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2023 DIGILAW 209 (GUJ)

Amrish Vinodchandra Mehta v. Hamida Ismail Kakal

2023-01-31

BHARGAV D.KARIA

body2023
JUDGMENT : 1. Heard learned advocate Ms.Megha Jani for the applicants and learned advocate Mr.Sandip M. Patel for the respondents. 2. Rule, returnable forthwith. Learned advocate Mr.Sandip M. Patel waives service of notice of rule for and on behalf of the respondents. 3. By this application, the applicants have challenged the order dated 16.09.2017 passed by the 2nd Additional Senior Civil Judge, Jamnagar below application Exh.45 preferred by the applicants under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (for short ‘the Code’). 4.1. The brief facts of the case are that the respondents-original plaintiffs filed Regular Civil Suit No.315 of 2013 before the Court of Senior Civil Judge, Jamnagar with a prayer to quash and set aside the sale deed Nos.442 of 2013 and 443 of 2013 and further prayed for restraining the applicants-defendants from alienating the Suit property. 4.2. It was the contention of the applicants in the application filed under Order 7 Rule 11 of the Code that the original plaintiffs have not disclosed any cause of action to file the Suit challenging the registered sale deeds. It was also contended that the original plaintiffs did not fix the one half of the requisite Court Fees. 4.3. The Regular Civil Suit No.315 of 2013 was instituted by the respondents-original plaintiffs with regard to the concellation of the two registered sale deeds dated 14.06.2013 and permanent injunction. Both the registered sale deeds pertain to undivided 25% share of the respondents in the properties (in questions). Registered sale deed bearing Registration No.442 pertains to land bearing Survey No.3 paiki 2 situated at Dhinchda village, District:Jamnagar admeasuring 2477 sq.mtrs and registered sale deed bearing Registration No.443 pertains to Revenue Survey No.4 paiki situated in the same village admeasuring 8803 sq.mtrs. 4.4. The respondents-original plaintiffs have filed the Suit claiming that the respondents had agreed to sell their 25% share in the property at Revenue Survey No.4 only and the applicants in the guise of the execution of the sale deed for the said survey number got the sale deeds executed for the property at both the survey Nos.3 paiki and 4 paiki with the same description mentioned in the sale deed for both the Survey Numbers. Making such averments, the respondents-original plaintiffs have sought declaration to declare both the sale deeds as illegal, null, void and not binding upon the respondents. Making such averments, the respondents-original plaintiffs have sought declaration to declare both the sale deeds as illegal, null, void and not binding upon the respondents. The plaintiffs-respondents have also along with the plaint produced a list of documents which contains the two sale deeds as well as the copy of the plaint of Civil Suit No.310 of 2008 which was filed pertaining to the same land. 4.5. It is the case of the applicants that the respondents-original plaintiffs have failed to disclose a clear cause of action and they have no right to sue the applicants and the plait was barred by law and deserves to be rejected. 4.6. Learned Judge, after considering the arguments of both the sides partly allowed the application Exh.5 by directing the original plaintiffs to affix one half of the Court Fees as provided under Section 6(9) of the Gujarat Court Fees Act, 2004 to be calculated on the value of the subject matter i.e. Registered Sale Deed Nos.442 of 2013 and 443 of 2013 within 15 days from the date of the order. However, the learned Judge rejected the application Exh.5 so far as the contention raised by the applicants with regard to the issue of non disclosure of cause of action to prefer the Suit. The learned Judge while considering the aspect of the non-discloser of the cause of action by the respondents-plaintiffs to prefer the Suit has ignored the averments made in the plaint together with the documents which were annexed with the list of documents produced by the respondent- plaintiffs. 5. On bare perusal of the averments made in the plaint, it appears that the plaintiffs have stated in paragraph No.4 with regard to execution of sale deed qua Revenue Survey No.4 paiki only where the respondents had 25% of the share. It was further averred in the paragraph No.4 of the plaint that the applicants have informed the respondents-plaintiffs to execute the sale deed for Revenue Survey No.4 whereas, the sale deeds for both the Revenue Survey Nos. i.e. Revenue Survey Nos.3 and 4 were executed stating the same boundaries. However, on perusal of the sale deeds which are produced on record by the plaintiffs along with the plaint, it appears that the averments made in the plaint are contrary to the sale deeds executed on 14.06.2013. i.e. Revenue Survey Nos.3 and 4 were executed stating the same boundaries. However, on perusal of the sale deeds which are produced on record by the plaintiffs along with the plaint, it appears that the averments made in the plaint are contrary to the sale deeds executed on 14.06.2013. The sale deeds are pertain to the 25% share of the respondents-plaintiffs which were originally agreed to be sold in favour of one private limited company of which the applicants were Directors and the different boundaries are mentioned pertaining to Revenue Survey Nos.3 and 4 respectively in the sale deeds. It is also emerging from the sale deeds that the private limited company in whose favour agreement was executed by the respondents-plaintiffs earlier are the confirming parties in the sale deed. However, such facts are not disclosed in the plaint by the plaintiffs and only the averments are made which does not give any rise to cause of action to the plaintiffs to prefer the Suit. 6. In such circumstances, as per the provisions of Order 7 Rule 11(a) of the Code, as the cause of action is not disclosed by the plaintiffs, the Plaint is required to be rejected. Accordingly, the Civil Revision Application is allowed and the Regular Civil Suit No.315 of 2013 is ordered to be rejected. Rule is made absolute. No orders as to cost.