SCA/3057/2007 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3057 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= DEVCHANDBHAI NATHALAL PATEL - Petitioner(s) Versus BABULAL JIVRAMDAS PATEL & 1 - Respondent(s) ========================================================= Appearance : MR BY MANKAD for Petitioner(s) : 1, MR MAHENDRA K PATEL for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 11/07/2008 ORAL JUDGMENT 1. The petitioner – original plaintiff has filed this petition under Article 227 of the Constitution of India praying for quashing SCA/3057/2007 2/10 JUDGMENT and setting aside the order dated 6.6.2006 passed by the 8th Joint Civil Judge (S.D.) at Mehsana whereby the plaint of Special Civil Suit filed by the petitioner was rejected under Order 7 Rule 11(a). According to him, no cause of action arose in favour of the petitioner and against the respondent. 2. This Court has issued notice on 13.2.2007 and interim relief in terms of para 13(c) of the petition was granted whereby the respondents were restrained from selling, transferring or alienating the properties as described in the schedule appended with the plaint. Thereafter, rule was issued by this Court on 10.7.2007 and interim relief granted earlier stood continued till the final disposal of this petition. 3. Heard Mr. B.Y.Mankad, learned advocate appearing for the petitioner and Mr.Mahendra K. Patel, learned advocate appearing for the SCA/3057/2007 3/10 JUDGMENT respondents. 4. It is the case of the petitioner that the petitioner and the respondent No.2 are originally residents of Village – Shankhalpur, Dist. Mehsana. Thereafter, they settled at Nashik in the State of Maharashtra to do their business. The respondent No.2 is son of respondent No.1. The respondent No.2 wanted to have loan from the Co.operative Bank at Nashik. The respondent No.1 met the petitioner and requested him to stand as guarantor for respondent No.2. The respondent No.1 had agreed to create charge on the properties situated at Village – Shankhalpur, Taluka – Becharaji in Dist. Mehsana, for security of loan. The petitioner agreed for the same. Therefore, as per the mutually agreed terms and conditions the respondent No.1 had executed agreement cum irrevocable general power of attorney on 10.1.2000 in favour of the SCA/3057/2007 4/10 JUDGMENT petitioner. Thus, the petitioner was authorised by the respondent No.1 to sell the properties of agricultural lands as well as buildings belonging to the respondents, in case, the respondent No.2 fails to repay the loan amount and interest to the Bank. 5. Thereafter, the petitioner stood as a guarantor and then the respondent No.2 received loan of Rs.10 lacs from Jan-Kalyan Bank and Rs.7 lacs from the Jan-Laxmi Bank. Then the respondent No.2 committed default in repayment of the loan and hence filed suits against the respondent No.2 before the Board of Nominee and the same are pending. The petitioner has already deposited Rs.6,80,000/- with the Jan-Kalyan Co.operative Bank towards the outstanding amount of loan of respondent No.2. 6. The respondent No.1 lodged criminal complaint on 16.9.2003 in Sarkarwada Police SCA/3057/2007 5/10 JUDGMENT Station at Nashik, which was registered as FIR No.CR I – 183/2003. In this complaint he has alleged that the petitioner has committed a fraud and the irrevocable power of attorney is a bogus and sham document. A Criminal Case No.999/2003 based on this is pending before the JMFC at Nashik. Thereafter, on 18.9.2003 the police authorities have seized the original documents of irremovable power of attorney dated 10.1.2000. 7. The petitioner, thereafter, filed Regular Civil Suit No.51 of 2006 in the Court of Civil Judge (S.D.) Mehsana. The Court rejected the plaint under Order 7 Rule 11(a) of CPC on the ground that the suit does not disclose any cause of action on 14.3.2006. Thereafter, the petitioner filed another suit being Special Civil Suit No.12 of 2006 on 28.3.2006 on the same cause of action under Order 7 Rule 13 CPC by making an exhaustive pleading and giving the specific cause of SCA/3057/2007 6/10 JUDGMENT action in para 36 of the plaint, wherein it is stated that since the irrevocable power of attorney has been seized by the police and is in the custody of the Court the petitioner can not sell the properties situated at Village – Shankhalpur. Therefore, in order to get injunction against the respondent No.2 from selling or alienating the properties, institution of the suit was necessary. 8. The learned trial Judge vide his order dated 6.6.2006 rejected the plaint under Order 7 Rule 11(a) of CPC by holding that the plaintiff – petitioner has failed to show that he has been stopped by the respondents in taking action as per the power of attorney and, therefore, no cause of action has arisen to institute the suit. 9. It is this order which is under challenge in the present petition filed by the petitioner under Article 227 of the Constitution of SCA/3057/2007 7/10 JUDGMENT India. 10. Mr.Mankad, learned advocate appearing for he petitioner has submitted that the learned trial Judge has failed to ascertain cause of action from the averments of the plaint by reading the express provision contained under Order 6 Rule 2 and Order 7 Rule 11 of CPC. He has further submitted that the learned trial Judge has not correctly read the averments made by the petitioner in the plaint. 11. Mr.Mahendra Patel, learned advocate appearing for the respondents submitted that all the transactions took place at Nashik and simply because the property situated at Shankhalpur, no jurisdiction can be conferred on the Court at Mehsana. Hence on the ground of jurisdiction the plaint can be rejected under Order 7 Rule 11(a) of CPC. Precisely for this reason the learned trial Judge has observed in his order that no cause of action SCA/3057/2007 8/10 JUDGMENT arose within the jurisdiction of the Court and hence the plaint was rightly rejected by the Court. He has, therefore, submitted that no interference is called for and it is not required to exercise writ jurisdiction by this Court under Article 227 of the Constitution of India. 12. Having heard learned advocates appearing for the respective parties and having gone through the orders of the trial Court as well as ground raised in the present petition and reply filed by the respondents, this Court is of the view that the learned trial Judge has committed grave error and wrongly exercised jurisdiction while rejecting the plaint under Order 7 Rule 11(a) of the plaint. While reading clause 36 of the plaint, it clearly appears that cause of action arose in favour of the petitioner and, therefore, suit was rightly instituted by the petitioner. The learned trial Judge has not addressed himself SCA/3057/2007 9/10 JUDGMENT as to whether he has jurisdiction to entertain the suit and hence the submissions made by Mr. Patel in this regard cannot he accepted. The Court is, therefore, of the view that the order passed by the learned trial Judge for rejection of the plaint of the suit is required to be quashed and set aside and hence it is accordingly quashed and set aside. The Special Civil Suit No.12 of 2006 is restored to the file and the learned trial Judge is directed to proceed further in the said suit. It is made clear that the Court has not expressed any opinion as to whether Civil Judge (S.D.) Mehsana has jurisdiction to entertain the suit and hence it is open for the respondents to make appropriate application for framing of preliminary issue and if such an application is made by the respondents the same should be decided in accordance with the provisions of law. SCA/3057/2007 10/10 JUDGMENT 13. Subject to the above observations and clarifications, the petition is accordingly allowed and rule is made absolute without any order as to costs. Interim relief granted by this Court at the time of admission of this petition shall be continued till the application Ex.5 is decided by the trial Court. (K. A. PUJ, J.) kks