[CASE NUMBER] 1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 2 of 2007 [ENTITY] - Applicant(s) Versus [ENTITY] & 6 - Opponent(s) Appearance : MR [ENTITY] WITH MR [ENTITY] for Petitioners. for Opponent(s) : 1 - 7. CORAM : HONOURABLE MR.JUSTICE [ENTITY] Date : 1/03/2007 ORAL ORDER
1. [ENTITY] & Others,- petitioners, have filed this petition under [SECTION] of the [ACT], seeking prayer from this Court to call for the record and proceedings of [CASE NUMBER] and to quash and set aside the order dated 04.01.2007 passed below application Exh.20 and also to reject the plaint in [CASE NUMBER].
[CASE NUMBER] 2 ORDER 2. The matter was placed before this Court on
08.01.2007. However, the same was adjourned on that day to 10.01.2007. Thereafter the matter was placed for further hearing for admission and interim relief and the same was partly heard.
3. Today the matter has come up for hearing. I have heard Shri [ENTITY] learned advocate for the petitioner in this behalf.
4. The background of the matter as under:-
4.1 There are lands bearing survey no.1389/1390/2, 1430, 1429, 1434, 1435, 1436, 1437, 1438 and 1439 situated at Taluka Dholka. All the lands are totally ad-measuring 1,73,963 sq mtr. [ENTITY]., is registered and incorporated under the [ACT] and so it is a limited company and it has purchased all these lands and the lands are in the name of the Company (petitioner herein). 4.2 Shri [ENTITY], Shri [ENTITY] and [ENTITY] Wd/o. [ENTITY] are respondent nos.4 to 6 respectively and they are the owners of the lands bearing Survey No.1428/1 and [CASE NUMBER] 3 ORDER 1428/2. The said lands are ad-measuring 18,143 sq mtr. The lands which have been mentioned in earlier paras are in possession of petitioner which is adjacent to the lands of respondent nos.4 to 6.
5. It appears that respondent nos.4 to 6 (original plaintiff of [CASE NUMBER]) filed [CASE NUMBER] against the [ENTITY]., claiming easement right of way over the land owned by the petitioners before the Court of Civil Judge (J.D.), Dholka. In that suit, plaintiffs have joined [ENTITY], Dr.[ENTITY] and [ENTITY] as defendant nos. 1, 2 and 3 who happened to be the Directors and an employee of the limited company i.e. Cadila Pharmaceutical Ltd. In the said suit, the plaintiffs claimed a right of way through the (Defendant No.1 [ENTITY], Defendant No.2 Dr.[ENTITY] and Defendant No.4 [ENTITY]) i.e. petitioner's herein land bearing survey number 1389/1 and others as stated above which I referred earlier which are owned by Cadila Pharmaceuticals Pvt. Ltd. (defendants) in that suit.
They have also claimed that whatever construction carried out on their lands, the defendants should be [CASE NUMBER] 4 ORDER directed to remove the said construction and the Court may also grant mandatory relief in this behalf. They also sought direction that if the defendants do not remove construction, the Court may pass mandatory order to remove the same. The suit was filed somewhere on 28th December, 1998.
6. The pedigree of the respondents are as under:-
Land Originally owned by
[ENTITY] (Respondents No.4, 5 & 6 of this SCA.)
| Sold the land on | 5.2.2002
| [ENTITY] (Resp. No.1) | | [ENTITY] (Resp. No. 2) (Resp. No. 7) [CASE NUMBER] 5 ORDER [ENTITY] (Respondent No.7) | sold land on | 24.3.2004
| | [ENTITY] (Resp. No.1) (Resp. No.2)
7. As per pedigree, the land in question was originally belonged to [ENTITY] respondent No.4, [ENTITY] respondent No.5 and [ENTITY] respondent No.6. All the three persons sold the land on 5.2.2002 to [ENTITY] respondent No.1 and his two sons [ENTITY] respondent No.2 and [ENTITY] respondent No.7.
[ENTITY] respondent No.7 however sold his part of land on 24.3.2004 to [ENTITY] i.e. Respondent No.1 his father and [ENTITY] respondent No.2 his brother. Respondents No.4, 5 and 6 are original plaintiff in [CASE NUMBER].
8. It is the case of the petitioner that respondent nos.1,2 and 7 were well aware of the pending proceedings before the Court and though they have purchased lands in question.
[CASE NUMBER] 6 ORDER
9. The respondent no.4 i.e. [ENTITY], respondent No.5 [ENTITY] and respondent No.6 [ENTITY], respondents No.4 to 6 (original plaintiffs of [CASE NUMBER]) desired to withdraw the suit in November, 2006. Thereafter respondent nos. 4 to 6 filed a withdrawal purshis before the learned Court seeking permission to withdraw the suit. The Court below passed order dated 14th November, 2006 and permitted the respondent nos.4 and 5 to withdraw the suit, however the trial Court has not permitted the respondent no.6 (mother of respondent nos.4 and 5) to withdraw the suit. Such purshis was heard and decided on 20th November, 2006.
10. However, in the afternoon session on 20 th November, 2006, the respondent no.6 submitted another withdrawal purshis stating inter-alia that she being an aged lady, and not attending the Court proceedings regularly was afraid of the proceedings and hence could not recognize the thumb impression made on the withdrawal purshis tendered earlier, but in fact she wanted to withdraw the suit so she filed second purshis and such purshis is pending for adjudication.
[CASE NUMBER] 7 ORDER 11. Being aggrieved and satisfied with the order of refusal to withdraw the suit, the petitioner
herein has also preferred [CASE NUMBER] before this Court and this Court by order dated 29th November, 2006 was pleased to stay the proceedings of said [CASE NUMBER].
12. Meanwhile the respondents No.1 and 2 who purchased the undivided share of respondent No.7 of the said suit by sale deed dated 24.3.2004 filed an application under [SECTION] of the [ACT] which provides for being joined as a necessary party on the strength of sale deeds dated 5.2.2002 and 24.3.2004. Such application is also pending in this behalf.
13. Meanwhile, respondent nos.1 and 2 also came to know that [CASE NUMBER] filed by the petitioner they filed civil application under [SECTION] of [ACT] for being joined as necessary party. In the said application, respondents have claimed that the suit no.208/1998 have become infructuous after execution of sale deed dated 5th February, 2002. Copy of the [CASE NUMBER] 8 ORDER said civil application is served upon the petitioners.
14. Respondent nos.1 and 2 filed [CASE NUMBER] before the Court of learned Judge, Dholka on 21st November, 2006. It may be noted that the said suit has been filed after application under [SECTION] of [ACT] was filed in [CASE NUMBER]. In the said suit also the respondents have prayed that defendants of the said suit may not construct anything in Naher (Naliyu) and may also not obstruct plaintiffs from passing through the said Naher (Naliyu) in this behalf. They also claimed that because of the withdrawal of [CASE NUMBER] they suffered irreparable loss, injury and hardship which cannot be compensated in terms of money. They stated that defendant nos.4 to 7 have no power or authority to cancel the power of attorney given in the name of defendant no.7 [ENTITY].
15. Meanwhile in the [CASE NUMBER], the petitioners filed an application under [SECTION] of the [ACT] being Exh.21 for rejection of plaint i.e. filed by [CASE NUMBER] 9 ORDER respondent nos.1 and 2. In the said civil application, it was stated that no action has been initiated for claiming rights over the said path. It was also contended in the application that period of limitation would have expired on 04.02.2005 in view of the fact that sale deed dated 05.02.2002 was executed and therefore respondents could have filed suit within three years by 04th February, 2005. It was stated that the suit was filed in November, 2006, and, therefore, the same is clearly barred by limitation. In view of the same, it was prayed that the suit may be rejected under [SECTION], more particularly as per Clause-(d) of [ACT].
16. From the record it appears that in both the suits namely [CASE NUMBER] and [CASE NUMBER], both the plaintiffs i.e. [ENTITY] and [ENTITY] - original plaintiffs of [CASE NUMBER] and who are respondents No.1 and 2 herein have claimed the same relief on the ground that the sale deed has been executed, therefore previous suits had become infructuous and therefore they have decided to [CASE NUMBER] 10 ORDER withdraw [CASE NUMBER] and therefore the plaintiffs of [CASE NUMBER] namely [ENTITY] and [ENTITY] and [ENTITY] wd/o. [ENTITY] who are plaintiffs in [CASE NUMBER] and who are respondents No.4 to 6 have decided to withdraw the suit. Thus, it is clear that by way of drafting the plaint they tried to avoid limitation because in the application made before the court by the respondents it is stated in para 2 of the application that due to execution of sale deed, [CASE NUMBER] has become infructuous. Thus, contentions of the petitioner that the suit is barred by limitation ought to have been accepted by the learned Judge in this behalf.
16.1 However, application for rejection of the plaint made by the petitioner has been rejected by the learned Trial Judge relying upon the Division Bench of this Court in the case of [ENTITY] vs. Dr. B.M.Poojari reported in 2005(3) GLH 385 particularly para 8 on page 387 which reads as under.
"A suit which is barred by limitation cannot [CASE NUMBER] 11 ORDER be said to be a suit barred by any law; the Court has jurisdiction to entertain the suit but would be precluded from granting any relief to such a person because he has lost his remedy by lapse of time. A suit cannot be said to be barred by any law if the Civil Court otherwise can entertain suit and is also entitled to grant relief. It cannot be argued that if a suit for specific performance is filed within limitation then the suit would not be maintainable. In a given case the Court may or may not grant a decree in favour of the plaintiff and even in a given case where it does not grant a decree it would not say that the suit is barred by some law or any law. The Civil Court would have jurisdiction to decide civil disputes and a matter relating to specific performance of the agreement would be a civil dispute between the parties."
17. The learned advocate for the petitioner submitted that the aforesaid Division Bench judgment in [ENTITY] (supra) was decided on 22.9.2005, however he has relied upon the judgment of the Hon'ble Supreme Court in the case of [CASE NUMBER] 12 ORDER [ENTITY] and others vs. Mariyamma (Dead) by proposed Lrs. and others reported in (2005) 5 SCC 548. The said judgment was delivered on 11.7.2005. However, it appears that the learned advocate who have appeared for respective parties has not invited attention of this Court to the judgment of Hon'ble Supreme Court in [ENTITY] (supra). He has relied upon para 11 on page 552 of the aforesaid decision which reads as under:
"On the above averments, relief of declaring the registered sale deed dated 5.5.1953 to be a loan transaction and second relief of specific performance of oral agreement of reconveyance of the property by registered instrument should and ought to have been claimed in the suit. A suit merely for declaration that the plaintiffs are absolute owners of the suit lands could not have been claimed without seeking declaration that the registered sale deed dated 5.5.1953 was a loan transaction and not a real sale. The cause of action for seeking such a declaration and for obtaining reconveyance [CASE NUMBER] 13 ORDER deed according to the plaintiff's own averments in para 9 of the plaint, arose on 25.3.1987 when the plaintiffs claimed to have paid back the entire loan amount and obtained a promise from the defendants to reconvey the property. Reckoning the cause of action from 25.3.1987, the suit filed on 26.8.1996, was hopelessly barred by time."
17.1 He has also further relied upon paras 12 and 13 of the said judgment and ultimately in paras 14 & 15 the Hon'ble Apex Court has observed like this.
"After examining the pleadings of the plaint as discussed above, we are clearly of the opinion that by clever drafting of the plaint the civil suit which is hopelessly barred for seeking avoidance of registered sale deed of 5.5.1953, has been instituted by taking recourse to orders passed in mutation proceedings by the Revenue Courts."
"[CASE NUMBER] was pending when the present suit was filed. In the present [CASE NUMBER] 14 ORDER suit, the relief indirectly claimed is of declaring the sale deed of 5.5.1953 to be not really a sale deed but a loan transaction. Relief of reconveyance of property under alleged oral agreement on return of loan has been deliberately omitted from the relief clause. In our view, the present plaint is liable to rejection, if not on the ground that it does not disclose "cause of action", on the ground that from the averments in the plaint, the suit is apparently barred by law within the meaning of [SECTION] of the [ACT]."
17.2 The learned advocate therefore submitted that this Court (Coram: [ENTITY], J) though was a party to the judgment of Division Bench of this Court in [ENTITY] case (supra) but the Court will have to consider the judgment of the Hon'ble Apex Court in [ENTITY] and submitted that some of portion of the Division Bench judgment in [ENTITY] is contrary to and inconsistent with the Hon'ble Supreme Court judgment and the same requires reconsideration and therefore this matter may be referred to Larger Bench in this [CASE NUMBER] 15 ORDER behalf.
17.3 In support of the same, he has relied upon the following authorities.
17.4 [ENTITY] and Kotecha Property vs. State Bank of India Staff Association reported in (2005) 7 SCC 510 particularly para 10 on page 515 which reads as under:
"[SECTION] speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under [SECTION] [ACT]. [SECTION] applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force."
17.5 [PRECEDENT] particularly para 8 on page 661 which reads as under:
[CASE NUMBER] 16 ORDER "After hearing counsel for the parties, going through the plaint, application under [SECTION] [ACT] and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time."
17.6 [PRECEDENT] where the aforesaid judgments in the cases of [ENTITY] and Kotecha Company (supra) and Balasaria Construction (P) Ltd. (supra) have been referred to and relied upon and after referring Balasaria Construction's case (supra), the Hon'ble Supreme Court in para 19 on page 2507 has observed as under:
"The question whether the words "barred by law" occurring in [SECTION], [SECTION] [ACT], [CASE NUMBER] 17 ORDER would also include the ground that it is barred by law of limitation has been recently considered by a two-Judge Bench of this Court to which one of us was a member ([ENTITY], J.) in [PRECEDENT], it was held:
"8. After hearing Counsel for the parties, going through the plaint, application under [SECTION], [SECTION] [ACT], and the judgments of the trial Court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint, it cannot be held that the suit is barred by time."
"This principle would be equally applicable to a company petition. Therefore, unless it becomes apparent from the reading of the company petition that the same is barred by [CASE NUMBER] 18 ORDER limitation the petition cannot be rejected under [SECTION], [SECTION] [ACT]."
17.7 Moreover he has also relied upon the judgment of the Hon'ble Apex Court in the case of [PRECEDENT]. 17.8 He has also relied upon Division Bench judgment of this Court in the case of [PRECEDENT] wd/o. [ENTITY] reported in [CASE NUMBER] particularly para 14 of the said judgment. 17.9 He has also relied upon a Division Bench judgment of the Bombay High Court in the case of [PRECEDENT], and another reported in [PRECEDENT] particularly para 51 on page 180 as well as para 56 & 57 on page 184.
17.10 The learned advocate has also relied upon the judgment of Calcutta High Court in the case of [PRECEDENT] [PRECEDENT] particularly para 6 of the said judgment which reads as under:
"It appears that the suit has been filed on 8 th April, 1991, that is, long after the period of limitation expired. Accordingly the suit, on the face of it, is barred by limitation. Under Order VII, Rule 11, Clause (d), [ACT] a plaint is to be rejected where from the statement in the plaint it appears to be barred by any law. From the statement in the plaint, it appears that the suit is barred by limitation and, accordingly, the suit is to be dismissed as being barred by limitation. The issue is answered in the affirmative."
17.11 He has also relied upon the judgment of Orissa High Court in the case of [PRECEDENT] particularly para 18 on page 72 which reads as under:
"From the ratio of the aforesaid decisions, [CASE NUMBER] 20 ORDER it can be deduced that a duty is cast on the court entertaining a plaint to look into the averments in the plaint in proper perspective and consider the plaint as a whole to scan the essence of the cause of action and arrive at a conclusion whether the cause of action as indicated and understood as a bundle of facts giving rise to a grievance of the plaintiff saves the limitation or not. Tested by the touch-stone of the aforesaid parameter, I am afraid, the order passed by the learned trial Judge does not stand close scrutiny. The order is cryptic and there is really no analysis. The learned Civil Judge has only referred to the prayer portion of the plaint and has not delved into the matter to find out whether any cause of action flows from the averments in the plaint to save the period of limitation. The court below should have kept in mind that the cause of action is relatable to the period of limitation. It is well settled in law that limitation need not be set up as a defence under [SECTION] of the [ACT]. It is the duty of the court to find so."
[CASE NUMBER] 21 ORDER
18. In view of this facts and circumstances of the case which I have set out herein, it is no doubt true that in the impugned judgment the learned Judge by impugned order dated 4.1.2007 was pleased to reject the application [SECTION] of the [ACT] filed by the defendant, in view of the Division Bench judgment of this Court in [ENTITY] (supra), ordinarily I would have dismissed the petition when the learned Judge has relied upon Division Bench judgment of this Court. However, on following consideration of the points urged by the learned counsel for the petitioner, this Court is inclined to entertain the present petition.
19. As stated above, in this case, the Division Bench judgment of this Court in the case of [ENTITY] vs. Dr.B.M.Poojari reported in 2005(3) GLH 385 has taken the view that a suit which is barred by limitation cannot be said to be a suit barred by any law and the Court has jurisdiction to entertain the suit but would be precluded from granting any relief to such a person because he has lost his remedy by lapse of time. A suit cannot be said to be barred by any law if the Civil Court [CASE NUMBER] 22 ORDER otherwise can entertain the suit and is also entitled to grant relief. However, the Hon'ble Supreme Court in the case of [ENTITY] and others vs. Mariyamma (Dead) by proposed Lrs. and others reported in (2005) 5 SCC 548, where the Hon'ble Apex Court has held that by clever drafting of the plaint the civil suit which is hopelessly barred for seeking avoidance of registered sale deed of 5.5.1953 has been instituted by taking recourse to orders passed in mutation proceedings by the Revenue Courts. Thus [CASE NUMBER] was pending when the present suit was filed. In the present suit, the relief indirectly claimed is of declaring the sale deed of 5.5.1953 to be not really a sale deed but a loan transaction. The relief of reconveyance of property under alleged oral agreement on return of loan has been deliberately omitted from the relief clause and therefore the Hon'ble Apex Court held that the present suit is liable to be rejected, if not on the ground that it does not disclose cause of action on the ground that from the averments in the plaint, the suit is apparently barred by law within the meaning of [SECTION] of the [ACT].
20. In view of this, this Court is of the [CASE NUMBER] 23 ORDER considered view that the judgment of the Division Bench of this Court in the case of [ENTITY] (supra) requires reconsideration in view of certain observations made by the Hon'ble Supreme Court in the case of [ENTITY] and others (supra) which I have stated above.
20.1 It is no doubt true that the judgment of the Hon'ble Supreme Court was delivered on 11.7.2005 whereas the Division Bench of this Court rendered the judgment on 22.9.2005. However, the learned counsel for the respective parties who have appeared before this Court, did not invite the attention of the Division Bench of this Court to the aforesaid judgment of the Hon'ble Supreme Court in the case of [ENTITY] (supra) and therefore the Division Bench when made certain observations, was not aware about the aforesaid judgment of the Hon'ble Supreme Court.
20.2 Moreover on interpretation of [SECTION] of the [ACT] this Court has come across some of the other judgments of the Hon'ble Apex Court in the case of [PRECEDENT];
[CASE NUMBER] 24 ORDER BALASARIA CONSTRUCTIONS (P) LTD. VS. HANUMAN SEVA
TRUST AND OTHERS reported in (2006) 5 SCC 658 and [PRECEDENT]. All these judgments have considered the provision of [SECTION] of the [ACT]. These decisions will have to be considered.
21. In view of this discussion, this Court is of the considered view that this petition raises important substantial question of law of general importance in connection with interpretation of [SECTION] of the [ACT]. As there is already a Division Bench judgment which has to be considered afresh in view of these decisions, this Court directs the Registry to place this matter before the Hon'ble Chief Justice to obtain appropriate orders for placing this matter before the appropriate Court.
( [ENTITY], J. ) syed/