Gujarat High Court

Kalyannagar Cooperative Housing Soc ... vs Lh Of Babubhai Karshanbhai on 7 July, 2023

Author:
Bhargav D. Karia

Bench:
Bhargav D. Karia

NEUTRAL CITATION

C/FA/4234/2021 JUDGMENT DATED: 07/07/2023

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/FIRST APPEAL NO. 4234 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/FIRST APPEAL NO. 4234 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================

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 or any order made thereunder ?

==========================================================
KALYANNAGAR COOPERATIVE HOUSING SOC LTD THROUGH VICE
PRESIDENT RAMJIBHAI MOHANBHAI KAPDIA
Versus
LH OF BABUBHAI KARSHANBHAI
==========================================================
Appearance:
ANSHUL N SHAH(8540) for the Appellant(s) No. 1
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1
DECEASED LITIGANT for the Defendant(s) No. 1
MR PJ KANABAR(1416) for the Defendant(s) No. 1.1
MS ADITI P KANABAR(5650) for the Defendant(s) No. 1.1
==========================================================

CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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Date : 07/07/2023
ORAL JUDGMENT

1. Heard learned advocate Mr. S.P. Majmudar for the appellant -

plaintiff and learned senior advocate Mr. Mihir Thakore with learned

advocate Mr. P. J Kanabar for the respondents- defendants in Special

Civil Suit No. 36 of 1999.

2. Feeling aggrieved by the order under Order VII Rule 11(a) and

(d)
of the Code of Civil Procedure
,1908 (for short "the Code")

below application Exh. 205 and Order in application Exh. 243 under

Order 47 Rule 1 read with
section 151
as well as order below Exh 1

in Special Civil Suit No. 36 of 1999 rejecting the suit passed by the

Principal Senior Civil Judge, Amreli, the appellant-original plaintiff

has preferred this appeal.

3. Brief facts of the case are that the appellant-plaintiff entered

into an agreement for sale on 06.09.1983 which was registered in

Book No.1 at Serial No. 1497 before the Sub-Registrar, Amreli. The

agreement to sale was made by one Babubhai Karshanbhai Senjaliya

in favour of the President Manohardas Karsandas Singada in respect

of the proposed Kalyannagar Co-operative Housing Society.

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3.1 The appellant- Kalyannagar Cooperative Housing Society was

registered under
section 9
of the Gujarat Co-operative Societies

Act,1961, by the Registration Officer, Amreli vide Registration No.

GJ-9234.

3.2 As per the terms recorded in the agreement for sale the

defendant-respondent herein agreed to sale the land admeasuring 9

Acres i.e. 36422 sq.mtrs of Survey No. 120/2 Paiki which is

estimated to 15 Vighas 06 vasa for consideration of Rs. 20,000/- per

vigha. Total consideration is noted as Rs. 3,06,000/- out of which,

Rs. 3,000/- was paid to the original owner as a part consideration

towards the agreement to sale and the remaining amount of

Rs. 3,03,000/- was paid afterwards.

3.3 The agreement for sale further records that the remaining

amount would be paid within three years as and when it is

convenient to the plaintiff financially and defendant would execute

sale deed as per the say of the plaintiff and possession would be

handed over at that time only.

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3.4 It appears that as per the terms of the agreement, the plaintiff-

society was to make an application for obtaining permission under

section 63 of the Gujarat Tenancy and Agricultural Land Act,1943

as the plaintiff-society was not an agriculturist. Accordingly, the

application was made before the Deputy Collector who by order

dated 10.06.1984, granted permission to the plaintiff-society to

purchase the land and a permission was also granted to the original

owners to sell their land i.e. total area of 11 Acres 17 Gunthas

comprising of 9Acre of Revenue Survey No. 122/2 and 2 Acres 17

Gunthas of Survey No. 120/4 with certain terms and conditions.

3.5 Thereafter, it appears that the sale deed dated 16.07.1984 was

executed by Babubhai Karsanbhai Senjaliya in favour of

Manohardas Karsandas Singada, President of the plaintiff-society

with consideration of Rs. 1,31,000/- by registered sale deed for land

admeasuring 3 Acre and 33 Gunthas of Survey No. 120/2 i.e.

6 vighas and 11 vasa, 15479 sq.mtrs situated on Varsada road of

Amreli and possession of the said land was handed over to the

President of the plaintiff-society.

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3.6 It appears that thereafter, on 29.06.1984, the Special Land

Acquisition Officer, Amreli, wrote a letter to the Executive

Engineer, Gujarat Housing Board, intimating him to remain present

for acquisition of the land including the land of Survey Nos. 120/2

and 120/4 comprising land admeasuring 9 Acres was agreed to be

sold to plaintiff-society.

3.7 Revenue Entries No. 504 was mutated in village Form No. 6

with regard to registered sale deed executed on 16.07.1984 for land

admeasuring 3 Acres 33 Gunthas in favour of the plaintiff-society of

Survey No. 120/2.

3.8 It is pertinent to note that another suit being No. 37/1999 was

filed before the same Court for enforcement of Agreement of Sale

for 2 Acres and 17 Gunthas of Survey No. 120/4 which was running

in the name of son of the defendant-original owner by the plaintiff

society. The defendant preferred application under Order VII Rule

11 of the Code which was also rejected by the Court below against

which the appeal is pending before the District Court as the suit

value was less than the prescribed limit.

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3.9 It appears that thereafter, the plaintiff as well as the defendant

challenged acquisition of the land including the land in question

before this Court wherein a compromise was arrived at between the

plaintiff and the original owner-defendant that the Gujarat Housing

Board and the plaintiff-society paid and deposited Rs. 67,000/-

towards establishment and miscellaneous expenses of Rs. 6,000/-

towards legal expenses in Current Account No. 3981 of Executive

Engineer of Gujarat Housing Board, Bhavnagar as a condition

precedent to withdraw the acquisition proceedings.

3.10 By letter dated 19.06.1996 written by the Housing

Commissioner, Gujarat Housing Board to Special Land Acquisition

Officer, it was informed that the Board in its meeting dated

11.10.1990 vide Resolution No. 2214 has resolved to exempt the

land of Survey No. 120 Paiki from the acquisition with any other

Government land available at Amreli.

3.11 The Land Acquisition Officer, by letter dated 30.06.1994

addressed to defendant informed that the land of Survey No. 120

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Paiki is exempted from acquisition as per order dated 21.03.1994 of

the Revenue Department.

3.12 It appears that thereafter the Collector, Amreli, by order dated

10.10.1994 ordered to convert the land situated Survey Nos. 120/2

and 120/4 into non-agriculture land for residential purpose and

permission was granted to construct the residential house on the

application dated 24.11.1993 filed by the President of the plaintiff-

society for land admeasuring 5 Acres 4 Gunthas.

3.13 It appears that thereafter, the suit was filed in the year 1999 for

specific performance of the Agreement to Sale executed on

06.09.1983 along with the documents which are referred to here-in-

above by the plaintiff.

3.14 It also emerges from the record that the plaintiff thereafter

amended the plaint twice, once in the year 2000 and thereafter in the

year 2007 which was allowed by the Court below by passing a

reasoned order at the relevant time. The issues were framed by the

Court below on 15.01.2010.

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3.15 It appears that application Exh 205 preferred by the

respondent-defendant under Order VII Rule 11(a) and (d) of the

Code was rejected by the Court below initially on the ground that

readable copy of the amended plaint was not provided by the

defendant. However, thereafter, an application was made under

Order 47 read with
section 151
of the Code being application Exh.

243 which was considered without disturbing the order passed below

Exh. 2057 and application Exhibits 205 and 243 were again heard

and disposed of by the impugned order by allowing the same by

rejecting the suit under Order VII Rule 11(a) and (d) of the Code.

4. Learned advocate Mr. S.P.Majmudar appearing for the

appellant- original plaintiff submitted that the learned Judge has

committed a grave error in allowing the application Exhibits 205 and

243 together by depriving the appellant from challenging the order

of recall before the appropriate forum as originally the application

under Order VII Rule 11 of the Code was already dismissed by the

Court below and without recalling that order, the Court could not

have again passed the order allowing such applications nor a

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common order could have been passed and therefore, the impugned

order suffers from vice of procedural lapses on the part of the Courts

below.

4.1 It was further submitted that even on merits of the case for

rejecting the suit, provisions of Order VII Rule 11 (a) and (d) of the

Code would not apply in the facts of the case as the suit cannot be

said to be barred by law more particularly, when on bare perusal of

the plaint as well as the documents in connection therewith raises a

mixed question of fact and law with regard to enforceability of the

Agreement for Sale which was alleged to have been executed by a

proposed society coupled with other documents produced on record

which ratified such agreement for sale by subsequent conduct of the

defendant permitting the appellant-society to make an application for

permission under
section 63
before the Deputy Collector for

conversion of the land into non-agriculture the land in question

which was already granted after arriving at compromise with the

Gujarat Housing Board to get the land exempted from the

acquisition etc.

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4.2 It was therefore submitted that the Court below could not have

rejected the suit at threshold after more than 20 years by not giving

liberty to the plaintiff to lead the evidence to prove its case, more

particularly, when the issues are already framed by the Court.

4.3 It was also pointed out that the made by the Court below is

arbitrary and contrary to the documents produced on record by the

plaintiff in support of the averments made in the plaint. It was

submitted that even if the amendments made in the plaint are not

taken into consideration, the original plaint itself would be sufficient

as averments made in the original draft of the plaint along with the

documents produced therewith would go to show that the plaintiff

has a very good arguable case before the amendment also which can

be proved by leading oral and documentary evidence.

4.4 In support of his submissions he has relied upon the following

judgements:


Salim D. Agboatwala & Ors vs. Shamalji Oddhavji Thakkar

reported in 2021 SCC Online SC 735;

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
Pushpaben Yogendraprasad Mahant vs. Ravirajsingh
Kiritsingh Jhala
in First Appeal No. 884 of 2020;


Shaukathussain Mohammad Patel vs. Khatunben
Mohmmedbhai Polara
reported in (2019) 10 SCC 226;


Sejal Glass Ltd vs. Navilan Merchants Pvt. Ltd
reported in
2018 11 SCC 780;


Girishbhai Natwarbhai Patel vs. Prabhavati Cooperation
Housing Society Ltd.
;

 The Trust of Shri Laxmi Narayan Deve Temple & its

Subordiante Temple and ors vs. Ajendrapasadji
Narendraprasadji Pande & Anr
; [First Appeal No. 1521 of
2012 dated 22.04.2013]

 Khodaji Mangaji Thakor vs. Legal Heirs of Deced.
Virambhai Ukabhai Bharvad [ 2018 JX(Guj) 740]

5. On the other hand, learned Senior Advocate Mr. Mihir Thakore

with the learned advocate Mr. Kanabar submitted that the

application under Order VII Rule 11 of the Code can be preferred at

any stage of the trial and therefore the contention raised on behalf of

the appellant herein that it was filed after more than 20 years is of no

consequence. It was further submitted that the plaint is covered

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under the provision of Order VII Rule 11 (a) and (d) of the Code and

therefore, the same can be rejected by the Court at any stage.

5.1 Learned Senior Advocate Mr. Thakore invited attention of the

Court to the amendments made in the plaint in the year 2000 as well

as in year 2007 by the plaintiff to point out that the such

amendments were made so as to wriggle out of the settled legal

position that no agreement for sale could have been made by the

proposed society and such Agreement for Sale is void ab initio and

therefore, the same cannot be enforced by way of specific

performance. It was further submitted that amendments in paras 1A,

1B and 1C when read together, the stand taken by the plaintiff is

contradictory to each other. In para 1A it was averred that the

plaintiff relied upon the contract between the parties which was

carried out in the year 2000 and thereafter wisdom has prevailed

upon the plaintiff by further amendment of the plaint by inserting

para 1B which is again taking a stand that there was a deemed

registration of the society when the application for registration was

made by the society in the month of June 1983, prior to the date of

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Agreement for Sale on 06.09.1983 whereas further contradictory

stand is taken in para 1C raising contention of oral agreement

between the parties. It was therefore submitted that the plaintiffs

have from time-to-time changed their standby amending the plaint

and therefore, the entire plaint is distorted and no decree of specific

performance can be passed on the basis of the bare perusal of the

averments made in the plaint.

5.2 Learned Senior Advocate Mr. Thakore also referred to

averments made in para 4 of the plaint to point out that vague

averments are made by the plaintiff with regard to refusal on part of

the defendants to execute the sale deed in the year 1999 so as to

overcome the question of limitation. It was submitted that it is

nothing but a piece of clever drafting by the plaintiff and as per the

settled legal position, the plaintiff cannot take advantage of such

clever drafting so as to avoid the action by the Court under Order

VII Rule 11 of the Code.

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5.3 It was also submitted by learned advocate Mr. Thakore that the

documents produced along with plaint clearly shows that the

plaintiff has played a mischief with the Court by producing only

first page of the registered Sale Deed dated 16.07.2019 at Mark 4/5

whereas the entire sale deed was produced by the defendant later on

at Exh 22. It was submitted that as such sale deed produced by the

defendant cannot be looked by the Court for deciding the

application under Order VII Rule 11 of the Code, the same is not

referred to however, suffice is to say that the plaintiff, for the

reasons best known to it, did not produce entire sale deed on record

as it may be possible that there was only sale of 03 Acres and 33

Gunthas and not 9 Acres of Survey No. 120/2 for which the

registered Agreement to Sale was executed with the proposed

society which cannot be enforced as per the settled legal position.

5.4 It was further pointed out by learned Senior Advocate Mr.

Thakore that the Court below has therefore rightly came to the

conclusion that the suit is barred by law under Order VII Rule 11(d)

of the Code as no decree of specific performance can be granted in

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favour of the plaintiff on the basis of the Agreement to Sale in

favour of the proposed society by relying upon the various decisions

of this Court as well as the Hon'ble Supreme Court.

5.5 In support of his submissions, Senior Advocate Mr. Thakore

referred to and relied upon the following decisions:


Canara Bank vs. P. Selathal and ors
reported in (2020) 13

SCC 143:

"8. Therefore, the short question which is posed for
consideration of this Court is, whether the suits filed by the
plaintiffs were liable to be rejected in exercise of powers
under Order 7 Rule 11(d)
of the CPC
or not?

9. While considering the aforesaid issue/question, few
decisions of this Court on exercise of powers under Order 7
Rule 11(d)
of the CPC
are required to be referred to and
considered.

9.1 In the case of T. Arivandandam (supra), while
considering the very same provision i.e.
Order 7 Rule 11 of
the CPC
and the decree of the trial Court in considering
such application, this Court in para 5 has observed and held
as under:

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"5. We have not the slightest hesitation in condemning
the petitioner for the gross abuse of the process of the
court repeatedly and unrepentantly resorted to. From the
statement of the facts found in the judgment of the High
Court, it is perfectly plain that the suit now pending
before the First Munsif's Court, Bangalore, is a flagrant
misuse of the mercies of the law in receiving plaints.
The learned Munsif must remember that if on a
meaningful - not formal - reading of the plaint it is
manifestly vexatious, and meritless, in the sense of not
disclosing a clear right to sue, he should exercise his
power under
Order 7, Rule 11 CPC
taking care to see
that the ground mentioned therein is fulfilled. And, if
clever drafting has created the illusion of a cause of
action, nip it in the bud at the first hearing by examining
the party searchingly under
Order 10, CPC
. An activist
Judge is the answer to irresponsible law suits...."

9.2 In the case of
Church of Christ Charitable Trust and
Educational Charitable Society v. Ponniamman
Educational Trust
(2012) 8 SCC 706, this Court in paras 13
has observed and held as under:

"13. While scrutinizing the plaint averments, it is the
bounden duty of the trial Court to ascertain the materials
for cause of action. The cause of action is a bundle of
facts which taken with the law applicable to them gives
the plaintiff the right to relief against the defendant.
Every fact which is necessary for the plaintiff to prove to
enable him to get a decree should be set out in clear
terms. It is worthwhile to find out the meaning of the
words "cause of action". A cause of action must include
some act done by the Defendant since in the absence of
such an act no cause of action can possible accrue."

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9.3 In
A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies,
Salem
(supra), this Court explained the meaning of "cause
of action" as follows:

"12.A cause of action means every fact, which if
traversed, it would be necessary for the plaintiff to prove
in order to support his right to a judgment of the court.
In other words, it is a bundle of facts which taken with
the law applicable to them gives the plaintiff a right to
relief against the defendant. It must include some act
done by the defendant since in the absence of such an
act no cause of action can possibly accrue. It is not
limited to the actual infringement of the right sued on
but includes all the material facts on which it is founded.
It does not comprise evidence necessary to prove such
facts, but every fact necessary for the plaintiff to prove
to enable him to obtain a decree. Everything which is
not proved would give the defendant a right to
immediate judgment must be part of the cause of action.
But it has no relation whatever to the defence which
may be set up by the defendant nor does it depend upon
the character of the relief prayed for by the plaintiff."

9.4 In the case of Sopan Sukhdeo Sable (supra) in paras 11
and 12, this Court has observed as under:

"11.
In
I.T.C. Ltd. v. Debts Recovery Appellate
Tribunal
[(1998) 2 SCC 70] it was held that the basic
question to be decided while dealing with an application
filed under Order 7 Rule 11 of the Code 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 out of Order 7 Rule 11 of the Code.

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12. The trial Court must remember that if on a
meaningful and not formal reading of the plaint it 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 of the Code 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. (See T. Arivandandam (supra)."

9.5 In the case of Madanuri Sri Rama Chandra Murthy
(supra), this Court has observed and held as under:

"7. The plaint can be rejected under Order 7 Rule 11 if
conditions enumerated in the said provision are fulfilled.
It is needless to observe that the power under
Order 7
Rule 11 CPC
can be exercised by the Court at any stage
of the suit. The relevant facts which need to be looked
into for deciding the application are the averments of the
plaint only. If on an entire and meaningful reading of the
plaint, it is found that the suit is manifestly vexatious
and meritless in the sense of not disclosing any right to
sue, the court should exercise power under
Order 7 Rule
11 CPC
. Since the power conferred on the court to
terminate civil action at the threshold is drastic, the
conditions enumerated under
Order 7 Rule 11 CPC
to
the exercise of power of rejection of plaint have to be
strictly adhered to. The averments of the plaint have to
be read as a whole to find out whether the suit is barred
by any law. It is needless to observe that the question as
to whether the suit is barred by any law, would always
depend upon the facts and circumstances of each case.

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The averments in the written statement as well as the
contentions of the defendant are wholly immaterial
while considering the prayer of the defendant for
rejection of the plaint. Even when the allegations made
in the plaint are taken to be correct as a whole on their
face value, if they show that the suit is barred by any
law, or do not disclose cause of action, the application
for rejection of plaint can be entertained and the power
under
Order 7 Rule 11 CPC
can be exercised. If clever
drafting of the plaint has created the illusion of a cause
of action, the court will nip it in the bud at the earliest so
that bogus litigation will end at the earlier stage."

9.6 In the case of
Ram Singh v. Gram Panchayat Mehal
Kalan
(1986) 4 SCC 364, this Court has observed and held
that when the suit is barred by any law, the plaintiff cannot
be allowed to circumvent that provision by means of clever
drafting so as to avoid mention of those circumstances, by
which the suit is barred by law of limitation."


Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra
) dead

through Legal representatives and ors reported in (2020) 7

SCC 366:

"23.1 We will first briefly touch upon the law applicable for
deciding an application under
Order VII Rule 11 CPC
,
which reads as under:

"11. Rejection of plaint.- The plaint shall be rejected
in the following cases:-

(a) where it does not disclose a cause of action;

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(b) where the relief claimed in undervalued, and the
plaintiff, on being required by the Court to correct the
valuation within a time to be fixed by the Court, fails
to do so;

(c) where the relief claimed is properly valued but the
plaint is written upon paper insufficiently stamped,
and the plaintiff, on being required by the Court to
supply the requisite stamp-paper within a time to be
fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the
plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the
provisions of rule 9
Provided that the time fixed by the Court for the
correction of the valuation or supplying of the
requisite stamp-paper shall not be extended unless the
Court, for reasons to be recorded, is satisfied that the
plaintiff was prevent by any cause of exceptional
nature for correction the valuation or supplying the
requisite stamp-paper, as the case may be, within the
time fixed by the Court and that refusal to extend such
time would cause grave injustice to the plaintiff."

23.2 The remedy under Order VII Rule 11 is an
independent and special remedy, wherein the Court is
empowered to summarily dismiss a suit at the threshold,
without proceeding to record evidence, and conducting a
trial, on the basis of the evidence adduced, if it is satisfied
that the action should be terminated on any of the grounds
contained in this provision.

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23.3 The underlying object of Order VII Rule 11 (a) is
that if in a suit, no cause of action is disclosed, or the suit
is barred by limitation under Rule 11 (d), the Court would
not permit the plaintiff to unnecessarily protract the
proceedings in the suit. In such a case, it would be
necessary to put an end to the sham litigation, so that
further judicial time is not wasted.

23.4 In
Azhar Hussain v. Rajiv Gandhi1
this Court held
that the whole purpose of conferment of powers under this
provision is to ensure that a litigation which is
meaningless, and bound to prove abortive, should not be
11986 Supp.
SCC 315 Followed in Maharaj Shri
Manvendrasinhji Jadeja v. Rajmata Vijaykunverba w/o
Late Maharaja Mahedrasinhji, (1998) 2 GLH 823
permitted to waste judicial time of the court, in the
following words :

"12. ...The whole purpose of conferment of such power
is to ensure that a litigation which is meaningless, and
bound to prove abortive should not be permitted to
occupy the time of the Court, and exercise the mind of
the respondent. The sword of Damocles need not be kept
hanging over his head unnecessarily without point or
purpose. Even if an ordinary civil litigation, the Court
readily exercises the power to reject a plaint, if it does
not disclose any cause of action."

23.5 The power conferred on the court to terminate a civil
action is, however, a drastic one, and the conditions
enumerated in Order VII Rule 11 are required to be strictly
adhered to.

23.6 Under Order VII Rule 11, a duty is cast on the Court
to determine whether the plaint discloses a cause of action

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by scrutinizing the averments in the plaint2, read in
conjunction with the documents relied upon, or whether the
suit is barred by any law.

23.7 Order VII Rule 14(1) provides for production of
documents, on which the plaintiff places reliance in his
suit, which reads as under :

" 14: Production of document on which plaintiff sues or
relies.- (1)Where a plaintiff sues upon a document or
relies upon document in his possession or power in
support of his claim, he shall enter such documents in a
list, and shall produce it in Court when the plaint is
presented by him and shall, at the same time deliver the
document and a copy thereof, to be filed with the plaint.

(2)Where any such document is not in the possession or
power of the plaintiff, he shall, wherever possible, state
in whose possession or power it is.

(3)A document which ought to be produced in Court by
the plaintiff when the plaint is presented, or to be entered
in the list to be added or annexed to the plaint but is not
produced or entered accordingly, shall not, without the
leave of the Court, be received in evidence on his behalf
at the hearing of the suit.

(4)Nothing in this rule shall apply to document produced
for the cross examination of the plaintiff's witnesses, or,
handed over to a witness merely to refresh his memory."

23.8 Having regard to
Order VII Rule 14 CPC
, the
documents filed alongwith the plaint, are required to be
taken into consideration for deciding the application under
Order VII Rule 11 (a). When a document referred to in the

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plaint, forms the basis of the plaint, it should be treated as a
part of the plaint.

23.9 In exercise of power under this provision, the
Court would determine if the assertions made in the plaint
are contrary to statutory law, or judicial dicta, for deciding
whether a case for rejecting the plaint at the threshold is
made out.

23.10 At this stage, the pleas taken by the defendant in the
written statement and application for rejection of the plaint
on the merits, would be irrelevant, and cannot be adverted
to, or taken into consideration.

23.11 The test for exercising the power under Order VII
Rule 11 is that if the averments made in the plaint are taken
in entirety, in conjunction with the documents relied upon,
would the same result in a decree being passed. This test
was laid down in
Liverpool & London S.P. & I Assn. Ltd.
v. M.V.Sea Success I & Anr.,4
which reads as :

"139. Whether a plaint discloses a cause of action or not
is essentially a question of fact. But whether it does or
does not must be found out from reading the plaint itself.
For the said purpose, the averments made in the plaint in
their entirety must be held to be correct. The test is as to
whether if the averments made in the plaint are taken to
be correct in their entirety, a decree would be passed."

23.12 In Hardesh Ores (P.)
Ltd. v. Hede & Co.5
the

Court further held
that it is not permissible to cull out a
sentence or a passage, and to read it in isolation. It is the
substance, and not merely the form, which has to be looked

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into. The plaint has to be construed as it stands, without
addition or subtraction of words. If the allegations in the
plaint prima facie show a cause of action, the court cannot
embark upon an enquiry whether the allegations are true in
fact.

23.13 If on a meaningful reading of the plaint, it is found
that the suit is manifestly vexatious and without any merit,
and does not disclose a right to sue, the court would be
justified in exercising the power under
Order VII Rule 11
CPC
.

23.14 The power under
Order VII Rule 11 CPC
may be
exercised by the Court at any stage of the suit, either before
registering the plaint, or after issuing summons to the
defendant, or before conclusion of the trial, as held by this
Court in the judgment of
Saleem Bhai v. State of
Maharashtra
.

The plea that once issues are framed, the
matter must necessarily go to trial was repelled by this
Court in
Azhar Hussain
(supra).

23.15 The provision of Order VII Rule 11 is mandatory in
nature. It states that the plaint "shall" be rejected if any of
the grounds specified in clause (a) to (e) are made out. If
the Court finds that the plaint does not disclose a cause of
action, or that the suit is barred by any law, the Court has
no option, but to reject the plaint.

24.1 In
Swamy Atmanand v. Sri Ramakrishna
Tapovanam
this Court held :

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"24. A cause of action, thus, means every fact, which if
traversed, it would be necessary for the plaintiff to prove
an order to support his right to a judgment of the court.

In other words, it is a bundle of facts, which taken with
the law applicable to them gives the plaintiff a right to
relief against the defendant. It must include some act
done by the defendant since in the absence of such an
act, no cause of action can possibly accrue. It is not
limited to the actual infringement of the right sued on but
includes all the material facts on which it is founded"

24.2.
In
T. Arivandandam v. T.V. Satyapal & Anr.9
this
Court held that while considering an application under

Order VII Rule 11 CPC
what is required to be decided is
whether the plaint discloses a real cause of action, or
something purely illusory, in the following words : -

"5. ...The learned Munsiff must remember that if on a
meaningful - not formal - reading of the plaint it is
manifestly vexatious, and meritless, in the sense of not
disclosing a clear right to sue, he should exercise his
power under O. VII, R. 11,
C.P.C
. taking care to see that
the ground mentioned therein is fulfilled. And, if clever
drafting has created the illusion of a cause of action, nip
it in the bud at the first hearing ..." (emphasis supplied)

24.3 Subsequently, in
I.T.C. Ltd. v. Debt Recovery
Appellate Tribunal
, this Court held that law cannot permit
clever drafting which creates illusions of a cause of action.
What is required is that a clear right must be made out in
the plaint.

29.16
The present case
is a classic case, where the
plaintiffs by clever drafting of the plaint, attempted to
make out an illusory cause of action, and bring the suit
within the period of limitation.

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Prayer 1 of the plaint reads as :

"1) The suit property being agricultural land of old
tenure of Revenue Survey No.610 whose block Number
is 573 situated at village Mota Varachha, Sub-district :

Surat city, Dis : Surat has been registered by the
opponent No.1 of this case in office of the Sub-Registrar
(Katar Gam) at Surat vide Serial No.5158 in book No.1.
Since, the same is illegal, void, in-effective and since the
amount of consideration is received by the plaintiffs, and
by holding that it is not binding to the plaintiffs and to
cancel the same, and since the sale deed as aforesaid suit
property has been executed by the opponent No.1 to the
opponent No.2,3, it is registered in the office of Sub-
registrar, Surat (Rander) on 01/04/2013 vide serial
No.443 which is not binding to we the plaintiffs. Since,
it is illegal, void, in-effective and therefore, this Hon'ble
Court may be pleased to cancel the same and this
Hon'ble Court may be pleased to send the Yadi in that
regard to the Sub-registrar, Surat (Karat Gam) and the
Sub- Registrar (Rander) in regard to the cancellation of
both the aforesaid documents."


Shri Ramji Mandir Narsinhji and ors vs. Narshinh Nagar

Co-operative Housing Society Ltd, Navsari and ors

reported in AIR 79 Guj 134:

"22. These decisions to which Mr. Shah has invited
our attention lay down the principle that a contract
between a non-existent company on whose behalf

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someone purports to act is a nullity and gives rise to
no cause-of-action. In order to make good his
contention that such a contract is valid and
enforceable at law, Mr. Vyas has invited our
attention to some provisions of the
Gujarat
Cooperative Societies Act, 1961
.
S. 2(13)
defines
"member" as a person joining in an application for
the registration of a co-operative society which is
subsequently registered, or a person duly admitted to
membership of a society after registration and
includes a nominal, associate or sympathiser
member.
S. 2(19)
defines "society" which means a
co-operative society registered or deemed to be
registered, under this Act. A reference to a society
"deemed to be registered " appears to be in the
context of sub-see. (2) of
S. 169
. Sub-section (2) of

S. 169
provides as follows:-

"All societies registered or deemed to be registered
under the said Act the registration of which was in
force immediately before the commencement of
this Act, shall on such commencement be deemed
to be registered under this Act; and all proceedings
pending immediately before such commencement
before any Registrar, Arbitrator, liquidator or
tribunal or other officer, authority or person under
the provisions of the said Act shall stand
transferred where necessary, to the Registrar,
arbitrator, liquidator or tribunal or other
corresponding officer, authority or person under
this Act, and if no such officer, authority or person
exists or if there be a doubt as to the corresponding
officer, authority or person to such officer,
authority or person as the State Govt. may
designate and shall be continued and disposed of

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by such officer, authority or person in accordance
with the provisions of this Act."

These three provisions to which Mr. Vyas has invited
our attention do not warrant the conclusion that the
society before it is registered and comes into existence
can act through its promoter.
Sec. 37
throws light on
this aspect. It reads as follows:-

"A society on its registration shall be a body
corporate by the name under which it is registered,

-w1th perpetual succession and a common seal, and
with power to acquire, hold and dispose of
property, to enter into contracts, to institute and
defend suits and other legal proceedings and to do
all such things as are necessary for the purpose for
which it is constituted."

It is clear, therefore, that a co-operative society becomes
a legal person after it is registered and it is after its
registration that it acquires the capacity to enter into
contracts. No provision in the Act has been pointed out
to us under which the promoters of a society can act on
behalf of the society before it has been registered and
has come into existence.


Jayantilal Hansraj Shah and ors vs. Hemakuwarben

Dolatraj Dave and ors
reported in 1996(1) G.L.H. 893:

"10. In view of the above quoted binding decision of
the Division Bench, I am of the view that the agreement

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for sale executed by Late Maharaja Shri
Indravijaysinhji in favour of the petitioners who are
members of the proposed Vijay Co-operative Housing
Society is a nullity and creates no right in favour of the
petitioners. As the agreement to sell dated July 10,
1980 is nullity, it cannot be specifically enforced and,
therefore, even a suit for specific performance of the
said agreement cannot be brought by the petitioners in a
competent Court. In view of this legal position, it is
evident that it cannot be said that the petitioners are
adversely affected by consent decree dated November
18, 1993 passed in Regular Civil Suit No. 740 of 1986
so as to entitle them to get permission to file an appeal
against the said decree."

6. Order VII Rule 11 of the Code provides for rejection of the

plaint and reads as under:

"11. Rejection of plaint.

The plaint shall be rejected in the following cases-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the Court to correct the
valuation within a time to be fixed by the Court, fails to do
so;

(c) where the relief claimed is properly valued, but the
plaint is returned upon paper insufficiently stamped, and
the plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the
Court, fails to do so;

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(d) where the suit appears from the statement in the plaint
to be barred by any law:

Provided that the time fixed by the Court for the
correction of the valuation or supplying of the requisite
stamp-paper shall not be extended unless the Court, for
reasons to be recorded, is satisfied that the plaintiff was
prevented by any cause of an exceptional nature form
correcting the valuation or supplying the requisite stamp-
paper, as the case may be, within the time fixed by the
Court and that refusal to extend such time would cause
grave injustice to the plaintiff."

7. Clause (a) of Rule 11 of Order VII of the Code provides that the

plaint shall be rejected where it does not disclose a cause of action

and clause (d) provides that the plaint shall be rejected where the suit

appears from the statement in the plaint to be barred by any law.

8. It is pertinent to note that the application under Exh 205 was

filed by the defendant-respondent on 12.08.2018 i.e. almost after 19

years from the date of filing of the suit. It is true that such

application can be filed at any stage of the trial but at the same time

conduct of the parties is also required to be considered. The issues

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were already framed by the Court in the year 2010 and considering

the same also the application Exh 205 was filed after 8 years.

9. The learned Judge after considering the documents produced

along with plaint while again disposing application Exh 205 along

with Exh 243 held that admittedly Agreement to Sale is of 1983 and

when it was executed the plaintiff-Co-operative Society was only

proposed society and was not registered under
section 9
of the

Gujarat Co-operative Societies Act, at the same time it is observed

that thereafter the proceedings in respect of the land acquisition

procedure one of which lasted up to 1994 and thereafter the suit was

filed in 1999. However, the learned Judge has failed to consider the

fact that the documents produced along with the plaint together with

the averments made in the plaint prima facie shows that both the

parties in effect has proceeded with the terms of the Agreement for

Sale that is to say applying for permission before the Deputy

Collector to purchase the land and thereafter even NA permission

was granted on the application made by the plaintiff-society.

Therefore, as per the settled legal position as analyzed here-in-below

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the question which arises for consideration is as to whether the suit

can be said to be barred by law as per clause (d) of Rule 11 of Order

VII of the Code would be a mixed question of fact or law or pure

question of law arising from the averments made in the plaint

together with the documents produced therewith.

10. The Trial Court has recorded the conclusion in paras 17 to 20 as

under:

"17. Though, it is strongly argued by the Ld. Advocate of
plaintiffs that issue of limitation is a mixed question of law
& fact and it cannot be decided at this stage without
recording the entire evidences, but this Court is firmly of
the opinion that generally issue of 1\limitation is a mixed
question of law and fact, but when facts and circumstances
themselves clear, it is a pure question of law only, it
deserves to be rejected. And facts and circumstances of
present suit are such, which clear that issue of limitation is
a pure question of law. When the suit and plaint itself
clears that it is barred by the law and specifically the
Law
of Limitation and the Gujarat Co-operative Societies Act,
, it cannot be allowed to remain the present suit for
further years in the Court.

18. No new fact is brought on record by the present
application. At the stage of deciding the application of 0.7
R.11, Court has to see the plaint and documentary
evidences produced along with it only. Plaint and the
evidences produced by the plaintiff along with the plaint
and afterwards, clear that present suit is barred by the
provisions of Law of Limitation, the Gujarat Co- operative

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Societies Act
.1961 and for the want of legal cause of
action. Cause of action mentioned in the present suit is
illusory, false, vexatious and artificial. Hence, present suit
deserves to be rejected under 0.7 R.11 (a) and (d).

19. Arguments led by the Ld. Advocate of the
defendant are tenable and arguments led the Ld. Advocate
of plaintiff are not tenable for the above mentioned
reasons. Though, this Court had dismissed the Exh.205
earlier for want of legible copy of the plaint on record but
if defendant was not producing that and failed to produce
that before this Court then plaintiff could produce that but
it was no followed so. Hence, it was not only the fault of
defendant who move present applications but also fault on
the part of the plaintiff. Because, Exh.205 was not decided
on merits, then this Court finds no infirmity in allowing the
application moved at Exh.243 under Order-47, Rule-1 r/w

Section 151
of the Code. The scheme of the said provision
does not violate in any manner, if the said application is
allowed. And accordingly Exh.205 too, as discussed above.

20. In view of the above discussion, this Court is
strongly of the opinion that present suit deserves to be
rejected under the provisions of 0.7 R.11 (a) & (d) of the
Code and hence, applications under Order 7, Rule 11(a) &

(d) and under Order-47, Rule-1 r/w.
Section 151
of the
Code deserves to be allowed. Hence, following order is
passed under Exhs.205, 243 and Exh. 1:-

::ORDER::

(1) Application at Exh.243 moved under Order-47, Rule-1
r/w
Section 151
of the Civil Procedure Code, 1908 is
hereby allowed.

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(2) Application at Exh.205 moved under Order 7, Rule
11(a) & (d) of the Civil Procedure Code, 1908 is also
allowed.

(3) Present suit bearing Special Civil Suit No. 36/1999 is
hereby rejected under Order 7. Rule 11 (a) & (d) of the
Civil Procedure Code, 1908. (4) Copy of this order shall be
kept along with the plaint of the suit."

11. On perusal of the above conclusion the only observation made

by the Trial Court is that when the suit and plaint itself declares that

it is barred by law and specifically by law of limitation and provision

of the
Gujarat Co-operative Societies Act
, it cannot be allowed to

continue. However, while arriving at such conclusion the Trial Court

has failed to consider the facts emerging from the plaint and the

documents annexed therewith to the effect that the subsequent

events from 1983 till the date of filing of the suit reflected from the

averments and documents annexed with the plaint clearly shows

that Agreement for Sale which is sought to be enforced under the

provisions of the
Specific Relief Act
and the issue as to whether the

suit is barred by limitation requires leading of evidence as it involves

the mixed question of facts as well as law inasmuch as merely on

bare perusal of the averments made in the plaint and the documents

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annexed therewith, the Court could not have come to the conclusion

that the suit is barred by law under Order VII Rule 11 (a) and (d) of

the Code.

12. Learned advocate for the appellant has relied upon the decision

of the Apex Court in case of
Salim D. Agboatwala and ors vs.

Shamalji Oddhavji Thakkar
reported in 2021 SCC online SC 735

wherein the Apex Court, after considering the provisions of
sections
and
25A
of the Maharashtra and Agricultural Lands Act, 1948 as

well the question of limitation has held as under:

"25. But the above contention of Shri Joshi overlooks an
important facet of the case set up by the plaintiffs.
According to the plaintiffs, the Estate was in the
administration of the Court Receiver and that in collusion
between the Court Receiver and the Revenue authorities,
the sale as well as mutation took place without any notice
to any of the interested parties. Collusion and fraud are the
main planks on which the plaintiffs have built up their
case. The question whether the order of the ALT and the
sale certificate issued thereafter are the product of fraud
and collusion, cannot be determined by the appellate or
revisional authority under the Act. In any case it is
contended by the learned counsel for the appellants that by
virtue of
Section 88B(1)(d)
of the Act, none of the
provisions of the Act, except a few, are applicable, "to
lands taken under management temporarily by the Civil,
Revenue or Criminal Courts by themselves, or through

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receivers appointed by them, till the decision of the title of
the rightful owners". The 7 AIR 1972 Bombay 122
veracity of such argument has not been tested before the
Trial Court or the High Court. We do not know whether the
exemption under Section 88B was raised at all by the
appellants/plaintiffs. But it is a legal issue which goes to
the root of the matter. Therefore, the Civil Court's
jurisdiction cannot be said to have been ousted completely.
The Civil Court was obliged to see at least whether the
appointment of a Receiver for the administration of the
Estate of a deceased person would actually fall within the
mandate of Clause(d) of Subsection(1) of Section 88B.

26. Therefore, we are of the considered view that the Trial
Court as well as the High Court were clearly in error in
rejecting the plaint under Order VII Rule 11(d). Hence, the
appeal is allowed, the judgment and decree of the Trial
Court as well as the High Court are set aside and the suit is
restored to file. There will be no order as to costs."

13. The Division Bench of this Court in First Appeal No. 884 of

2020 in case of
Pushpaben Yogendraprasad Mahant vs.

Ravirajsingh Kiritsingh Jhala
decided on 19.07.2021 held as

under:

"14.1 The Court has to read the entire plaint as a whole to
find out whether it discloses a cause of action and if it
does, then the plaint cannot be rejected by the Court
exercising the powers under Order VII Rule 11 of the
Code. Essentially, whether the plaint discloses a cause of
action, is a question of fact which has to be gathered on the
basis of the averments made in the plaint in its entirety
taking those averments to be correct. A cause of action is a

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bundle of facts which are required to be proved for
obtaining relief and for the said purpose, the material facts
are required to be stated but not the evidence except in
certain cases where the pleadings relied on are in regard to
misrepresentation, fraud, wilful default, undue influence or
of the same nature. So long as the plaint discloses some
cause of action which requires determination by the court,
mere fact that in the opinion of the Judge the plaintiff may
not succeed cannot be a ground for rejection of the plaint.

14.2 In the present case, the averments made in the plaint,
as has been noticed by us, do disclose the cause of action
and, therefore, the High Court has rightly said that the
powers under Order VII Rule 11 of the Code cannot be
exercised for rejection of the suit filed by the plaintiff-
appellants.

14.3 The Hon'ble Supreme Court in
Hardesh Ores (P) Ltd.,
vs. Hade and Company
(2007) 5 SCC 614 in Para 25
observed as under:-

"25. The language of
Order VII Rule 11 CPC
is quite clear
and unambiguous. The plaint can be rejected on the ground
of limitation only where the suit appears from the
statement in the plaint to be barred by any law. Mr.
Nariman did not dispute that "law" within the meaning of
Clause (d) of Order VII Rule 11 must include the law of
limitation as well. It is well settled that whether a plaint
discloses a cause of action is essentially a question of fact,
but whether it does or does not must be found out from
reading the plaint itself. For the said purpose the averments
made in the plaint in their entirety must be held to be
correct. The test is whether the averments made in the
plaint if taken to be correct in their entirety a decree would
be passed.
The averments made in the plaint as a whole
have to be seen to find out whether Clause (d) of Rule 11

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of Order VII is applicable. It is not permissible to cull out
a sentence or a passage and to read it out of the context in
isolation. Although it is the substance and not merely the
form that has to be looked into, the pleading has to be
construed as it stands without addition or subtraction of
words or change of its apparent grammatical sense. As
observed earlier, the language of Clause (d) is quite clear
but if any authority is required, one may usefully refer to
the judgments of this Court in
Liverpool and London S.P.
and I Association Ltd. v. M.V. Sea Success I and Anr.

(
2004)9SCC512 and Popat and Kotecha Property v. State
Bank of India Staff Association
(2005)7SCC510. "

14.4 It appears that the Court below has not been able to
understand the fine distinction between the plea that there
was no cause of action for the suit and the plea that the
plaint does not disclose a cause of of action. In the case on
hand, on a fair reading of the application Ex.18 filed by the
defendants under Order VII Rule 11 of the Civil Procedure
Code it is clear that the case of the defendants is that the
plaintiffs have no cause of action to file the suit. It is not
specifically pleaded by the defendants that the plaint does
not disclose any cause of action. The trial Judge has also
not recorded any specified finding to this effect. It could
be said that while adjudicating the application for rejection
of plaint the trial Judge has actually adjudicated the entire
suit, in other words the right, title and interest of the
plaintiffs in the suit property. It is very unfortunate to note
that the trial Court proceeds on the footing that the
plaintiffs have not been able to establish their right, title or
interest in the suit properties on the basis of or on the
strength of the revenue records i.e. the entries in the
revenue records. The trial Judge seems to be oblivious of
the fact that the entries in the revenue records even
otherwise do not confer any right, title or interest. How
does the trial Judge expect the plaintiff to make good his
case or establish his title on the basis of the revenue

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records while deciding the application for rejection of the
plaint at the instance of the defendants.

14.5 From the averments made in the plaint, it is clear that
the plaintiffs have pleaded a cause of action for filing the
suit seeking the reliefs stated in it i.e. not to say that the
plaintiffs have cause of action to file the suit for the reliefs
sought, that question is to be determined on the basis of
materials (other than the plaint) which may be produced by
the parties at appropriate stage in the suit. For the limited
purpose of determining the question whether the plaint is
to be rejected under Order VII Rule 11 or not the
averments in the plaint are only to be looked into.

14.6 The Court below observed that in absence of further
revenue record prima facie title to the property cannot be
accepted to be established. According to the Court below,
the plaint does not disclose that Mahant Narandas was
ancestor of Yogendraprasadji and the sale deed cannot be
challenged on the ground that plaintiffs were successors by
inheritance to the property. It is important to note that the
issue for adjudication of rights in connection to the said
plaint will be with regards to the original transfer of rights
by Yogendraprasadji, Ramdasguru Bhagwandas, Mahant
Narandas to the plaintiffs. The said issue for adjudication
of rights flowing from the Will dated 1937 cannot be shut
merely on the ground that there are no further revenue
records reflecting the rights of the plaintiffs.

14.7 The suit is yet to go for trial and plaintiffs will have to
prove by producing evidence to establish that they are
successors of the subject property. The original entry no.
253 will be relevant for the plaintiffs to establish their right
to the property by succession. It is drastic to reject the suit

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at this stage, while considering the averments in the plaint
which raises various issues as to flowing from the Will and
inclusion of subject property in the Will."

14. The Hon'ble Supreme Court in case of
Shaukathussain

Mohammad Patel vs. Khatunben Mohmmedbhai Polara
reported

in (2019) 10 SCC 226 has held that the averment in the plaint have

to be taken into account in their entirety and considering such

evidence if the case is required to be considered on merits, rejection

of plaint is not justified as it is well settled that for the purposes of

the provision of Order VII Rule 11 of the Code, the entirety of the

averments in the plaint is to be taken into account and going by the

version of the appellant as detailed in the plaint, there was element

of deception and fraud which was practiced upon him as a result of

which the document concerned got entered into. In the facts of the

said case and considering such averments made in the plaint and the

fact that the plaintiff-appellant was always in possession of the

property in question the issue raised in the matter was required to be

considered on merits.

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15.
In case of
Sejal Glass Ltd vs. Navilan Merchants Pvt. Ltd

reported in 2018 11 SCC 780 while examining the relative scope

and applicability of Order VII Rule 11 of the Code read with Order

VI Rule 16 of the Code it was held that if the condition mentioned in

Order VII Rule 11 of the Code are fulfilled entire plaint is to be

rejected. However, where it appears that plaint cannot be proceeded

with in some part but it can be proceeded in another part, Order VII

Rule 11 of the Code has no application and then suit as a whole must

proceed to trial.

"20.
In the case of
Ahmed Hossein vs. Mt. Chembelli
and others
reported in AIR 1951 Cal 262, a decision
relied upon by Mr. Thakore, the suit was on a
dishonoured cheque. The plaint did not state that any
notice of dishonour had been given or that any
circumstances existed which rendered it unnecessary to
give such notice. The plaintiff subsequently sought to
introduce these statements in the plaint by an
amendment. The application was opposed by the
defendants on the ground that by reason of the absence
of these allegations, the plaint as it stood then, disclosed
no cause of action and hence it must be rejected under O.
7, R. 11 (a) of the Code and the Court had no power to
allow the amendment. The plaintiff's answer was two
fold : First the plaint disclosed a cause of action in spite
of the omission to state anything with regard to the
notice of dishonour and secondly, that O. 7, R. 11, does
not take away the Court's power to order amendment of

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the plaint. With regard to the first point, the plaintiff's
contention was that the facts relating to the notice of
dishonour were not part of the cause of action on a
dishonoured cheque but were mere conditions precedent
necessary for the case on the cheque, the performance or
occurrence of which is to be implied in the plaint under
O. 6, R. 6 of the Code. Sarkar J (as His Lordship then
was) did not accept this contention. His Lordship made
the following observations in this connection:

"A cause of action is that bundle of facts which would,
if left to itself, create in law a right or obligation, while a
condition precedent is something which prevents the
right or obligation which would have otherwise sprung
out from those facts from springing out. A condition
precedent has thus been described in the notes to O. 19,
R. 14 in the White Book:

"Cases constantly occur in which, although everything
has happened which would at common law prima facie
entitle a man to a certain sum of money, or vest in him a
certain right of action there is yet something more which
must be done or something more which must happen in
the particular case before he is entitled to sue either by
reason of the provisions of some statute, or because the
parties have expressly so agreed; this something more is
called a condition precedent. It is not of the essence of
such a cause of action, but it has been made essential. It
is an additional formality superimposed on the common
law."

I would in the above quotation add to the words
"common law" the words "or statute." Now the liability
of the drawer of a cheque arises under
S. 30
, Negotiable
Instruments Act, and except as
laid down in
that section
the drawer of a dishonoured cheque has no liability. This

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is because the whole law as to cheques is contained in
that Act and the only section dealing with the liability of
the drawer of a cheque is
S. 30
. The section provides
that the drawer of a cheque shall be liable to compensate
the holder in case of dishonour "provided due notice of
dishonour has been given to, or received by, the drawer
as hereinafter provided."
Sections 91
to
of the Act lay
down the provisions relating to the manner of the giving
of the notice of dishonour and the cases where the
giving of the notice is excused. The only way therefore
in which liability on a cheque may arise is when (1) the
cheque is dishonoured and (2) notice of such dishonour
has been given or circumstances exist which render it
unnecessary to give such notice. It is not a case where if
no provisions as to notice of dishonour had been laid
down, a right would have arisen in the holder on the
dishonour of the cheque and where the only effect of
those provisions is to prevent such right from springing
up. The notice of dishonour as the law as to cheques
stands is a part of the cause of action on a dishonoured
cheque.
In Fruhauf v. Grosvenor and Co., (1892) 67 I. T.
350: (61 L. J. Q. B. 717), Lord Coleridge C. J.,
expressed himself in these words:

"The obligation upon the drawer of a cheque to pay does
not arise until notice of dishonour thereof has been
given to him, and therefore the statement of the case
against the defendant here is not full and complete
without either an allegation of notice of dishonour of the
cheque having been given to the defendant the drawer of
it, or of facts excusing the plaintiff from giving such
notice."

It was decided in this case that in the absence of the
allegations as to the notice of dishonour, the plaint on a
dishonoured cheque would not disclose a cause of
action."

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21. We respectfully agree with the above view. In the
case before us, if we apply the above principles, the
permission of the Charity Commissioner is not of the
essence of a cause of action, but it has been made
essential. It is an additional formality superimposed
which prevents the right or obligation which would have
otherwise sprung out from those facts from springing
out. Thus, by taking aid of the above decision it cannot
be legitimately contended that grant of permission is the
cause of action like dishonour of a cheque in an action
for dishonour of cheque; on the other hand, it is a
condition precedent for enforcement of the right which
is the subject-matter of the suit and thus, Order 6 Rule 6
clearly applies."

16. From the above conspectus of law, it emerges that while

considering the Order VII Rule 11 of the Code only the averment

made in the plaint is required to be considered along with the

documents produced with the plaint and it has to be borne out from

the facts of the case that the entire suit is barred by law including the

limitation and no cause of action could be disclosed from the

averments made in the plaint.

17. In the facts of the case however it is difficult to come to the

conclusion that there is no cause of action averred in the plaint, more

particularly, in view of the events which have taken place from 1983

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till 1999 before filing the suit i.e. from the date of Agreement for

Sale till date of filing of the suit as it is reflected from the averments

as well as the documents annexed with the plaint which requires

scrutiny on merits after giving opportunity to the both the sides to

lead the evidence.
In such circumstances, reliance placed by learned

Senior Advocate Mr. Thakore on the decision of the Hon'ble Apex

Court in case of
Dahiben vs. Arvindbhai Kalyanji Bhanusali
(
supra)

and Canara Bank vs. P. Selathal
(supra) and the decision of this

Court in case of
Shri Ramji Mandir Narsinhji vs. Narsinh Nagar Co-

operative
Housing Society Ltd.
(supra) would not be applicable.

In

case of
Dahiben vs Arvindbhai Kalyanji Bhanusali
(supra), the Apex

Court has held that it was a case of a classic clever drafting of the

plaint attempted to make out an illusionary cause of action and bring

the suit within the period of limitation whereas in the facts of the

case, even if the subsequent amendments are not taken into

consideration, it cannot be said that it is case of clever drafting

inasmuch as the averments made in the plaint requires to be

considered after providing an opportunity to both the sides to lead

the evidence.
Similarly, in case of Canara Bank vs. P. Selathal

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(supra) considering the facts of the case and the averments made in

the plaint as the specific remedy was provided under the provisions

of the Recovery of Debts and Bankruptcy Act, 1993 and there was

inordinate delay of 15 years in challenging the action of the bank, in

such circumstances, it was held by the Apex Court that the suit was

barred by law under Order VII Rule 11 of the Code. Whereas in the

present case, merely because it is alleged by the defendant that the

suit is barred by law as the Agreement for Sale is prior to the date of

registration of the plaintiff-society, the suit could not have been

rejected as such contention is required to be tested by leading

evidence.

18. In view of the foregoing reasons, the impugned order passed by

the Principal Senior Civil Judge, Amreli dated 05.08.2021 below

Exhibit 205 is hereby quashed and set aside without adjudicating as

to whether the Court below could have re-decided Exh 205

simultaneously, while considering the review application filed under

Order 47 read with
section 151
of the Code and allowing the

application Exh 243 and dismissing the suit by allowing the

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application Exh 205 which was already dismissed earlier. As the suit

is of the year 1999, the Trial Court is directed to decide the same as

expeditiously as possible preferably within 12 months from the date

of receipt of order after giving an opportunity of leading evidence to

both the sides without being influenced by any observation made in

the impugned order passed below Exh 205 as well as the order

passed by this Court. Appeal stands partly allowed accordingly in

terms of the aforesaid directions.

19. Registry to send back records and proceedings of the case to

the Trial Court forthwith.

20. In view of the disposal of the appeal, Civil Application would

not survive. The same is disposed of.

(BHARGAV D. KARIA, J)
JYOTI V. JANI

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