Parvatiben Gopalbhai Laad v. Pranjivanbhai Motiraam Bhaar
2017-02-03
RAJESH H.SHUKLA
body2017
DigiLaw.ai
JUDGMENT : Rajesh H. Shukla, J. 1. The present second appeal is filed by the appellants-original plaintiffs challenging the impugned judgment and order passed below Ex. 14 in Regular Civil Suit No. 875/2015 by the Sr. Civil Judge, Surat dated 4.12.2015 rejecting the plaint under O. 7 R. 11 which has also been confirmed in Misc. Civil Appeal No. 42/2016 by the Addl. District Judge, Surat, vide the judgment and order dated 22.7.2016 posing substantial questions of law as follows: "(i) Whether the lower appellate court was right in upholding the judgment and decree of the trial court, wherein the decision was taken contrary to the provisions of Order 7 Rule 11(d) of the Code of Civil Procedure? (ii) Whether the courts below have passed legal and correct order in dismissing the suit of the appellants by invoking the provisions of Order 7 Rule 11(d) of the Code of Civil Procedure by taking into consideration the material outside the plaint and by considering the statements and averments made in written statements? (iii) Whether the courts below were right in holding that the suit of the appellants is barred by law of limitation, despite the fact that the limitation stars from the date of knowledge? (iv) Whether the courts below were right in ignoring the factual aspect of the matter and therefore though appeal is a mixed questions of fact and law the same was considered by ignoring the factual aspect of the matter? (v) Whether the courts below were right in ignoring and brushing aside the factual aspect of the matter by focusing only on the question of delay? (vi) Whether the courts below have erred in not considering the status of the original defendants who are not the agriculturist and by the so called registered sale deed have purchased agricultural land in contradiction of the provisions of the Bombay Tenancy and Agricultural Lands Act?" 2. Heard learned advocate Shri Jarjeeskhan for the appellants. 3. Learned advocate Shri Jarjeeskhan referred to the background of facts as well as the impugned judgment and order passed below Exh. 14 as well as the order passed by the first appellate court and submitted that both the courts below have committed an error in considering the aspect of limitation.
Heard learned advocate Shri Jarjeeskhan for the appellants. 3. Learned advocate Shri Jarjeeskhan referred to the background of facts as well as the impugned judgment and order passed below Exh. 14 as well as the order passed by the first appellate court and submitted that both the courts below have committed an error in considering the aspect of limitation. He submitted that O. 7 R. 11 requires that the court may pass the order only on the basis of the averments in the plaint and is not required to consider the defence or other evidences. He strenuously submitted that there are no averments by which it could be said that the suit was barred by any law as provided under O. 7 R. 11 and therefore both the courts have committed an error. Learned advocate Shri Jarjeeskhan has again referred to the background of facts with the details and submitted that the courts have considered the material or defence and therefore the exercise of power under O. 7 R. 11 is erroneous as the issue of limitation would be a mixed question of law and facts and therefore the present appeal may be admitted. 4. In support of his submission, learned advocate Shri Jarjeeskhan has referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 2015 SC 2485 in the case of P.V. Guru Raj Reddy and Ors. v. P. Neeradha Reddy and ors. and pointedly referred to the observations made in paras 5 & 6. He submitted that what is stated in the written statement or in the application for rejection of the plaint is immaterial and only the averments in the plaint ex facie has to be considered. If it does not disclose any cause of action on reading the plaint the same could be rejected. 5. Though the submissions have been made, the background of facts, as it is discussed in the order passed by both the courts below, reveal that Regular Civil Suit No. 875 is filed in the year 2015 seeking cancellation of the registered sale deed in the year 2000 and therefore a reference is also made to the revenue proceedings. However, the moot question is whether the court below can be said to have committed any error while exercising discretion under O. 7 R. 11 for rejection of the plaint. 6.
However, the moot question is whether the court below can be said to have committed any error while exercising discretion under O. 7 R. 11 for rejection of the plaint. 6. The provisions of O. 7 R. 11 refer to "rejection of the plaint". Order 7 Rule 11(d) provide, "Where the suit appears from the statement in the plaint to be barred by any law." Therefore, it would be incumbent upon the court to examine prima facie whether the suit is filed within the period of limitation. The averments with regard to the cause of action also refer to the fact that the registered sale deed is executed on 19.4.2000 which is sought to be cancelled and declared as null and void relying on the revenue proceedings. Therefore, when an application under O. 7 R. 11 is given by the other side, the court is obliged to consider and decide whether the suit is barred by limitation. Therefore, though the submissions have been made that defence is not to be seen and it is a mixed question of law and facts, etc. it could be considered. However, the fact remains that the suit is filed for cancellation of a registered sale deed executed in the year 2000 and therefore both the courts have considered this aspect including the aspect of knowledge. There is a specific reference to the same while passing the order below Ex. 14 under O. 7 R. 11 that the plaintiffs had made the endorsement with regard to the entries in the revenue record in the year 2000 and for 15 years thereafter the plaintiff has not raised any dispute that it was to the knowledge of the appellants plaintiffs about the entries made in the revenue record on the basis of the registered sale deed. Therefore, the date of registration of the document is considered to be the deemed knowledge to the party. 7. In the judgment of the Hon'ble Apex Court reported in (2004) 3 SCC 137 in the case of Sopan Sukhdeo Sable v. Asstt.
Therefore, the date of registration of the document is considered to be the deemed knowledge to the party. 7. In the judgment of the Hon'ble Apex Court reported in (2004) 3 SCC 137 in the case of Sopan Sukhdeo Sable v. Asstt. Charity Commissioner, addressing the same issue on the scope of O. 7 R. 11 it has been observed, "The basic question to be decided while dealing with an application filed under Order 7 Rule 11(a) CPC is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get around 11. The trial court must remember that if on a meaningful and not formal reading of the plaint is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11(a) taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. It is true that by ingenious drafting a cause of action in the nature of red herrings cannot be brought into the judicial arena." 8. Therefore, while exercising discretion under O. 7 R. 11 it has been emphasised that the defence in the written statement may not be relevant. However, the court is required to consider prima facie the averments in the plaint with regard to the cause of action which is a bundle of facts. Therefore, while considering the averments in the plaint itself referring to the cause of action it could be examined whether it is hit by limitation. As stated above, O. 4 R. 11(d) refer to "barred by any law" which would also mean the law of limitation. Therefore, in order to exercise discretion under O. 7 R. 11 the court has to consider only the averments in the plaint, but, at the same time is obliged to consider and read the averments regarding the cause of action in a meaningful manner. 9. The Hon'ble Apex Court in its judgment reported in (2000) 7 SCC 702 in the case of Dilboo (Smt.) (dead) by LRs. and Ors. v. Dhanraji (Smt.) (dead) and Ors. the same view has been also reiterated.
9. The Hon'ble Apex Court in its judgment reported in (2000) 7 SCC 702 in the case of Dilboo (Smt.) (dead) by LRs. and Ors. v. Dhanraji (Smt.) (dead) and Ors. the same view has been also reiterated. Thus, when the suit is barred by limitation on a plain reading of the plaint it can be dismissed as it cannot be brought within limitation by vague averments. The Hon'ble Division Bench of the High Court in a judgment in the case of Becharbhai Zaverbhai Patel & Ors. (supra) has also observed that when the suit is barred by limitation on plain reading of the plaint it can be dismissed. Moreover, the Hon'ble Apex Court in a judgment reported in (2005) 5 SCC 548 N.V. Srinivasa Murthy and Ors. v. Mariyamma (dead) by proposed LRs and Ors. has again made the observation that the courts are obliged to consider the averments closely. 10. Again, for the purpose of limitation, the aspect of knowledge may be relevant. The provisions of sec. 3 of the Transfer of Property Act refers to the aspect of deemed knowledge of the cause of action of a document once the registration is made. 11. It is in this background coupled with the fact that the appellant-plaintiff had made an endorsement and was having the actual knowledge about the entry made on the basis of registered sale deed, the findings given by the both the courts below on an application under O. 7 R. 11 for rejection of the plaint on the ground of limitation cannot be said to be perverse. A useful reference can be made to the judgment of the Hon'ble Apex Court (2000) 7 SCC 702 in the case of Dilboo (Smt.) (dead) by LRs and Ors. v. Dhanraji (Smt.) (dead) and Ors. wherein observations have been made in para 25 referring to the registration of the document and the knowledge about the same. It has been clearly observed that the date of registration of a document will be the date of deemed knowledge. In the facts of the case, the entries made in the revenue record on the basis of registered sale deed would be sufficient and therefore the submissions which have been made by learned advocate Shri Jarjeeskhan cannot be accepted.
It has been clearly observed that the date of registration of a document will be the date of deemed knowledge. In the facts of the case, the entries made in the revenue record on the basis of registered sale deed would be sufficient and therefore the submissions which have been made by learned advocate Shri Jarjeeskhan cannot be accepted. Thus, by averments in the plaint referring to the cause of action with bundle of facts and a clever drafting the suit which is otherwise barred by limitation cannot be brought within time. 12. The Hon'ble Apex Court has laid down broad guidelines with regard to the scope of exercise of discretion under sec. 100 of CPC in second appeal and as discussed hereinabove there is hardly any substantial question of law which can be said to have been involved, though the questions of law which are sought to be posed refer to the provisions of O. 7 R. 11(d) which has been discussed hereinabove. 13. The present second appeal, therefore, deserves to be dismissed and accordingly stands dismissed.