment that they were repeatedly requesting for executing of sale deed. Again the issue with regard to the examination of the limitation as stated above is required to be considered by the Courts even while considering the application under Order 7, Rule 11 of the Civil Procedure Code and it cannot be said that the Court could not have been examined this issue. It is at that time, the Court will have to consider on the basis of the averment in the plaint that whether it gives any justification for the aspect of limitation. In the instant case, as stated above, there is hardly any explanation or justification. Therefore referring to the provision of the Order 7, Rule 11 of the Civil Procedure Code, the Court has considered the aspect of limitation and passed impugned order for rejection of the plaint on the ground of limitation, which is also confirmed by the first appellate court and, hence it cannot be said to be erroneous. Even on the judgment of the Hon'ble Apex Court in case of C. Natrajan (supra) relied upon by learned advocate, Ms. Even on the judgment of the Hon'ble Apex Court in case of C. Natrajan (supra) relied upon by learned advocate, Ms. Vyas, Head Note itself provides, "Whether barred by any law - Scope and applicability - Or. 7 R. 11(d) applies only if the allegations made in the plaint taken to be correct in their entirety appear to be barred by any law and court is not entitled to consider the case of the defence." 9. Thus what has been observed is only on the basis of the averment in the plaint and the Court has to consider the aspect of limitation without considering the defence. In the instant case, therefore considering the averments in the plaint at the face value, it would also make out that the Order 7, Rule 11(d) of the Civil Procedure Code would be attracted. 10. Moreover, in another judgment of the Hon'ble Apex Court in case of Kamlesh Babu (supra) relied upon by learned advocate, Ms. Vyas, the Hon'ble Apex Court has made observation that whether the suit appears from the statement in the plaint barred by any law. In this case, by law of limitation, same has to be considered. 11. The judgment of the Hon'ble Division Bench of this High Court in case of Chinubhai Babaldas Chauhan (supra) relied upon by learned advocate, Shri Amin also requires to be considered. The Hon'ble Division Bench has also made observation referred to the provision of the Order 7, Rule 11 of the Civil Procedure Code and it has been observed, "It cannot be disputed that if on the face of it and considering the averments made in plaint/suit as they are, if it is found that the suit is clearly barred by law of limitation, plaint can be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure." 12. It has also been observed, "5.11. In the case of Dilboo (Smt)(Dead) By Lrs & Anr v. Dhanraji (Smt)(Dead) and Others reported in (2000)7 SCC 702 , the Hon'ble Supreme Court has observed and held that whenever the document is registered, the date of registration becomes the date of deemed knowledge and in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge. In the said decision, the Hon'ble Supreme Court has also observed and held that plaint can be rejected in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure if it is found that even accepting all the averments made in the suit, it is found that the suit is barred by law of limitation. Relying upon the aforesaid decision of the Hon'ble Supreme Court, this Court in the case of Becharbhai Zaverbhai Patel and another (supra) has held that considering the averments in the plaint and supporting documents produced along with the plaint if the suit is clearly barred by law of limitation, plaint is required to be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure. It is further observed and held that in case of suit challenging the registered document, date of registration becomes date of deemed knowledge and by clever drafting and vague averments, the suit which is otherwise barred by law of limitation cannot be brought within the period of limitation. Considering the aforesaid law laid down by the Hon'ble Supreme Court as well as this Court in the case of Becharbhai Zaverbhai Patel and another (supra), other prayers challenging the respective registered sale deeds are also clearly barred by law of limitation. Under the circumstances, no error has been committed by the learned Judge in rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the suit filed for the aforesaid reliefs is also barred by law of limitation." 13. Therefore while considering the background of the facts and rival submissions, concurrent finding of facts by both the Court below does not call for any interference in exercise of discretion under Section 100 of the Civil Procedure Code in Second Appeal. 14. The Hon'ble Apex Court has laid down broad guidelines with regard to the scope with a word of caution while exercising discretion under Section 100 of the Civil Procedure Code after the amendment in the year 1976 in Civil Procedure Code that let it not be a third appeal on facts. 15. Therefore considering the aforesaid relevant facts ad discussed hereinabove, the present Second Appeals cannot be entertained and deserve to be dismissed and accordingly stand dismissed. 16. 15. Therefore considering the aforesaid relevant facts ad discussed hereinabove, the present Second Appeals cannot be entertained and deserve to be dismissed and accordingly stand dismissed. 16. In view of dismissal of main Second Appeals, the Civil Applications filed therein do not survive and stand disposed of accordingly.